McIntyre v. Economical Insurance Company, 2023 CanLII 19913

Citation: McIntyre v. Economical Insurance Company, 2023 ONLAT 21-005065/AABS

Licence Appeal Tribunal File Number: 21-005065/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:

Cory McIntyre

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Bruce Stanton

APPEARANCES:

For the Applicant: Michael Brill, Counsel

For the Respondent: Kadey Schultz, Counsel

HEARD: In Writing by way of written submissions

REASONS FOR DECISION

OVERVIEW

1The applicant was involved in an automobile accident on July 31, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2The morning of the accident, the applicant was a seat-belted passenger when his vehicle was rear-ended after slowing down and pulling over to the shoulder to yield to an approaching ambulance.

3The accident resulted in considerable damage to the applicant’s vehicle, but no air bags deployed. The car had to be towed from the scene. None of the occupants of the vehicles involved were noticeably injured. All left the scene without the need of ambulance service.

4The applicant attended hospital that evening, and again two days later, with complaints of headache, left-sided neck and left shoulder pain, left cheek swelling and dizziness. On each hospital visit he was advised to take pain medication. No diagnostic imaging was ordered.

5In mid-August, several weeks after the accident, the applicant applied to the insurer, Economical Insurance Company (the “respondent”), for accident benefits to address the physical and psychological injuries he sustained in the accident. Before the accident he was regularly employed. He has not resumed regular wage employment since the accident.

6The respondent denied the applicant’s claims for medical treatments and a catastrophic impairment assessment on the basis they were not reasonable or necessary as a result of the accident. It also denied three claims for assessments (neuropsychological, chronic pain, and functional cognitive) because the applicant failed to provide the information it requested, and it denied the applicant’s claim for a SPECT scan because the applicant did not first seek the service through OHIP.

7The applicant has the onus of demonstrating on a balance of probabilities that the accident benefits he seeks are reasonable and necessary as a result of the accident.

8I must decide whether the applicant has met his burden in proving that the medical services and assessments outlined in the various issues in dispute are reasonable and necessary as a result of the accident.

ISSUES

9The issues in dispute are:

1. Is the applicant entitled to $4,988.06 for occupational therapy proposed by Deena Rogozinsky in a treatment plan/ OCF-18 (“Plan”) dated July 2, 2019?
2. Is the applicant entitled to $6,010.00 for a neuropsychological assessment proposed by All Health Medical Centre in a Plan dated March 20, 2020?
3. Is the applicant entitled to $2,260.00 for a chronic pain assessment proposed by All Health Medical Centre in a Plan dated April 24, 2020?
4. Is the applicant entitled to $2,200.00 for a functional cognitive assessment proposed by All Health Medical Centre in a Plan dated April 24, 2020?
5. Is the applicant entitled to $23,020.00 for catastrophic impairment assessments proposed by All Health Medical Centre in a Plan dated July 6, 2020?
6. Is the applicant entitled to $3,060.00 for a SPECT scan proposed by Dr. Jha in a Plan dated October 6, 2020?
7. Is the applicant entitled to $2,868.87 for a chronic pain program proposed by All Health Medical Centre in a Plan dated July 17, 2020?
8. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

10I find that the applicant has not demonstrated, on a balance of probabilities, that the treatment and assessment plans above are reasonable and necessary as a result of the accident. Given my finding, no interest is owing.

ANALYSIS

The treatment and assessment plans in dispute are not reasonable and necessary as a result of the accident.

11At issue are seven treatment and assessment plans (“OCF-18s”) from various service providers. Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

12The applicant must demonstrate that each OCF-18 in dispute is reasonable and necessary by establishing that their goals are aligned with his accident-related impairments, and his impairments are attested to by objective medical evidence.

13Based upon two section 25 medical assessments, OCF-18 treatment and assessment plans, and two section 44 insurer examination (“IE”) assessments, the applicant submits that he suffers from persistent migraine headaches, chronic neck pain, post-concussive symptoms, post-traumatic stress disorder, and a traumatic brain injury as a result of the accident.

14To the date of the hearing, the applicant had received medical and rehabilitation benefits totalling $12,367.30. No detail is provided as to what these treatments consisted of; however, the applicant is reported to have been referred by his family physician to physiotherapy and chiropractic therapy. He is also reported to have been benefiting from psychological counselling treatment sessions.

Issue #1: Occupational Therapy, $4,988.06

15I find that the applicant has not proven that the occupational therapy treatment proposed is reasonable and necessary as a result of the accident.

