Bhikajee v. Intact Insurance Company, 2023 CanLII 23591

Citation: Bhikajee v. Intact Insurance Company, 2023 CanLII 23591

Licence Appeal Tribunal File Number: 20-013575/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:

Jayashree Bhikajee Applicant

and

Intact Insurance Company Respondent

DECISION

ADJUDICATOR: Leo Demarce

APPEARANCES:

For the Applicant: Maria Papadopoulos, Paralegal

For the Respondent: Michael Courneyea, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on October 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 submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are to be decided:

a. Is the applicant entitled to $2,027.11 for chiropractic services, proposed by Brampton Civic Care Centre in a treatment plan/OCF-18 (“plan”) dated February 11, 2019?

b. Is the applicant entitled to $2,829.37 for chiropractic services, proposed by Brampton Civic Care Centre in a plan dated November 27, 2019?

c. Is the applicant entitled to $701.54 for cognitive devices, proposed by Ontario Independent Assessment Centre Inc.in a plan dated August 26, 2019?

d. Is the applicant entitled to $2,200.00 for a neurological assessment, proposed by Ontario Independent Assessment Centre Inc. in a plan dated August 27, 2019?

e. Is the applicant entitled to $1,388.72 for a driving evaluation, proposed by Ontario Independent Assessment Centre Inc. in a plan dated September 23, 2019?

f. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Ontario Independent Assessment Centre Inc. in a plan dated September 24, 2019?

g. Is the applicant entitled to $1,175.00 for a biopsychosocial assessment, proposed by Ontario Independent Assessment Centre Inc. in a plan dated October 29, 2019?

h. Is the applicant entitled to $903.99 for ergonomic devices, proposed by Ontario Independent Assessment Centre Inc. in a plan dated December 22, 2020?

i. Is the applicant entitled to $1,900.00 for MRI screening (cervical spine) proposed by Ontario Independent Assessment Centre Inc. in a plan dated December 22, 2020?

j. Is the applicant entitled to interest on any overdue payment of benefits?

Result

3I find the treatment and assessment plans 1, 2, 4, 5, 6 and 7 in dispute are reasonable and necessary pursuant to the Schedule, Interest (issue 10) applies on the payment of overdue benefits pursuant to s. 51.

4I find that treatment plan 3 and 8 and 9 are not reasonable and necessary pursuant to the Schedule and are not approved.

ANALYSIS

5Sections 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 as a result of the accident.

6The applicant bears the onus of proving entitlement to the proposed treatment by establishing that the OCF-18s are reasonable and necessary on a balance of probabilities.

Treatment Plans

Chiropractic Treatment – Issues 1 and 2 approved

7I am persuaded the applicant is entitled to both OCF-18s for chiropractic treatment in the amounts of $2,027.11 and $2,829.37, as both are reasonable and necessary pursuant to the Schedule.

8The treatment plans seek to improve muscular strength and endurance, prevent chronicity of injuries, reduce pain, increase range of motion and increase strength. The outcome sought is to assist in the applicant’s return to activities of normal living and return to pre-accident work activities.

9The applicant refers to the case L.W. and The Co-operators General Insurance Company, 2016 CanLII 93133 (ON LAT), which found that care that relieves physical pain and therefore improves function is a legitimate medical and rehabilitative goal.

10The following clinical notes provided by the applicant’s medical practitioners focus on the applicant’s physical diagnosis:

a. October 31, 2018, Dr. Dulku (family physician): diagnosed with MVA injuries, WAD-2, back sprain. Recommended physiotherapy and prescribed naproxen;

b. December 24, 2019, Dr. Dulku: diagnosed with neck strain;

c. May 12, 2019, Ultrasound; partial tear of the supraspinatus tendon measuring 5x4 mm in diameter;

d. May 26, 2019, Dr. Dulku: Assessment; confirmed the tear in the left shoulder and bursitis in the right shoulder, recommended to continue with physiotherapy;

e. September 15, 2019, Dr. Dulku: Assessment; bilateral trapezius muscle spasm, recommended to continue with physiotherapy, massage therapy, and chiropractic treatment;

f. July 24, 2020, Dr. Mohan (family physician): the applicant had complaints of burning sharp neck pain and shoulder pain. Dr. Mohan recommended updated x-rays and ultrasounds of both shoulders and cervical spine;

g. July 25, 2020, Dr. Patel (family physician), prescribed Baclofen;

h. August 20, 2020, Dr. Bajaj (rheumatologist): diagnosed the applicant with rotator cuff tendonitis and recommended steroid injections for pain management. On August 24, 2020 the applicant received injections of Depo-Medrol in the left shoulder;

i. March 29, 2021, Dr. Mohan: diagnosed applicant with shoulder and neck pain, recommended stretching and prescribed Celebrex.

