Citation: Mujtaba v. BelairDirect Insurance Company, 2023 ONLAT 20-008028/AABS

Licence Appeal Tribunal File Number: 20-008028/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:

Mushtaq Mujtaba

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Muhammad Alam, Counsel

For the Respondent:

Denise Junkin, Counsel

HEARD:

By way of written submissions

BACKGROUND

1The applicant, Mushtaq Mujtaba (“M.M.”), was involved in an automobile accident on April 12, 2018, and sought benefits from the respondent, Belair, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Belair denied the treatment plans after conducting s. 44 examinations, and determined the disputed benefits were not reasonable and necessary. M.M. disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The issues to be determined in this hearing are as follows:

a. Is the medical benefit in the amount of $3,520.00, (less $3,104.44 approved) for a physiotherapy treatment, recommended by Total Care Management Peel, dated July 17, 2018, reasonable and necessary?

b. Is the medical benefit in the amount of $1,760.00 for physiotherapy treatment plan, recommended by Total Care Management Peel, dated October 13, 2020, reasonable and necessary?

c. Are the medical benefits reasonable and necessary recommended by Pearson Medical Assessment Centre as follows:

i. $2,200.00 for a psychological assessment dated September 15, 2019;

ii. $2,200.00 for a physiatry assessment dated February 20, 2020;

iii. $1,988.90 for a functional impairment assessment dated January 20, 2020?

d. Is M.M. entitled to interest on any overdue payment of benefits?

RESULT

3M.M. is entitled to the balance of the July 17, 2018 OCF-18.

4M.M. is entitled to the cost of the October 14, 2020 treatment plan for physiotherapy treatment as it is reasonable and necessary.

5Further, I find that M.M. is entitled to the assessments in dispute as they are reasonable and necessary.

6Interest is payable on the outstanding payment of benefits in accordance with s. 51.

ANALYSIS

Is the balance of the July 17, 2018 OCF-18 reasonable and necessary?

7Section 15(1) of the Schedule provides that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured as a result of an accident. The onus is on M.M to establish that the disputed treatment plans are reasonable and necessary to further treat his accident-related impairments. I find that M.M has met his onus on a balance of probabilities.

8M.M. submits that the balance of the July 17, 2018 OCF-18 for physiotherapy is reasonable and necessary to address his ongoing pain issues. The OCF-18 proposed 24 1.25-hour sessions of chiropractic treatment, with Belair approving 24 1-hour sessions in the amount of $3,104.44. I note that Belair incorrectly calculated the approved amount, which it admits, and the correct amount should be $3,107.44. M.M. further submits that Belair’s reasons in the explanation of benefits did not comply with s. 38 of the Schedule.

9On review of the notice dated November 8, 2018, I find that Belair properly denied the disputed OCF-18 within the ten days as required under s. 38 of the Schedule. Its notice indicated that a s. 44 insurer examination (“IE”) was required, and the report was included with the notice. Further, the notice identified the recommendations of the OCF-18, and, in accordance with the report of the IE assessor, provided the medical and other reasons why the OCF-18 was partially approved. I see no issue with s. 38 compliance that would make the balance of the July 17, 2018 OCF-18 payable.

10I find that M.M. has established that the balance of the OCF-18 is payable. While his submissions focus on the alleged shortcomings of Belair’s notice, there are numerous reports of consistent pain complaints, impact on functional ability (regarding M.M.’s ability to work), and his engagement in sports and other recreational activities. I will further discuss the evidence regarding M.M.’s pain complaints as it pertains to the remaining OCF-18s. M.M.’s self-reporting of temporary relief from pain is well-established as a legitimate goal of treatment and was indicated as one of the goals of the OCF-18. Further, I find his self-reporting to be persuasive and given the minimal amount remaining on the OCF-18, I find that M.M. is entitled to the balance of the July 17, 2018 OCF-18.

Is the October 13, 2020 OCF-18 reasonable and necessary?

11M.M. submits that the October 13, 2020 OCF-18, which proposes 12 1.25-hour sessions of physical rehabilitation, is reasonable and necessary as a means to address ongoing neck, left shoulder and back pain. M.M. further submits that Belair’s notice did not deny the OCF-18 in accordance with the requirements of s. 38 of the Schedule.

