Licence Appeal Tribunal File Number: 21-004152/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:
Maryan Osman
Applicant
and
BelairDirect
Respondent
DECISION
ADJUDICATOR:
Kevin Lundy
APPEARANCES:
For the Applicant:
Maryan Osman, Applicant Sam Elbassiouni, Paralegal Rajiv Kapoor (Observer)
For the Respondent:
Jennifer Taché, Representative Rebecca Savoy, Representative
Meredith A. Harper, Counsel
Court Reporter:
Michelle Beck
Heard by Videoconference:
November 28, 29, 30, 2022, February 27, 28, March 1, 2, 2023
OVERVIEW
1Maryan Osman (‘the applicant’) was involved in an automobile accident on November 8, 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 benefits by BelairDirect (‘the respondent’) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’) for resolution of the dispute.
2The applicant attributed her neck and back pain, dizziness, nausea and anxiety to the accident and took the position that she suffered a substantial inability to perform the essential tasks of her pre-accident employment following a loss of consciousness at her workplace approximately two weeks after the accident which she believes was the result of the collision. The respondent terminated the applicant’s income replacement benefit on May 21, 2019 as its assessment indicated that she no longer suffered a substantial inability to perform the essential tasks of employment as a result of her accident related injuries. The respondent opposed payment of the remaining treatment plans on the basis that they were not reasonable or necessary.
ISSUES
3The issues in dispute are as follows:
Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from May 28, 2019 to May 27, 2021?
Is the applicant entitled to $87.19 ($1,267.88 less $1,180.69 approved) for chiropractic services, proposed by Danforth Health and Wellness in a treatment plan/OCF-18 (‘plan’) dated February 4, 2019?
Is the applicant entitled to $3,602.00 for physiotherapy services, proposed by Danforth Health and Wellness in a plan dated March 6, 2019?
Is the applicant entitled to $2,758.52 for chiropractic services, proposed by Danforth Health and Wellness in a plan dated May 31, 2019?
Is the applicant entitled to $1,296.99 ($5,100.00 less $3,803.01 approved) for social rehabilitation counselling services, proposed by Novo Medical in a plan dated July 3, 2019?
Is the applicant entitled to $4,820.00 for social rehabilitation counselling services, proposed by Novo Medical in a plan dated September 2, 2020?
Is the applicant entitled to $528.09 ($2,090 less $1,561.91 approved) for a social work assessment, proposed by Novo Medical in a plan dated May 9, 2019?
Is the applicant entitled to $2,200 for a neurological assessment, proposed by Novo Medical in a plan dated May 15, 2019?
Is the applicant entitled to $3,940.25 for a neuropsychological assessment, proposed by Novo Medical in a plan dated September 23, 2020?
Is the applicant entitled to $200.00 ($2,009.73 less $1,809.73 approved) for a driving reintegration assessment, proposed by Novo Medical in a plan dated November 10, 2020?
Is the applicant entitled to $703.90 ($2,200.00 less $1,496.10 approved) for a psychological assessment, proposed by Gladshteyn & Basaklova Psychological Corporation in a plan dated January 7, 2019?
Is the applicant entitled to $87.19 ($200.00 less $112.81 approved) for completion of a disability certificate (OCF-3) by Danforth Health and Wellness, dated December 28, 2018?
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 any overdue payment of benefits?
RESULT
4The applicant has failed to demonstrate entitlement to any of the disputed benefits. As no benefits are overdue, no interest is payable.
PROCEDURAL ISSUES
5Pursuant to the case conference order issued by the Tribunal on February 8, 2022, the hearing in this matter was originally scheduled for a five-day videoconference on November 28, 29, 30, December 1 and 2, 2022, commencing each day at 9:30 a.m. As the result of a medical emergency for the applicant’s paralegal and several problems securing witnesses to provide evidence, the hearing was adjourned on November 30, 2022 for four additional dates peremptory upon on the applicant to proceed.
6On February 27, 2023, the applicant’s paralegal requested a further adjournment based upon a sudden death in his family and his child’s hospitalization. The respondent opposed the request.
7This adjournment request was denied. Pursuant to section 25.0.1(a) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the ‘SPPA’), the Tribunal is authorized to control its own procedure with respect to matters requiring the exercise of discretion, such as scheduling and adjournment requests. Rule 16.2 of the Tribunal’s Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (the ‘Rules’) requires that “a request for an adjournment may be made orally before a Member in exceptional circumstances with the consent of the Tribunal.”
