Citation: F. A., on behalf of N. A. v. Zenith Insurance Company, 2023 ONLAT 21-007402/AABS

Licence Appeal Tribunal File Number: 21-007402/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:

F. A., on behalf of N. A (a minor)

Applicant

and

Zenith Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Laurie Tucker, Counsel

For the Respondent:

Stacey Morrow, Counsel

HEARD:

By way of written submissions

OVERVIEW

1N.A., the applicant, was involved in an automobile accident on October 11, 2019, 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, Zenith, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

a) Is N.A. entitled to $1,625.15 for massage therapy, proposed by Mohamed Fouda in a treatment plan (OCF-18) submitted July 29, 2020?

b) Is N.A. entitled to $1,417.58 for chiropractic treatment, proposed by Dr. Hassazadell in an OCF-18 submitted August 25, 2020?

c) Is N.A. entitled to $1,696.25 for physiotherapy, proposed by Omnia Aleraky in an OCF-18 submitted September 1, 2020?

d) Is N.A. entitled to medical benefits proposed by Vitality Assessment Centre in the following plans:

i. $948.13 for occupational therapy submitted May 29, 2020;

ii. $2,143.11 for occupational therapy submitted March 10, 2020; and

iii. $4,741.00 for social rehabilitation counselling submitted March 10, 2020?

e) Is N.A. entitled to $853.10 for optometric services, proposed by Dr. Irani in an OCF-18 submitted September 15, 2020?

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

RESULT

3N.A. is entitled to the OCF-18s for chiropractic treatment, massage therapy and physiotherapy services, with interest in accordance with s. 51 of the Schedule.

4N.A. is entitled to the OCF-18 for optometric services, with interest in accordance with s. 51 of the Schedule.

5N.A. is not entitled to the OCF-18s for occupational therapy or social work services. No interest is payable.

ANALYSIS

Are the treatment plans reasonable and necessary?

6Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant, so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

7The applicant bears the onus of proving entitlement to the proposed treatment by establishing that the OCF-18 is reasonable and necessary on a balance of probabilities. In order to do so, the applicant should identify the goals of treatment, how the goals would be met through the requested services/items, and that the associated costs of achieving them are reasonable.

Massage Therapy Treatment: OCF-18 dated July 29, 2020

Chiropractic Services: OCF-18 dated August 25, 2020

Physiotherapy Services: OCF-18 dated September 1, 2020

8Post-accident, N.A. attended [the hospital], complaining of symptoms of pain in her right arm and shoulder, headache, neck and back pain, dizziness, nausea, vomiting and photosensitivity. She was released from the hospital with a diagnosis of a concussion, neck, right―shoulder, elbow, hand and back pain.

9In support of her claims, N.A. relies on the hospital notes dated October 11, 2019; a February 8, 2022 physiatry assessment; and a March 16, 2020 consult note. She further relies on the July 29, 2020 OCF-18, which proposed 15 sessions of therapy; the August 25, 2020 OCF-18 which proposed 15 sessions of therapy and an aqua pillow; and the September 1, 2020 OCF-18 proposing 15 therapy sessions.

10Post-accident, N.A. was not taken to the hospital, however, she attended later on the same day as the accident. She complained of pain to the right side (shoulder, arm and leg), headaches and neck pain. N.A. reported that she did not lose consciousness, and that she hit her head on the side of the door “lightly”. N.A. underwent various diagnostic testing, which included:

a) MRI of the cervical spine;

b) Head CT; and

c) X-rays:

i. Lumbar spine; chest; cervical spine, right radius ulna; right hand; right humerus.

11Diagnostic testing results were normal. N.A. was diagnosed with soft tissue injuries and a concussion. She was recommended to take Advil and Tylenol for pain.

12Dr. Lipson’s February 8, 2022 report, notes that N.A. had no fracture, dislocation or intercranial bleed identified. Dr. Lipson noted that in the recent weeks following the accident, she was having neck pain, headaches, mid-back pain, pain in both shoulders, right upper limb pain, bilateral leg pain, dizziness, light sensitivity and nausea.

