Licence Appeal Tribunal File Number: 22-000234/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:
Hubert Junior Groves
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Bonnie Oakes Charron
APPEARANCES:
For the Applicant:
Doina Marinescu, Paralegal
For the Respondent:
Andrez D Belloso, Counsel
HEARD:
In Writing
OVERVIEW
1Hubert Junior Groves, the applicant, was involved in an automobile accident on May 8, 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, Allstate 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 $2,964.96 for chiropractic services proposed by Scarborough Medical Centre in a treatment plan/OCF-18 (“plan”) dated April 9, 2021, and denied on April 29, 2021?
ii. Is the applicant entitled to $2,544.76 for a chronic pain assessment proposed by Q Medical in a treatment plan/OCF-18 (“plan”) dated June 25, 2021, and denied on July 16, 2021?
iii. Is the respondent liable to pay an award under s. 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to the treatment plans. Since no benefits are payable, no interest is owed.
4The applicant is not entitled to an award.
ANALYSIS
The Treatment Plans
5I find that the applicant has not demonstrated entitlement to the treatment plans in dispute.
6To 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.
OCF-18 in the amount of $2,964.96 for chiropractic services from Scarborough Medical Centre (“SMC”)
7The applicant submits that the treatment plan for chiropractic services is both reasonable and necessary to address his impairments from the accident. He points to a need for ongoing treatment as evidenced by his consistent attendance for therapy, his ongoing complaints of pain to his treatment providers, and the many injuries listed on the OCF-18 including whiplash associated disorder, headache, strains and sprains, chronic pain, fatigue and stress. He relies on the clinical notes and records (“CNRs”) from SMC and his family physicians (“GPs”) Drs. Sudai and Nadel.
8The respondent submits that the plan is not reasonable and necessary to treat the applicant’s injuries from the accident. It relies on the conclusions of its s. 44 assessor Dr. Gharsaa, orthopaedic surgeon, in a report dated December 16, 2022.
9The goals of the plan include reducing pain, increasing strength, improving range of motion and self-management of pain, as well as restoration of function. The applicant submits that these goals address the pains in his back, shoulder, and elbow and that he has demonstrated progress with the clinic’s treatments in mobility and pain management, as evidenced by the CNRs. The recommended treatment is guided online yoga therapy and functional exercises while the expected evaluation includes objective testing of the applicant’s subjective reports, functional testing, and consultation between practitioners.
10The applicant attended similar therapy prior to the submission of this treatment plan. The CNRs document consistent attendance, some progress, and thorough records of the content of each session. While some progress is reported, I find it is limited. A summary chart of appointments between November 18, 2020, and April 9, 2021, record the applicant’s subjective reports of pain both pre- and post-exercise session. Pre-exercise, the applicant felt better twice, worse once, and the same eight times, while post-exercise the applicant felt the same four times, and better nine times. The applicant submits that these records demonstrate a typical recovery journey, with some gains and some deficits. In my view, the varied results support the conclusion of s. 44 assessor Dr. Gharsaa, that the applicant has reached maximal medical recovery of his soft tissue injuries from the accident. Based on the CNR summary, the applicant’s feelings of improvement post-exercise do not endure between sessions.
11Further, the applicant reported to Dr. Gharsaa at the assessment performed on December 5, 2022, that his heel pain was his primary complaint. After a thorough physical examination and documentation review, Dr. Gharsaa opined that his heel pain, was a pre-existing and chronic condition that was expected to worsen over time and was unrelated to the accident. Dr. Gharsaa refers to the CNR and x-ray results from the applicant’s visit to a Dr. Rachlis on September 14, 2017. Dr. Rachlis recorded that the applicant had at least one year of pain at the insertion point of the Achilles tendon, plantar spurs, and calcification of the Achilles tendon.
12I am not convinced that the applicant’s pre-existing heel issue warrants ongoing treatment due to the accident. Although the applicant emphasized in his statements to Dr. Gharsaa that his heel pain was exacerbated when he “jammed” his heel on the brake during the accident, I give this information less weight for two reasons. First, the applicant’s statement is contradicted by the medical notes in the CNR from his post-accident visit to his GP on May 10, 2019. Dr. Sudai recorded that “he didn’t brake” during the accident. Second, Dr. Gharsaa confirmed that even if the accident had exacerbated the issue, it posed no obstacle to him reaching maximal medical recovery for his minor injuries related to the accident.
