Jeyakanthan Ponnuchchamy v. Unifund Assurance Company, 2023 CanLII 44313

Licence Appeal Tribunal File Number: 21-002138/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:

Jeyakanthan Ponnuchchamy

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Bernard Trottier

APPEARANCES:

For the Applicant: Erin M. Neal, Counsel

For the Respondent: Peter Yoo, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Jeyakanthan Ponnuchchamy, the applicant, was involved in an automobile accident on May 2, 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 the respondent, Unifund Assurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to the following medical benefits for chiropractic treatment, recommended by Aqua Wellness Centre Ltd., as follows:

(a) $2,437.50 ($2,897.50 less $460.00 approved) submitted February 19, 2019, denied in full February 22, 2019, then partially approved March 29, 2019?

(b) $2,697.50 submitted May 3, 2019 and denied May 16, 2019?

(c) $2,497.50 submitted July 30, 2019 and denied August 2, 2019?

(d) $2,397.50 submitted October 11, 2019 and denied October 25, 2019?

(e) $2,280.00 submitted January 24, 2020 and denied January 28, 2020?

ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant has not proven that the proposed treatment plans are reasonable and necessary.

4An award under s. 10 of Reg. 664 is not payable.

5Since no treatment plans are payable, no interest is payable.

PROCEDURAL ISSUES

6The applicant submits in his reply submission that surveillance evidence cannot be relied on by the respondent since unedited copies of the investigative reports were served on May 24, 2022, after the deadline for the respondent’s submissions (May 4, 2022).

7The respondent had surveillance conducted on the applicant in October 2018, October 2019, November 2019 and August 2020, by Investigative Solutions Network Inc (“ISN”). The applicant was served with the surveillance evidence on March 16, 2020, January 15, 2021, February 11, 2021 and July 15, 2021. The evidence consisted of surveillance reports, footage, notes and CVs of the investigators. According to ISN, all unedited video footage is stored on its secure servers for a period of 10 years. In its transmittal to the respondent, ISN indicated that the video footage was edited to exclude any inessential footage that does not show the applicant.

8The applicant submits that, by excluding non-applicant footage, the surveillance “does not provide an accurate representation of the applicant’s life.”

9I did not find any record that the applicant made a request to secure unedited surveillance footage (i.e., including non-applicant footage) at the case conference of October 21, 2021 or at the motion hearing of April 14, 2022. The applicant had copies of the surveillance evidence for several months by then. If the applicant felt that non-applicant footage was essential, he could have raised this at the case conference or in the time period leading up to the hearing.

10I find that the edits to exclude non-applicant footage do not impact procedural fairness. I am also not convinced that non-applicant footage is relevant to the issues in dispute. I find the surveillance evidence is admissible and can be relied upon by the respondent.

ANALYSIS

Further chiropractic treatment and massage therapy are not reasonable or necessary

11I find the evidence does not support, on the balance of probabilities, that the proposed treatment plans would provide musculoskeletal and functional recovery at the time they were proposed; rather, they were sought primarily for pain relief. I am persuaded by the respondent’s argument that there are more effective alternatives, such as medication, for pain relief than the proposed treatment plans. The applicant filled only one prescription for pain medication and there is no evidence of any further accident-related pharmacology. There is also no evidence that the applicant requested any referrals to any pain management specialists or clinics, or any other pain management modalities.

12In determining whether a treatment plan is reasonable and necessary, the Tribunal must assess whether:

i. The treatment goals, as identified, are reasonable;

ii. These goals are being met to a reasonable degree, and;

iii. The overall cost of achieving these goals is reasonable, taking into consideration both the degree of success and the availability of other treatment availabilities.

