Licence Appeal Tribunal File Number: 21-005567/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:
Susan Bisschop
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Janet Hueglin Hartwick
APPEARANCES:
For the Applicant:
Anna ML Stoll, Counsel
For the Respondent:
Kristopher B. Angle, Counsel
HEARD: In Writing
June 30, 2023
1O Susan Bisschop, the applicant, was involved in an automobile accident on March 5, 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, Aviva Insurance 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 a medical benefit for $1,995.50 for physiotherapy proposed by Mark Louzon in a treatment plan submitted June 16, 2020 and denied June 16, 2020?
ii. Is the applicant entitled to $1,845.88 for the cost of an occupational therapy (OT) in-home assessment and assessment of attendant care needs proposed by Spencer Experts in a treatment plan submitted July 10, 2020 and denied July 15, 2020?
iii. Is the applicant entitled to a medical benefit for $3,990.52 for physiotherapy proposed by Mark Louzon in a treatment plan submitted May 26, 2021 and denied May 27, 2021?
iv. Is the applicant entitled to an award for unreasonably withheld or delayed payments under section 10 of Regulation 664?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant is entitled to $1,995.50 for physiotherapy services as it is reasonable and necessary pursuant to the Schedule. Interest applies pursuant to s. 51, if the expense has been incurred.
4I find the applicant is not entitled to:
i. $3,990.52 for physiotherapy services; or
ii. $1,845.88 for the cost of an in-home occupational therapy (OT) and attendant care assessment.
5The applicant is not entitled to an award pursuant to section 10 of Reg. 664.
ANALYSIS
The applicant is entitled to $1,995.50 for physiotherapy services proposed in a treatment plan dated June 10, 2020
6I am persuaded the applicant has established, on a balance of probabilities, that the treatment plan is reasonable and necessary.
7Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. To receive payment for a treatment and assessment plan under s.15 of the Schedule, the applicant bears the burden of demonstrating their entitlement to the benefit. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and how the overall costs of achieving them are reasonable.
8The applicant, who was diagnosed with WAD II, left shoulder strain and lumbar sprain/strain, submits this treatment plan in dispute should be approved on the following grounds:
a. attending treatment improved her ability to use her left arm and stand for greater periods of time;
b. when her bi-weekly treatments were put on hold due to the COVID-19 pandemic her symptoms regressed, causing increased pain and reduced range of motion; and
c. symptom management and relief are valid reasons to continue with therapeutic intervention.
9To support her claim, the applicant relies on the physiotherapy reports and treatment and assessment plans of physiotherapist Mark Louzon, the assessment report of Dr. Keith Sequeira, physical and rehabilitation medical doctor, clinical notes and records of Nixon Walk-In Clinic and OT in-home assessment and assessment of attendant care needs/Form 1 of Jerrah Mae Revilles.
10In response, the insurer submits the applicant was diagnosed with moderate tendinosis and she has failed to prove further physical therapy is reasonable or necessary. It submits the applicant is not entitled to the OT in-home occupational therapy and attendant care assessment as the applicant has reported to medical assessors that she works and she is independent with her activities of daily living. It relies on the applicant’s employment file, physiotherapy reassessment report of physiotherapist Alison Higgins, a left shoulder ultrasound report, a clarification letter from the respondent to the applicant and the s. 44 insurer examination (IE) report and addenda of Dr. Jacqueline Auguste, orthopaedic surgeon, to support its position.
11I agree with the applicant. I am persuaded that, on a balance of probabilities, she is entitled to the treatment plan of 18 physical rehabilitation sessions for the following reasons.
12I find the evidence supports the applicant was meeting her treatment plan goals of pain reduction, muscle strengthening and increased range of motion until her sessions lapsed. Physiotherapist Mark Louzon, who treated the applicant starting in June 2019, states in his June 11, 2020 progress report that the applicant’s condition declined after continuing to work and not receiving physiotherapy treatment due to the COVID-19 mandated business closure. This included a mild decline in strength and range of motion of her left shoulder, as well as a decreased range of motion in her neck. The applicant’s condition was also noted in the clinical notes and records of Dr. Pandit on August 12, 2020 at the Nixon Walk-In Clinic. Dr. Pandit noted the applicant experiences discomfort in her neck to her forearm that is heightened after lifting or working and has tenderness over the trapezius.
13In my view the findings of insurer examination (“IE”) assessor and orthopaedic surgeon, Dr. Auguste, does not outweigh the evidence provided by the applicant. Dr. Auguste states in her July 29, 2020 report that the applicant has likely reached maximal medical improvement and demonstrated a full range of motion of both shoulders and the lumbar spine. However, I find it reasonable that the applicant would benefit from additional physiotherapy sessions given that she was required to stock shelves while not receiving physiotherapy treatment for a neck and shoulder injury.
14I am not persuaded by the respondent’s position that the treatment plan is unreasonable because the goals of the plan had largely been achieved at the time it was submitted. In my view, the statement that the applicant had reached a plateau in her active range of motion and pain levels, made by physiotherapist Alison Higgins, who treated the applicant until she moved to Mr. Louzon, does not prove the applicant would not benefit from treatment. Ms. Higgins also stated the applicant has persistent left shoulder pain and weakness in her rotator cuff and the applicant’s program was focused on scapular control and shoulder strengthening to allow her to safely progress back to full hours and duties at work. I am alive to the fact that the applicant’s employment file does not include an accommodation to avoid heavy lifting. However, in my view, it is unreasonable to conclude the applicant’s ability to work as proof that all her physiotherapy goals have been achieved. Instead, I find, on a balance of probabilities, that the applicant has proven her pain and muscle strain was reduced when she received physiotherapy for her accident-related impairments and she is therefore entitled to the additional therapy sessions in dispute.
