Wolf v. Pembridge Insurance, 2023 CanLII 96332

Citation: Wolf v. Pembridge Insurance, 2023 ONLAT 21-011266/AABS

Licence Appeal Tribunal File Number: 21-011266/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:

Michael Wolf Applicant

and

Pembridge Insurance Respondent

DECISION

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Michael Yermus, Counsel

For the Respondent: Maia K Abbas, Counsel

HEARD: In Writing

OVERVIEW

1Michael Wolf, 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”). The applicant was denied benefits by the respondent, Pembridge Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

[2] The issues in dispute are: i. Is the applicant entitled to $3,133.55 for massage and chiropractic in a treatment plan/OCF-18 (“plan”) submitted by Active Care Health Services on December 11, 2019? ii. Is the applicant entitled to $4,688.38 for psychological services in a plan submitted by 101 Assessments on January 12, 2021? iii. Is the applicant entitled to $2,486 for a neurological assessment in a plan submitted by Dr. Basile on March 31, 2021? iv. Is the applicant entitled to $2,460 for a psychological assessment in a plan submitted by 101 Assessments dated December 18, 2020? v. Is the applicant entitled to $11,190.92 for injections in a plan submitted by 101 Physio on April 28, 2021? vi. Is the applicant entitled to $2,075 for a SPECT scan and MRI in a plan submitted by MRI Marketing and Business Development on June 4, 2021? vii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant? viii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The application is granted in part.

4The applicant is entitled to the treatment plans for massage therapy and chiropractic (issue i), psychological services (issue ii), a psychological assessment (issue iv), and injections (issue v), plus interest.

5The applicant is not entitled to the treatment plan for a neurological assessment (issue iii), nor the scans (issue vi).

6The applicant is not entitled to an award.

ANALYSIS

Background

7The applicant submits that as a result of the motor vehicle accident, he sustained injuries that include but are not limited to the following: “mild traumatic brain injury, post-concussion syndrome, posttraumatic migraines, cervical radiculopathy, persistent somatoform pain disorder, severe headaches accompanied by blurry vision, nausea, severe cognitive impairment, low back pain, sciatica, shooting pain from neck to both arms, upper back pain, neck pain, tingling, numbness, anxiety, depression, suicidal ideations, major depressive disorder, pain disorder somatic symptom disorder, panic disorder, panic attacks, driving related anxiety, sleeping difficulties and chronic pain syndrome”.

8As a result, he submits that he requires treatment plans for massage therapy and chiropractic, psychological therapy, injections, a neurological assessment, a psychological assessment, and a SPECT scan/MRI. He puts forward that all of these plans are reasonable and necessary, and further, that he is entitled to both an award and interest for delays caused by the respondent.

9The respondent submits that the applicant was 59 years of age at the time of the accident with an extensive medical history including degenerative disc issues, long-standing headaches, and existing neck and back pain with numbness and weakness. He was also involved in multiple motor vehicle accidents before the subject accident. He attended Insurer Examinations (“IEs”) with a psychiatrist, orthopaedic surgeon, and neurologist, all of whom found that the treatment plans were not reasonable and necessary.

10To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

11I have considered the complete submissions, evidence, and authorities submitted by each party.

12I find that the treatment plan for massage therapy and chiropractic treatment is reasonable and necessary as a result of the accident.

13The applicant submits that there is substantial medical evidence to document the many injuries he sustained in the accident. Dr. Kharonsky, his family doctor, recorded the day after the accident that the applicant had severe headache, dizziness, nausea, and weakness, pain in the left neck and shoulder, and body ache. She also noted the applicant’s history of degenerative disk disease (DDD) and that he appeared to be very nervous and anxious. At a follow-up appointment on August 15, 2018, the same issues were documented including the fact that the applicant hit his head in the accident. Dr. Kharonsky recorded that they discussed the possibility of a concussion from the motor vehicle accident. However, no diagnosis of a concussion was made.

14Starting on December 6, 2018, the applicant began seeing Dr. Mezhericher-Shenderey, who documented the applicant’s ongoing soft tissue pain and limited range of motion. By June 13, 2022, Dr. Mezhericher-Shenderey had documented in clinical notes and records (CNRs) the applicant’s chronic low back pain due to DDD, coupled with functional limitation either caused by, or aggravated by, the accident. The applicant was referred to multiple neurologists, a neurosurgeon, and a pain management specialist.

15On May 19, 2020, Dr. Basile, a pain management specialist, recommended a full rehabilitation program for musculoskeletal pain, a referral for injections, and a referral to a neurology clinic for headache/migraine management which had worsened after the accident.