13On May 7, 2018, five days after the accident, the applicant underwent reconstructive surgery to his fibula near the right ankle and was then fitted with a cast for one month and an air cast for three months. He was prescribed pain killers and discharged home following the surgery. The applicant’s post-operative x-ray assessment of his ankle injury on August 24, 2018 indicated “internal fixation of the fibula. No hardware complications. The visualized joints are congruent. There is no significant soft tissue swelling.” In other words, the fibula fracture was healing.

14The applicant’s other accident-related injuries included neck muscle and tendon injuries, strains and sprains in the thoracic and cervical spine and other muscle disorders. The applicant received over $21,000 in treatment for these injuries, consisting mostly of chiropractic treatments, physiotherapy and massage therapy. The disputed treatment plans total a further $12,330.

15The applicant submits that when the denied treatment plans were submitted, he had ongoing neck, upper and lower back stiffness as well as shoulder, hip, knee and ankle pain that made it difficult to bend, twist and sit-to-stand transfer, along with problems with prolonged postures of sitting, standing, walking, lifting and carrying. The applicant’s treatment provider, Aqua Wellness Centre Ltd. (Aqua Wellness), submitted the denied treatment plans that included exercise, hyperthermy, hypothermy, stimulation, manipulation and mobilization therapies.

16The respondent’s insurer’s examination (IE) assessor, Dr. Esmat Dessouki, Orthopaedic Surgeon, conducted a paper-review assessment on March 18, 2019. This IE assessment relied on Dr. Dessouki’s previous in-person assessment of September 10, 2018 and on a review of, among others, reports from other health practitioners, hospital records, clinical records, doctors’ orders and diagnostic reports. In the paper review, Dr. Dessouki opined that further passive treatments, including chiropractic and massage therapy, would not benefit the applicant at that point in his recovery. Dr. Dessouki deemed the portions of the treatment plan that propose exercise to be reasonable. Therefore, the treatment plan submitted on February 19, 2019 was re-adjusted and partially approved for $460.00.

17The applicant deposed at his Examination Under Oath on May 30, 2019 that the treatment he underwent at Aqua Wellness provided him with temporary (“two or three hours”) pain relief. He further deposed that his treatment with Aqua Wellness did not provide him with any lasting benefit.

18The respondent submitted that there must be objective medical evidence to substantiate the necessity and reasonableness of the proposed treatment. Dr. Dessouki opined, from his in-person assessment of the applicant on June 17, 2019, that the applicant demonstrated full range of motion in his ankle and that there was no objective evidence of residual musculoskeletal impairment. In his reply submissions, the applicant said that the objective medical evidence was the injury to the right ankle. However, the proposed treatment plans do not single out treatment to the right ankle; rather, they point to treatment of the other injuries sustained in the accident, as well as to the ankle. All five of the disputed treatment plans indicate that the most significant injuries are, in order, to the neck, thoracic spine, cervical spine and muscles, with the fibula fracture indicated as the fifth most significant injury. These treatment plan propose exercise, hyperthermy, hypothermy, manipulation, mobilization and therapy to “multiple body sites” without indicating any specific treatment to the ankle.

19The applicant filled one prescription for Pregabalin on August 7, 2018, about three months after the accident. On September 5, 2019, the applicant’s family physician provided the applicant with a prescription for Percocet, which was never filled, for tenderness to the applicant’s right ankle. There is no evidence submitted by the applicant of any further accident-related pharmacology. The applicant’s family physician, whom the applicant saw on 12 occasions between February 25, 2019 to April 23, 2019 for an unrelated injury, did not recommend chiropractic treatment or refer him to a specialist for his accident-related injuries. There is no evidence that the applicant attended any pain management clinics or requested a referral to any specialists.

20From October 2018 to August 2020, the respondent conducted surveillance, primarily related to the applicant’s eligibility for income replacement benefits. The applicant was observed walking without assistive devices, driving and carrying items such as grocery bags, garbage bags and heavy restaurant equipment. The surveillance evidence indicates, along with the medical evidence, that the applicant has recovered much of his pre-accident functional abilities. It does not prove or disprove whether the proposed treatment plans might provide any lasting pain management benefits. Based on the medical opinions of the IE assessors and the surveillance evidence, I agree with the respondent that the proposed treatment plans are not reasonable and necessary to restore the applicant’s functional abilities.

