Licence Appeal Tribunal File Number: 21-004184/AABS
In the matter of an application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.
Between:
Onu Lawrence
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Christopher Evans
APPEARANCES:
For the Applicant:
Alexei Antonov, Counsel
For the Respondent:
Danielle N. Wilkinson, Counsel
HEARD:
By Way of Written Submissions
BACKGROUND
1Lawrence Onu (the “applicant”) was involved in an automobile accident on December 24, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied certain benefits by Intact Insurance Company (the “respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
2The applicant’s car was T-boned as he drove through a four-way intersection. He alleges that he sustained a psychological impairment and suffers from chronic pain as a result of the accident.
3The applicant sought funding for a variety of treatments and assessments. The respondent refused to provide funding on the grounds that he sustained a predominantly minor injury as defined in s. 3 of the Schedule, and was therefore limited to $3,500.00 in medical and rehabilitation benefits and subject to treatment under the Minor Injury Guideline (the “MIG”).
4The applicant seeks determinations that he is not limited to $3,500.00 in medical and rehabilitation benefits, that he is entitled to the benefits and assessments in dispute with interest, and that he is entitled to award under s. 10 of Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits.
ISSUES
5The issues are as follows:
Did the applicant sustain a predominantly minor injury subject to treatment under the $3,500.00 limit on medical and rehabilitation benefits?
Is the applicant entitled to the following medical benefits proposed by Downsview Healthcare Inc.:
i. $2,575.12 for physiotherapy, proposed in a treatment and assessment plan/OCF-18 (“plan”) dated March 22, 2019;
ii. $1,901.88 for physiotherapy, proposed in a plan dated October 4, 2019;
iii. $1,866.28 for physiotherapy, proposed in a plan dated February 14, 2020;
iv. $1,563.72 for spinal decompression, proposed in a plan dated February 28, 2020;
v. $3,335.98 for psychological treatment, proposed in a plan dated December 11, 2020; and
vi. $13,223.59 for a chronic pain program, proposed in a plan dated June 15, 2021?
- Is the applicant entitled to the following assessments proposed by Downsview Healthcare Inc.:
i. $2,000.00 for a psychological assessment, proposed in a plan dated April 11, 2019;
ii. $2,000.00 for a chronic pain assessment, proposed in a plan dated October 4, 2019; and
iii. $2,000.00 for a chronic pain assessment, proposed in a plan dated November 20, 2020?
Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on overdue payments of benefits?
RESULT
6The applicant sustained a psychological impairment due to the accident. As this not a minor injury within the meaning of s. 3 of the Schedule, the applicant is not limited to $3,500.00 in medical and rehabilitation benefits.
7The applicant is entitled to the proposed psychological assessment and one of the proposed chronic pain assessments, and partially entitled to the proposed psychological treatment and chronic pain program. The applicant is not entitled to benefits for the proposed physiotherapy and spinal decompression.
8The applicant is entitled to interest on overdue payments of the benefits and assessments to which he is entitled.
9The applicant is not entitled to an award under s. 10 of Regulation 664.
PRELIMINARY ISSUES
Motion to Cancel the Videoconference Hearing and Change the Hearing Format
10A case conference for this matter was held on April 28, 2022. The applicant requested a combination hearing, with a videoconference hearing for cross-examination of the adjuster followed by written submissions. The respondent requested a written hearing on the grounds that cross-examination of the adjuster was unnecessary. In a Case Conference Report and Order dated May 3, 2022, Adjudicator Sharma ordered a combination hearing as requested by the applicant.
11The videoconference hearing was scheduled for September 22, 2022. On September 21, 2022—the day before—the respondent filed a Notice of Motion for orders striking the videoconference hearing and changing the format to a written hearing.
12I heard the motion at the start of the videoconference hearing and dismissed it. The respondent sought to relitigate an issue that Adjudicator Sharma already decided at the case conference. It conceded that an interlocutory decision is not open to reconsideration, but submitted that it was making arguments it had not made at the time of the case conference. I found this was not a change in circumstances that would justify revisiting Adjudicator Sharma’s decision. The videoconference hearing proceeded as scheduled.