The applicant is not entitled to $1,845.88 for the cost of an OT in-home assessment and assessment of attendant care needs dated October 23, 2020
15I find the medical evidence does not support that an in-home OT assessment and attendant care assessment are reasonable or necessary.
16The applicant submits she incurred the cost of the assessment, conducted by OT Jerrah Mae Revilles, that recommends assistive devices, housekeeping support, occupational therapy, attendant care and continued physiotherapy. Dr. Sequeira, who assessed the applicant on November 19, 2021, endorses the assessment recommendations to help the applicant manage her apartment, learn functional/assistive strategies and improve her function. The respondent asserts the IE report and addendums of Dr. Auguste prove that the applicant’s ability to function, work or conduct her activities of daily living have not experienced a material change or regression, aside from some adjustment and pacing strategies. I agree with the respondent.
17While I accept that the applicant may have ongoing pain and perhaps a reduced ability to complete certain activities as she did previously, I do not find that she has demonstrated on a balance of probabilities that her modified independence is as a direct result of the subject accident. She reported to Dr. Sequeira that she takes care of her apartment independently but does not vacuum as rigorously as she did pre-accident. Yet, I have not been provided with medical evidence that supports the applicant’s self-reported findings are a result of her accident-related injuries. Likewise, the assessment report of Dr. Sequeira does not offer new medical evidence to explain why the applicant requires in-home support.
18I agree with the respondent that the applicant has consistently reported a high degree of independence in her personal care and ability to work. I have not been pointed to contemporaneous medical evidence to support the findings of the OT in-home assessment and assessment of attendant care needs. Furthermore, the applicant has provided few clinical notes and records (CNRs) from Dr. Pandit at the Nixon Walk-In Clinic, whom the applicant visited in lieu of a family doctor. In my view, it is reasonable to expect the applicant would have sought assistance from Dr. Pandit for the challenges she identified in the assessment including low energy, exhaustion, a lack of interest in her hobby and a change in her relationships with her grandchildren. Instead, I have been provided with a moderate number of CNRs from 2020 to 2021 that do not make reference to such challenges. Accordingly, I find the applicant has not met her burden to demonstrate the assessments are reasonable or necessary.
The applicant is not entitled to $3,990.52 for physiotherapy services proposed in a treatment plan dated January 13, 2021
19I am not persuaded the applicant has demonstrated the treatment plan, submitted on May 26, 2021, is reasonable and necessary.
20The applicant submits she is entitled to the physiotherapy sessions on the basis she reported experiencing constant pain from the neck down her left shoulder to her forearm, to Dr. Pandit on March 11, 2021, and she continued to attend physiotherapy by paying out of her own pocket. The respondent relies on the addenda reports of Dr. Auguste who reviewed additional reports from the applicant and maintained her denial of the treatment plan.
21In my view, the applicant has not provided medical evidence to demonstrate her accident-related injury merits 36 sessions of physical rehabilitation more than two years after the accident. While the applicant may benefit from further pain reduction and an increase of strength and range of motion, there is a lack of evidence to support this treatment plan. I have not been provided with evidence that the diagnostic imaging of the applicant has resulted in accident-related symptomology. In addition, I find the CNRs of Dr. Pandit do not support the applicant’s submission that additional rehabilitation sessions are reasonable and necessary. The evidence includes three CNRs of visits that took place between September 2020 and March 2021. Only one record, referenced above, refers to the applicant’s neck and shoulder pain as part of a self reported statement. Accordingly, I find the applicant has not met her onus to demonstrate that this treatment plan is necessary or reasonable.
Interest
22Interest applies pursuant to s. 51 of the Schedule, if the approved treatment plan of $1,995.50 has been incurred.
Award
23The 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 plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined an award is justified where the delay or withholding of benefits by the insurer is unreasonable, meaning its behaviour, is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The onus is on the applicant to prove, on a balance of probabilities, the respondent’s conduct meets this criterion.
24The applicant submits that she is entitled to the award because the respondent adjusted the file in a close-minded manner and disregarded medical evidence which resulted in the unreasonable withholding of medical and rehabilitation benefits. She seeks the maximum award of 50 per cent plus interest. The respondent asserts the applicant’s submissions fail to support her claim for an award and it disputes the assertion that adjuster Jolene Baker took a close-minded approach to the adjustment of the file. I agree with the respondent.
25In my view, the respondent’s behaviour was not unreasonable or unyielding. I am alive to the applicant’s submissions that the email written by Ms. Baker, which stated further claims would not be funded, demonstrated a close-minded approach to the adjustment of the file. Likewise, the applicant submits IE assessor Dr. Auguste failed to change her opinion without explanation after reviewing new medical evidence. I acknowledge the wording choice of both Ms. Barker and Dr. Auguste raised questions with the applicant which led to the need for letters of clarification from both the adjuster and the IE assessor. However, I find the respondent’s actions do not merit an award.
26I have not been directed to evidence that meets the threshold of behaviour that can be considered excessive, imprudent, stubborn, inflexible, unyielding and immoderate. Accordingly, I find the applicant is not entitled to an award.
ORDER
27I find the applicant is entitled to $1,995.50 for physiotherapy services as it is reasonable and necessary pursuant to the Schedule. Interest applies pursuant to s. 51, if the expense has been incurred.
28I find the applicant is not entitled to:
i. $3,990.52 for physiotherapy services; or
ii. $1,845.88 for the cost of an in-home OT and attendant care assessment.
29The applicant is not entitled to an award pursuant to section 10 of Reg. 664.
Released: July 21, 2023
Janet Hueglin Hartwick
Adjudicator