16The applicant underwent a s. 25 chronic pain assessment with Dr. Brooks. The resulting Chronic Pain Assessment Report dated May 19, 2020, determined that Mr. Wolf’s physical condition and clinical status were consistent with Chronic Pain Syndrome (CPS). Dr. Brooks goes on to state that the applicant’s impairments are ongoing, and the medical research and literature has shown that a multidisciplinary approach - exercises, psychological support, medical/rehabilitation treatment with education - can be an effective tool for reducing pain.

17The applicant submits that six separate doctors recommended physiotherapy/chiropractic treatments to address his impairments. While I could not locate such a reference from six separate doctors, I was able to verify at least four such recommendations from the following physicians: Dr. Basile (pain management specialist), Dr. Jha (neurosurgeon), Dr. Prigozhikh (neurologist), and Dr. Brooks (chronic pain assessor). There was clearly agreement that the applicant could benefit from more therapy.

18The respondent submits that the applicant was involved in multiple accidents and has an extensive medical history, all of which contribute to his ongoing pain and impairment. It notes that he did not require any emergency medical attention at the scene following the accident and he did not go to the hospital for any treatment. Dr. Kharonsky’s diagnosis at the applicant’s initial appointment is sprains, strains, and other trauma, with a referral for shoulder and spine x-rays. Imaging of his shoulder and spine on four separate occasions in the two years following the accident all show degenerative changes consistent with degenerative disc disease. No fractures or acute injuries were identified.

19In early 2020, the applicant was assessed at an IE by Dr. Tansey (orthopaedic surgeon). Dr. Tansey opined that the applicant had myofascial strain over pre-existing degenerative disease in the spine, and a long history of headaches. His conclusion was that no further facility-based treatment would be of benefit since he had attended physiotherapy since the accident with no resolution of symptoms.

[20] For the following reasons, I find that the treatment plan for massage therapy and chiropractic is reasonable and necessary as a result of the accident. i. The identified goals of the OCF-18 are to reduce pain and increase range of motion. Multiple treatment providers recommended such treatment to address the applicant’s symptoms. ii. Despite ongoing difficulties, the applicant continues to move forward, seeking treatment to address his impairments. Dr. Tansey concluded that the applicant had reached maximum medical recovery and any further facility-based treatment would not be of benefit. However, there are multiple treating practitioners who make recommendations otherwise. They point to a multidisciplinary treatment program as important to address the applicant’s chronic pain. I am persuaded by these recommendations and note that Dr. Tansey does not address how multidisciplinary therapy could help to reduce the applicant’s pain. iii. Dr. Brooks, the s. 25 chronic pain assessor, confirmed the applicant suffers from CPS and recommended a multidisciplinary approach including medical/rehabilitation treatments to reduce pain. Likewise, Dr. Basile recommended a full rehabilitation program for musculoskeletal pain.

21The applicant is entitled to the plan for massage therapy and chiropractic.

22I find that the treatment plan for psychological services is reasonable and necessary. The applicant submits that Dr. Kharonsky recorded a notable amount of nervousness and anxiety at his appointment on the day following the accident. At a psychological assessment by Lital Grinberg, a licensed Psychological Associate at 101 Assessments on December 18, 2020, the assessor determined that he met the DSM-5 diagnostic criteria for “somatic symptom disorder with predominate pain severe persistent and chronic adjustment disorder with mixed anxiety and depressed mood”. His scores on various assessment tools registered as maximal impairment with severe levels of anxiety and depression. The applicant reported to the assessor that despite many treatments for his physical symptoms, the pain continues, and he would like to attend sessions for psychological support and counselling.

23The applicant also underwent a s. 44 assessment with Dr. Wolf, a psychiatrist, on January 30, 2020. Dr. Wolf administered a number of tests and concluded that the applicant did not meet the criteria for a DSM-5 psychiatric condition and therefore did not require any psychological treatment. I note however that Dr. Wolf recorded that the applicant scored in the severe range for depression and moderate range for anxiety on a self-reported questionnaire. I also note that multiple treating physicians record in their CNRs that the applicant suffers from loss of sleep, chronic pain, depression, mood swings, and anxiety. While these symptoms may not rise to the level of an official diagnosis, the applicant is clearly struggling to manage his injuries sustained in the accident and the chronic pain that arose as a result thereof.

