Licence Appeal Tribunal File Number: 21-000765/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:
Xiangjun Cai
Applicant
and
Safety Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nick Iannazzo
APPEARANCES:
For the Applicant:
Miryam Gorelashvili, Counsel
For the Respondent:
Crystal Schulz, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Xiangjun Cai, the applicant, was involved in an automobile accident on June 4, 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, Safety Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The applicant, in its submissions, withdrew the issue pertaining to psychological services in the amount of $2,656.01 proposed by Dr. Rockman of York Regional Psychological Services dated January 5, 2021.
3The issues in dispute are:
i. Is the applicant entitled to a medical benefit in the amount of $2,491.68 for assistive devices from Galit Liffshiz & Associates proposed in a treatment plan submitted on February 27, 2019?
ii. Is the applicant entitled to a medical benefit in the amount of $4,487.29 for occupational therapy (“OT”) services from Vitality Assessments Group proposed in a treatment plan submitted on November 11, 2020?
iii. Is the applicant entitled to a medical benefit in the amount of $2,858.89 for kinesiology services including exercise from Vitality Assessments Group proposed in a treatment plan submitted on Nov 11, 2020?
iv. Is the applicant entitled to a medical benefit in the amount of $6,523.40 for physiotherapy services from Galit Liffshiz & Associates proposed in a treatment plan submitted on October 21, 2021?
v. Is the applicant entitled to a rehabilitation benefit in the amount of $4,160.00 for life skill training from Galit Liffshiz & Associates proposed in a treatment plan submitted on February 27, 2019?
vi. Is the applicant entitled to a medical benefit in the amount of $4,860.00 for a catastrophic (“CAT”) impairment assessment from Galit Liffshiz & Associates proposed in a treatment plan submitted on January 25, 2019?
vii. Is the respondent liable to pay an award under s. 10 of O. Reg. 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
4I find that:
i. The applicant is entitled to $2,200.00 plus applicable HST for part of the treatment plan submitted on January 25, 2019, namely an OT CAT assessment, the structured interview form, the OCF-18 and OCF-19, together with interest payable pursuant to s. 51 of the Schedule.
ii. The applicant is entitled to an award pursuant to s. 10 of O. Reg. 664 in the amount of $440.00, together with interest payable pursuant to s. 51 of the Schedule.
iii. The applicant is not entitled to any other treatment plans in dispute.
BACKGROUND
5The applicant was a tourist from China, and on June 4, 2018 she was on a bus touring Ontario when it hit a rocky embankment and scraped the rock face lining the highway causing extensive damage to the bus. The applicant was injured and taken to the Ottawa Hospital. She was diagnosed with an extensive soft tissue injury with an abrasion/laceration over the right forehead, swelling/hematoma over the left occipital convexity, and a right frontal bone depressed fracture.
6On June 6, 2018 the applicant was cleared to fly back home, and was advised to consult her doctor in China.
7On August 16, 2018 the applicant was diagnosed by her physician with post-brain injury syndrome.
8The respondent approved and paid non-earner benefits. The respondent also approved various assessments, including a musculoskeletal assessment, an occupational therapy functional assessment and attendant care assessment, and a psychological assessment.
9On March 4 and 5, 2019, the respondent approved treatment plans for physiotherapy, massage therapy and transportation expenses, which the applicant did not utilize.
10A Psychological Video Examination report dated July 9, 2019 indicated that the applicant suffered from an adjustment disorder (persistent form). On July 10, 2019, the respondent approved psychotherapy sessions.
11In a Psychological Assessment Report dated January 13, 2020, the applicant was diagnosed with a major depressive disorder, a somatic symptom disorder and a specific phobia related to being a pedestrian and a passenger in a vehicle. The report recommended psychological treatment. The respondent had already approved psychological treatment on July 10, 2019. The applicant attended psychological treatment between May and November 2020.
12The applicant retained and paid for four virtual physiotherapy sessions between October and December 2020.