8The Tribunal schedules proceedings based on operational and legislative requirements and the principles of natural justice and fairness and is bound by a legislated mandate to deliver efficient, proportional, and timely dispute resolution. To this end, I note the following:
a. A party does not have an automatic right to an adjournment. The parties’ availability for future hearing dates was canvassed by the Tribunal at the prior hearing date on November 30, 2022 and both parties agreed to the specific four dates for continuation. As a result, the hearing dates for the present continuation were scheduled.
b. While an opposing party’s consent to an adjournment request is a factor for consideration, such an agreement is not determinative of whether the Tribunal should grant the request. In the present case, as on November 30, 2022, the respondent expressed sympathy for the applicant’s representative, but did not consent to the adjournment request.
c. As the applicant insisted upon cross-examination of all of the respondent’s witnesses rather than admitting their documents, a further delay would unduly prejudice the respondent.
d. As the hearing was adjourned peremptory on the applicant and without the respondent’s consent, some documentation of the medical emergency would be necessary following the Ontario Divisional Court’s comments at paragraph 10 of Persaud v. Estate of Rita Persaud, 2022 ONSC 2503, the citation for which I provided to the parties at the hearing for consideration. To that end, I denied the applicant’s rather circular request for an adjournment to obtain medical documents to justify the same adjournment. These documents could have and should have been obtained prior to the hearing date.
9Similarly, as the applicant had testified over two days and was therefore subject to cross-examination, I agree with the respondent that it would not serve the interests of trial fairness to convert the remainder of the hearing to written format. This request by the applicant was also denied. As a result, the hearing proceeded as scheduled.
ANALYSIS
Background
10The applicant is a single mother with a young daughter. Prior to the accident, she was employed full-time as an IT specialist. On November 8, 2018, the applicant’s Chevrolet Malibu was struck by another vehicle as the applicant was turning right. The other vehicle struck her vehicle at a near parallel angle, resulting in a sideswipe collision. As her vehicle remained driveable, following an exchange of information with the other driver, she took her daughter to daycare and drove to a collision reporting centre and then went home. Although she experienced a headache following the accident, she did not seek medical treatment on the date of the accident until November 30, 2018.
Issue 1 – Income Replacement Benefit
11The test for entitlement to payment of an income replacement benefit (‘IRB’) is set out in subsection 5(1) of the Schedule. In the applicant’s case, subsection 5(1) provides that she is entitled to an IRB if she can prove on a balance of probabilities that she was employed at the time of the accident and, as a result of the accident, she suffered a substantial inability to perform the essential tasks of her pre-accident employment. As the parties agreed that at the time of the accident, she had been employed through a contract with Rogers Communications for six to eight months, the dispute relates solely to whether, as a result of the accident, she suffered a substantial inability to perform the essential tasks of her pre-accident employment.
12Although the respondent initially approved the applicant’s claim for income replacement benefits effective November 8, 2018, it advised her by letter on May 21, 2019 that payment of this benefit would cease as it had determined that she no longer suffered a substantial inability to perform the essential tasks of her pre-accident employment as a result of her accident related injuries. The applicant did not seek income replacement benefits for the period following 104 weeks after the accident as she had returned to work in April 2022, albeit at a different company and performing different duties.
13The applicant testified that she cannot lift laptops, bend over, travel to off-site locations or between buildings, stand for extended periods or converse with people. Although she stated that she planned to remain with Rogers until December 31, 2018, her last paid date of employment was November 30, 2018, although on her own evidence, she did not remain at work for the full eight hours on that date.
14The applicant must prove the degree of her alleged inability to perform her essential pre-accident employment tasks. Between the date of the accident and November 30, 2018, she worked regular hours with no apparent accommodations from her employer or any change in her duties or commute to work or to off-site locations to assist clients. The applicant testified that on November 30, 2018, she blacked out at work, losing consciousness and attended at St. Michael’s Hospital (‘St. Michael’s’) with her manager. She did not return to her employment after November 30, 2018.
15I prefer the evidence of the respondent’s expert witnesses over the applicant’s own descriptions of her symptoms and the clinical notes and records she submitted that largely reiterated this same subjective self-reporting. Furthermore, I do not find that the applicant is entitled to an IRB as the accident reconstruction evidence demonstrated that the forces involved in the collision were extremely unlikely to cause her reported symptoms or would result in a substantial inability to perform the essential tasks of her pre-accident employment.
16The applicant relies upon statements made to treating physicians and a social worker that she was concerned with how to recover from her injuries to return to work. It was also her position that a concussion from the accident resulted in her loss of consciousness on November 30, 2018. She testified that at St. Michael’s, a physiatrist, Dr. Robert Hastings, diagnosed her with a concussion and, according to the applicant, advised against returning to work. Significantly, neither statement is supported by the documentary evidence and the alleged advice does not appear anywhere in the clinical notes and records submitted by St. Michael’s. Moreover, these documents include no record of any doctor’s advice to the applicant to refrain from working, any statement that she cannot work or any mention of a loss of consciousness at work. To the contrary, Dr. Hastings stated in his notes on November 30, 2018 that, “this patient’s assessment is consistent with whiplash associated disorder with associated posttraumatic headaches. Based on the mechanism, there is no evidence of a traumatic brain injury today.”