[24] I am persuaded that the treatment plan is reasonable and necessary and that the applicant would benefit from the psychological services because: i. Many treatment providers document his struggles with loss of sleep, chronic pain, depression, mood swings, and anxiety. ii. His self-report to the assessor that he would like to attend counselling sessions to address his situation is honest, direct, and credible. iii. The Psychological Assessment Report from 101 Assessments that recommends psychotherapy treatment is convincing in its clarity, thoroughness, and objectivity.

25The applicant is entitled to the treatment plan for psychological services.

Neurological Assessment (issue iii)

26I find that the neurological assessment proposed by Dr. Basile is not reasonable and necessary.

27The applicant submits that the plan submitted by Dr. Basile and Occupational Therapist (OT) Deena Rogozinsky for a neurological assessment, dated March 31, 2021, is reasonable and necessary due to the applicant’s injuries which included a concussion, Traumatic Brain Injury (“TBI”) and radiculopathy. The goal of the plan is listed as neurological assessment to determine an appropriate course of treatment.

28The applicant was referred to Dr. Basile, a pain management specialist, by Dr. Rozen, his general practitioner who specializes in pain management. Dr. Basile saw the applicant on December 3, 2020, for electrodiagnostic studies and neurological consultation. He found that the applicant had DDD and chronic C5 cervical radiculopathy superimposed on bilateral moderate median neuropathy at the wrist.

[29] Dr. Basile made the following recommendations and referrals in addition to the neurological assessment to be carried out by OT Deena Rogozinsky: i. Referral to the general neurology clinic at Mackenzie Health for headache/migraine management that worsened after the accident. ii. Referral to Dr. Jha for a neurosurgery expert opinion. iii. Recommendation to continue with injections from Dr. Rozen. iv. Recommendation to pursue a comprehensive multidisciplinary rehabilitation program.

30The respondent submits that there was no need for a neurological assessment by Dr. Basile and OT Rogozinsky given neurologist Dr. Yufe’s section 44 assessment which found no objective signs of any nerve, brain, or any other neurological injury. Dr. Yufe confirmed this opinion in a subsequent material review report and stated that the neurological assessment in question was not reasonable and necessary as the applicant had already been assessed by Dr. Yufe and was also under the care of several other neurologists at the time – Dr. Prigozhikh, Dr. Finlayson, and Dr. Spears.

31The respondent also notes that despite the applicant’s claims, there is no official diagnosis of concussion anywhere in the medical evidence, only suggestions that it was a possibility. I agree with the respondent that reports of a concussion were self-reports by the applicant to his many treating practitioners and I see no conclusive diagnosis of a concussion in the medical evidence submitted.

[32] I find that the neurological assessment proposed by Dr. Basile is not reasonable and necessary. i. There is no context provided as to how this assessment relates to the other medical care being provided, or where it fits in the overall framework of the applicant being treated by multiple neurologists. ii. There are no details provided about why the assessment was not available through OHIP despite the applicant being under the care of several neurologists. iii. There is also no conclusive diagnosis of a concussion which is one of the applicant’s stated reasons for the assessment being reasonable and necessary.

33The applicant has failed to demonstrate that the neurological assessment is reasonable and necessary as a result of the accident.

Psychological Assessment (issue iv)

34I find that the plan for a psychological assessment is reasonable and necessary as a result of the accident.

[35] The applicant submits that for the following reasons the psychological assessment by 101 Assessments was reasonable and necessary because: i. Many treatment providers document his psychological symptoms of depression and anxiety. ii. Psychological Associate Grinberg concluded that the applicant met the diagnostic criteria for the following diagnosis, based on her findings during the assessment - Somatic Symptom Disorder with Predominant Pain: Severe, Persistent and Chronic Adjustment Disorder with Mixed Anxiety and Depressed mood. iii. The applicant’s test results show symptoms of severe depression and moderate anxiety from assessments at 101 Assessment. The assessment resulted in a diagnosis and recommendation for a treatment plan of 16 counselling sessions which I determined above were reasonable and necessary. It follows that the assessment itself was also reasonable and necessary.

36The respondent submits that the psychological assessment at 101 Assessments was not reasonable and necessary because the applicant had already been assessed by Dr. Wolf at an IE and was found to not have any psychiatric condition. Further, the respondent states that there are “virtually no references to psychological complaints” in the treating records to contradict Dr. Wolf’s findings. I disagree and found multiple references to the applicant’s struggle with symptoms of depression and anxiety, from a variety of treating practitioners.

