Kearns v. Co-operators General Insurance Company
Licence Appeal Tribunal File Number: 21-006699/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:
Donna Kearns
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR: Bruce Stanton
APPEARANCES:
For the Applicant: Colleen L. Burn, Counsel
For the Respondent: Jason H Goodman, Counsel
HEARD: By Written Submissions
OVERVIEW
1Donna Kearns, the applicant, was involved in an automobile accident on February 1, 2017, 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, Co-operators General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to $3,400.00 for physiotherapy services proposed by First Step Physiotherapy (Eli Denham – physiotherapist) in a treatment plan/ OCF-18 (“plan”) dated February 15, 2021?
Is the applicant entitled to $1,546.63 for an in-home functional assessment proposed by Modern OT (Shannon McGrath, occupational therapist) in a plan dated January 20, 2021?
Is the applicant entitled to $2,294.54 for a psychological assessment proposed by Ricci Psychology Professional Corporation (Dr. Lindsey MacLeod, psychologist) in a plan dated February 6, 2021?
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
3The application is granted, in part. The applicant is entitled to the treatment plans referenced in issues 1, 2 and 3, including interest from the date of the denial. The respondent is not liable to pay an award under s. 10 Regulation 664.
ANALYSIS
The applicant’s accident-related injuries warrant the disputed treatment plans
4Prior to the accident, the applicant suffered from mild to moderate debilitating impairments including anxiety and depression, neck and low back pain from cervical spinal stenosis diagnosed in 2004, and multilevel degenerative disc disease. She reported suffering from occasional loss of balance and vertigo a year prior to the accident. Pre-accident medical records demonstrate that she suffered from osteoarthritis in her right hand and in both knees.
5The applicant submits that despite the chronic nature of her pre-accident physical and psychological impairments and the unlikelihood of a full recovery from them, the treatment plans in dispute are reasonable and necessary. She submits the medical evidence supports that the accident aggravated her pre-accident physical impairments, caused new injuries to her cervical spine, and these injuries further reduced her functionality and mental health. She continues to suffer physical impairments including constant pain in her neck, back, right wrist, and both knees. She reports suffering from balance issues, tremors, and has difficulty sleeping.
6The applicant also submits that the accident exacerbated her pre-accident psychological impairments and have resulted in reduced functionality and major depressive disorder. The applicant submits that the insurer is obliged to approve these treatment plans because they propose treatments to relieve pain and prevent further deterioration of her physical injuries, and to assess the applicant’s needs from an occupational therapy and psychological perspective. The applicant supports her claim to the disputed accident benefits with physiatry, psychological, and in-home functional abilities assessment reports.
7The respondent recognized, soon after the accident, that the applicant sustained injuries that were beyond the Minor Injury Guideline (the “MIG”) set out in s. 3 of the Schedule, and therefore removed her from the MIG. The respondent submits the applicant’s current impairments are not accident-related but are more a progression of pre-accident physical and psychological impairments. The respondent relies on a physiatrist’s insurer examination, physicians’ and imaging clinical notes and records, and its review of the applicant’s claim submissions, in denying the disputed claims for accident benefits.
8In accordance with sections 14 and 15 of the Schedule, the respondent is obliged to pay for all reasonable and necessary medical treatments incurred by an insured person who sustains impairments as a result of a motor vehicle accident.
Issue 1: Physiotherapy services, $3,400.00
9I find the applicant is entitled to the treatment plan proposed by First Step Physiotherapy because the accident resulted in physical injuries and aggravated existing physical impairments that the proposed physiotherapy treatments are intended to address. Essentially, I find this plan to be reasonable and necessary because it proposes to reduce the applicant’s accident-related pain, increase range of motion in her neck and back, and improve her ability to walk and use stairs without experiencing so much pain.
10Section 15 of the Schedule obligates the respondent to pay for medical benefits that are reasonable and necessary. The applicant submits the treatment plan for 20 sessions of physical therapy is reasonable and necessary considering the injuries she sustained in the accident.
11In support of her claim, the applicant submits a physiatry assessment by Dr. Alex McKee, MD, physiatrist, dated May 26, 2021. Dr. McKee is a specialist in physical medicine and rehabilitation. His assessment includes a document review and in-person physical examination.
Cervical facet joint and lower back spinal injury caused by the accident
12Dr. McKee concludes the applicant sustained significant accident-related impairments that have resulted in a reduction of range of motion and increased pain in multiple areas. I give weight to his report because it includes a thorough review of other medical evidence and he used it to draw a comparison between the severity of the applicant’s pre-accident impairments and the more severe impairments she lives with post-accident. For example, he references that injury to the applicant’s cervical facet joints are revealed only after the accident and are a common source of chronic pain post-trauma. He identifies that a physical exam by Dr. Lynne MacGregor, physiatrist, only two days prior to the accident, found no involvement of the cervical facet joints in relation to the applicant’s back and neck pain. He also documents the applicant’s advanced spinal pain at the time of his examination (four years post-accident), in comparison to the pre-accident findings of Dr. MacGregor who did not feel there were spinal pain generators at the time of her assessment.