17There is also no persuasive evidence that the applicant informed anyone at her work that she had been in an accident prior to her attendance at St. Michael’s on November 30, 2018. Similarly, there was no evidence that she described a loss of consciousness on that date to any of the treatment providers who later interviewed her until she mentioned it to Dr. Gregory Gelman, a family physician, on May 1, 2019, roughly six months later. As well, the OHIP summary omits any description of a loss of consciousness on November 30, 2018.
18Triage records from St. Michael’s on November 30, 2018 also include no mention of a loss of consciousness, despite this alleged event having been the reason for her attendance, according to the applicant. Significantly, the St. Michael’s records also include no diagnostic test in relation to the applicant’s head. I agree with the respondent that such testing would likely have been conducted had she advised the doctors that she had hit her head during the accident or experienced a loss of consciousness on November 30, 2018, particularly given the thorough testing otherwise conducted. The discharge for that attendance stated only the single complaint of “back pain.”
19As well, when the applicant next visited her family doctor, Dr. Thanesan Gurimurthi, on December 11, 2018, the resulting clinical notes and records reference no loss of consciousness twelve days earlier. On that visit, she informed Dr. Gurimurthi that she was diagnosed with a concussion, a statement contradicted by the clinical notes and records of St. Michael’s Hospital above. On a subsequent visit the following date, the subject matter of this attendance related solely to a burn to the applicant’s hand caused by spilled porridge.
20Dr. Hastings’ subsequent report dated January 15, 2019 also contains no reference to a head injury on the day of the accident or to passing out on November 30, 2018, both of which would seem highly relevant to his treatment of her pain symptoms. The applicant reported working to November 29, 2018 but Dr. Hastings’ notes include no stated explanation for this discontinuation. Moreover, Dr. Hastings’ physical examination yielded normal results and he offered an opinion that there was no evidence of a brain injury and no restrictions on the applicant’s physical or cognitive activity and he encouraged her to stay active.
21From February through May 2019, the applicant attended at her family doctor and received Tylenol 3s which she confirmed to assist with her pain, though she continued to report headaches, neck and back pain, depression and sleep problems. Again, the resulting clinical notes and records include no mention of passing out at work. The clinical notes and records generated in January 2020 by Dr. John Rutka, also at St. Michael’s Hospital, also contained no such references. On the contrary, she reported to Dr. Rutka that she did not lose consciousness on the date of the accident, but did not mention passing out on November 30, 2018. When the applicant met with psychologist Dr. Shahryan Moshiri on March 11, 2019, she also did not mention passing out at work.
22The evidence indicates that the applicant first made vague reference to the alleged loss of consciousness to Dr. Gelman, as recorded in his report dated May 1, 2019. However, in this report, Dr. Gelman noted “at this point I could not appreciate any significant objective signs of ongoing musculoskeletal accident-related impairment.” Similarly, in his psychological paper review report, Dr. Moshiri stated, “I opine from a purely psychological perspective she is able to perform her tasks of employment.”
23At the hearing, the applicant testified that she suffered a prior injury as a result of domestic violence on June 20, 2018 when she was pushed down and hit her head. However, she acknowledged that the headaches and sleep issues associated with that injury subsided two months later. She was able to continue with her regular hours and duties at work following the assault. Although she was prescribed Ibuprofen and Tylenol following the injury in June 2018, she only needed these medications for one or two weeks. A CT scan conducted after this injury revealed “normal” results and no post-traumatic injury. Neurologist Dr. Garry Moddel also offered a substantially uncontested neurological opinion that any symptoms from the June 2018 injury would have resolved by the date of the accident. Both he and clinical neuropsychologist Dr. Mark Watson, emphasized that over time, a patient improves from mild traumatic brain injuries and such impairments do not worsen.
24The applicant relies primarily upon the expert evidence of Dr. Tajedin Getahun, an orthopaedic surgeon, in support of her position that she was substantially unable to perform the essential tasks of her pre-accident employment. Dr. Getahun examined the applicant virtually by Whatsapp for a chronic pain assessment on August 18, 2020. Although he diagnosed the applicant with chronic pain disorder, he acknowledged that the virtual format of the examination prevented him from assessing her passive range of motion, requiring him to rely upon her subjective reporting with respect to whether she was able to move various body parts. By contrast, Dr. Moddel, who examined the applicant in person, found no neurological impairment that would have prevented her from returning to her employment.