16The treatment plan’s goals do not align with an accident-related impairment. The treatment plan proposes the development of an occupational therapy program based on the injuries listed in the OCF-18 at Part 6, identified as concussion, headache, whiplash associated disorder, sprains and strains, low back pain, dizziness, and phobic anxiety disorders. However, treatment plans are not medical evidence, and in his submissions the applicant has not directed me to any objective evidence of the applicant’s functional limitations. The applicant merely relies on a procedural fairness argument, at paragraph 18 of his submission, concerning the time that has elapsed since the IE in-home assessment of September 6, 2019. He has not provided any clinical notes and records of physicians or clinics that would possibly point to injuries or impairments that might limit his activities of daily living to justify the reasonableness and necessity of developing an occupational therapy program.

17I assign considerable weight to the in-home assessment completed by Dara Beacock, Occupational Therapist. Her report includes a review of other section 44 medical assessments conducted with the applicant in areas such as occupational therapy and functional abilities, and from a psychologist, and orthopaedic surgeon, who call into question the applicant’s self-reported functional limitations. She concludes the applicant is able to participate in his personal care and daily activities independently.

18The respondent submits surveillance evidence supports Ms. Beacock’s findings. In the surveillance, the applicant is seen participating in normal, work-like activities in his community, such as shopping, socializing, visiting friends, and starting a new business, which in my view, calls into question his need for occupational therapy.

19Accordingly, I find the applicant has not proven the treatment plan is reasonable and necessary as he provided no objective medical evidence of his functional limitations to meet his burden, where a credible in-home assessment demonstrates he can participate in activities of daily living, and surveillance evidence supports the findings of the in-home assessment. For these reasons, the applicant is not entitled to the treatment as he has not demonstrated that it is reasonable and necessary.

Issue #2: Neuropsychological assessment, $6,010.00

20I find the treatment plan for a neurological assessment is not reasonable and necessary as a result of the accident.

21To support his claim, the applicant directs me to the OCF-18 treatment plan of Dr. Ilya Gladshteyn, Psychologist, who assessed the applicant and produced a psychological report on February 11, 2020. Her report forms the basis of her recommendation for a neuropsychological assessment. It is rooted in the applicant’s reported cognitive and emotional difficulties with paying attention to conversations, keeping track of his daily schedule, and his reduced ability to focus and concentrate.

22However, I find Dr. Gladshteyn’s report of the applicant having difficulties with memory, holding attention, dissociating, and having substantial cognitive difficulties is inconsistent with the evidence provided in other s. 25 and s. 44 assessment reports. For example, in several assessment interviews the applicant is consistently noted to be alert, attentive, and a great historian, in terms of recalling facts and details. He was coherent with no indication of thought disorder. Accordingly, I assign less weight to Dr. Gladshteyn’s report and am persuaded by the consistent reports by other assessors of the applicant’s attentiveness, courtesy, and ability to recall pertinent facts.

23The respondent directs me to a s. 44 IE assessment and report of Dr. Trevor Deck, Psychologist, who found no credible evidence with which to evaluate the severity of the applicant’s mental health symptoms. He found the applicant demonstrating a significant elevation for inconsistency in validity tests, resulting in the applicant’s self-reports not being credible.

24The Gladshteyn report’s inconsistency with other medical evidence, the lack of corroborating evidence to support that the applicant has cognitive difficulties, and the inconsistencies in validity testing of the applicant’s self-reports lead me to find the applicant has not met his burden of proving this treatment plan is reasonable and necessary.

Was this treatment plan denied improperly as the applicant contends?

25Beyond the OCF-18 by Dr. Gladshteyn, the applicant submits only that this treatment plan was improperly denied and therefore that he is entitled to the benefits. The respondent defends its denial on the basis that its requests for further information on how the assessments would be conducted during COVID-19, received no substantive response from the applicant.

26I find it unnecessary to elaborate on the alleged improper denial of this treatment plan for non-compliance with a s. 33 request, as I have determined, on a balance of probabilities, that the applicant has not met his onus to prove it is reasonable and necessary.

Issue #3: Chronic Pain assessment, $2,260.00

27I find the chronic pain assessment proposal is not reasonable and necessary as a result of the accident.

28The applicant directs me to the additional comments in the OCF-18 of Dr. Inese Robertus, Physician, that refer to his difficulty completing self-care and housekeeping tasks. However, he does not provide any additional, objective evidence supporting this claim.