13Dr. Lipson noted that N.A. continued to have ongoing pain at the time of the assessment, with the only resolved issue was her right distal upper limb. Dr. Lipson went on to note that there has not been much improvement in the spinal issues and headaches.

14Dr. Lipson reviewed several records from various treatment providers, noting N.A.’s condition post-accident,

a) October 16, 2019 [the doctor], family physician clinical note - pain in both shoulders, mid-back and left leg, headaches, dizziness, nausea and photophobia, neck stiffness. [the doctor] diagnoses a concussion and multiple contusions;

b) November 14, 2019 Disability Certificate―severe concussion with headaches, photophobia, dizziness, memory issues and insomnia, anxiety, headaches and whiplash;

c) June 29, 2020 – clinical note from Megan Greenough, nurse practitioner at the [the hospital] Chronic Pain Clinic, notes that the pain is most significant at the right shoulder. Right shoulder ultrasound was normal;

d) May 8, 2020 – clinical note from Dr. Goulet, pediatric sports medicine physician, main issue is neck pain that is not improving with conservative measures;

e) Aril 23, 2020 - note from Dr. Goulet, in which N.A. reports to be doing better, and ongoing recovery from head trauma; and

f) March 16, 2020 – clinical note indicating significant chronic pain, headaches, poor sleep and stress.

15Additional records note chronic shoulder pain, post-concussion syndrome, neck, back and pain in both shoulders, and headaches (November 13, 2020, January 19, 2021 – [the hospital] Chronic Pain Clinic); visual difficulties as a result of a concussion (April 16, 2021 – Dr. Irani, optometrist). Dr. Lipson went on to note the diagnostic imaging reporting results, which were found to be normal.

16On examination, Dr. Lipson observed that N.A. had significant reductions in range of motion of multiple joints and fear of engaging in various movements. Dr. Lipson opined that N.A. had developed a complex chronic pain syndrome as a result of her injuries. Dr. Lipson further opined that N.A. displayed avoidance-coping to manage her symptoms. Dr. Lipson diagnosed N.A. with a concussion with persistent post-concussion syndrome and mental function difficulties, sprain and strain injuries of the neck, with chronic mechanical neck pain, sprain/strain of the lumbar spine with chronic back pain; right arm sprain/strain with chronic pain and possible nerve injury; leg sprain/strain; post-traumatic headaches, psycho-emotional difficulties (deferred to appropriate mental health assessor). Dr. Lipson concluded that N.A. suffered impairments that have hindered her participation in housekeeping tasks, cognitive function limitations which hinder her academic performance and that the prognosis for significant further improvement is guarded.

17The March 16, 2020 consult note from Dr. Goulet notes that N.A. was on headache medicine and that a follow-up was planned.

18In response, Zenith relies on its s. 44 insurer examination reports―a February 27, 2020 physiatry evaluation from Dr. Baker (cervical and lumbar strain, post-traumatic headaches); a July 24, 2020 neurology assessment from Dr. Mendis (post-traumatic headaches, post-concussive like symptoms); a July 9, 2020 occupational therapy addendum from Samantha Anstey (no physical or function limitations from a physical perspective); a March 4, 2021 orthopaedic evaluation from Dr. Sharma (cervical and lumbar spine strain); and an October 19, 2020 addendum from Samantha Anstey (opinion remained unchanged the July 9, 2020 report).

19Zenith submits that N.A.’s reporting does not support that the OCF-18s are reasonable and necessary. It points to Dr. Sharma’s report, which noted that N.A. did not have significant muscle tension, and a normal neurological exam. It argues that N.A. has received numerous physical therapy treatments and continues to complain of physical symptoms. There has not been reported permanent relief as a result of physical therapy. In this vein, it points me to N.A.’s report to Dr. Baker in December 2019, of a 20% improvement in neck and back pain.

20Its position is that N.A. has failed to satisfy the reasonable and necessary test, that the treatment is reasonable, that the goals are being met to a reasonable degree, and that the associated costs are reasonable.

21I agree with N.A. that the OCF-18s are reasonable and necessary. It is well settled that pain relief is a reasonable goal. Given N.A.’s young age with no pre-existing conditions documented by a medical professional, all of her ongoing pain complaints have been reported and noted to be as a direct result of the accident. While Zenith argues that there has been no permanent improvement, that is not necessarily the goal of treatment.