Motion to Strike Parts of the Applicant’s Reply Submissions
13The respondent moved for an order striking paragraphs two and 14-19 of the applicant’s reply submissions.
14The applicant relies on an assessment he commissioned from Dr. D. Rozen. In its submissions, the respondent argued that Dr. Rozen’s opinion should not be accepted because he only reviewed three documents as part of his assessment. After the respondent’s submissions were filed on December 9, 2022, it appears that the applicant contacted Downsview Healthcare Inc. to verify what documents were provided to Dr. Rozen. At paragraph two of his reply submissions, he references an email dated December 14, 2022 listing the documents that were sent to Dr. Rozen for review. A copy of the email is attached to his reply submissions.
15The applicant cross-examined the adjuster. The parties did not arrange for a court reporter. In its submissions, the respondent disagreed with the applicant’s characterization of the adjuster’s testimony and argued that because he had not provided a transcript of the cross-examination there was no evidence to prove his “bald statements.” At paragraphs 15-19 of his reply submissions, the applicant quotes excerpts from the notes of the legal representative who conducted the cross-examination. A copy of the notes is attached to the applicant’s reply submissions.
16The respondent argues that the applicant ought to have provided the evidence referenced in the impugned paragraphs as part of his initial submissions, and that the paragraphs therefore fall outside the permissible scope of reply. The respondent argues it would be prejudiced if the applicant were allowed to file evidence that it did not have the opportunity to address in its submissions. It notes that Rule 5.2-1 of the Rules of Professional Conduct provides that a lawyer shall not submit their own affidavit evidence before a tribunal unless permitted to do so by law, the Tribunal, or the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (“Rules”).
17The applicant argues that the impugned paragraphs respond to arguments that he could not reasonably have foreseen, and that they fall properly within the scope of reply.
18I agree with the respondent that the impugned paragraphs are inappropriate and should be struck, but in my view the scope of reply is not the issue.
19At paragraph two, the applicant refers to a document that he obtained after the respondent filed its submissions. The parties were required to produce any documents they intended to rely on in advance of the deadlines for written submissions. This ensures that the parties have notice of the case to meet, which is an essential element of procedural fairness. Rule 9.4 of the Rules provides that if a party fails to comply with any Rules, directions, or orders with respect to document disclosure, that party may not rely on the document as evidence without the consent of the Tribunal. I do not consent. The respondent would be prejudiced by admitting a previously undisclosed document into evidence. It was entitled to argue that there was a weakness in Dr. Rozen’s report based on the record as it stood. The applicant is not entitled to seek out additional evidence to remedy this alleged weakness.
20Regarding paragraphs 15-19, it should go without saying that the legal representative’s notes from the hearing are not admissible as evidence. I remind the parties that I was at the hearing and heard the adjuster’s testimony.
21The motion is granted in part. Paragraphs two and 15-19 and Tabs 2 and 6 of the applicant’s reply submissions are struck. Paragraph 14 does not quote the legal representative’s notes and is therefore not struck.
DID THE APPLICANT SUSTAIN A PREDOMINANTLY MINOR INJURY SUBJECT TO TREATMENT UNDER THE $3,500.00 LIMIT ON MEDICAL AND REHABILITATION BENEFITS?
22I find that the applicant sustained a non-minor injury, and is consequently not limited to $3,500.00 in medical and rehabilitation benefits.
23Section 18(1) of the Schedule provides that an insured person who sustains an impairment that is predominantly a minor injury is limited to $3,500.00 in medical and rehabilitation benefits. Minor injuries are subject to the treatment framework in the MIG.
24A minor injury is defined in s. 3 of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
25The onus is on the applicant to prove that his injuries are not subject to treatment under the $3,500.00 limit on benefits and the MIG: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.
26The applicant alleges that he suffers from two non-minor injuries: a psychological impairment and chronic pain.
27With respect to the alleged psychological impairment, the applicant relies on an assessment conducted by Dr. A. Shaul, a psychologist, and Ms. H. Ilios, a psychotherapist. In their report dated April 26, 2020, they opined that the applicant suffered from adjustment disorder with mixed anxiety and depressed mood, a condition in the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (“DSM-V”). The applicant notes that he received treatment from a psychiatrist in 2020 and a psychotherapist in 2021, and that he attended a clinic on June 8, 2022 complaining of insomnia and nightmares, among other things.
