Zdyrko v. Intact Insurance

Citation: Anna Zdyrko v. Intact Insurance, 2023 CanLII 47530 Licence Appeal Tribunal File Number: 21-003029/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: Anna Zdyrko (Applicant) and Intact Insurance (Respondent)

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES: For the Applicant: Tina Radimisis, Counsel For the Respondent: Jason Hickman, Counsel

HEARD: By way of written submissions

OVERVIEW

1Anna Zydrko ("A.Z."), the applicant, was involved in an automobile accident on July 8, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). A.Z. was denied benefits by the respondent, Intact, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

BACKGROUND

Issues in dispute

2At the case conference, Intact initially raised a preliminary issue as to whether A.Z.'s claim was barred pursuant to s. 55(1) of the Schedule as she failed to attend properly scheduled insurer examination ("IE") assessments. However, in its submissions, Intact provides that, subsequent to the case conference, A.Z. did attend the necessary assessments, therefore the preliminary issue is no longer applicable.

3Accordingly, the decision will focus on the substantive issues in dispute.

ISSUES

4The issues in dispute are:

a) Is A.Z. entitled to attendant care benefits ("ACBs") of $3,000.00 per month from July 8, 2018 to December 31, 2018 and $1,838.03 from January 1, 2019 to date and ongoing?

b) Is A.Z. entitled to the following services proposed by MyoHealth Rehab and Wellness Centre: i. $2,457.71 for a mental health assessment, in a treatment plan (OCF-18) dated May 14, 2020; ii. $3,312.81 for psychological services in an OCF-18 dated July 21, 2020; iii. $2,671.60 for chiropractic treatment in an OCF-18 dated May 20, 2020; and iv. $1,016.43 for assistive devices in an OCF-18 dated May 25, 2020?

c) Is the cost of a neurological assessment in the amount of $2,460.00, recommended by Iscope Concussion and Pain Centres in an OCF-18 denied July 19, 2021, reasonable and necessary?

d) Is the balance of the cost of catastrophic impairment assessments, in the amount of $7,010.42 ($19,788.00, less $12,755.58 approved), recommended by Synoptic Medical Assessments and Dr. Stephen Brown in an OCF-18 dated August 31, 2021, reasonable and necessary?

e) Is the medical benefit in the amount of $499.07 ($1,944.87, less $1,495.80 approved – the amount of the OCF-18 before taxes) for mental health counselling, recommended by Myohealth Rehab and Wellness Centre in an OCF-18 denied May 25, 2021, reasonable and necessary?

f) Is A.Z. entitled to interest on any overdue payment of benefits?

g) Is Intact liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to A.Z.?

RESULT

5A.Z. failed to demonstrate that the above disputed benefits are reasonable and necessary. As no benefits are payable, A.Z. is not entitled to interest or an award.

BACKGROUND

Pre-accident

6A.Z. has a significant pre-accident medical history, summarized as follows: hypertension; dyslipidemia; hypothyroidism; a 2014 disc herniation at L4-5; and a 2015 accident. A November 25, 2014 MRI of her lumbar spine showed L4-L5 disc protrusion, which came into contact with the right L5 nerve root, which may have contributed to her radiculopathy.

7The 2015 accident, resulted in injuries to her neck and back, preventing her from returning to work for an unknown length of time as a result of her injuries. At the time, she was on modified duties and hours, and received physical therapy, acupuncture, and chiropractic treatment.

8On June 6, 2018, A.Z. suffered a workplace injury to her lower back, with pain in her left leg, which resulted in a Workplace Safety and Insurance Board claim. After the workplace injury, A.Z. worked approximately 3-4 hours per day, on modified duties, with limited pushing/pulling and lifting, and was instructed to avoid bending and lifting from the floor. At the time, she was unable to complete housekeeping and home maintenance tasks and so her husband and daughter completed these tasks.