29I find the lack of corroborating evidence from the applicant detracts from his claim because the other medical evidence refutes any functional disability that would demonstrate the need for a chronic pain assessment. Again, I refer to Ms. Beacock’s in-home assessment report that concludes the applicant is able to conduct his housekeeping and activities of daily living without assistance and the surveillance reports which support her findings.

30The treatment plan’s goal of reducing pain, increasing strength and range-of-motion, and returning to activities of normal living are not aligned with the other medical evidence. Where the applicant has the strength, range of motion and ability to complete housekeeping and activities of daily living, the OCF-18 is, in my view, unconvincing without other medical evidence to support its recommendations.

31In the applicant’s submissions in relation to issue 7, chronic pain program, he refers me to the s. 25 report of Dr. Michael Gofeld, Physician, who makes a credible case that the applicant suffers from chronic neck pain and persistent headaches that are “more likely than not to have been caused by the accident.” However, Dr. Gofeld does not recommend a chronic pain assessment, leaving me with another reason to question whether this treatment plan is reasonable and necessary.

32I find the applicant has failed to demonstrate the treatment plan is reasonable and necessary because its objectives are not consistent with evidence of the applicant’s accident-related injuries, a credible in-home assessment refutes the applicant’s lack of functional ability, and the applicant has not directed me to any objective medical evidence to support Dr. Robertus’ proposal.

Issue #4: Functional Cognitive Assessment, $2,200.00

33I find this treatment plan is not reasonable or necessary as a result of the accident for the same reasons as discussed in issues 2 and 3, above, namely because the applicant has failed to direct me to objective medical evidence to support his entitlement to this benefit, which is his burden to do.

34The applicant, again, directs me only to the OCF-18 and a complaint of improper denial by the insurer in support of his claim for these benefits. The improper denial defence is discussed in issue 2 above and is equally unconvincing as a means of demonstrating the plan is reasonable and necessary.

35The author of the plan, Dr. Amresh Parikshya, Occupational Therapist, refers to applicant’s reported deficits in concentration, memory, information processing, planning and organizing as a basis for the assessment, but these symptoms have been widely refuted by other medical evidence as discussed above.

36Despite the applicant’s claims of difficulty with cognition, the credible assessments of the applicant’s in-home abilities, a demonstrated cognitive capacity in assessment interviews, and the absence of other corroborating medical evidence provided by the applicant, leave me to conclude that the applicant has not met his burden to prove a functional cognitive assessment is reasonable and necessary.

Issue #5: Multidisciplinary Catastrophic Impairment Assessments, $23,020.00

37I find that the applicant has not met his burden to demonstrate that this treatment plan is reasonable and necessary.

38The applicant submits his entitlement to catastrophic impairment (CAT) assessments relies only on medical evidence that demonstrates they are reasonable and necessary. He disagrees with the insurer’s position that a CAT assessment can only be justified when the medical evidence points to a level of a sustained catastrophic impairment.

39I find that, as with the other medical benefits within the purview of s. 15 of the Schedule, CAT assessments must meet the reasonable and necessary test for the insurer to be obliged to pay for them.

40As a basis for the CAT assessments, the applicant relies on the IE assessment of Dr. Robert Weinstein, Psychiatrist, that found he suffers from a complete inability to engage in employment for which he is reasonably suited by education, training and experience. He also directs me to the IE assessment of Dr. Hein Ta, Physician, that reports the applicant’s occipital nerve pain and recurring headaches, and the s. 25 assessment and report of Dr. Neilank K. Jha, Neurosurgeon, that diagnosed the applicant with a traumatic brain injury.

41I do not attach significant weight to Dr. Jha’s assessment as the diagnosis of a traumatic brain injury is not supported by other medical evidence. A CT scan taken on May 4, 2021 of the applicant’s head and cervical spine was unremarkable, and clinical notes and records of the applicant’s family physician, Dr. Christopher Nizzero, make no reference to brain injury.

42While Dr. Weinstein’s assessment is persuasive and confirms the applicant’s post-concussive symptoms, he also recommends a change in pharmaceutical treatments, and continued psychotherapy to help the applicant with dissociative symptoms and to reduce his anxiety around vehicles. It suggests that with additional therapies his accident-related impairments could be improved, and the barriers to a return to employment, reduced.

43Surveillance evidence shows the applicant engaging in work-like activities, starting a new business, connecting socially, shopping and attending appointments in the community.

44The respondent submits that s. 44 reports demonstrate the applicant’s ability to participate in personal care activities (Dara Beacock, and Dr. Osama Gharsaa, Orthopaedic Surgeon) and confirm the applicant’s predominant accident-related symptoms are migraine headaches (Dr. Michael Angel, Neurologist).