28The respondent argues that the applicant did not sustain a psychological impairment. It relies on three independent assessments by psychologists: a report by Dr. S. McDowall dated June 4, 2019, and reports by Dr. C. Gooden dated March 5, 2021 and July 29, 2022. In all three reports, the assessors concluded that the applicant did not suffer from a DSM-V disorder or a psychological impairment. The respondent also argues that the applicant’s psychological symptoms concern his financial situation and are unrelated to the accident. It notes that the applicant reported feeling anxious and stressed about being in debt at two doctor’s appointments preceding the accident, on March 14 and August 4, 2018.
29I find that the applicant sustained a psychological impairment due to the accident.
30I find it persuasive that the applicant’s family doctor referred him to two psychiatrists, who diagnosed him with DSM-V disorders, prescribed him medication, and one of whom provided ongoing treatment for approximately six months:
a. At a doctor’s appointment on March 4, 2020, the applicant complained of low mood, panic attacks, flashbacks, and reduced libido since the accident. His family doctor referred him for consultations with two psychiatrists: Dr. M. Hussain and Dr. M. Mrozek.
b. The consultation with Dr. Hussain was on May 13, 2020. Dr. Hussain’s report notes that the applicant complained of depressed mood, withdrawing from social activities when he is feeling down, difficulty sleeping more than four to five hours per night, feeling that his mind is racing, worrying about his future finances, and problems concentrating and focusing. Dr. Hussain diagnosed him with an “unspecified depressive disorder,” provided a prescription for a trial of Cymbalta, and recommended cognitive behavioural therapy and sleep hygiene practices.
c. The consultation with Dr. Mrozek was on May 19, 2020. Dr. Mrozek’s report notes that the applicant’s chief complaint was sleeping poorly since the accident, and that he was also experiencing anxious dreams and occasional nightmares, severe headaches, significant weight gain, and reduced libido. Dr. Mrozek observed that the applicant’s affect was depressed and his anxiety level was increased. Dr. Mrozek diagnosed him with acute stress disorder with weight gain approaching obesity and insomnia. He prescribed Amitriptyline as a sleep aid and discussed sleep and dietary hygiene with the applicant.
d. Dr. Mrozek continued to see the applicant on a monthly basis until November 28, 2020, when he determined that the applicant no longer required treatment.
31While I give more weight to the opinions of the applicant’s treating doctors, Dr. Shaul and Ms. Ilios’s report bolsters my conclusion that the applicant sustained a psychological impairment. Dr. Shaul and Ms. Ilios recorded similar complaints as Dr. Hussain and Dr. Mrozek except for reduced appetite and weight loss. These complaints included difficulty sleeping, occasional nightmares and flashbacks, decreased energy, anger and irritability, depressed mood, anxiety about the future, social withdrawal, anhedonia, impaired concentration and memory, and anxiety as a passenger or a pedestrian. They found that the applicant’s score on the Beck Depression Inventory II, a diagnostic test, indicated that he was experiencing symptoms of depression in the moderate range. They diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood.
32Finally, I note that the applicant saw Ms. S. Ragheb, a psychotherapist, five times between February 4 and March 4, 2021. While she was not qualified to diagnose the applicant with a psychological disorder, her clinical notes show that the treatment focused on helping him manage feelings of anxiety when he recalled the accident.
33I do not accept Dr. McDowall’s and Dr. Gooden’s opinions for two reasons.
34First, the applicant reported only mild psychological symptoms to them. He told Dr. McDowall that he did not have difficulty falling asleep, he thought about the accident “sometimes” and “once in a while” but felt anxious and frustrated when reminded of it, and he was depressed at the time of the accident but not anymore. In his first interview with Dr. Gooden, he reported that his sleep had improved with Dr. Mrozek’s treatment, and denied any symptoms of depression, anxiety, panic attacks, and post-traumatic symptom disorder. In his second interview, he reported somewhat more significant symptoms, including occasional feelings of sadness, worthlessness, and guilt, decreased energy and motivation, driver and passenger anxiety, and social anxiety.