13Overall, Dr. Gharsaa’s assessment confirmed the applicant suffered no major injuries from the accident, did not display any acute distress during the examination, and demonstrated a full range of motion in the shoulders, elbows, and wrists. I am persuaded by his conclusion that the plan from SMC for chiropractic services is not reasonable and necessary because further facility-led sessions are not medically necessary. He recommends that the applicant is better to focus on a self-directed exercise program aimed at strengthening his core to assist with any residual back pain.
14The respondent argues that the cost of the plan for guided yoga and exercise sessions far exceeds the cost of similar classes at a consumer gym or personal trainer. While I accept the applicant’s framing of the sessions as personalized for his specific injury profile, and therefore more costly, I find that the elevated cost of the sessions is not justified. There are few details given to explain a cost of $2,964.96 for the 12 sessions, particularly given the online format.
15For the reasons outlined above, the applicant has not met his burden to prove the treatment plan is reasonable and necessary. There is a lack of significant or enduring improvement from similar treatments already delivered by the clinic, the cost is unjustified, and the expert opinion of Dr. Gharsaa that further facility-based treatment is not medically necessary, is unchallenged by any other contemporaneous medical documentation.
16As a result, the applicant is not entitled to the treatment plan in dispute.
OCF-18 in the amount of $2,544.76 for a chronic pain assessment from Q Medical
17The applicant submits that the plan for a chronic pain assessment is reasonable and necessary to address his situation, described in the plan as a complex injury profile with both physical limitation and negative psychological effects. He points to the goals of the plan which are to identify the root cause of his pain, the barriers to recovery, and recommend treatment to restore functionality due to his persistent pain and limitations.
18The plan is a comprehensive one with a view to obtaining a complete medical history, documentation of current complaints, pain history, physical exam, analysis of self-report inventories, review of documentation from treating providers, family physician and assessors. It also states that recommendations to facilitate recovery and restore function will be explored. However, there is no support for such an assessment from the applicant’s GP or the s. 44 assessors, Drs. Gharsaa and Weistein.
19The applicant’s GP does not make any referrals for chronic pain treatment or to see specialists. Dr. Gharsaa recommended a self-directed exercise program as the best option to address his back pain, and psychiatrist Dr. Weinstein recommended pharmacotherapy through his GP to address any pain symptoms. Thus, there are no other medical records that would suggest the chronic pain assessment is reasonable and necessary, other than the OCF-18 itself. Dr. Gharsaa specifically stated that no further assessments were required.
20For the reasons outlined above, the applicant has not met his burden to prove the plan for a chronic pain assessment is reasonable and necessary. There is no corroborating medical evidence to support the need for a chronic pain assessment, and neither the applicant’s GP, nor the s. 44 assessors, found that the applicant required such an assessment.
21As a result, the applicant is not entitled to the treatment plan in dispute.
Interest
22No interest applies as there are no overdue benefits.
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 if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
24The applicant submits that the respondent wrongly placed him in the MIG and only later removed him, leading to delays in receiving appropriate treatment.
25The respondent submits that it adjusted the file based on the medical documentation available, noting that the applicant produced few medical records prior to January 7, 2022, and nothing further up to the date of the case conference on November 2, 2022, despite its requests. In order to gain clarity on the applicant’s injuries, it scheduled s. 44 assessments with both an orthopaedic surgeon and a psychiatrist. Upon receipt of the psychiatrist’s conclusion that the applicant had a psychological impairment as a result of the accident, it removed the applicant from the MIG and paid the cost of a psychological assessment that had been incurred.
26There is no evidence before me to indicate that the respondent’s adjustment of the file was unreasonable, rather it relied on the medical documentation supplied by the applicant and the conclusions of its s. 44 assessors. Further, as there are no overdue payments, there is no basis for an award.
27Accordingly, no award is payable.
ORDER
28I order that:
i. The applicant is not entitled to the treatment plans for chiropractic services or a chronic pain assessment.
ii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
iii. The applicant is not entitled to an award.
Released: March 19, 2024
Bonnie Oakes Charron
Adjudicator