Post-accident

9Following the accident in question, A.Z. was admitted to Scarborough General Hospital, and was discharged on July 12, 2018. She was diagnosed with a pulmonary contusion. She sustained a right knee laceration, a right ankle injury, and a tear in her suprapatellar bursa posterior.

10She was transferred to the Rouge Valley Centenary Rehabilitation Unit for reconditioning and was discharged on August 2, 2018. According to the records of Rouge Valley, A.Z. met her rehabilitation goals and was discharged home with a referral to outpatient physiotherapy.

Diagnostic imaging

11A December 13, 2018 lumbar spine x-ray showed moderate to severe degenerative disc disease. A December 18, 2018 MRI of her lumbar spine showed a large central disc protrusion at L4-L5, which caused moderate to severe spinal canal stenosis, which had progressed since her 2014 disc herniation injury.

12On February 13, 2019, orthopaedic surgeon, Dr. Thompson, advised that despite the right knee pain, the knee appeared stable, the changes in the meniscus were degenerative, and there was no need for surgical intervention.

13On June 13, 2019, orthopaedic surgeon, Dr. Grant, opined that A.Z.'s symptoms could have been caused by her sever spinal stenosis at L4-L5 from her central disc herniation. Dr. Grant noted that she had a mild disc protrusion at L4-L5 in 2014, that appears to have progressed since then.

14A July 30, 2019 MRI report of the brain showed no acute intracranial abnormality.

ANALYSIS

Is A.Z. entitled to attendant care benefits?

Reasonable and necessary

15In order to be eligible to receive ACBs, an insured must establish that the services provided were reasonable and necessary and that the expenses were incurred, pursuant to s. 19(1)(a) of the Schedule.

16For the reasons that follow, I find that A.Z. has not met her onus to demonstrate that she is entitled to the ACBs claimed.

17A.Z. submits that she requires ACBs in the amount of $10,530.57 per month from July 18, 2018 and $1,838.02 per month from January 1, 2019 to date. In her submissions, she clarifies that she seeks the maximum allowable limit for non-catastrophic injuries in the amount of $3,000.00.

18In further support of her claim, A.Z. points me to her subjective reporting to psychologist, Dr. Shaul (report dated June 26, 2020), that she experiences difficulty and limitations with self-care activities such as dressing and bathing, performing nail care, getting off the toilet and putting on her shoes.

19She also points to a May 11, 2021 in-home assessment report by occupational therapist, Ms. Rogozinsky, which notes that as a result of A.Z.'s psychological and cognitive impairments, she requires ACBs in the amounts listed above, and for the duration claimed.

20Intact argues that A.Z.'s reporting on her ability to engage in personal care tasks is contradicted by her report to the s. 44 IE assessor, occupational therapist, Ms. Kugathasan. In her report, Ms. Kugathasan notes that A.Z. did not report any psychological or cognitive limitations; but that she was independent with her activities of daily living.

21In the clinical notes and records of internal medicine and geriatric medicine specialist, Dr. Rafilovich, A.Z. and her daughter denied difficulties in executive functioning, visual spatial or language domain. Dr. Rafilovich also noted that despite the right arm pain, A.Z.'s right arm remained functional. A.Z. reported to Dr. Rafilovich that she remained completely independent with her basic activities of daily living, bookkeeping and money management, cooking and taking medication. In an October 21, 2020 entry, Dr. Rafilovich noted that from a functional standpoint, A.Z. remained completely independent with all basic activities of daily living. Regarding her independent activities of daily living, Dr. Rafilovich noted that A.Z. reported that she is using pill boxes and remembers to double check whether or not she actually took her medications.

22On the evidence, I find that A.Z. has not demonstrated that ACBs are reasonable and necessary. Her self-reported independence with her activities of daily living, as confirmed by her daughter, is not indicative of ACB services being required.

Incurred

23Section 3(7)(e) provides that a person has "incurred" an expense if they have received the goods or services to which the expense relates; paid the expense; promised to pay the expense; or are otherwise legally obligated to pay the expense.