25As well, Dr. Getahun based his assessment of chronic pain syndrome upon the test in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th edition, 1993 (the “4th Edition”) rather than the current 6th edition. The 4th edition required patients to demonstrate only two of eight criteria while the 6th edition requires three of six.
26The Tribunal previously considered Dr. Getahun’s preference for the more lenient criteria in the 4th edition in Nguyen v. Allstate Canada, 2021 CanLII 30276 at paragraph 12:
Allstate submits that the test applied by Dr. Getahun is outdated. It has been superseded by the definition of chronic pain syndrome set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition, 2008 (“6th Edition”). Neither party provided me with a copy of the section of the 4th or 6th Editions they rely on. Thus, I am unaware if Dr. Getahun is correct that presence of two diagnostic criteria are sufficient to support a diagnosis. His language is interesting in that he says that two criteria “support a presumptive diagnosis” suggesting there may need to be more criteria to confirm the diagnosis. For the purpose of my analysis, however, nothing turns on my doubts about how robust Dr. Getahun’s application of the 4th Edition may be, as I am of the opinion that the 6th Edition published in 2008 better reflects the development of defining and understanding chronic pain syndrome than the 4th Edition published 15 years earlier.
27As Dr. Getahun employed strikingly similar language at the present hearing and offered no cogent rationale for this choice, the obvious inference is that he prefers the earlier edition simply because it imposes a lower standard to establish chronic pain syndrome. I find the reasoning in the above case persuasive as the more recent edition would logically better reflect the present understanding of chronic pain syndrome.
28Dr. Getahun explained that his diagnosis represents a “holistic” approach to the applicant’s reported symptoms on the basis that chronic pain syndrome exists as an interplay between physical and cognitive issues. However, I find that his opinion should be accorded reduced probative weight as he was unable to objectively assess the applicant’s passive range of motion, an objective measure necessary to accurately assess her functionality. As a result, the reliability of his findings regarding the relationship between her dramatization of symptoms and her actual physical injuries is ambiguous at best. Similarly, although otolaryngologist Dr. Guillermo Castillo also recommended a multidisciplinary approach to the applicant’s symptomology and speculated that another cause for her pain and dizziness may exist, he could not find any physical cause for these symptoms within his own field of expertise despite a thorough examination of her vestibular system.
29Dr. Getahun ultimately did not address the issue of causation in his report and only vaguely addressed the details of the applicant’s employment duties. He also did not have the applicant’s full medical history or consider any of the other medical assessments before arriving at his conclusion that the applicant could not return to work.
30By contrast, Dr. Gelman assessed the applicant in person in his office on May 1, 2019 and found no objective signs of physical impairment that would have prevented her from returning to her employment. He reviewed a hypothetical job site analysis, but this information did not change his opinion.
31As with other expert witnesses, the applicant repeatedly asked Dr. Gelman to comment on assessments outside his field of expertise and to speculate that a cause for the applicant’s symptoms may exist outside his findings. This line of questioning yielded no probative information as Dr. Gelman, like the other expert witnesses, properly deferred to the opinions of experts within their own fields. Ultimately, I prefer the evidence of Dr. Gelman over that of Dr. Getahun as Dr. Gelman performed a more comprehensive examination of the applicant in relation to her specific physical complaints as opposed to Dr. Getahun’s more speculative “holistic” approach which relied heavily on the applicant’s own subjective reporting and an overly general conception of her specific job duties.
32Similarly, while the applicant relied upon the opinion of psychotherapist Dr. Nazila Izgandaro, PhD, she did not actually treat the applicant. Moreover, Dr. Izgandaro did not make any comment on whether the applicant was substantially unable to perform the essential tasks of her pre-accident employment.
33The respondent also presented persuasive evidence that the force of the collision would have been unlikely to cause a mild traumatic brain injury as the applicant contends. Engineer Karla Cassidy conducted a reconstruction of the accident based upon the damage to the applicant’s vehicle and the applicant’s own description of the accident as provided to the collision reporting centre on the day of the accident. The applicant stated in this report that the accident occurred at between 30 and 40 km/h and agreed at the hearing that this represented more of a range or estimate.
34Ms. Cassidy testified that that since the accident involved a sideswipe collision, there would have been minimal transfer of force from the other vehicle. This would cause comparatively minor jostling to those in the vehicle with a force comparable at most to jumping and landing once in place. This degree of force results in a concussion in less than 1% of the population. Although the applicant suggested that Ms. Cassidy’s decision not to interview the applicant undermines her expert opinion, I disagree. There was no reason to conclude that the applicant’s subjective recollections of the accident would contradict either her contemporaneous written report to the police or the basic physics involved in the collision.