11The respondent provides evidence from independent Insurer Examiners (IEs) Dr. Kopyto and Dr. Chaudhry to dispute that the chiropractic treatments are not reasonable and necessary. However, the IEs were charged with determining if the treatment plans were reasonable and necessary based on the applicant remaining in the Minor Injury Guideline (MIG). The applicant was removed from the MIG on June 10, 2019.

12Dr. Kopyto examined the applicant of the OCF-18 dated February 11, 2019 for chiropractic services in the amount of $2,027.11, in order to determine if the treatment plan was reasonable and necessary taking into consideration the MIG. Dr. Kopyto diagnosed the applicant in his report dated March 28, 2019 with an uncomplicated musculoligamentous strain of her neck and back. Dr Kopyto concluded that the treatment plan was not reasonable or necessary as the applicant was within the MIG.

13Dr. Chaudhry conducted a paper review of the OCF-18 dated November 27, 2019 for chiropractic services in the amount of $2,829.37, in order to determine if it was reasonable and necessary and the applicability of the MIG. Dr. Chaudry found no reason to amend the opinions expressed in the previous report on October 1, 2019 where strictly from a musculoskeletal perspective, that the claimant has suffered soft tissue injuries that would be consistent as minor injuries.

14I find that the insurer limited the IE’s scope to provide assessments based on the treatment plans being reasonable and necessary within the Minor Injury Guideline. The applicant was removed from the MIG in June of 2019.

15Dr. Kopyto’s report occurred while the applicant was still in the MIG, however the insurer did not reconsider the treatment plan after the applicant was removed from the MIG due to her physical injuries 3 months later.

16Dr. Chaudhry’s report denied the applicant mainly on the premise that the applicant was within the MIG, as per the insurer’s instructions. However, the applicant had previously been removed from the MIG.

17In contrast, I find the applicant’s evidence more persuasive because they provided opinions from multiple practitioners on multiple occasions that conclude that modalities such as chiropractic treatment are both reasonable and necessary.

18I find the respondent relied on the evidence provided by two independent examiners but limited the scope of their assessments to the MIG, which is no longer in dispute. Had the IEs been given the freedom to express their opinion without the MIG they may have found the treatment plans to be reasonable and necessary.

19For these reasons, I assign greater weight to the applicant’s evidence. Accordingly, I find that the applicant is entitled to the chiropractic treatments because these treatments are both reasonable and necessary.

Cognitive Devices – Issue 3 – denied

20I am not persuaded the applicant is entitled to the OCF-18 in the amount of $701.54 for cognitive devices because the applicant does not meet the burden of proof that these devices are reasonable and necessary pursuant to the Schedule.

21The treatment plan seeks to assist the applicant in a return to activities of normal living. As per the Occupational Therapy Cognitive Assessment (OTCA) report completed on July 25, 2019, it was recommended that the applicant subscribe to Lumosity Cognitive Training Program to attempt to increase the applicant’s memory and concentration function.

22The respondent relies on the report from Dr. Chaudhry who provided an assessment relating to the treatment plan for cognitive devices, and to determine if it was reasonable and necessary.

a. The assessor found no evidence of any objective neurological or radicular findings as a result of the subject accident. The assessor was of the opinion, strictly from a musculoskeletal perspective, that the claimant has suffered soft tissue injuries that would be consistent with “minor injuries” as defined by the SABS. Consequently, the claimant’s rehabilitation would fall within the MIG cap of $3,500. Any amount above or beyond this would be considered not necessary or reasonable.

23I find that the applicant is not entitled to the cognitive devices and that this treatment is not reasonable or necessary. It is the applicant’s burden to prove the necessity of the treatment plan and the applicant did not present any evidence other than the OCF-18. The applicant did not present any evidence relating to cognitive impairments that would require this treatment.

Ergonomic Devices – Issue 8 – denied

24I find that the applicant is not entitled to the treatment plan for $903.99 for Devices (ergonomic chair and pilates ball).

25The reason for denial for this treatment plan is that the applicant failed to attend the Insurer’s Examination (“IE”) assessment.

a. The applicant provides that the reason for this missed attendance is due to COVID.

b. Pursuant to section 44(1) of the Schedule an insurer may require an insured person to be examined. Furthermore, pursuant to s. 55 of the Schedule an insured person shall not apply to the Tribunal if the insured person has not complied with attending an examination.