24Regarding the claimed amount for monthly ACBs, on March 12, 2019, Intact informed A.Z. that her maximum entitlement to ACBs was $3,000.00 per month for up to five years for non-catastrophic injuries, limited by the $65,000 policy maximum. Intact submits that in February 2019, A.Z.'s daughter advised that attendant care services were not required and were not being used. As a result, Intact notified A.Z in an explanation of benefits letter dated March 12, 2019, that her ACB eligibility was reduced to $0.00 as of February 22, 2019.

25It is well-settled that in order to claim retroactive ACBs, when a Form 1 is submitted months or years after the period of time claimed by an insured, it must be demonstrated that: 1) there was a level of urgency, impossibility or impracticality that prevented the Form 1 from being submitted earlier, or 2) that there was a reasonable excuse for not doing so earlier. (See 18-000790 v Jevco Insurance Company, 2019 CanLII 22200 (ON LAT) at para. 18).

26A.Z.'s submissions fail to direct me to any evidence to establish either of the criteria from the case law that would justify payment dating back to July 2018, when the Form 1 was not submitted until July 2021.

27I note that Intact approved ACBs in the amount of $1,838.02 per month, which was in line with the recommendation by the s. 25 assessor, until the s. 44 examination occurred. Intact submits that A.Z. has not submitted proof of incurred expenses for any time period claimed.

28On November 12, 2021, Intact provided Ms. Kugathasan's s. 44 report to A.Z. The report recommended a reduced ACB rate of $1,256.92 per month. This was paid retroactively for the period of July 8, 2018 to December 31, 2018, based on Ms. Kugathasan's recommendation that Ms. Hickey's 2018 Form 1 be relied upon as the closest assessment to that time period. Intact further advised A.Z. that effective November 12, 2021, her ACB entitlement was reduced to $0.00 per month, as she was independent with most of her activities of daily living.

29I agree with Intact that A.Z. has failed to point me to any proof of incurred expenses in her submissions or evidence. Accordingly, I find that A.Z. has not incurred any expenses for retroactive or ongoing ACBs. As such, A.Z. has failed to demonstrate that ACBs have been incurred, that any ACB amounts are payable, or that any ongoing ACBs are reasonable and necessary.

Are the medical and rehabilitation benefits reasonable and necessary?

30Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. In all cases, A.Z. bears the onus of proving on a balance of probabilities that each proposed treatment or assessment plan is reasonable and necessary. In order to do so, A.Z. should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.

31A.Z. submits that her injuries, described in a July 25, 2018 Disability Certificate as―a pulmonary contusion, right knee laceration and contusion, and multiple soft tissue injuries―have made it impossible for her to return to her pre-accident place of employment. She submits that the claimed OCF-18s are reasonable and necessary and have been tailored to meet her individual goals.

32To this end, she points to various medical documents in support of her claims:

a) Neurologist, Dr. Le, recommended a neuropsychological evaluation, active rehabilitation and psychotherapy;

b) Dr. Kwong noted in an April 12, 2019 entry that A.Z needs more reconditioning/strengthening;

c) Dr. Rafilovich recommended cognitive behavioural therapy;

d) Physical Medicine Specialist, Dr. Kachooie, noted that she is suffering from persistent pain and functional limitations, despite receiving extensive physiotherapy treatment. Dr. Kachooie recommended a multidisciplinary program, noting that she would be a good candidate for interventional pain management, including soft tissue steroid injection; and

e) Dr. Grant noted a diminished range of motion in her back, concluding that her symptoms are consistent with lower lumbar root radiculopathy. Dr, Grant noted the possibility of surgical intervention if and when her symptoms persist despite the non-surgical modalities.