35Given the applicant’s self-reported symptoms, it is unsurprising that Dr. McDowall and Dr. Gooden came to the conclusions they did. In my view, this does not indicate that the applicant’s symptoms actually were that mild, but that he did not open up to Dr. McDowall and Dr. Gooden about them. Dr. McDowall observed that he was reserved throughout the assessment, did not provide elaborate responses, and needed multiple prompts for more information. She opined that his high score on the Impact of Event Scale-Revised, a diagnostic test for post-traumatic symptom disorder, was inconsistent with his clinical presentation because he did not appear to be distressed when discussing the accident. Given that the applicant was meeting Dr. McDowall and Dr. Gooden for the first time to conduct independent assessments arranged by his insurer, it is understandable that he would be reluctant to confide in them about such a sensitive personal matter. I consequently give more weight to the descriptions of his symptoms that he provided to his family doctor, Dr. Hussain, and Dr. Mrozek.
36Second, Dr. McDowall and Dr. Gooden did not have the benefit of the clinical notes and records of the applicant’s family doctor, Dr. Hussain, or Dr. Mrozek. Dr. McDowall assessed the applicant before he first approached his family doctor about his psychological symptoms on March 4, 2020. The only records that she identified as relevant were the OCF-18 for a psychological assessment dated April 11, 2019, and an independent musculoskeletal assessment report of Dr. M. Hanna dated May 13, 2019, which records that the applicant reported certain psychological symptoms. Although the clinical notes and records were available by the time of Dr. Gooden’s assessment, they are not listed in the documents she reviewed. The reports note that the applicant mentioned having received treatment from Dr. Mrozek, but state incorrectly that Dr. Mrozek is a psychologist and that he provided talk therapy.
37In my view, the clinical notes and records of the applicant’s family doctor, Dr. Hussain, and Dr. Mrozek are the strongest evidence that he sustained a psychological impairment. Had Dr. McDowall and Dr. Gooden seen those documents, I find it likely that they would have had reason to question the mildness of the applicant’s reported symptoms and could have reached different conclusions.
38I do not accept the argument that the applicant’s psychological symptoms were exclusively a reaction to his financial issues. While the applicant reported before and after the accident that these were a cause of anxiety and worry, I find it implausible that the accident had no impact on his mental health. His psychological symptoms were broader than anxiety about his finances. For example, the applicant did not report any symptoms of depression at the doctor’s appointments before the accident. He acknowledged to Dr. Mrozek and the assessors that he was anxious about his financial situation but attributed all of his other symptoms to the accident.
39As a psychological impairment is not a minor injury within the meaning of s. 3 of the Schedule, the applicant is not limited to $3,500.00 in medical and rehabilitation benefits. The applicant also submitted that his chronic pain constitutes a non-minor injury. Given that I have already found he sustained a non-minor injury, I need not consider this submission.
IS THE APPLICANT ENTITLED TO THE MEDICAL BENEFITS AND ASSESSMENTS IN DISPUTE?
40The Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident for the medical benefits enumerated in s. 15, including the costs of assessments. The onus is on the applicant to prove that the OCF-18s in dispute are reasonable and necessary.
41At issue are benefits for physiotherapy, spinal decompression, psychological treatment, and a chronic pain treatment program, and the costs of a psychological assessment and two chronic pain assessments. The applicant submits that these treatments and assessments are reasonable and necessary given his psychological impairment and chronic pain. The respondent submits that the applicant has not provided objective medical evidence to justify ongoing treatment. It argues that his physical injuries were minor and caused no functional impairment, and that he has fully recovered from them. It argues that he has also recovered from his psychological injuries, and that the OHIP-funded treatment he received from Dr. Mrozek obviated the need for psychological treatment.
Psychological Assessment
42The applicant submitted an OCF-18 dated April 11, 2019 seeking $2,000.00 for the cost of a psychological assessment. The respondent denied the assessment on the grounds that the applicant had sustained a predominantly minor injury. It commissioned Dr. McDowall’s independent assessment, which concluded that the applicant had not sustained a psychological impairment and that the proposed psychological assessment was therefore not reasonable or necessary. The applicant proceeded with the psychological assessment, which Dr. Shaul and Ms. Ilios conducted.