45The respondent reports that as of December 3, 2021, three and a half years after the accident, $12,367.30 had been paid in medical and rehabilitation accident benefits on behalf of the applicant. The rate of uptake in medical benefits indicates a relatively modest use of medical services that might address the applicant’s impairments and leads me to believe his accident-related injuries do not merit a CAT assessment.

46I find the applicant has not met his burden to prove the CAT assessments are reasonable and necessary because IE assessments credibly refute the severity of the applicant’s physical and psychological impairments, the traumatic brain injury diagnosis is not supported by other objective medical evidence, and the applicant’s use of accident benefits available to him within the non-CAT limit of $65,000, suggest the severity of his accident related injuries are not characteristic of a catastrophic impairment. Accordingly, I find the CAT assessments are not reasonable and necessary as a result of the accident.

Issue 6: SPECT Scan, $3,060.00

47The treatment plan proposing a SPECT scan is not reasonable and necessary as a result of the accident.

48The applicant directs me to the s. 25 assessment of Dr. Jha who recommended a SPECT scan in conjunction with his diagnosis of the applicant’s traumatic brain injury.

49As discussed above I give little weight to the s. 25 neurosurgery report of Dr. Jha because there is no corroborating medical evidence to support the applicant has traumatic brain injury. A CT scan of the applicant’s head and cervical spine on May 4, 2021, requested by the applicant’s physician, was unremarkable. Dr. Jha’s report did not include a review of other medical assessments or reports. His conclusions were largely based on the applicant’s own reports and responses to health screening questionnaires. As Dr. Deck opined, the reliability of the applicant’s self-reports is in question as his responses contained elevated inconsistencies in validity reports. The clinical notes and records of the applicant’s family physician include no references to brain injury.

50I agree with the respondent that, should it be needed, a SPECT scan would be accessible to the applicant with a referral from his physician or specialist, through OHIP. The applicant has not demonstrated why this option was not available to him or why it would be reasonable and necessary to fund this OCF-18 at the cost proposed if the service is available through OHIP.

51The applicant has not proven this treatment plan is reasonable and necessary.

Issue 7: Chronic Pain program, $2,868.87

52I find the balance of this treatment plan is not reasonable and necessary as a result of the accident.

53The OCF-18 proposed by Dr. Mikhail Shteynberg, Chiropractor, identifies goals of pain reduction, increased range of motion, return to activities of normal living, and return to pre-accident work activities. It references the recommendations of Dr. Gofeld’s chronic pain assessment report.

54The applicant did not provide a copy of this treatment plan with his evidence, nor did he refer to it in his submissions. He relies on Dr. Gofeld’s chronic pain assessment and report, and Dr. Ta’s IE report, in arguing the treatment plan is reasonable and necessary. However, he makes no distinction or comment upon the portions of the subject treatment plan that have already been approved. His submission appears as a defence of the plan’s reasonableness and necessity, in its entirety.

55The respondent approved $4,595.02 of the $7,463.89 proposed. It is only the portions of the plan that were denied, that are in dispute. The elements of the treatment plan that were denied include social worker services, a medical doctor visit, assistive devices, and a partial denial of proposed fees for psychotherapy to reflect the fee limits of the Professional Services Guideline.

56I find the respondent has denied these portions of the plan with sufficient reason. It agreed to partially fund psychotherapy services up the Guideline hourly amount of $99.75, it properly maintains that physician visits are typically covered by OHIP, and Ms. Beacock’s in-home assessment found that the applicant did not need additional assistive devices.

57In respect to social worker services, the applicant has not directed me to any evidence of the need for the social worker services. I therefore find this portion of the OCF-18 was properly denied.

58I find the remaining amount at issue in this treatment plan is not reasonable and necessary because the applicant failed to provide sufficient evidence in support of it, which is his burden to do. A credible IE assessment refutes the need for assistive devices, physician visits are covered by OHIP, the insurer is justified in limiting payments in accordance with Professional Services Guideline, and the applicant provides no evidence to support the need of social worker services. For these reasons, I find the remaining portion of this treatment plan is not reasonable and necessary.

Issue #8: Interest

59As I have found none of the treatment and assessment plans are reasonable and necessary as a result of the accident, no interest is owed.

CONCLUSION AND ORDER

60The seven treatment and assessments plans are not reasonable and necessary as a result of the accident. No interest is owed.

61The application is dismissed.