35Similarly, I find no merit to the applicant’s suggestion that hypothetical actions taken by either driver in the seconds preceding the impact should detract from Ms. Cassidy’s opinion which was based upon the damage to the applicant’s vehicle and the expected forces inherent in an almost parallel collision. Ultimately, the applicant also offered no contrary expert evidence to contradict Ms. Cassidy’s conclusions. As a result, I find on the balance of probabilities that the applicant has failed to demonstrate that the forces exerted on her body would have been sufficient to result in a mild traumatic brain injury.
36Zinnia Lee is a physiotherapist who examined the applicant on April 9, 2019 to assist in determining the applicant’s functional abilities to perform pre-accident employment activities as a deskside technician. As with other assessors, the applicant did not report any loss of consciousness on November 30, 2018 to Ms. Lee.
37Ms. Lee reported that the applicant demonstrated normal range of motion for the majority of the tests performed. Her report indicates that if an evaluee achieves 80% or greater of the consistency measures within the expected limits, the assessment results are considered reliable. The results of this evaluation suggest that the applicant provided a reliable effort, with 22 consistency measures yielding a reliability score of 43 out of 48 (90%). She was however unable to participate in some tasks and terminated others due to subjective pain. Ms. Lee opined that this suggests that the limited results of the evaluation were not a reliable indication of the applicant’s functional tolerance or true abilities on the date of testing.
38While lesser weight must be accorded to Ms. Lee’s report as it was submitted on consent without witness testimony, I find that it represents reliable evidence as her conclusions are supported by the findings of the other assessors who interviewed the applicant, particularly Dr. Gelman and Dr. Watson.
39Although the applicant noted a number of issues with the vocational assessment submitted by the respondent, she offered no evidence to the contrary despite an opportunity to do so.
40In light of the ambiguous evidence that the applicant actually lost consciousness at work on November 30, 2018 and her lack of treatment to that point, following the analysis in Sabadash v. State Farm et al. 2019 ONSC 1121, I find that the applicant has failed to establish that but for the accident, she would be substantially able to perform the essential tasks of her pre-accident employment.
41In light of the almost non-existent treatment records from Danforth Health and Wellness and Novo Medical, the respondent submits that the applicant has failed to demonstrate that she complied with subsection 57(2) of the Schedule requiring her to participate in rehabilitation reasonable, available and necessary to permit her to engage in employment. However, minimal though her descriptions of her brief attendance at physiotherapy were, I find that her testimony included sufficient details and was substantially unchallenged under cross-examination.
42Although a multidisciplinary approach to treating the applicant’s symptoms may well be beneficial, for the present inquiry, she has submitted no cogent of any injury physical or psychological that would objectively result in a substantial inability to perform the essential tasks of her employment. The “holistic” perspective promoted by the applicant ultimately equates to conjecture that another test not before me may have produced a different result or that somehow all of the expert evidence that did not support the applicant’s position, if added together, must somehow lead to a different inference distinct from the sum of the constituent reports. I find little merit to this essentially speculative argument.
Issue 2 – Chiropractic Treatment Plan dated February 4, 2019
43Section 15 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by the insured person for medical benefits. I do not find that the applicant is entitled to this treatment plan as the evidence of the respondent indicated that it is neither reasonable nor necessary.
44On February 14, 2019, the respondent advised the applicant by letter that the February 4, 2019 treatment plan had been partially approved for $1,267.88. The $87.19 balance was denied as the respondent deemed that at the time, the applicant’s injuries fell within the Minor Injuries Guideline (‘MIG’). The applicant takes the position that once the applicant was removed from the MIG, the respondent should have deemed the treatment plan reasonable and necessary and approved the balance.
45In support of this position, the applicant relies upon Yang v. Dominion of Canada General Insurance Company (Travelers), 2022 CanLII 23412 at paragraph 12, in which the Tribunal noted that once an applicant is removed from the MIG, the insurer has an obligation to re-evaluate the treatment plans it denied the applicant based on the injuries being minor and subject to the MIG monetary limits. Once the applicant was no longer classified as having minor injuries, the applicant had access to greater funding up to $65,000.00 for benefits. The Schedule does not differentiate between the reasons why someone is removed from the MIG and the treatment they could receive. Once the applicant is removed from the MIG, all treatment plans are subject to the test of being reasonable and necessary.
46While I agree with this analysis, a key element of the above test is that the outstanding plans must be re-evaluated, not simply denied or approved. In the present case, the respondent properly relied upon the reports submitted by the I.E. assessors to determine that the proposed plan was not reasonable or necessary.
47The applicant testified that she received physiotherapy treatment at Danforth Health and Wellness starting in December 2018 and that these treatments assisted her with mobility through various exercises. She stated that she stopped attending around May 2019 when the respondent discontinued funding the treatments. She agreed that these treatments were helpful as they assisted with her neck and back pain, if not her anxiety.