22However, where the treatment can provide temporary relief, especially for such a young claimant, I find it reasonable for her to seek a course of treatment modalities that will allow her to continue with her school studies, and other activities of daily living that she was regularly engaged in pre-accident. Further, her pain reports have been consistent between her own treatment providers, and the s. 44 assessors, which I find persuasive, that she is still experiencing ongoing pain difficulties, which the pain reduction goals of the OCF-18s are specifically designed to address. The goals are not pain elimination as Zenith seems to suggest, when commenting that N.A. has not experienced permanent relief.

23For these reasons, I find that N.A. has demonstrated, on a balance of probabilities, that the OCF-18s are reasonable and necessary.

Occupational Therapy - OCF-18 dated May 29, 2020

Occupational Therapy – OCF-18 dated March 10, 2020

Social Rehabilitation Counselling – OCF-18 dated March 10, 2020

24N.A. submits that the disputed OCF-18s were denied due to being placed in the Minor Injury Guideline (the “MIG”). I note that N.A. was removed from the MIG in January 2021 based on Dr. Nemeth’s December 30, 2021 s. 44 psychological report.

25It is well-settled law that once an applicant is removed from the MIG, the onus shifts to whether treatment sought is reasonable and necessary, and the funds available moves to the next available tier, in this case, $65,000.00. There is no partial removal from the MIG, only a complete removal, regardless of whether it was based on physical injuries or psychological impairments. While Zenith argues that N.A. can still be found to have her physical injuries constrained to the MIG, despite its determination that she is removed from the MIG as a result of her psychological impairments, I find this position is incorrect.

26Once an insurer has notified an applicant that they have been removed from the MIG, whether it is due to a pre-existing injury, non-minor physical injuries, or for psychological or chronic pain impairments (or any other such impairment not captured under the definition of a minor injury), there is no further reliance on any part of the MIG framework. Such a notice necessarily indicates to an insured that they now have access to the second tier of funding, beyond the $3,500.00 ($65,000 in N.A.’s case). The Schedule does not establish two separate funding amounts for insurance benefits, i.e. one for physical injuries and one for psychological impairments. Section 18 says the sum total of med and rehab is $3500, unless the person provides compelling evidence of a pre-existing medical condition that will prevent the insured from achieving maximal medical recovery if subject to the MIG limits. It does not say the sum total is $3500 per type of impairment.

27The goals of the OCF-18s for occupational therapy included improvement in physical functioning and organizational strategies for schoolwork. Community-based rehabilitation was recommended to work in collaboration with the [THE HOSPITAL]’s pain management program to help with recommendations in the home; educating the family on chronic pain management program strategies; addressing issues outside of chronic pain; exploring occupational issues related to school, sleep, self-care, productivity and leisure; limiting the treatment hours and virtual telehealth treatment with [the hospital]. For the reasons to follow, I find that the OCF-18s are not reasonable and necessary.

28N.A. submits that a large portion of the [the hospital] program is online, and thus poses challenges for her to participate, such as issues with technology, motivation to access the online program, and post-concussion symptoms when accessing online programming. She further submits that access to the pain management program is every 4-6 weeks, the program is online in a group format, which does not address her individual needs. Her position is that the recommended treatment sessions will more adequately address her individual needs and help her work toward improving her ability to cope with her psychological issues.

29Zenith relies on the December 20, 2021 s. 44 report of Dr. Nemeth, in support of its denial. Dr. Nemeth opined that at the time of the report, N.A. has been dealing with her symptoms for over a year, that the symptoms have become entrenched and reflect a poor prognosis. Dr. Nemeth noted that N.A. has yet to participate in treatment aimed at the maladaptive manner in which she is coping with pain. Dr. Nemeth went on to report that the prognosis is guarded to fair and improvement in functioning will depend on N.A.’s diligence in implementing the skills and techniques taught in the pain management program.