12On review of the notice correspondence dated October 19, 2020, I find that Belair properly denied the OCF-18 in dispute within the 10-day time period prescribed by the Schedule. Its notice indicates that it required a s. 44 examination, and I find the medical reason (a reference to M.M.’s “current medical diagnosis and prognosis”) and other reasons noted in the notice to also comply with s. 38. I do not find any issue with the October 19, 2020 notice that would result in the OCF-18 being automatically payable as a result of non-compliance.

13On the evidence, however, I find that the OCF-18 is reasonable and necessary. M.M. points to a lumbar spine MRI report dated January 1, 2016, a left shoulder diagnostic report dated April 12, 2018 and the clinical notes and records (“CNRs”) of his family physician and the treatment provider, Total Care Management, in 2018-2019/20, which he submits all support that he is having ongoing pain complaints.

14While some of the evidence he relies on is somewhat dated in terms of being contemporaneous to the October 2020 OCF-18, I find there are ongoing reports of pain made to his primary care physician, the assessors and to the treatment providers at Total Care Management. Further, while M.M. reports that the pain relief only lasts for about a day, it is well-settled that pain relief is a legitimate goal, even if that relief is only temporary. I prefer M.M.’s medical records over the s. 44 opinion of Dr. Yee. While Dr. Yee determined that the treatment was not reasonable and necessary, I find he acknowledged that M.M. presented with pain and Dr. Yee also approved a round of similar treatment from the July 2018 OCF-18. Where M.M. continued to complain of pain, I prefer his reports over those of Dr. Yee’s.

15While I acknowledge that there is an almost two-year gap between the July 2018 and October 2020 OCF-18s, I find the fact that the October 2020 treatment was almost fully incurred to be indicative of the need for ongoing treatment to address the pain complaints. Having suffered a dislocated shoulder and having to change jobs as a result of functionally limiting pain is, in my view, a persuasive indication that further treatment may still be required in order to achieve the goal of maximum medical recovery. Further, even where maximum medical recovery may not be achievable, the relief from pain is a sufficient enough goal (as indicated in the OCF-18) to warrant additional reasonable and necessary treatment.

Is the September 19, 2019 OCF-18 for a psychological assessment reasonable and necessary?

16M.M. submits that the goal of this OCF-18 is pain reduction. While I disagree that a reasonable goal of a psychological assessment is pain reduction, I find that M.M. is entitled to funding to the OCF-18. I make this determination based on the evidence that supports he suffered psychological impairment as a result of the accident, such that I find further investigation into the severity of the impairment is reasonable and necessary.

17Belair denied the OCF-18 on December 5, 2019 based on a December 3, 2019 IE by psychologist, Dr. Lubbers. It took the position that Dr. Lubbers did not diagnose M.M. with a DSM-5 mental or behavioural disorder or find that M.M. suffered any clinically significant psychological impairment as a result of the accident. In a May 7, 2021 report, Dr. Lubbers reassessed M.M. and found that he met the criteria for a DSM-5 diagnosis, determining that he suffered from adjustment disorder with depressed mood. Dr. Lubbers recommended 10 1-hour sessions, which were approved by Belair.

18I agree with M.M. that closer to the time of the accident, he had ongoing symptoms at the time of the December 2019 IE with Dr. Lubbers, that likely developed into a DSM-5 diagnosis. I find that there is sufficient evidence to support that a psychological assessment is reasonable and necessary, given the severity of the accident, the injuries sustained, and the fact that Belair, over a year later, diagnosed and approved funding for psychological treatment. The medical evidence supports that M.M. suffered psychological symptomatology which has been directly linked to the accident.

19Therefore, it was reasonable for him to want to obtain an opinion as to the state of his post-accident psychological well-being, as Belair had also done, and subsequently approved treatment for. For an assessment to be reasonable and necessary, an applicant should at least establish that they suffer from symptoms that they seek an assessment of. I find that M.M. suffered psychological impairments that warrant further investigation in order to determine what the severity and appropriate course of treatment for these impairments would be.