13The respondent denied several treatment plans that are the subject matter of this application.
PROCEDURAL ISSUE
MISSING DOCUMENTS
14After reviewing the parties’ written submissions and evidence, the following documents were not filed with the Tribunal, despite being referred to by the parties in their submissions:
i. Treatment plan (OCF-18) in the amount of $4,487.29 for occupational therapy services submitted on November 11, 2020;
ii. Treatment plan (OCF-18) in the amount of $2,858.89 for kinesiology services submitted on November 11, 2020; and
iii. Treatment plan (OCF-18) in the amount of $4,860.00 for a catastrophic impairment assessment submitted on January 25, 2019.
15I requested that the applicant file a copy of the documents set out in paragraph [10] above by February 7, 2024. The applicant submitted the requested treatment plans to the Tribunal via email on February 5, 2024.
ANALYSIS
Are the treatment and assessment plans reasonable and necessary?
16To 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. Factors to consider are the identified goals of treatment, how the goals would be met to a reasonable degree, and the overall cost of achieving them are reasonable.
17I considered all the submissions and case law submitted by the parties, although I do not refer to every submission or case.
The applicant is entitled to $2,200.00 plus applicable HST for part of the January 25, 2019 treatment plan, namely the OT CAT assessment, the structured interview form, and the OCF-18 and OCF-19.
18The January 25, 2019 treatment plan in the amount of $4,860.00 was completed by Dr. Andrea Hershorn and Galit Liffshiz, Reg. O.T., of Galit Liffshiz & Associates Inc. and proposed the following: an OT CAT assessment under Criterion 4 based on File Review, a GOS-E Structured Interview Form, a Physician File Analysis, and an OCF-18 and OCF-19.
19The proposed goals of the treatment plan are: “The client is 6 months post accident and remains unable to manage her daily life at home/in the community/requires 24/7 care. … this Treatment Plan is for a CAT Assessment for the client through file review under Criterion 4 and will include an OT File Review and Physician File Analysis + OCF-19 completion”. The functional goal was to “help determine client’s level of impairment”.
20The applicant submits that the treatment plan is reasonable and necessary and relies upon the January 2, 2019 Occupational Therapy Functional Assessment and Attendant Care Assessment Report prepared by Lisa Hung, OT, wherein the treatment plan is recommended. Also, she relies upon the medical evidence and assessment reports documenting the applicant’s injuries and symptoms, and the respondent’s assessor’s April 2019 report from Dr. Dharamshi opining that part of the treatment plan was reasonable and necessary, namely that the OT CAT assessment and the structured interview form. Despite the respondent’s own assessor’s approval of part of the plan, the respondent denied the entire plan, and notified the applicant it would carry out its own OT CAT assessment and structured interview form, but never did so.
21The respondent submits that the applicant failed to satisfy her burden of proof because she did not provide any contemporaneous medical evidence to prove that the treatment plan is reasonable and necessary. The respondent points out that the applicant’s reported symptoms varied considerably, and therefore are not reliable. The respondent submits that an adverse inference should be drawn because the applicant did not produce the notes and records from all hospital and treatment visits, and the respondent was prejudiced by the applicant’s failure to produce properly translated Chinese medical records. Furthermore, the respondent submits that by August 2020 the applicant’s symptoms as reported to IE assessors did not suggest that she had sustained any injuries or impairments that would satisfy Part 2 of the Criterion 4 test. Since the applicant has not filed an OCF-19 after 5 years post-accident, the respondent submits that the applicant has accepted that she would not meet the CAT criterion. Lastly, although the respondent intended to carry out its own OT CAT assessment and structured interview form, it submits it could not do so because of political issues between Canada and China, safety concerns about travelling to China, and the Covid-19 pandemic.
22I find that the applicant has proven on a balance of probabilities that part of the treatment plan is reasonable and necessary, namely the OT CAT assessment, the structured interview form, and the preparation of the OCF-18 and OCF-19.