26I find that the respondent did not comply with s. 44(5) of the Schedule. The applicant was given a letter denying the treatment plan and communicated that the respondent would provide notice that the respondent required an assessment at the respondent’s expense. The respondent did not provide any evidence that there was a proper notice provided to the applicant, as required by s. 44(5) of the Schedule. The respondent is basing its argument on denying the treatment plan due to the applicant’s failure to attend a s. 44 assessment. It is necessary to produce the notice documentation as evidence proving that the notice was delivered. It would then be necessary to prove that the applicant did not attend to the s. 44 assessment through some documentation, and then produce documentation that the insurer provided the applicant with alternative dates to reschedule. The only evidence produced was:

a. The denial letter which states it will arrange for an IE assessment to take place; and,

b. A statement from the respondent claiming that the applicant did not attend an s. 44 assessment.

27As per s. 55(2) of the Schedule I find that the applicant may apply to the Tribunal due to the lack of evidence provided by the respondent that the applicant failed to attend a s. 44 assessment.

28The applicant states that the goals of the treatment plan are to reduce pain, increase range of motion and to assist the applicant to return to activities of normal living. However, the applicant did not provide any evidence to support the need for these devices.

29Despite this I find that the applicant failed to provide sufficient evidence that the treatment plan for the pilates ball and ergonomic chair are reasonable and necessary because the applicant failed to meet the burden of proof as they did not provide any other than the OCF-18.

Assessments

30In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. The applicant bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary.

Neurological Assessment – Issue 4 – approved

31I am persuaded that the neurological assessment in the amount of $2,200.00 is reasonable and necessary pursuant to the Schedule.

32According to the OCF-18, the purpose of the neurological assessment is to determine whether the applicant has a neurological dysfunction, identify which component(s) of the neurological system are affected and, if possible, determine the precise location of the problem. Furthermore, the assessment will identify barriers to recovery, provide diagnosis, conclusion, and recommendations.

33The applicant is seeking the assessment to determine the cause of a multitude of complaints as identified in the OCF-18, such as:

a. Complaints of intermittent (once per week) headaches of moderate severity located on the temple area and front side of the head.

b. Intolerance to light, intolerance to noise, light-headedness, dizziness.

c. Complaints of constant bilateral neck pain with moderate severity.

d. The pain is radiating to both arms and shoulders.

e. She is experiencing weakness in both arms and her right hand, numbness and tingling in both hands.

f. Complaints of intermittent low back pain with moderate severity.

g. The pain is radiating to both legs.

h. She is experiencing weakness in both legs, numbness in both legs and feet, and tingling in both feet.

34To this end, as evidence of her ongoing struggle, the applicant points to:

i. Evidence from Dr. Dulku’s clinical notes and records complaining of tingling in and numbness in both hands, mainly the left. Also, in the report of Dr. Chaudhry, dated September 19, 2019, that there are feelings of weakness in both arms.

ii. The applicant visited her family physicians over 15 times with pain complaints, from the time of the accident to March of 2021. She was assessed by rheumatologist Dr. Bajaj and was given an injection in her shoulder for pain relief. Almost all visits resulted in a refill of pain medications or recommendation for physiotherapy.

iii. The applicant has been prescribed Naproxen, Baclofen, steroid injections, and Celebrex.

35The respondent relies on the IE report from Dr. Chaudhry for their denial. The report points to the premise that it was determining the applicability of the MIG, and the focus was from a physical perspective. The respondent’s primary focus was on a MIG determination which is not relevant. Nevertheless, Dr. Chaudhry found no evidence of any objective neurological or radicular findings as a result of the subject accident.

36The respondent’s argument does not deter the fact that the applicant has been consistent in reporting to assessors and her family GP of all of these issues. It is therefore reasonable and necessary for the applicant to get a qualified professional opinion to determine what’s going on.

37Due to the chronicity of the issues, it is reasonable to pursue this assessment to determine if the issue is neurological in nature. The costs are in line with the Schedule, the applicant has consistently reported issues that no doctor has been able to determine the cause of, and the course of treatment is reasonable to the nature of the issue.

Chronic Pain Assessment – Issue 6 – approved

38I am persuaded the chronic pain assessment in the amount of $2,200.00 is reasonable and necessary pursuant to the Schedule.

39The applicant submits they reported ongoing complaints of pain throughout the clinical notes and records of various doctors. The applicant chose to incur the full cost of the chronic pain assessment of Dr. Gofeld, a chronic pain expert, who diagnosed the applicant with chronic pain. The applicant further submits that psychologist Erin Langis diagnosed the applicant with chronic pain.

40Dr. Gofeld’s report states that the applicant is suffering from:

a. Bilateral shoulder and upper arm pain;

b. Low back and bilateral leg pain;

c. Headaches;

d. Sleep;

e. Fatigue.