48The applicant’s testimony represented the only evidence that she incurred these treatments as she submitted no records of treatment for this plan or any other proposed in the application. She also acknowledged that her attendance for treatment was sporadic at best. The records ostensibly submitted from Danforth Health and Wellness contain only a single questionnaire but no SOAP (‘subjective, objective, assessment, and plan‘) notes. The remainder of the files were generated by St. Michael’s Hospital. As with the physiotherapy treatment, I accept the applicant’s minimal descriptions of the program confirms that she did attend for treatment; however, on her own evidence, she could not recall many details of the program, likely as she missed numerous appointments. As a result, her evidence related to this treatment should be accorded minimal weight.
49By contrast, Dr. Gelman found no objective pathology that correlated with the applicant’s specific injuries and observed self-limiting conduct while he administered various physical tests. Between the applicant’s rather vague descriptions of her symptoms and treatment and the largely unchallenged and objective evidence of Dr. Gelman, which was consistent with several of the other respondent witnesses, I prefer the latter on the balance of probabilities as the more persuasive evidence.
Issue 3 – Physiotherapy Treatment Plan dated March 6, 2019
50I do not find that the applicant is entitled to this treatment plan as the evidence of the respondent indicated that it is neither reasonable nor necessary.
51Dr. Gelman found that the applicant’s injuries were comparatively minor. The applicant reported headaches, cognitive issues, photophobia, vomiting, dizziness and diffuse neck and back pain, as well as some anxiety and depression to him on May 1, 2019. She reported being able to address self-care without assistance. She also conceded under cross-examination that she did not attend for physiotherapy at all during 2019, conduct that suggests that her symptoms may have significantly diminished.
52In the course of conducting several physical tests, Dr. Gelman observed the applicant to engage in self-limiting behaviour, presenting a poor effort and expressing reluctance to proceed with some of the tests out of a stated fear of pain. He was unable to complete tests that required her to lay supine on the examination table as she expressed concern that this would cause her pain. He concluded that she was not performing at her maximum ability in relation to her reported injuries. Although she retained some tenderness in her neck, back and shoulders, he determined that her injuries fell under the strains and sprains covered under the MIG and that her pain was diffuse and not specific to any objective pathology. As a result, he described this treatment plan as not necessary or reasonable. Similarly, Dr. Castillo found no objective physical impairment that would cause the applicant’s reported dizziness.
Issue 4 – Chiropractic Treatment dated May 31, 2019
53I prefer the evidence of the respondent with respect to this treatment plan and find that the plan is not reasonable or necessary. As noted above, the applicant submitted very little objective evidence regarding her treatment at Danforth Health and Wellness and her hospital records from St. Michael’s Hospital are heavily dependant on her own self-reporting and unsubstantiated claims that she had been diagnosed with a concussion. By contrast, Dr. Gelman’s direct examination of the applicant on May 1, 2019 and his conclusions regarding her injuries represent more objective and persuasive evidence.
54On June 5, 2019, the respondent denied this treatment plan as not reasonable or necessary based upon the Insurer’s Examination completed by Dr. Gelman on May 8, 2019. Although that report directly addresses the physiotherapy treatment plan described above, his evidence with respect to that plan is relevant to the proposed chiropractic treatment plan.
55In his assessment of the applicant on May 1, 2019, Dr. Gelman observed her performance on the physical tests administered as very self-limiting and that she was pain-focused. She reported ongoing musculoskeletal symptoms through her neck and back, as well as various cognitive and post-concussive type symptoms. However, she acknowledged to Dr. Gelman that she had been told by a neurologist or head injury specialist that she does not have a concussion, likely referring to Dr. Hastings. She also reported diffuse ongoing symptoms.
56As noted above, in the course of his physical examination, Dr. Gelman encountered difficulty in appreciating any objective signs of ongoing musculoskeletal accident-related impairment. From a musculoskeletal perspective, Dr. Gelman determined that the applicant very likely sustained strain or sprain and soft tissue type injuries to her cervical and lumbar spine from a very minor motor vehicle accident, as well as post-traumatic headaches. Therefore, he did not find that further intervention was reasonable or necessary.
Issues 5 and 7 – Social Rehabilitation Counselling dated July 3, 2019 and Social Work Assessment dated May 9, 2019
57I do not find that the applicant is entitled to these treatment plans as the evidence of the respondent indicated that they are neither reasonable nor necessary.
58The applicant stated that Dr. Izgandaro assisted her with her anxiety and depression. As with the chiropractic and physiotherapy treatments, she would have continued to attend this counselling but for the expense following discontinuation by the respondent.