[37] For the following reasons, I disagree with the respondent: i. Many treating practitioners documented the fact that the applicant was struggling with psychological symptoms following the accident. ii. The assessment at 101 Assessments was clear, thorough, and objective and attained its goal of determining a customized and short-term treatment plan tailored to the applicant’s personal situation. iii. Although the IE assessor, Dr. Wolf, did not recommend psychological treatment, he documented the applicant’s self-reported symptoms of depression and anxiety which I find to be credible, relevant to the applicant’s condition, and supported by much of the other documentation in evidence.

38The applicant is entitled to the psychological assessment.

Injections (issue v)

39I find that the treatment plan for the injections is reasonable and necessary as a result of the accident.

40The applicant submits that he benefited from samples of the Emgality injections provided to him by Dr. Prigozhikh to treat his post-traumatic headaches. He reported this to Dr. Mezhericher-Shenderey, his general practitioner/pain specialist who recorded that the injections were helpful and had provided pain relief. Dr. Prigozhikh had noted his struggles with reduced memory, sleep and mood disturbance, finding that the headaches had worsened because of the accident.

41The respondent submits that IE assessor Dr. Yufe concluded that the applicant’s chronic daily headaches were from pre-existing long-standing migraines. In addition, the respondent cites the notation in Dr. Prigozhikh’s CNRs from November 2019, which states that the applicant had mostly recovered from his headaches.

42I agree with the applicant because regardless of whether the applicant had a history of headaches prior to the accident, I am satisfied that the accident itself exacerbated them. The applicant has sought multiple forms of treatment and seen many treating practitioners in a quest to manage his physical and psychological symptoms. I have already found chiropractic and massage therapy to be reasonable and necessary and am satisfied that the injections in this treatment plan will also contribute to the applicant’s pain relief and symptom management. The samples were of benefit, which is evidence of their value, despite the cost.

43The applicant has proven that the treatment plan for injections is reasonable and necessary.

SPECT Scan and MRI (issue vi)

44I find that the applicant is not entitled to the treatment plan for a SPECT scan and MRI.

45Section 47(2) of the Schedule identifies that payment of a benefit is not required for that portion of an expense for which payment is reasonably available to the insured person under any insurance plan or law or under any other plan or law.

46The applicant submits that the plan for a SPECT Scan and MRI is reasonable and necessary as these scans were not readily available through OHIP and resulted in the identification of an underlying head injury.

47The respondent submits that the testing is available through OHIP and denied the treatment plan pursuant to section 47(2) of the Schedule. The respondent points me to a previous Tribunal decision, McIntyre v Economical Insurance Company, 2023 CanLII 19913 at paragraph 49-50, wherein the Tribunal found that a SPECT scan is accessible through OHIP with a doctor’s referral, and the applicant must demonstrate why it was not available in order to prove it reasonable and necessary at the expense of the insurer.

48The applicant has not provided any explanation about why the scans could not be provided through OHIP on referral from one of his many physicians. In addition, no reply submissions were filed to contest the respondent’s submission that the testing is available through OHIP.

49For the reasons outlined above, the applicant is not entitled to the treatment plan for a SPECT scan and MRI.

Interest

50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

[51] In accordance with s. 51, the applicant is entitled to interest on overdue payment of benefits for the following treatment plans:

• Massage therapy and chiropractic (issue i)
• Psychotherapy services (issue ii)
• Psychological assessment (issue iv)
• Injections (issue v).

Award

52I find that the applicant is not entitled to an award under Regulation 664.

53The applicant sought an award under s. 10 of Reg. 664. Section 10 provides that 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.

54The applicant submits that the insurer unreasonably delayed payment for necessary treatment by deliberately ignoring the medical evidence that was available in support of the plans. Further, the applicant characterizes the respondent’s adjustment of the file as negligent and capricious.

55The respondent submits that the Tribunal has only approved an award in rare cases where the delay or denial of benefits was egregious. It asserts that it handled the applicant’s claim in a reasonable manner in alignment with the findings of its s. 44 assessors, and that there is no evidence of bad faith.

56I agree with the respondent. There is no evidence before me that the respondent’s decisions on the file were deliberately unreasonable. The respondent adjusted the file in alignment with the reports of its s. 44 assessors. It is well settled that an award should not be ordered simply because an applicant disagrees with a decision by the insurer.

57The applicant has failed to demonstrate entitlement to an award.

ORDER

58The applicant is entitled to the treatment plans for massage therapy and chiropractic services (issue i), psychological services (issue ii), and the injections (issue v), plus interest.

59The applicant is entitled to the psychological assessment (issue iv).

60The applicant is not entitled to the neurological assessment (issue iii), nor the scans (issue vi).

61The applicant is not entitled to an award.