41The report further summarizes the applicant’s multiple physical, emotional, and psychological issues that relate to and contribute to her chronic pain diagnosis:

a. Pain diagram demonstrated an anatomical pattern.

b. Pain intensity is moderate

c. The Heath Assessment scores revealed a moderate degree of general disability and impact on the client’s functioning.

d. Mental health screening is significant for moderate problems.

e. Catastrophizing, or Negative Pain Mindset, is present which by itself is a negative predictor for long-term disability.

f. PTSD Screening is suggesting underlying posttraumatic stress disorder

g. Coping mechanisms are adequate

h. TSK indicated a presence of disabling beliefs and fear of re-injury.

i. SSS-8 is suggestive of the presence of somatic orientation

j. Fibromyalgia score is negative for Secondary Concomitant Fibromyalgia. Widespread pain index

k. (WPI) > or = 7 and Symptom Severity (SS) Scale > or = 5, or WPI 3-6, and SS > or = 9

42Based on this report I am persuaded that the applicant is suffering from chronic pain and is supported by the many complaints to her GP Dr. Dulku as well as Dr. Mohan and Dr. Bajaj. The applicant has sought relief from her pain which has persisted since the MVA. I find that the report from Dr. Gofeld is in line with the findings from those doctors and that his background and expertise provide the applicant with substantial footing in her position.

43The respondent submits that Dr. Gofeld’s report is subjective and therefore without merit. The respondent submits that there is no legitimate medical basis to conclude that the applicant suffers from chronic pain. Despite the claim by the respondent, the applicant’s expert evidence remains largely uncontradicted, and as such, I find the respondent’s arguments unpersuasive.

44Dr. Gofeld’s findings support the chronicity of the applicant’s issues as discussed in paragraph [34] above which relate to the neurological assessment. Dr. Gofeld’s report further details the applicant’s moderate pain intensity, negative pain mindset, PTSD, and fear of re-injury which together with the applicant’s medical history, and the fact that she incurred the cost of the assessment persuade me to find that the chronic pain assessment is both reasonable and necessary.

Driving Evaluation – Issue 5 – approved

45I am persuaded that the driving evaluation in the amount of $1,388.72 is reasonable and necessary pursuant to the Schedule.

46The treatment plan seeks to assist the applicant in returning to pre-accident level of psychological functioning relating to driving a car. The applicant has complained about her fear of driving frequently and in detail during her psychological treatments.

47The applicant submits that psychologists Dr. Erin Langis and Dr. Konstantinos diagnosed the applicant with Adjustment Disorder with Depression, persistent due to chronic pain, and Specific Phobia, Situational (driving). This was diagnosed after 12 sessions of psychological treatment, a psychological progress report, and a further ten psychological treatment sessions.

48The respondent denied this treatment plan based on the finding of Dr. Syed, psychologist, in a s. 44 paper review that the “applicant did not suffer from a specific phobia warranting a driving re-integration assessment.”

49In Dr. Syed’s report dated October 31, 2018, the issue(s) in review were both the OCF-18 for the driving evaluation, and the Minor Injury Guideline. The report concludes that “From a psychological perspective she cannot be treated within the MIG.” The fundamental basis of this paper review is to evaluate if the OCF-18 is reasonable and necessary from the within the MIG. The applicant is not in the MIG so I find this report to have little weight and is not persuasive to the argument.

50I am persuaded by the psychological reports tendered by the applicant. It is clear that Dr. Langis’ and Dr. Konstantinos’ diagnoses were provided following 22 sessions of psychological treatment. I place less weight on the paper review of Dr. Syed because she had only one previous session with the applicant, and was seeking to justify the driving evaluation within the confines of the MIG.

51The applicant has demonstrated that they have a phobia of driving, and this assessment is intended to assist in reintegrating the applicant to pre-accident status with regards to driving. I find the Driving Evaluation to be both reasonable and necessary pursuant to the Schedule.

Biopsychosocial Assessment – Issue 7 – approved

52I am persuaded that the biopsychosocial assessment in the amount of $1,175.00 is reasonable and necessary pursuant to the Schedule.

53The applicant submits that she struggles with post-accident limitations and has lost interest in social and extra-curricular activities and she has also stopped driving since the accident due to fear and nervousness. The goals of this assessment are to provide insight and treatment recommendations which aid in helping with social functioning and working to strengthen family, social and community networks.