43Given that I have found that the applicant sustained a psychological impairment, and that I accept Dr. Shaul and Ms. Ilios’s findings, a psychological assessment was clearly reasonable and necessary. I find that the applicant is entitled to the cost of the psychological assessment.
Psychological Treatment
44The applicant submitted an OCF-18 dated December 11, 2020 seeking $3,335.98 for mental health counselling. The OCF-18 states that the proposed services are based on the recommendations made in Dr. Shaul and Ms. Ilios’s psychological assessment. Dr. Shaul and Ms. Ilios recommended 12 counselling sessions to focus on building the applicant’s confidence, help reduce his recurrent distressing thoughts of the accident, and address his symptoms of anxiety and depression.
45Relying on Dr. McDowall’s assessment, the respondent denied the treatment on the grounds that the applicant had sustained a predominantly minor injury. The respondent later commissioned Dr. Gooden’s assessments to re-evaluate the applicant’s entitlement to this treatment. The respondent maintained its position based on Dr. Gooden’s opinion that he did not suffer from a psychological impairment.
46The applicant saw Ms. S. Ragheb, a psychotherapist, five times between February 4, 2021 and March 4, 2021. Ms. Ragheb’s notes from the first appointment observe that the applicant was experiencing intense distress and anxiety when he recalled the accident. The psychotherapy sessions focused on helping him manage those feelings. At the last session, the applicant reported having made progress. No further treatment was contemplated.
47The respondent argues that the proposed psychological treatment is not reasonable and necessary because the applicant’s psychological symptoms had resolved by November 28, 2020 with Dr. Mrozek’s OHIP-funded treatment.
48Dr. Mrozek’s clinical notes show that the applicant reported steady improvement in his symptoms, and that as of September 4, 2020 he felt “90% back to normal.” On November 28, 2020, Dr. Mrozek determined that the applicant had recovered and no longer needed psychiatric treatment. His progress note records that the applicant was “satisfied with his overall status, level of function, and level of energy,” showed no signs of depression, and had discontinued the sleep medication (Amitriptyline) on his own accord. Dr. Mrozek noted that the applicant had the option of contacting him in the future if needed. The applicant did not do so.
49At first glance, it seems inconsistent that the applicant sought psychotherapy only three months after Dr. Mrozek determined that he had recovered. However, on a balance of probabilities, I am persuaded that this treatment was reasonable and necessary. The focus of Dr. Mrozek’s treatment was the applicant’s poor sleep and depression. Mr. Mrozek’s progress notes state that the applicant did not show “undue” anxiety at the June 13, 2020 appointment, that his anxiety level was “reduced” at the July 10, 2020 appointment, and that his anxiety level was “controlled” at the October 31, 2020 appointment. These statements indicate that the applicant still did experience anxiety to some extent. It is understandable why he might follow up with psychotherapy to address it. His anxiety could have relapsed, or it could have become more prominent once his other psychological symptoms abated. Psychotherapy, as opposed to psychiatric treatment, may have been the best way to address his anxiety. As the applicant did not receive benefits for psychotherapy, he presumably paid for it himself.
50The OCF-18 proposed 14 counselling sessions of $224.42 each, $144.10 for documentation support activity, and $50.00 for facilitation, cognition, and learning. I find that five sessions of psychotherapy and the cost of documentation were reasonable and necessary, for a total of $1,266.20. As Ms. Ragheb determined that no further treatment was necessary after March 4, 2021, I find that the other nine proposed sessions of psychotherapy are not reasonable and necessary. It is unclear what facilitation, cognition, and learning entails, therefore I find that the applicant has not established that this expense was reasonable and necessary.
51The only evidence that the applicant experienced mental health issues after March 4, 2021 is a clinical note of June 8, 2022 that recorded the applicant was experiencing insomnia and nightmares. The clinical note states “??PTSD after accident” and that the doctor prescribed a trial of Prazosin. In my view, a single recorded episode of insomnia and nightmares is insufficient to establish that the applicant experiences continuing psychological symptoms that would justify the proposed treatment. I place little weight on the suggestion that the applicant may suffer from PTSD given that none of his treating doctors or the assessors made that diagnosis. The clinical note of June 8, 2022 states that the applicant needed a family doctor. This implies that the author was not the applicant’s family doctor, and would have been unaware of the applicant’s medical history beyond what he reported at the appointment.