23The purpose of an assessment is to determine whether there is a reasonable possibility that the applicant has the condition the assessment is designed to investigate. The applicant bears the onus on a balance of probabilities, and therefore must point to persuasive evidence that there are grounds to suspect the condition exists.
24Firstly, I find that the applicant’s evidence is consistent in identifying the accident-related impairments giving rise to a reasonable basis to suspect that the applicant may have a catastrophic impairment. The applicant suffered a head injury in the accident and continued to suffer accident-related impairments. The Ottawa Hospital’s CT head scan on June 5, 2018, the day after the accident, revealed a “depressed right frontal bone fracture causing indentation on the right frontal lobe …” and “a small area with hyperdense appearance on the left frontal region, suspicious to represent a small subdural hematoma of approximately 2 mm …”. The August 7, 2018 Kinesiology Musculoskeletal Assessment Report prepared by Alyssa Kadowaki, Kinesiologist, was a virtual assessment, and the applicant reported dizziness, headaches, difficulty sleeping, anxiety, and depression. Dr. G. Lan examined the applicant on August 16, 2018 and diagnosed her with “post-brain injury syndrome” and noted that she “still experiences dizziness, headache, and fullness in head, which worsen in rainy days” and “doesn’t sleep well at night, and has vexation, emotional anxiety, depression, poor appetite, etc”. The January 2, 2019 Occupational Therapy Functional Assessment and Attendant Care Assessment Report prepared by Lisa Hung, OT was an in-person assessment, and the applicant reported constant headaches including right forehead pain, tinnitus, dizziness and light-headedness, sleep problems, feeling depressed, anxiety, and feeling lonely. The applicant attended a neurological clinic at Souzhou University Affiliated Clinic on May 22, 2019 and was diagnosed with a head injury and right frontal bone depression, and reported that since the accident she had headaches, dizziness and difficulty sleeping.
25The respondent is correct that the applicant reported some symptoms (e.g. neck, shoulder, upper arm and back pain, right internal knee pain with crepitus, sensitivity to light and noise, decreased sense of taste and smell, changed eating habits, reduced vision and sensitivity to heat) to Lisa Hung that had not been reported to others and the applicant has not proven, on a balance of probability, were caused by the accident. However, this does not detract from the Ottawa Hospital’s CT head scan results and the fact that the applicant consistently reported head pain, dizziness, headaches, difficulty sleeping, depression, and anxiety, and these symptoms are supported by evidence to be from the accident. Those consistently reported symptoms persuade me to find that those symptoms were accurate and were the result of the accident.
26The applicant relies upon the July 12, 2018 Occupational Therapy Assessment Report prepared by Coriander Champion, OT, in support of the treatment plan. However, the recommendations in the Report are directed to a “Ms. Wang” not the applicant, Ms. Cai. Accordingly, I place little weight on this report.
27Secondly, I find it compelling that the respondent’s own assessor, Dr. Dharamshi, opined that the OT CAT assessment and a structured interview form were reasonable and necessary. Dr. Dharamshi reviewed the medical evidence from the date of the accident, the doctors’ clinical notes and records, and the assessments, and concluded that the applicant suffered a skull fracture with a small subdural hematoma or intracranial injury thereby satisfying Part 1 of Criterion 4.
28Despite Dr. Dharamshi’s opinion, the respondent denied the treatment plan and notified the applicant that it would carry out its own OT CAT assessment and structured interview form, but never did so. The respondent’s explanation (i.e. Canada-China political issues; safety and pandemic issues) for not doing so does not constitute evidence that undermines the applicant’s evidence that the plan is reasonable and necessary.
29Thirdly, I do not agree with the respondent’s submission that since the applicant has not filed an OCF-19 it indicates that the applicant has accepted that she does not meet the CAT criterion. This is speculation, not evidence. Furthermore, whether an assessment is reasonable and necessary is assessed based upon the evidence at or about the time of the treatment plan, not many years later.