54The respondent relies on the report from Dr. Bacchiochi, who concluded that there is no evidence of a need for a social work assessment, and that the applicant is functioning at a fairly high level since the accident, continuing to work on a full-time basis. Dr. Bacchiochi does concede that the applicant suffers from an Adjustment Disorder with Mixed Anxiety and Depressed Mood.

55As stated earlier, the applicant submits that psychologists Dr. Erin Langis and Dr. Konstantinos diagnosed the applicant with Adjustment Disorder with Depression, persistent due to chronic pain, and Specific Phobia, Situational (driving). This was diagnosed after 12 sessions of psychological treatment, a psychological progress report, and a further ten psychological treatment sessions. This report further states that the applicant is struggling with post-accident limitations and has lost interest in doing things she previously enjoyed such as yoga and social events. Furthermore, the applicant’s chronic pain issues, ongoing use of pain medication, and social avoidance contradict Dr. Bacchiochi’s findings as stated above.

56Based on the applicant’s limitations with regards to social and extra-curricular activities, I am persuaded that the biopsychosocial assessment is both reasonable and necessary to assist the applicant with attaining pre-accident levels of social activity.

MRI Screening – Issue 9 – denied

57I find that the applicant is not entitled to $1,900.00 for an MRI screening of the cervical spine.

58The reason for denial for this treatment plan is that the applicant failed to attend the IE assessment.

i. The applicant provides that the reason for this missed attendance is due to COVID.

ii. Pursuant to s. 44(1) of the Schedule an insurer may require an insured person to be examined.¹ Furthermore, pursuant to s. 55 of the Schedule an insured person shall not apply to the Tribunal if the insured person has not complied with attending an examination.²

59I find that the respondent did not comply with s. 44(5) of the Schedule. The applicant was given a letter denying the treatment plan and communicated that the respondent would provide notice that the respondent required an assessment at its expense. The respondent did not provide any evidence that there was a notice provided to the applicant as required by s. 44(5) of the Schedule. The respondent is basing its argument on denying the treatment plan due to the applicant’s failure to attend a s. 44 assessment. It would therefore be necessary to produce the notice documentation as evidence, proving that the notice was delivered. It would then be necessary to prove that the applicant did not attend to the s. 44 assessment through some documentation, and then produce documentation that the insurer provided the applicant with alternative dates to reschedule. The only evidence produced is:

1. The denial letter which states it will arrange for an IE assessment to take place.

2. A statement from the respondent claiming that the applicant did not attend an IE assessment.

60As per section 55(2) of the Schedule I find that the applicant may apply to the Tribunal due to the lack of evidence provided by the insurer that the applicant failed to attend a s. 44 assessment.

61The goals of the treatment plan are to reduce pain, increase range of motion and to assist the applicant to return to activities of normal living.

62The respondent does not provide any evidence to repute the treatment plan as not being reasonable or necessary.

63I am not persuaded that the treatment plan is reasonable, even if it may be necessary. If it is necessary, then the applicant should be provided this service through OHIP as prescribed by a physician. The applicant has not provided sufficient evidence to persuade me that a diagnostic image that can be provided by OHIP will achieve the goals as laid out in the treatment plan.

64I find that the MRI treatment plan is not reasonable and necessary and therefore this treatment plan is denied.

Interest

65The applicant is entitled to interest on any incurred treatment pursuant to s. 51 of the Schedule.

ORDER

66For the reasons outlined above, I find that the applicant is entitled to the following:

1. $2,027.11 for chiropractic services, proposed by Brampton Civic Care Centre in the plan dated February 11, 2019.

2. $2,829.37 for chiropractic services, proposed by Brampton Civic Care Centre in a plan dated February 27, 2019.

3. $2,200.00 for a Neurological Assessment, proposed by Ontario Independent in a plan dated August 27, 2019.

4. $1,388.72 for a Driving Evaluation, proposed by Ontario Independent in a plan dated September 23, 2019.

5. $2,200.00 for a Chronic Pain Assessment, proposed by Ontario Independent in a plan dated September 24, 2019.

6. $1,175.00 for a Biopsychosocial Assessment, proposed by Ontario Independent in a plan dated October 29, 2019.

7. Interest on any overdue payment of benefits.

67For the reasons outlined above, I find that the applicant is not entitled to the following:

a. $701.54 for Cognitive Devices, proposed by Ontario Independent Assessment Centre in a plan dated August 26, 2019.

b. $903.99 for Devices, proposed by Ontario Independent in a plan dated December 22, 2020.

c. $1,900.00 for MRI Screening (Cervical Spine) proposed by Ontario Independent in a plan dated December 22, 2020.

Footnotes

1. 1O. Reg. 34/10, s. 43 (3) at S.44.(1)
2. 2ibid