Chronic Pain Assessments
52The applicant submitted an OCF-18 dated October 4, 2019 seeking $2,000.00 for a chronic pain assessment. The respondent denied the assessment based on an independent assessment report by Dr. Hanna dated November 20, 2019, which concluded that the applicant sustained minor injuries and did not meet the diagnostic criteria for chronic pain syndrome. The applicant submitted a second OCF-18 seeking $2,000.00 for a chronic pain assessment, this one dated November 20, 2020. The respondent maintained its denial.
53The applicant commissioned a chronic pain assessment from Dr. D. Rozen, whose report is dated May 26, 2021. Dr. Rozen diagnosed the applicant with chronic pain disorder with chronic myofascial pain in the cervical and lumbar regions of the spine and chronic post-traumatic headaches.
54The respondent relies on Dr. Hanna’s independent assessments. In particular, Dr. Hanna’s paper review dated November 20, 2019 considered whether a chronic pain assessment proposed in an OCF-18 dated November 1, 2019 was reasonable and necessary. Dr. Hanna opined that based on the materials he reviewed, the applicant did not meet the tests for chronic pain syndrome under the fourth and sixth editions of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”).
55The parties’ submissions focused on whether Dr. Rozen’s diagnoses were correct. However, the applicant need only establish that a chronic pain assessment was reasonable and necessary in the circumstances. This does not require him to conclusively establish that he meets the diagnostic criteria for a chronic pain condition.
56I find that an assessment was reasonable and necessary given that the applicant experienced ongoing pain for years after the accident. He reported having pain in his neck, low back, wrist, and left hand at a doctor’s appointment on March 18, 2019, and continuing pain in his back and shoulder at the appointment on March 4, 2020. He reported pain to Dr. Hussain, Dr. Mrozek, and all the assessors, whose reports span a period from May 13, 2019 to July 29, 2022. At the June 8, 2022 doctor’s appointment, the applicant reported pain in his back, shoulder, and neck, radiating to his arms and legs. He described the pain as recurrent since the accident, with the current episode having lasted one and a half months. The doctor diagnosed him with chronic neck, low back, and shoulder pain, and ordered diagnostic imaging of those areas. At a minimum, it should have been apparent that the applicant possibly suffered from chronic pain. An assessment to explore that possibility was reasonable and necessary.
57In my view, Dr. Hanna’s paper review does not rule out the possibility that the applicant suffered from chronic pain syndrome. Dr. Hanna obviously did not have the benefit of medical records and assessment reports that were produced after November 20, 2019. Had he seen them, I find that he might have come to a different conclusion regarding whether the applicant met the criteria in the AMA Guides for chronic pain syndrome:
a. The fourth edition requires a person to have at least two of six characteristics to establish a presumptive diagnosis of chronic pain syndrome. Dr. Hanna observed that the applicant had only one: pain greater than six months in duration. However, the applicant also met the criterion for depression, which states that patients tend to have psychological test results that suggest depression, among other things. He also arguably met the criterion for dysfunction given that he reported withdrawing from social situations and recreational activities to Dr. Hussain and Dr. Shaul and Ms. Ilios.
b. The sixth edition requires a person to have at least three of six characteristics. Dr. Hanna observed that the applicant had none. However, the applicant arguably met the criteria for withdrawal from the social milieu, failure to restore pre-injury function after a period of disability, such that his physical capacity was insufficient to pursue work, family, or recreational needs, and development of psychosocial sequelae including anxiety, fear-avoidance, depression, or non-organic illness behaviour.
58I conclude that the applicant is entitled to $2,000.00 for the cost of a chronic pain assessment. A second chronic pain assessment would be a duplication of services and is therefore not reasonable and necessary.