13His finding regarding the cervical facet joints injury is supported by medical imaging evidence provided in the insurer examination (“IE”) report of Dr. Albert Cheng, MD, physiatrist, where a CT scan of November 23, 2019, first notes, “… severe left facet joint degenerative change.” Dr. Cheng agrees with Dr. McKee on his finding of the new cervical facet joint injury. Dr. Cheng’s report, like Dr. McKee’s, included a thorough medical document review, physical examination, and detailed analysis of the applicant’s pre-accident and post-accident symptoms and health condition.
14Dr. McKee’s and Dr. Cheng’s reports were compelling in their conclusions that the applicant’s advanced symptomology reported after the accident and up to four years after, was due to the accident. For example, Dr. Cheng concluded that the applicant sustained a grade II Whiplash Associated Disorder, and a strain/sprain of the thoracolumbar spine, both superimposed upon pre-existing, multilevel degenerative disc disease, in the accident. It resulted in aggravation of the pre-existing chronic neck pain and low back pain. The progression of the disc disease caused by the accident appears to have caused further deterioration in her earlier issues with balance and vertigo.
Symptoms of poor balance and vertigo causation is not conclusive
15The applicant was referred to three different neurosurgeons, post-accident, in relation to her ongoing neck and back pain and symptoms of poor balance, vertigo, and spasticity in her legs. They conclude that these symptoms are linked to her degenerative disc disease. Surgery was recommended but the applicant, to this point, has declined surgical intervention. Dr. Cheng’s and Dr. McKee’s physiatry reports summarize the neurosurgeons’ findings but are non-committal as to whether the poor balance, vertigo and spasticity symptoms are accident related. They each report these symptoms as being stable, or clinically improved (Cheng) at the time of their assessments.
Pain in right hand and knees is likely not accident related
16In relation to the applicant’s reports of accident-related injury to her right hand and left knee, Dr. Cheng concludes these injuries are now resolved. He points to post-MVA radiographs of the knees revealing osteoarthritic changes and her ongoing symptoms are a result of the natural progression of pre-existing knee osteoarthritis.
17With the right-hand, knee, and imbalance symptoms being inconclusive as to whether they were accident related, that leaves the applicant’s injury to her cervical facet joints (pain and reduction in range of motion) and the injury to the lower thoracic and lumbosacral region, that were caused by the accident. Dr. Cheng corroborated Dr. McKee’s findings as discussed above and concluded that the accident caused aggravation of a) a pre-existing chronic neck pain condition, and b) a strain or sprain of the thoracolumbar spine superimposed upon her pre-existing degenerative disc disease, causing chronic mechanical low back pain.
18The respondent denied the claim for this treatment plan based in the IE of Dr. Raymond Zabieliauskas, physiatrist, who interviewed the applicant by videoconference February 19, 2021. Dr. Zabieliauskas concluded, based on his interview, and his review of imaging and other medical evidence, that the applicant’s impairments were not accident related but rather a natural progression of her pre-accident impairments: degenerative disc disease and osteoarthritis. I give less weight to Dr. Zabieliauskas’ conclusion because he did not conduct an in-person physical examination. Dr. McKee refutes Dr. Zabieliauskas’ IE conclusions noting it is not possible to conclude the applicant’s ongoing complaints were unrelated to the accident injuries without doing a comprehensive physical examination. I agree. A comprehensive and detailed IE conducted by Dr. Cheng, one year later, did include a physical examination of the applicant. Dr. Cheng’s findings are discussed above. I attach greater weight to Dr. Cheng’s IE report and note his conclusions on accident-related injury align with the physiatry report of Dr. McKee.
19Dr. McKee states that the applicant will have permanent impairment resulting from the accident and her prognosis is dependent on her ability to access further treatment.
20I find that the applicant sustained injury to her cervical and thoracolumbar (lower) spine in the accident that aggravated her pre-existing disc disease and therefore find the proposed treatment plan to reduce pain, and increase range of motion and walking tolerance, to be reasonable and necessary. The insurer is obliged, pursuant to s. 15 of the Schedule, to approve the 20 sessions of physiotherapy.