30Fourthly, regarding the untranslated medical records, the respondent had sufficient time to have them translated if it had wanted to do so. With respect to the allegation that certain medical records (i.e. June 12, 2018 brain surgeon consultation; June 15, 2018 ENT consultation; July 11, 2018 neurology consultation) were deliberately not provided because they were not favourable, I am not persuaded to make that finding or draw that inference because there is no evidence that they were deliberately not provided. The applicant has the burden of proof, and as I have already noted, I find that the applicant satisfied her burden with the evidence submitted that part of the treatment plan is reasonable and necessary. Furthermore, the respondent’s own assessor concluded that there was sufficient evidence to find that part of the treatment plan was reasonable and necessary.
31Therefore, I find that there are reasonable grounds to suspect that the applicant may have a catastrophic impairment and therefore an assessment is reasonable and necessary.
32The treatment plan proposed the following:
i. $2,000.00 for an OT CAT assessment under criterion 4;
ii. $200.00 for a GOS-E Structured Interview Form;
iii. $2,000.00 for a Physician File Analysis;
iv. $200.00 for the completion of the OCF-19;
v. $200.00 for completion of the OCF-18; and
vi. $260.00 for taxes (if applicable).
33I find the OT CAT assessment, the structured interview form, the OCF-18 and OCF-19 forms are reasonably and necessary. However, I find that the Physician File Analysis is not reasonable and necessary based upon Dr. Dharamshi’s explanation which I found persuasive. Dr. Dharamshi concluded that the OT CAT assessment and structured interview form would be adequate to determine catastrophic impairment, and therefore the Physician File Analysis is not reasonable and necessary. The applicant did not submit any evidence to rebut Dr. Dharamshi’s opinion on this point.
34Under the Professional Services Guideline, the maximum fee for an OCF-18 is $200.00 and for an assessment is $2,000.00, together with any applicable HST. So, I find that $2,000.00 for the OT CAT assessment, $200.00 for the OCF-18, and applicable HST, are reasonable. The Guideline does not permit any fee for a Structured Interview Form nor for an OCF-19, so the claim of $200.00 for each of those forms is not permitted. It is unclear as to how the $260.00 tax was calculated nor to what it applies so I cannot approve it. However, as noted earlier, the Guideline permits applicable HST, so I order HST on the approved amounts, if applicable.
35I find that the applicant is entitled to $2,200.00 plus applicable HST for an OT CAT assessment ($2000), the structured interview form, the OCF-18 ($200) and OCF-19.
The applicant is not entitled to assistive devices in the amount of $2,491.68.
36The January 25, 2019 treatment plan in the amount of $2,491.68 was completed by Galit Liffshiz, Reg. O.T. of Galit Liffshiz & Associates Inc. and proposed the following assistive devices: power lift assist recliner chair, body pillow, bath chair, inner non-slip bath mat, outer non-slip bath mat, supportive shoes for indoor and outdoor, and rollator walker.
37The proposed goals of the treatment plan are “pain reduction” and the “Power lift recliner … for ease of transferring/help with pain/fatigue; body pillow for spinal alignment in bed; bath chair/in and out bath mats for safety with bathing; rollator walker/supportive shoes for indoor an outdoors to improve walking tolerance and reduce falls risk”. The functional goal was to “help to increase participation in daily living tasks/day to day function.”
38The applicant submits that the treatment plan is reasonable and necessary and relies upon an Occupational Therapy Assessment Report dated July 12, 2018 and prepared by Coriander Champion, OT, a Kinesiology Musculoskeletal Assessment Report dated August 7, 2018 and prepared by Alyssa Kadowaki, Kinesiologist, and an Occupational Therapy Functional Assessment and Attendant Care Assessment Report dated January 2, 2019 and prepared by Lisa Hung, OT. Also, the applicant relies upon clinical notes and records of Dr. G. Lan.