Chronic Pain Treatment
59The applicant submitted an OCF-18 dated June 15, 2021 seeking $13,223.59 for a chronic pain program. The OCF-18 states that the proposed services are based on Dr. Rozen’s recommendations. The proposed services include 12 sessions of psychotherapy to assist the applicant in accepting and adapting to his chronic pain, 20 sessions of chiropractic treatment, 20 sessions of a functional exercise program, 10 sessions of spinal decompression therapy, 20 sessions of laser therapy, 15 sessions of massage therapy, 21 sessions of shockwave therapy, 15 sessions of mobilization by a massage therapist, two education sessions, and expenses for reviewing file materials, consulting with treatment providers, follow up assessments, and a progress report.
60As noted above, the parties’ submissions focused on whether the applicant suffers from chronic pain syndrome or chronic pain causing sufficient functional impairment to qualify as a non-minor injury. I need not decide these questions to assess whether the proposed services are reasonable and necessary. I have found that the applicant suffers from ongoing pain due to the accident. The reasonableness and necessity of treating this pain is not contingent on whether it meets the test for chronic pain syndrome or a non-minor injury. It is well-settled that pain relief is a legitimate goal for treatment: N.K. v Aviva Insurance Company, 2020 CanLII 30390 (ON LAT) at para 14.
61Dr. Rozen opined that the applicant should receive treatment to help him function more effectively and to prevent his symptoms from worsening. Dr. Rozen recommended some but not all of the proposed services in his report, including exercises, psychotherapy, and periodic chiropractic treatment or physical therapy on an as-needed basis.
62While the respondent challenges the correctness of Dr. Rozen’s diagnoses, it did not take issue with Dr. Rozen’s recommendations for treatment. It did not commission Dr. Hanna to provide an opinion on the proposed chronic pain program. It did commission Dr. Hanna to assess whether an OCF-18 of October 4, 2019 proposing chiropractic treatment was reasonable and necessary. In a report dated November 20, 2019, Dr. Hanna opined that the applicant did not require further facility-based treatment as such treatment is generally undertaken during the first 10-12 weeks after soft-tissue injuries are sustained. He also opined that the applicant’s prognosis was favourable.
63In my view, Dr. Hanna’s reports do not refute Dr. Rozen’s recommendations for treatment. Dr. Hanna’s opinion that further facility-based treatment was unnecessary was premised on his expectation that the applicant’s soft-tissue injuries would resolve. This opinion does not speak to the appropriateness of facility-based treatment for chronic pain.
64As Dr. Rozen’s recommendations for treatment are uncontradicted, I accept them. I find that the corresponding services proposed in the chronic pain program are reasonable and necessary, as follows:
a. The applicant is entitled to twelve sessions of psychotherapy and the cost of the psychotherapist’s review of file materials and consultation with other treatment providers. I note that the stated purpose of the psychotherapy is to help the applicant manage his pain, and not to address depression, anxiety, or other mental health issues.
b. The applicant is entitled to 20 sessions of chiropractic services.
c. The applicant is entitled to 20 sessions of the functional exercise program.
d. The applicant is entitled to the costs of follow-up assessments by Dr. Rozen and Dr. O. Pivtoran (who drafted the OCF-18 and is listed as the treating chiropractor) and a progress report. Given that the chronic pain treatment program is multi-disciplinary and long-term in scope, it is reasonable to provide for assessments of the applicant’s progress.
65The total cost of these services is as follows:
Review of file materials (psychotherapist)
$141.55
Consultation with treatment providers (psychotherapist)
$141.55
Psychotherapy (12 sessions)
$2,693.04
Chiropractic rehabilitation (20 sessions)
$2,256.20
Functional exercise program (20 sessions)
$1,400.00
Follow-up assessment (Dr. Rozen)
$350.00
Progress report
$250.00
Follow-up assessment (Dr. Pivtoran)
$200.00
Total
$7,432.34
66The applicant has not established that he is entitled to the other services proposed in the OCF-18. They are not recommended in Dr. Rozen’s report, and the applicant has identified no other evidence demonstrating that they are reasonable and necessary. The OCF-18 is stated to be based on Dr. Rozen’s treatment recommendations. However, an OCF-18 is insufficient in itself to prove that services it proposes are reasonable and necessary.
67I conclude that the applicant is entitled to $7,432.34 for the chronic pain treatment program.