Issue 2: In-home assessment $1,546.63
21I find the in-home functional abilities assessment proposed by Shannon McGrath, occupational therapist, to be reasonable and necessary. Ms. McGrath proposes to complete an in-home assessment to identify functional goals, vocational support, and pain and fatigue management strategies to improve the applicant’s cognition and organizational skills, pacing and planning, addressing low-mood, and re-engaging in leisure activities.
22The applicant submits the treatment plan for the in-home functional abilities assessment is reasonable and necessary considering the injuries she sustained in the accident. She submits that occupational therapy interventions are needed to assist her with increasing her tolerances for work-related and leisure activities, and to better manage her fatigue and mood. She relies on a functional assessment report by Katelyn Bridge, occupational therapist, dated July 14, 2022 in supporting the reasonableness and necessity of this assessment.
23Ms. Bridge’s assessment included an in-home, in-person interview, and a medical document review that included the records and reports referenced above by Dr.’s McKee, Cheng, MacGregor, and Zabieliauskas. She concludes that the applicant’s overall functioning has been greatly impacted by ongoing pain, fatigue and psychological symptoms and that she would benefit greatly from participation in occupational therapy, to learn and implement strategies to address those symptoms.
24I assign weight to Ms. Bridge’s assessment because it is consistent with the findings of Dr. McKee and Dr. Cheng’s assessments discussed above. Her report identifies the myriad of pain symptoms the applicant is living with, including in her knees and right hand, that are not conclusively accident related. As discussed above, the applicant suffers from a complex set of pre-accident and post-accident pain inducing impairments (degenerative disc disease, osteoarthritis, and associated cervical myelopathy (spasticity). As discussed in issue one, the accident injured the applicant’s cervical and thoracolumbar spine and aggravated pre-accident spinal impairments. The accident aggravated and exacerbated these underlying physical impairments to the extent that the applicant’s functionality, and, as will be discussed below, her psychological health, have been diminished. Her current symptoms, therefore, warrant appropriate medical and rehabilitative interventions.
25Ms. Bridge’s assessment makes recommendations for the kinds of treatments and services that may be considered, and which align with the applicant’s accident-related injuries.
26The respondent denied the treatment plan on the basis of Dr. Zabieliauskas’ IE report which concluded the applicant’s current impairments were not accident related. The respondent further relies on the clinical notes of Dr. Duncan McIlraith, neurosurgeon, of November 23, 2020, noting the applicant reported that she continued walking, exercising, cycling and going for long walks, in supporting its denial of this treatment plan. As discussed above, I assign less weight to Dr. Zabieliauskas’ report because it did not include a physical examination, and Dr. McIlraith’s clinical notes pre-date the extensive reports of both Dr. McKee and Dr. Cheng which document the applicant’s progressive pain symptoms that arose from the accident injuries. Accordingly, I give less weight to Dr. McIlraith’s report.
27I find the goal of the treatment plan, to identify means for the applicant to cope with her accident-related injuries, aligns with the severity of the impairments the applicant lives with daily, as discussed in the previous issue. The in-home functional abilities assessment will point to activities she can engage in to improve her functionality despite the permanent nature of her injuries.
28I find the proposed treatment plan to be reasonable and necessary and the insurer is obliged, pursuant to s. 15 of the Schedule, to approve the in-home assessment by Ms. McGrath.
Issue 3: Psychological Assessment, $2,294.54
29I find the proposed psychological assessment, on a balance of probabilities, to be reasonable and necessary.
30The assessment is proposed by Dr. Lindsey MacLeod, psychologist, with the purpose of determining the psychological impairment(s) that were caused by the accident and to provide treatment recommendations. The OCF-18 makes clear this proposal is for an assessment, only, not for specific treatments, therapies or rehabilitative activities. The assessment is proposed on the basis that the applicant presented with moderate depression and anxiety, persistent pain, features of PTSD and reduced cognitive efficiency, that were impacting her sleep, activities of daily living, occupational duties and leisure and recreational activities.
31The applicant submits that medical evidence supports the need for a psychological assessment. She relies on a psychological assessment by Dr. MacLeod, that describes how the applicant’s psychological health has diminished post-accident and that the applicant’s ability to cope with her physical and emotional impairments has been overwhelmed. For example, the applicant now requires increased amounts of psychotropic medication to cope emotionally. Dr. MacLeod reports the applicant had used exercise and medication to successfully manage her pre-accident suffering from anxiety and depression, but since the accident, her physical symptoms have advanced significantly and compounded her psychological suffering.
32I give weight to Dr. MacLeod’s assessment because she conducted a clinical interview by tele-medicine (COVID-19 protocol), psychological screening including validity tests, and reviewed clinical notes and records of the applicant’s family physician, sports medicine physician, Dr. MacGregor (physiatrist), Dr. McIlraith, neurosurgeon, and the responding hospital and paramedic team.