39The respondent submits the applicant failed to meet her onus because no medical evidence was produced to support that the assistive devices are required as a direct result of the accident. The respondent submits that the assistive devices are for posture and balance issues that pre-date the accident. The respondent submits that the applicant is not reliable because her reported symptoms and conditions changed over time. The respondent also submits that an adverse inference should be drawn because the applicant did not produce the notes and records from all hospital and treatment visits, and that the respondent was prejudiced by the applicant’s failure to produce properly translated Chinese medical records.
40The respondent relies on Ms. Lee’s OT Paper Reviews dated February 6, 2019 and March 29, 2019. Ms. Lee noted that Ms. Hung’s Occupational Therapy Functional Assessment and Attendant Care Assessment Report indicates that the applicant demonstrated functional range of motion, MMT (manual muscle testing), postural tolerance and mobility to independently perform the lighter aspects of her activities of daily living with pacing. With respect to cognitive and psychological symptoms there was no psychological diagnosis and no determination that they were directly related to the accident. Ms. Lee recommended an in-person assessment to determine whether the treatment plans (i.e. CAT assessment, assistive devices and life skills) were reasonable and necessary.
41I find that the applicant has not proven on a balance of probabilities that the assistive devices are reasonable and necessary.
42Firstly, the July 4, 2018 Occupational Therapy Assessment Report prepared by Corriander Champion does not recommend assistive devices, and more concerning, as noted earlier, the report makes recommendations to “Ms. Wang” not to the applicant, Ms. Cai. Accordingly, I place little weight on this report.
43Secondly, the August 7, 2018 Kinesiology Musculoskeletal Assessment Report prepared by Alyssa Kadowaki, Kinesiologist, which was based upon a virtual assessment, does not recommend assistive devices. It identifies postural imbalances, gait issues, mobility and stability issues and recommends kinesiology/exercise therapy sessions to address postural imbalances and gait deviations. However, the Report does not make a determination that these issues were caused by the accident. In the Report’s conclusion it refers to postural imbalances in connection with the following conditions: forward head with Dowager’s hump, rounded shoulders, an elevated right shoulder with visible tone in her right trapezius and a flattened lordotic curve. There is no evidence that these conditions were caused by the accident.
44Thirdly, the Occupational Therapy Assessment Report dated July 12, 2018 prepared by Lisa Hung, OT was based upon an in-person assessment and it recommends assistive devices but I find that there is a lack of evidence to support that the assistive devices are reasonable and necessary as a result of the accident. In the Report’s Sections entitled Positioning and Postural Concerns and in the Recommendations the assistive devices are recommended but there is no determination that they are for accident-related impairments.
45Fourthly, Ms. Lee’s OT Paper Reviews notes that the applicant demonstrated functional range of motion, MMT (manual muscle testing), postural tolerance and mobility to independently perform the lighter aspects of her activities of daily living with pacing. Ms. Lee recommended an in-person assessment and the respondent advised the applicant it would do so. Although the respondent did not carry out the assessment, this does not change the fact that it is the applicant’s burden to prove that the treatment plan is reasonable and necessary.
46Lastly, a treatment plan itself is inadequate as evidence, as it is prospective in nature.
47I find that the applicant has not proven on a balance of probabilities that the treatment plan is reasonable and necessary.
The applicant is not entitled to living skills training in the amount of $4,160.00.
48The February 27, 2019 treatment plan was completed by Galit Liffshiz, OT, of Galit Liffshiz & Associates Inc. and proposed that a rehabilitation therapist provide “therapy, motor and living skills” and “planning, service”, and “documentation, support activity for claim form”.
49The proposed goals of the treatment plan are “pain reduction” and “rehab therapist services for the client, under the supervision of the occupational therapist, to assist with implementation of occupational therapy goals, including helping with an exercise program and assist with community reintegration”. The functional goal was to “help increase her daily function and participation in daily activities.”