21The burden of proof rests with the applicant to demonstrate that the proposed treatment plans are reasonable and necessary. I find that this burden has not been met. The proposed treatment plans are not reasonable or necessary since (a) the goals of rehabilitation are not being met by further treatment and (b) the cost of achieving these goals through the proposed treatment plans is unreasonable compared to other medical and pharmacological alternatives.

The reasons provided for the denials of the treatment plans meet the requirements of the Schedule

22The applicant submits that the respondent did not provide sufficient medical reasons for its denials of the treatment plans as required under s. 38(8) of the Schedule. The applicant submits that in the first denied treatment plan, the OCF-18 submitted February 19, 2019, the respondent did not provide specific reasons for the denial other than it was basing its decision on the medical documentation already provided and the time elapsed since the accident, and that it required an IE assessment to determine whether the treatment plan was reasonable.

23The respondent argued, citing Hedley v. Aviva Insurance Company of Canada¹, that reasons will satisfy notice requirements if they contain a principled rationale based fairly on an insured person’s file to which an insured person can respond. The respondent submits that the reasons given for the denials are specific and sufficient. The respondent submits that it provided principled reasons for requesting IEs and for denying benefits in accordance with s. 38(8) and s. 44 of the Schedule.

24Dr. Dessouki conducted a paper-review assessment on March 18, 2019. On March 29, 2019, the respondent advised the applicant that it upheld its previous denial of most of the February 19, 2019 OCF-18, but that it approved $460.00 for exercise-related treatment. Along with its plain-language denial, the respondent included a copy of the March 18, 2019 IE report.

25Dr. Dessouki re-assessed the applicant in-person on June 17, 2019. Based on the previous assessments and the re-assessment, the OCF-18 submitted May 3, 2019 was denied. In its denial letter of July 17, 2019, the respondent included plain-language reasons for its denial and a copy of the latest IE report.

26Dr. Dessouki conducted a paper review on October 9, 2019. In its denial letter of October 25, 2019, the respondent included a plain-language summary of the medical reasons for the denial as well as a notice of examination. On October 31, 2019, Dr. Dessouki provided a paper-review report of the applicant’s medical documents.

27Dr. Dessouki produced an addendum report on November 12, 2019, based on a paper review. In the addendum report, Dr. Dessouki upheld his previous assessment that the proposed treatment plans would not facilitate further functional recovery. On November 18, 2019, the respondent included plain-language in its denial letter and a copy of the IE addendum report.

28Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Specifically, Section 38(8) requires an insurer to give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

29I agree with the respondent that the reasons given for the denial of the OCF-18 submitted February 19, 2019 were valid. They were based on medical documentation already provided and the time elapsed since the accident. The respondent indicated it required an IE to determine whether the treatment plan was reasonable and necessary.

30I find that the plain language in the respondent’s denial letters, along with detailed medical evidence in the IE reports, is specific, sufficient and satisfies the requirement of s. 38(8) of the Schedule.

Award

31The applicant sought an award under s. 10 of Reg. 664. Since I find that the respondent acted in accordance with the requirements of the Schedule, I dismiss the applicant’s claim for an award as there is no evidence the respondent unreasonably withheld or delayed the payment of a benefit.

Interest

32The applicant sought interest on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no treatment plans are overdue, no interest is payable.

ORDER

33The applicant has not demonstrated that the proposed treatment plans are reasonable and necessary, nor has he demonstrated that that the reasons provided for the denials are insufficient. The proposed treatment plans are not payable. No interest applies on overdue benefits in dispute.

34The applicant is not entitled to an award under s. 10 of Reg. 664.

Footnotes

1. 1Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318