33The psychological screening results showed the applicant’s psychological symptoms have become more severe since the accident, including severe depression, severe anxiety, post-traumatic stress disorder, clinically significant catastrophizing of physical pain, and moderate to severe perception of disability due to pain. A PAI validity test was administered, and the applicant scored in the normal range, suggesting no attempt by the applicant to present an inaccurate impression.
34The respondent denied the treatment plan on the basis of a lack of medical evidence to suggest there was any psychological injury arising from the accident. At the time of the denial, Dr. MacLeod’s assessment report was not available to the respondent, and it now submits her assessment lacks the medical evidence to corroborate the applicant’s complaints of psychological impairment. The respondent submits that Dr. MacLeod did not assess to what degree her psychological symptoms were accident-related and for all these reasons confirms its denial of the treatment plan.
35The respondent offers no separate insurer examination to support its denial and it is not required to, however, I find its outright denial of the plan on a claim of lacking evidence, on balance, to be less persuasive than Dr. MacLeod’s assessment report.
36The respondent did not direct me to any clinical notes and records, specifically in relation to the proposed assessment, to refute the applicant’s claim of accident-related psychological injury. However, it did submit, under the heading of Post-Accident Injuries and Treatment, comments on the records of Dr. Ali Sa Al-Byati, the applicant’s new family physician, on April 24, 2020. At the applicant’s initial assessment, Dr. Al-Byati reported that the applicant denied psychological issues “… such as feelings of guilt or worthlessness, suicidal thoughts, irritability, concentration impairment, decrease in energy, and was not usually nervous or anxious on most days.”
37I find Dr. Al-Byati’s comments to be at odds with the findings of Dr. MacLeod but on balance, give more weight to Dr. MacLeod, as she is a clinical psychologist with a special interest in treating trauma and PTSD, that she included validity testing in her assessment, and that this was a first appointment with Dr. Al-Byati and the only record of Dr. Al-Byati submitted as evidence. Dr. MacLeod’s assessment is more robust in the area of the applicant’s psychological history and the characteristics of her journey with psychological symptoms before and after the accident.
38In her reply submissions, the applicant noted that the respondent failed to acknowledge or respond to the report of Dr. MacLeod and address this new medical evidence as the basis for funding an assessment. I agree with the applicant. The MacLeod report provides sufficient medical evidence to establish that the applicant is suffering increased psychological symptoms that are associated with her increased pain from accident-related injuries, and likely superimposed upon her pre-existing psychological condition. She now requires more psychotropic medication to cope, and she is constrained in using her traditional approach, exercise, to relieve her anxiety and depression due to physical pain.
39I find, on a balance of probabilities, that the psychological assessment is reasonable and necessary. The insurer is obliged, pursuant to s. 15(1)(h) to pay for the assessment proposed by Dr. MacLeod.
Interest
40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I find the proposed treatment plans to be reasonable and necessary, interest must be paid pursuant to s. 51.
Award
41The applicant 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.
42The applicant submits that the respondent failed to critically analyse the s. 44 assessment (Dr. Zabieliauskas) and review new medical evidence, in relation to Dr. MacLeod’s report, and was therefore being unreasonable in its denial of benefits.
43The respondent submits that if the applicant is found to be entitled to the disputed treatment plans, it did not unreasonably withhold or deny payment. It relies on Perri v. Allstate Canada, 2022 CanLII 65660, at paragraph 23, where the adjudicator found that a s. 10 award should not be ordered simply because an insurer denied a claim for treatment that was later ordered reasonable and necessary by an adjudicator. Rather, meeting the threshold for an award must involve the respondent’s conduct being excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
44I agree with the respondent. I do not find the respondent’s denial of the benefits to be unreasonable. Based on the evidence the respondent had before it, it could reasonably make a determination to deny the treatment plans. The IE of Dr. Zabieliauskas’ was persuasive on its own. However, when compared to the assessments of Dr. McKee and Dr. Cheng, it becomes less so. I find the applicant did not demonstrate that the respondent was excessive or imprudent in its determinations.
45I find there is no basis for a s. 10 award in this appeal.
ORDER
46I order the application granted, in part:
i. The applicant is entitled to $3,400.00 for physiotherapy services proposed by First Step Physiotherapy.
ii. The applicant is entitled to $1,546.63 for an in-home functional assessment proposed by Modern OT.
iii. The applicant is entitled to $2,294.54 for a psychological assessment proposed by Ricci Psychology Professional Corporation.
iv. The applicant is entitled to interest on the overdue payment of benefits in accordance with s. 51 of the Schedule.
v. The respondent is not liable to pay an award under Regulation 664.
Released: July 14, 2023
Bruce Stanton
Adjudicator