50The applicant submits that the treatment plan is reasonable and necessary, and relies upon the January 2, 2019 Occupational Therapy Functional Assessment and Attendant Care Assessment Report prepared by Lisa Hung, OT, as support for the treatment plan.
51The respondent submits that there is no medical documentation or information that would support the services of a rehabilitation therapist and there is no indication as to what the rehabilitation therapist would be offering in terms of therapy. The respondent also submits that it had already approved on March 5, 2019 treatment plans for physiotherapy and for massage therapy but the applicant did not participate in them. Therefore, it is reasonable to believe that she would not have participated in this treatment plan, if approved. The respondent relies on Ms. Lee’s OT Paper Reviews to support its submission. The respondent suggests in its denial letter that the treatment plan may be a duplication of services and/or case management which is only available if CAT is applicable.
52I find that the applicant has not proven on a balance of probabilities that the treatment plan is reasonable and necessary.
53Firstly, the treatment plan is vague as to what therapies are being proposed. It describes the treatment as “therapy, motor and living skills” and in the comments it merely states “for therapy sessions”. A treatment plan cannot be reasonable and necessary if it is unclear what the proposed treatments are. Furthermore, without identifying the specific treatments it is not possible to explain how those treatments would meet the proposed goals to a reasonable degree.
54Secondly, the applicant has not directed me to any compelling contemporaneous medical evidence supporting the position that this treatment plan is reasonable and necessary. The Occupational Therapy Functional Assessment and Attendant Care Assessment Report by Lisa Hung, OT, recommends a “Rehabilitation Therapist to assist with implementation of OT goals such as to develop an exercise program and to assist the client with community reintegration”, however, the Report does not provide evidence as to why a rehabilitation therapist is reasonable and necessary. In the Report, a rehabilitation therapist is only recommended with respect to washing dishes and using public transportation for community integration. I do not find this compelling evidence that this treatment plan is reasonable and necessary.
55Thirdly, a treatment plan itself is inadequate as evidence, as it is prospective in nature.
56I find that the applicant has not proven on a balance of probabilities that the treatment plan is reasonable and necessary.
The applicant is not entitled to kinesiology services in the amount of $2,858.89 nor to occupational therapy services in the amount of $4,487.29.
57The November 11, 2020 treatment plan in the amount of $2,858.89 was completed by Fathima Tuan Kichill, O.T. and Russell Rainey, Kinesiologist, and proposed exercise (multiple body sites), documentation support activity, preparation services, documentation support activity, and translation services. The stated goals were pain reduction, increase range of motion, increase in strength and “overcome physiological restrictions with registered kinesiology techniques”. The functional goals were to return the applicant to activities of normal living and “overcome physiological restrictions with registered kinesiology techniques”.
58The November 11, 2020 treatment plan in the amount of $4,487.29 was completed by Fathima Tuan Kichill, O.T. and Jessica Omenya, OTH, proposed counselling, motor and living skills, instruction re: support activity, documentation, communication with other providers, documentation and translation services. The stated goals were “pain reduction” and “energy conservation techniques, mindfulness & relaxation & mood/stress management, community activities, sleep hygiene”. The functional goal was to return to activities of normal living and address task simplification, training in pain management, improving independence in occupational performance tasks, pacing and energy conservation, and monitor equipment needs.
59The applicant relies upon the fact that the applicant enrolled and participated in 4 virtual occupational therapy sessions between October and December 2020. She also relies upon an OT Treatment Sessions Progress Report dated March 4, 2021 prepared by Stephanie McHugh, OT Reg., in connection with those OT therapy sessions. In addition, the applicant challenges the reliability of Dr. Stewart’s Virtual Assessment Report dated February 4, 2021 on the basis that he is not a neurologist and therefore is not qualified to assess an applicant who suffered from a traumatic brain injury.