30Further, Dr. Nemeth noted that from a psychological perspective, there has been no recovery to date. In the report, Dr. Nemeth diagnosed N.A. with somatic symptom disorder with predominant pain as a direct result of the accident. In making a determination about the OCF-18s, Dr. Nemeth noted that the pain management program at [the hospital] included a physician, pharmacist, physiotherapist, psychologist, nurse practitioner, psychiatrist, occupational therapist and social worker. It was Dr. Nemeth’s opinion that with the number of treatment providers and the scope of the program, attending the pain management program is in N.A.’s best interest and will adequately address her symptoms and problems. For these reasons, Zenith determined that the OCF-18s for occupational therapy were not reasonable and necessary.

31While I appreciate N.A.’s expressed concerns regarding the format of the [the hospital] pain management program, I am not persuaded that the program will not be of benefit, due to the extensive resources available through the program. As a high school student, I also do not find that the online aspect of the program is not something she cannot navigate, having likely to do engage in online learning as part of her schoolwork. Further, N.A. did not specifically address why she would not be able to engage in the group aspect of the pain management program, or how it would be detrimental to her recovery.

32I agree with Zenith’s determination and find that the occupational therapy and social work OCF-18s are not reasonable and necessary. N.A. has been recommended to participate in a pain management program at [the hospital], which I find already provides the reasonable and necessary services she would require in order to properly address her post-accident issues. Further, the services provided by the specialized program, appears to utilize the services of the necessary treatment providers, that the OCF-18s recommend. While I am not directed to evidence of N.A.’s participation in the pain program, or any results of treatment received, I find the OCF-18s to be redundant of the services recommended through the pain program. Further, I find the pain program to be more of a fulsome, specialized program that enlists the services of a broader range of specialists that can specifically and uniquely address N.A.’s post-accident symptomatology.

33For these reasons, I see no reason to interfere with Zenith’s determination.

Optometry Services – OCF-18 dated September 15, 2020

34I find the OCF-18 recommending a visual perceptual skills and visual information processing evaluation is reasonable and necessary.

35N.A. submits that the OCF-18 was initially denied based on placement in the MIG. However, upon removal, Zenith did not reconsider whether the OCF-18 was reasonable and necessary. N.A. incurred the assessment, and Dr. Irani diagnosed N.A. with post-trauma vision syndrome and recommended in office vision therapy. Dr. Irani noted that the large difference in prescription between the eyes, makes it difficult for N.A.’s eyes and brain to adjust to the poor binocular vision function resulting from post-concussion syndrome.

36Contrastingly, Zenith relies on the s. 44 report of Dr. Mendis, neurologist, who diagnosed N.A. with a WAD II neck injury, opined that N.A.’s headache complaints were at best persistent headaches attributed to whiplash. Dr. Mendis went on to opine that the neurological examination was negative for any objective findings, and that N.A. did not meet the accepted criteria for a concussion diagnosis. Dr. Mendis further noted that even if N.A. suffered a concussion, it would have been mild, and the remaining symptoms are not likely to be on the basis of neurotrauma.

37I prefer the report of Dr. Irani over that of Dr. Mendis for several reasons. First, as an optometrist, Dr. Irani specializes in the area of ocular health. Dr. Mendis did not address the vision issues that N.A. complained about, and therefore, the report cannot be relied on to address blurred vision as a result of differing eye prescriptions. Regardless of whether the concussion may have been mild or traumatic, both N.A.’s treatment providers, and the appropriate s. 44 assessors, have acknowledged some level of concussion occurring. Accordingly, resulting difficulties, such as vision problems, may need to be reasonably assessed to determine the extent of the issue, as it relates to post-accident impairments. The medical documentation supports that N.A. suffered injuries that may require further investigation as to the severity and appropriate treatment recommendations.

38For these reasons, I find the September 15, 2020 OCF-18 is reasonable and necessary.

Interest

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

40Having determined that N.A. is entitled to funding for the massage, chiropractic, physiotherapy and optometry treatment plans, interest is payable in accordance with s. 51 of the Schedule.

ORDER

41N.A. has established that the OCF-18s for massage therapy, chiropractic and physiotherapy treatment, and optometry services, are reasonable and necessary. Interest is payable in accordance with s. 51 of the Schedule.

42N.A. has not established that the OCF-18s for occupational therapy and social work services are reasonable and necessary. No interest is payable.