OCF-18 for a mental health/psychological assessment dated May 14, 2020 and OCF-18 for a psychological treatment dated July 21, 2020

33The May 14, 2020 mental health assessment proposed a psychological assessment, as a result of a diagnosis of―adjustment disorder; specific (isolated) phobias; mixed anxiety and depressive disorder―as noted by Dr. Shaul. Notice to attend an insurer examination was provided, with the examination scheduled for August 27, 2020. A.Z. did not attend the insurer examination until October 12, 2021. The July 21, 2020 OCF-18 recommended 15 sessions of psychological treatment with Dr. Shaul. I will address the issues together as they rely on the same evidence.

34I find that A.Z. has not demonstrated that the May 14, 2020 OCF-18 is reasonable and necessary. Further, the July 21, 2020 OCF-18 for psychological treatment is not reasonable and necessary.

35A.Z.'s submissions do not address each specific OCF-18, however, she relies on the report of the treating physician recommending each OCF-18. In this vein, she points to Dr. Shaul's comments in his June 26, 2020 report. Dr. Shaul suggested further psychological counselling as a result of her current symptoms which are impeding her overall functioning and will likely impede her recovery and delay her return to her pre-accident activities of daily living. Dr. Shaul notes that A.Z.'s emotional and psychological difficulties are a direct consequence of her physical condition. Dr. Shaul opined those appropriate measures need to be taken to ensure that she receives the appropriate care to address her physical conditions, which will continue to be a barrier, if left untreated.

36In response, Intact relies on the October 22, 2021 s. 44 report of psychologist, Dr. Seon, who opined that A.Z. did not present with a diagnosable psychological impairment. Dr. Seon found no inconsistencies between the findings of psychological testing, informal observations and A.Z.'s subjective reporting. Having determined that the objective psychometric testing result were supported by the subjective reports, Dr. Seon concluded that the OCF-18 was not reasonable and necessary.

37I agree with Intact and find that the OCF-18 for a mental health assessment is not reasonable and necessary. A.Z. reported to Dr. Seon that she was not having any significant symptoms of anxiety, depression or post-traumatic stress that negatively interfered with her social or overall level of functioning. Objective testing results showed that the mild emotional difficulties were in line with the subjective reporting. A.Z. denied any significant symptoms of psychological distress or impairment, and she has continued driving.

38I am persuaded by Dr. Seon's report, over that of Dr. Shaul, because I find the objective and subject evidence to be compelling. A.Z. reported gradual improvement in her emotional difficulties and reported more challenges with physical pain than psychological impairments. Lastly, while she has received psychological treatment to date, it appears to have been beneficial, and therefore, the need for a mental health assessment to determine a course of treatment, having already received treatment, does not demonstrate that the OCF-18 is reasonable, that the treatment goals identified in the OCF-18 are reasonable, and that the cost associated with the OCF-18 is reasonable.

Balance of the OCF-18 for psychological treatment dated May 25, 2021

39Regarding the balance of the OCF-18 for psychological treatment, Intact partially approved the OCF-18 in the amount of $2,254.20. The hourly rate indicated on the OCF-18 was above the maximum hourly rate allowed under the Superintendent's Guidelines No. 03/14 (the "Guidelines"). In accordance with the Guidelines, the maximum hourly rate for psychologists and psychological associates is $149.61, and completion of an OCF-18 is payable at a maximum of $200.00. A.Z. has not made any legal argument as to why the hourly rate should be payable above the regulated maximum hourly rate.

40Accordingly, I find that the balance of the mental health assessment is not reasonable and necessary.

OCF-18 for chiropractic treatment dated May 20, 2020

41The May 20, 2020 OCF-18 proposed 18 sessions of chiropractic treatment. It is unclear what evidence A.Z. relies on to support her claim for funding the OCF-18. Although her submissions mention Dr. Kwong's records, there is little support in Dr. Kwong's records for chiropractic treatment.