60The respondent submits that the applicant has failed to meet her burden of proof because she has not provided any contemporaneous medical evidence to support that the treatment plans are reasonable and necessary. The respondent’s assessor, Dr. Stewart, conducted a virtual assessment of the applicant on January 25, 2021 and in his Virtual Assessment Report dated February 4, 2021, he opined that there was no medical reason why the applicant would be unable to participate in her usual pre-accident activities without limitation, and there was no need for occupational therapy nor kinesiology services. The respondent also relies upon the reports of Dr. Rockman and Dr. Karp that indicate that the applicant’s symptoms had improved. Regarding the OT Treatment Sessions Progress Report by Ms. McHugh the respondent notes that new symptoms were identified and there is no indication which symptoms were accident related, nor the frequency or severity of the symptoms.
61I find that the applicant has not proven on a balance of probability that the kinesiology and occupational therapy services are reasonable and necessary.
62Firstly, the treatment plans were prepared almost 2 ½ years after the accident, and the applicant has not directed me to any contemporaneous medical evidence to prove on a balance of probabilities that the plans are reasonable and necessary. It is noteworthy that no contemporary medical evidence from the applicant’s physician(s) was submitted.
63Secondly, I do not find the OT Treatment Sessions Progress Report by Ms. McHugh persuasive. The Report indicates that the applicant reported symptoms but there is no indication which ones were the result of the accident, nor the frequency of occurrence nor the intensity of pain. The applicant reported headaches, dizziness and sleep disruption, but also reported new symptoms that were not identified on or about the accident, namely, decreased hearing, nerve pain in feet/ankles, change in vision, light sensitivity, noise sensitivity, reduced sense of taste and smell. Also, the Report is incomplete. It refers to only the first OT session on October 8, 2020 but not the other three sessions (i.e. Nov. 10, Dec. 2 and 17, 2020), and expressly states that a reassessment was not completed due to time constraints. The Report was dated March 4, 2021, approximately 2 ½ months after the last OT session on December 17, 2020, so it is difficult to understand why the other sessions would not have been reported upon and taken into consideration when giving recommendations for further treatment. Essentially, the recommendations were based upon one session, the October 8 session. I do not find this a reasonable approach to making recommendations when more information is readily available. For the foregoing reasons, I do not find this Report persuasive, and find that it has not established that the treatment plans are reasonable and necessary.
64Thirdly, in Part 9 paragraph (d) of both treatment plans the authors of the plans indicate that there were no concurrent treatments, whereas in fact, the applicant was attending psychotherapy sessions through York Region Psychological Services from May 26, 2020 to November 25, 2020, and that the applicant was participating in virtual occupational therapy from October to December 2020. Clearly, the authors were not aware of these treatments, and accordingly they did not consider the implications of these activities when making recommendations. Furthermore, the treatment plans in themselves are inadequate as evidence, as they are prospective in nature.
65Fourthly, the fact that the applicant paid for and engaged in 4 virtual occupational therapy sessions from October to December 2020 is not evidence that the disputed treatment plans are reasonable and necessary.
66Fifthly, the applicant’s criticisms of Dr. Stewart’s opinion is not evidence that the plans are reasonable and necessary.
67Sixthly, Dr. Stewart’s report dated February 4, 2021 was prepared in response to these two treatment plans and involved a virtual assessment of the applicant on January 25, 2021, and in his report notes that the applicant did not demonstrate any physical injuries or impairments and she denied any specific impairments or limitations with respect to her personal care or household activities. She advised Dr. Stewart that she was completing her own exercise program on a daily basis. Dr. Stewart concluded that, from a musculoskeletal and general medical perspective, there was no need for occupational therapy nor kinesiology services.