59The respondent partially approved the July 3, 2019 treatment plan for social rehabilitation counselling for $3,803.01 in a letter to the applicant dated July 16, 2019. The balance related to expenses in excess of the Financial Services Commission of Ontario’s Professional Services Superintendent’s Guideline No. 03/14. Novo Medical also recommended twelve counselling sessions of 1.5 hours each. The respondent requested further information in order to consider the enhanced hourly rates and the longer sessions.
60At the hearing, Dr. Izgandaro testified that she believed that the hourly rates under the above Guideline were unreasonable and did not appropriately reflect her experience and qualifications. She explained that as an unregulated professional, she was not bound by the hourly maximum rates and that amounts payable by an insurer related to services not covered by the guideline are to be “determined by the parties involved.” This wording would suggest that some minimal level of communication and negotiation is required, rather than Dr. Izgandaro’s unilateral imposition of rates.
61To that end, when the respondent asked Novo Medical for more information to consider her alternative rates and the additional charges sought, it received no response. If the applicant had evidence to demonstrate that the alternative rates and additional charges sought by the provider were more appropriate than that established under the Guideline, she could have and should have provided that information to the respondent when it was requested. In the absence of some clarification from the provider, the respondent denied the additional costs as not reasonable or necessary.
62As well, section 15(2)(b) of the Schedule states that an insurer is not liable to pay for a medical benefit for expenses for the applicant related to goods and services of section 15(1) of the Schedule that exceed the maximum rate or amount established under the Guidelines, except for expenses related to clause (g) in subsection 15(1). While the applicant alluded to many cases decided by the Tribunal that endorse alternative rates proposed by service providers, none were submitted to support this assertion. By comparison, the respondent relies upon Allen v. Aviva Insurance Company of Canada, 2022 CanLII 73096, in which the Tribunal held that the guideline rates are both reasonable and necessary. While I am not bound by this decision, I find it persuasive with respect to the present case, particularly in the absence of any cited authority to the contrary.
63As with Danforth Health and Wellness, Novo Medical submitted no treatment record and as noted above, the only witness associated with this provider, Dr. Izgandaro, acknowledged that she did not actually treat the applicant.
Issue 6 – Social Rehabilitation Counselling dated September 2, 2020
64For the second treatment plan for social rehabilitation counselling, totalling $4,820.00, the respondent requested information with respect to why additional treatment was required since this plan appeared to be a duplication. As Dr. Izgandaro acknowledged at the hearing, Novo Medical provided no response. At the hearing, she acknowledged that she was unaware that the applicant was receiving social work counselling at the hospital when she proposed the present treatment plan. As a result, I find that the applicant failed to demonstrate that this treatment plan is reasonable or necessary.
Issue 8 – Neurological Assessment dated May 15, 2019
65I find that the applicant is not entitled to $2,200.00 for a neurological assessment as this assessment is neither reasonable nor necessary.
66On August 2, 2019, the applicant was examined in person by Dr. Garry Moddell, a neurologist. He assessed the applicant’s gait and parietal functions as well as CT scan to determine if there was any pathological basis for her reported symptoms. As he found no evidence of any cognitive impairment or injury, he concluded that her headaches were not caused by a mild traumatic brain injury or concussion, but were instead tension headaches, unrelated to the accident. He stated that although the applicant experiences pain, the cause of this symptom is muscular rather than neurological.
67He explained that had he discovered a neurological cause for her headaches he would have referred her to another neurologist for an assessment. Since his examination revealed no neurological pathology, neither further testing nor a further assessment were reasonable or necessary.
Issue 9 – Neuropsychological Assessment dated September 23, 2020
68I do not find that the applicant is entitled to this treatment plan as the evidence of the respondent indicated that it is neither reasonable nor necessary.
69Dr. Watson conducted a 7.5-hour neurocognitive examination on December 29, 2020 to assess the applicant’s cognition, including memory, attention, and visual motor abilities as well as cognitive and psychological validity. Dr. Watson explained that subjective complaints and reported symptoms are not synonymous with impairment and limitations, especially if validity issues are noted. As a result, he conducted a formal evaluation of the validity of the applicant’s self-reporting as a necessary part of the neurocognitive assessment. These tests are conducted to determine if the patient is performing to the best of his or her ability. An elevated score on any neuropsychological or psychological measure is only of value if the examiner has confidence in that score as being truly or primarily or exclusively as a result of an impairment, rather than an effort to portray oneself as being more impaired than one actually is. For instance, while a person may report a cognitive problem, validity testing assists in determining whether the test score is the result of a significant brain injury or underperformance by the patient. Dr. Watson noted that if the patient passes the validity testing, this lends credibility to the theory that the poor test results on cognitive tests are the result of a brain injury rather than an attempt by the examinee to appear more impaired than he or she actually is.