Is the January 15, 2020 OCF-18 for a physiatry assessment reasonable and necessary?

20I find that M.M. is entitled to funding for the physiatry assessment.

21Having found that M.M. is entitled to funding for treatment for his physical impairments, it follows that an assessment to determine the severity of his physical injuries is reasonable and necessary. Further, I found the medical and documentary evidence persuasive where Belair partially funded physical treatment and where the applicant consistently reported pain complaints to his treatment providers, assessors and IE assessors.

22Although Belair argues that M.M. had full range of motion, as noted in Dr. Yee’s October 20, 2020 orthopaedic report, full range of motion does not necessarily rule out that pain is not present with movement. This is evidenced by M.M.’s reports of mild to moderate pain in the cervical, thoracic and lumbar spine, and left shoulder.

23Assessments are speculative, by nature. The purpose is to determine whether an applicant has a specific condition or meets a specific threshold. There is the possibility that the assessment will prove to be negative. However, where there is plausible evidence suggesting that a specific condition exists, further investigation can be found to be reasonable and necessary.

24On the evidence, I find that there is a reasonable basis to conduct the assessment to determine the proper course of treatment for M.M.’s physical impairments. This is further supported by the partial approval of physical treatment. Belair’s determination that M.M. is entitled to funding for treatment supports that there is a reasonable probability that he may require an assessment of his physical injuries suffered as a direct result of the accident. In addition, where M.M. reports that certain modalities of treatment only provide temporary relief, I find a physiatry assessment may provide direction for a more beneficial course of treatment.

Is the January 15, 2020 OCF-18 for a functional impairment assessment reasonable and necessary?

25I find that M.M. is entitled to funding for a functional impairment assessment.

26The goal of this OCF-18 was to identify barriers to recovery and treatment options that might be available to M.M.

27Belair denied the OCF-18 as a result of a November 3, 2020 IE report from Dr. Yee. Dr. Yee opined that from an orthopaedic perspective, there was no objective clinical indication to support a functional impairment assessment. Belair submits that M.M.’s self-reported functional limitations were “more than anticipated given the objective clinical findings.”

28On the evidence, M.M. reported that he returned to a sedentary part-time customer service-based position from March 2019 to July 2020. He was unable to continue the job due to pain. He further reported that he is only able to engage in light housekeeping and self-care tasks. He also reported that he has difficulty sitting and standing for more than 30 minutes, that he has pain with his functional movements in his neck, bilateral shoulders, left elbow and upper and lower back. Lastly, M.M. has reported that he has not returned to his pre-accident social, sports and recreational activities.

29Belair submits that the medical documentation does not support that the OCF-18 is reasonable and necessary. It points to the last entry in the provided CNRs of family physician, Dr. Sikander, that note presentations for non-accident-related complaints (periumbilical pain and acne). Its position is that there is no evidence that M.M. consulted with Dr. Sikander for accident-related injuries or functional limitations between June 2018 and the present time.

30I disagree with Belair. First, M.M. has not been able to return to full time employment that he was engaged in at the time of the accident. He did return to part-time work, however, had to quit due to pain. He has not been able to return to his sports and recreational activities and has a sit/stand tolerance of 30 minutes. There is no evidence that any of this functional limitation existed pre-accident, and two years post-accident, there is no indication that he has fully returned to his pre-accident level of function.

31As the purpose of this OCF-18 is to determine M.M.’s level of function, and the documentary evidence shows clear evidence of accident-related impact on his level of function, I find that the functional impairment assessment is reasonable and necessary.

INTEREST

32Having found that M.M. is entitled to the disputed OCF-18s, it follows that interest is payable on the outstanding payment of benefits.

CONCLUSION

33M.M is entitled to the balance of the July 17, 2018 OCF-18.

34M.M. is entitled to payment for the October 13, 2020 OCF-18 for physiotherapy.

35M.M. is entitled to payment for the OCF-18s for the assessments.

36Interest is payable in accordance with s. 51 of the Schedule on all outstanding payments of benefits.