42Intact relies on the October 22, 2021 s. 44 report from orthopaedic surgeon, Dr. Abuzugaya, who acknowledged A.Z.'s pre-accident history of a large central disc protrusion causing moderate to sever spinal canal stenosis, the 2014 disc herniation, and degenerative changes in the right knee. Dr. Abuzugaya opined that A.Z. had functional range of motion of her lumbosacral spine, left hip and right knee. When examining the right knee, Dr. Abuzugaya found no evidence of a meniscal tear. Further, Dr. Abuzugaya noted that A.Z. had reduced range of motion in her right shoulder in the form of stiffness; suggesting that it could be treated with a cortisone injection. Of particular note, Dr. Abuzugaya opined that A.Z.'s pre-accident conditions may be contributing to the current presentation and may have been exacerbated as a result of the accident but will not prevent A.Z. from achieving maximal medical recovery. Dr. Abuzugaya concluded that there was no objective evidence of musculoskeletal impairment in the lumbar spine and right knee.

43A.Z.'s pre-accident history is significant for a large central disc protrusion at L4-L% causing moderate to severe spinal canal stenosis (MRI dated December 18, 2018). A December 12, 2018 x-ray of the lumbar spine indicated a disc herniation, which was noted in a 2014 MRI. A November 21, 2018 MRI of the right knee revealed degenerative changes. Objective testing revealed that A.Z. had functional range of motion in her lumbar spine, left hip and right knee. While a November 21, 2018 MRI of the right knee suggested a possible tear, Dr. Abuzugaya was unable to find evidence of a tear, as there was no effusion or tenderness. Dr. Abuzugaya suggested that A.Z.'s shoulder stiffness could be treated with a cortisone injection.

44I find Dr. Abuzugaya's report persuasive for a number of reasons. First, having diagnosed A.Z. with right shoulder adhesive capsulitis, with stiffness and decreased range of motion, Dr. Abuzugaya found the impairment to be temporary in nature. Second, Dr. Abuzugaya opined that the duration of the impairment is six to eight weeks following the cortisone injection. Third, as an orthopaedic examiner, I find that Dr. Abuzugaya's area of expertise is persuasive in opining on the extent of A.Z.'s orthopaedic-related injuries. Lastly, I note Dr. Kwong recommends physiotherapy not chiropractic treatment. As a different treatment modality, I find that physiotherapy recommendations do not support that chiropractic treatment is reasonable and necessary.

45Finally, other than the OCF-18 and Dr. Kwong's CNRs, it is unclear what contemporaneous records A.Z. is relying on in support of the OCF-18. A.Z. has not provided any specific argument regarding the OCF-18 that supports her claim for funding it. An OCF-18 alone is not demonstrative of the recommended treatment being reasonable and necessary. It should be supported by objective evidence. Overall, she has not demonstrated that the OCF-18 satisfies the requirements that it is reasonable, that the goals will be met to a reasonable degree, and that the costs associated with the OCF-18 are reasonable.

46For these reasons, I see no reason to interfere with Intact's determination in denying the OCF-18 for chiropractic treatment.

OCF-18 for assistive devices dated May 25, 2020

47I find that A.Z. is not entitled to the OCF-18 for assistive devices. Again, A.Z. has not specifically addressed this OCF-18 in her submissions. While she mentions various assessor and treatment provider reports, it is unclear to me which report she relies on in support of her claim for this OCF-18. Having failed to properly demonstrate the reasonableness and necessity of this particular OCF-18, I find she has not met her onus.

Are the cost of examinations reasonable and necessary?

OCF-18 for a Neurological Assessment dated July 19, 2021

48The OCF-18 for a Neurological Assessment is not reasonable and necessary.

49A.Z. relies on an August 19, 2019 report from neurologist Dr. Lewis, who noted A.Z.'s memory issues, and recommended a neuropsychological evaluation to determine whether the issues are accident-related or due to a family history of Alzheimer's and dementia.

50Intact argues that the OCF-18 is not reasonable and necessary, as A.Z. has undergone an OHIP-funded assessment with Dr. Lewis. It further argues that A.Z. has not brought forth any evidence that a further neurological assessment, if needed, could not be reasonably obtained through an OHIP-funded assessor. Intact relies on the November 1, 2021 report of neurologist, Dr. Kucher, who determined that there was no objective neurological impairment.