70In the present case, the applicant provided an invalid or noncredible cognitive profile on nine out of eleven or twelve validity indicators in the battery administered. In standard clinical practice, three failures typically indicate a non-credible performance while four or more indicate very improbable results.
71As a result, Dr. Watson testified that the impairments on the tests administered were not reflective of a brain injury in and of itself, but were more likely indicative of a concerted effort on the part of the applicant to appear more impaired than she was. In the neurocognitive component of the proposed treatment plan, psychologist Dr. Steiner intended to examine the applicant’s emotional and neurocognitive state. However, Dr. Watson concluded that due to the results of the validity testing, there was no objective evidence that the applicant continued to be cognitively impaired. As well, based upon the overwhelming scientific evidence, he concluded that it was extremely unlikely that any cognitive impairment would have persisted two and a half years after the accident.
72Dr. Watson also provided substantially uncontested explanations based upon his examination that the applicant’s validity testing results were not the result of language issues, lack of comprehension, the effect of symptoms themselves upon the results, or negative response bias, also known as a “cry for help.” Rather, as he noted in his report, the patterns captured by the validity measures from the current assessment are typical of performances by non-injured persons directed to feign or by persons identified as probable or definitive malingerers by failure of accepted and validated validity measures in the presence of external incentives.
Issue 10 – Driving Re-integration Assessment dated November 10, 2020
73This treatment plan was approved by the respondent for the amount of $1,809.73, leaving only a balance of $200.00. The uncontested evidence indicated that the remainder related solely to administrative costs to which Dr. Watson could not speak. The applicant submitted no evidence to demonstrate that it was entitled to payment of the balance. As a result, I find that the applicant has failed to meet her evidentiary burden to establish that payment of the administrative costs is reasonable or necessary.
Issue 11 – Psychological Assessment dated January 7, 2019
74I do not find that the applicant is entitled to the disputed balance of the treatment plan as this amount is neither reasonable nor necessary.
75The applicant acknowledged that following the accident, she continued to drive, albeit overcautiously. She also offered no medical evidence to suggest that she was unable to drive. As well, Dr. Moshiri found that she did not suffer from any phobia related to driving. He reduced the required hours from thirty-six to nine as testing for these phobias under this treatment plan was therefore unnecessary. As a result, he deemed the plan partially reasonable and necessary for nine hours as he found that the applicant would benefit from psychological assessment for treatment. The applicant offered no evidence to contest the appropriateness of this adjustment.
Issue 12 – Completion of Disability Certificate dated December 28, 2018
76I do not find that the applicant is entitled to the disputed balance of the treatment plan as this amount is neither reasonable nor necessary.
77This treatment plan was approved by the respondent for the amount of $112.81, leaving only a balance of $87.19. The uncontested evidence indicated that the remainder related solely to an administrative cost. The applicant offered no evidence to indicate that this balance was improperly denied.
Interest
78Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits.
Award
79The applicant seeks a special award pursuant to section 10 of Regulation 664. The test for an award is that the respondent has “unreasonably withheld or delayed payments.” If the respondent has unreasonably withheld or delayed payments then an award is payable up to 50% of the amounts outstanding plus interest on all amounts outstanding at the rate of 2% per month compounded monthly. However, I do not find that the applicant has demonstrated that the respondent acted unreasonably to warrant an award.
80For the purposes of an award, the Tribunal has consistently interpreted “unreasonableness” to indicate an insurer’s conduct that is inflexible, immoderate, imprudent, unyielding or stubborn. Although the respondent refused to pay for the proposed treatment plans, it did not do so wilfully as it had triable concerns over whether many of the plans were necessary and reasonable and exercised its right to put the applicant to her case. Throughout the period between the application and the hearing, the respondent approved other treatment plans and covered benefits not the subject of the present litigation and agreed that the applicant was eligible for partial approval for several of the disputed plans, albeit not to the amounts sought by the applicant.
81Although the applicant intimated that reviews by other employees of the respondent in the log notes pointed to some nefarious intent to withhold payment or otherwise scheme to deny the applicant of her rights under the Schedule, this was simply not demonstrated on the evidence. There was no persuasive evidence submitted to indicate Jennifer Taché or the other adjusters involved failed to properly adjust the file appropriate and pursuant to their responsibilities under the Schedule.
82Consequently, as I do not find the respondent unreasonably withheld or delayed payments, there is no ground for an award.
ORDER
83The applicant is not entitled to an income replacement benefit.
84The applicant is not entitled to any of the disputed benefits.
85No benefits are overdue therefore no interest is payable.
86The applicant is not entitled to an award.
Released: April 13, 2023
Kevin Lundy
Adjudicator