Physiotherapy and Spinal Decompression
68The final four benefits in dispute are as follows:
a. $2,575.12 for physiotherapy, proposed in an OCF-18 dated March 22, 2019. The respondent denied the benefit on the grounds that the applicant sustained a predominantly minor injury.
b. $1,901.88 for physiotherapy, proposed in an OCF-18 dated October 4, 2019. Relying on Dr. Hanna’s report of November 20, 2019, the respondent denied the benefit on the grounds that the applicant sustained a predominantly minor injury and that further facility-based rehabilitation was not reasonable or necessary.
c. $1,866.28 for physiotherapy, proposed in an OCF-18 dated February 14, 2020. The respondent noted that the proposed services were similar to those proposed in the treatment plan of October 4, 2019, and denied the benefit on the same grounds.
d. $1,563.72 for spinal decompression, proposed in an OCF-18 dated February 28, 2020. Relying on Dr. Hanna’s report of May 5, 2020, the respondent denied the benefit on the grounds that further facility-based rehabilitation was not reasonable or necessary.
69I note that the services proposed in the first three OCF-18s are not physiotherapy, but mainly chiropractic treatment and massage therapy.
70The applicant submits that the services proposed in the OCF-18 dated October 4, 2019 are reasonable and necessary because Dr. Rozen diagnosed the applicant with chronic pain disorder and recommended physical therapy and a multi-disciplinary chronic pain program, and because the applicant’s symptoms are consistent with those described in a disability certificate (OCF-3) and his medical records. The applicant’s submissions do not specifically address why the services proposed in the other OCF-18s are reasonable and necessary.
71I find that the applicant has not met his onus of establishing that the proposed services are reasonable and necessary. The chronic pain program recommended by Dr. Rozen was proposed in a separate OCF-18, which includes 20 sessions of chiropractic treatment. The applicant has not identified why these additional services are reasonable and necessary.
IS THE APPLICANT ENTITLED TO AN AWARD?
72Section 10 of Regulation 664 states that, in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, the Tribunal may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award.
73The applicant submits that the respondent unreasonably withheld benefits because it only considered the independent assessments and closed its mind to the other evidence. He argues that on cross-examination, the adjuster admitted that she gives greater weight to independent assessments than the applicant’s clinical notes and records and the reports he commissioned, and that she only took half a day to review the applicant’s file before determining that his injuries could be treated under the MIG.
74The respondent submits that the applicant mischaracterizes the adjuster’s testimony, that the denial letters demonstrate it considered all the available evidence, that it provided all available medical records to the independent assessors, and that it requested documentation from the applicant that he never provided.
75I find that the applicant is not entitled to an award:
a. The adjuster was not asked whether she placed greater weight on any of the independent assessments commissioned to adjust the applicant’s file, but whether she did so as a general practice.
b. Placing greater weight on the opinion of one’s own expert does not on its own amount to excessive, imprudent, stubborn, inflexible, unyielding or immoderate conduct that would merit an award. I would be surprised if the applicant did not place greater weight on his experts’ opinions.
c. Placing greater weight on certain evidence is not the same as closing one’s mind to all other evidence.
d. The adjuster did not say that she reviewed the file for half a day before determining that the applicant’s injuries could be treated under the MIG. She said that she reviewed the file for half a day to prepare for her cross-examination.
IS THE APPLICANT ENTITLED TO INTEREST?
76The applicant is entitled to interest for the benefits and assessments to which he is entitled. Interest is calculated pursuant to s. 51 of the Schedule.
ORDER
77As the applicant sustained a non-minor injury, he is not limited to $3,500.00 in medical and rehabilitation benefits.
78The applicant is entitled to the following benefits and assessments with interest:
e. $2,000 for a psychological assessment as proposed in the OCF-18 dated April 11, 2019;
f. $1,266.20 for psychotherapy as proposed in the OCF-18 dated December 11, 2020;
g. $2,000 for a chronic pain assessment as proposed in the OCF-18s dated October 4, 2019 and November 20, 2020; and
h. $7,432.34 for a chronic pain treatment program as proposed in the OCF-18 dated June 15, 2021.
79The applicant is not entitled to an award.
Released: February 27, 2023
__________________________
Christopher Evans
Adjudicator