51I find that the totality of the evidence before me regarding the neurological assessment does not demonstrate that it is reasonable and necessary. First, Dr. Kucher's report is in line with that of Dr. Rafilovich in 2020, which indicated normal levels of cognition. Second, A.Z.'s daughter's subjective reporting, does not suggest that there are significant cognitive issues, that would require a second assessment to be conducted. Third, I agree with Intact, that Dr. Lewis has conducted an assessment that A.Z. did not call in to question or argue should not be considered as a valid neurological-based assessment.

52Should A.Z. require a second neurological assessment, she may obtain one, however pursuant to s. 47(2) of the Schedule, Intact would be the "payor of last resort", due to the availability of such an assessment through OHIP. For these reasons, I find the neurological assessment to not be reasonable and necessary.

Section 25 Catastrophic Impairment ("CAT") Assessments dated August 31, 2021

53A.Z. has not demonstrated that the balance of the cost of the CAT assessments is reasonable and necessary.

54The respondent partially approved the August 31, 2021 OCF-18 based on proper fees for the provision of services and document preparation, denied some of the proposed assessments as not reasonable and necessary, and approved the amount of $12,775.58. $7,010.42 remains in dispute.

55A.Z.'s submissions suggest that because Intact partially approved the OCF-18, "there is a clear understanding that A.Z. requires a catastrophic assessment." I disagree.

56First, the GOS-E assessment was denied due to a lack of evidence that A.Z. sustained a brain injury. An MRI of the brain showed normal findings. A.Z. provides no evidence or argument to refute this fact. Second, the physiatry assessment was partially approved for $2,000.00, which, pursuant to s. 25(5) of the Schedule, is the maximum payable by an insurer for conducting any one assessment. A.Z. makes no argument to refute Intact's determination, and I find that Intact has correctly paid the maximum allowed. Third, as per the Ontario Medical Association (OMA) Guidelines Jan to Dec 2020, the cost of completion of the OCF-18 was limited to $146.00 (paid by Intact) of the requested $200.00, and the cost of completion of the OCF-19 was limited to $120.00 (paid by Intact) of the requested $500.00.

57Alternatively, pursuant to the Supervisor's Professional Services Guideline, No. 03/14, the fee for the OCF-18 is limited to the $200.00 maximum fee for form completion, and the OCF-19 is limited to the $200 maximum fee for form completion. A.Z. makes no argument to refute Intact's determination of its partial approval for fees paid for form completion and I find that the amounts paid by Intact are allowable under the Guideline.

58A.Z. does not specifically address the outstanding assessments that were denied, by way of demonstrating the reasonable and necessary test for each one, as required in order to successfully argue her claim. She simply submits that, "the medical evidence clearly demonstrates that A.Z. suffers from ongoing physical, cognitive and psychological injuries". Submissions are not evidence, and while I appreciate that A.Z. points me to the various reports of her treating physicians and assessors, there is no demonstration of how this objective evidence supports that reasonable and necessary test.

59A claim will not be successful where an applicant has provided a mass of evidence and has not been specific as to what parts of the evidence demonstrate that an OCF-18 is reasonable, that the goals are met to a reasonable degree, and that the associated costs are reasonable. This theme has been woven throughout the decision. It must be clearly presented to a trier of fact, with objective and subjective evidence, that each claim satisfies the reasonable and necessary test. The onus lies with the applicant, in all cases, and having failed to satisfy that onus, a claim will not be successful.

60For these reasons, I find that A.Z. has not demonstrated that she is entitled to the disputed benefits.

Interest

61Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

62Having found that there are no benefits outstanding, no interest is payable.

Award

63A.Z. sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.

64As there are no benefits payable, Intact cannot be found to have unreasonably withheld or delayed payment. Accordingly, no award is payable.

ORDER

65A.Z. has failed to demonstrate that the benefits claimed are reasonable and necessary, on a balance of probabilities.

66The application is dismissed.