68In support of Dr. Stewart’s conclusion, the respondent relies upon the clinical notes and records of Dr. Rockman, Psy. D. and a report from Dr. Karp, Psy. D. that indicate that the applicant’s symptoms had improved. Dr. Rockman provided psychotherapy sessions to the applicant from May 26, 2020 to November 25, 2020, and the clinical notes and records from the last session on November 25, 2020 indicated that the applicant expressed improvement – she was less dizzy, sleeping better and was going on walks to visit neighbours. Dr. Jeffery Karp, Psy. D., carried out a virtual psychological assessment of the applicant in February and March 2021 and recorded that the applicant advised that there had been improvement with her headaches and that she was fully independent in self-care, but required assistance with heavier housekeeping chores. This information is consistent with Dr. Stewart’s report. Accordingly, I find Dr. Stewart’s report persuasive.
69I find that the applicant has not proven on a balance of probabilities that the treatment plans are reasonable and necessary.
The applicant is not entitled to physiotherapy services in the amount of $6,523.40.
70The October 21, 2021 treatment plan was completed by Galit Liffshiz, Reg. O.T. of Galit Liffshiz & Associates Inc. and proposed remote physiotherapy sessions therapeutic planning, report writing, OCF-18 fee and interpreter services. The stated goals were “pain reduction”, “increase in strength” and “physiotherapy services … through a remote care platform to help improve her strength/mobility/balance, and help with managing pain”. The functional goal was to assist the applicant in returning to activities of normal living.
71The applicant submits that the treatment plan is reasonable and necessary and relies upon the fact that the applicant paid for and enrolled and participated in 4 virtual occupational therapy in October and November 2020, and upon an OT Treatment Sessions Progress Report by Stephanie McHugh, OT Reg., dated March 4, 2021. Also, the applicant provided clinical notes of Dr. Li from her visit with him on December 16, 2022.
72The respondent submits that the applicant failed to satisfy her burden of proof because she did not provide any contemporaneous medical evidence to prove that the treatment plan is reasonable and necessary. Dr. Stewart conducted a virtual assessment report dated January 2021 and concluded that there was no need for occupational therapy nor kinesiology services. In response to the October 21, 2021 treatment plan, Dr. Stewart conducted a paper review and concluded in his Report dated November 9, 2021 that since the applicant did not provide any new medical evidence he maintained his opinion that formal rehabilitation was not required.
73I find that the applicant has not proven on a balance of probabilities that the treatment plan is reasonable and necessary.
74Firstly, the treatment plan was prepared over 3 years after the accident, and the applicant has not directed me to any contemporaneous medical evidence to prove on a balance of probabilities that the plan is reasonable and necessary. It is noteworthy that no contemporary medical evidence from the applicant’s physician(s) was submitted.
75Secondly, Ms. McHugh’s OT Treatment Sessions Progress Report was based upon the applicant’s participation in 4 virtual OT sessions between October and December in 2020, over one year prior to this treatment plan. This is not contemporaneous, and the applicant’s payment of the OT sessions does not, in itself, make the treatment plan reasonable and necessary. Furthermore, for the reasons I noted earlier, I do not find Ms. McHugh’s Report persuasive.
76Thirdly, Dr. Li’s meeting with the applicant on December 16, 2022 is almost 14 months after the treatment plan, so this is not contemporaneous, and in any event, Dr. Li’s clinical notes do not refer to the treatment plan, do not support the proposition that the treatment plan is reasonable and necessary, and do not recommend any treatment.
77Fourthly, I find Dr. Stewart’s conclusion in his Report dated November 9, 2021 persuasive. The applicant had not provided any new medical evidence to Dr. Stewart to consider, so it is reasonable that his opinion remained the same as in his February 4, 2021 report.
78Lastly, a treatment plan itself is inadequate as evidence, as it is prospective in nature.
79I find that the applicant has not proven on a balance of probabilities that the treatment plan is reasonable and necessary.
The Applicant is entitled to Interest.
80Pursuant to s. 51 of the Schedule, the applicant is entitled to interest on any overdue payment of benefits.
The Applicant is entitled to an Award in the amount of $440.00 together with interest.
81Under s. 10 of Reg. 664, the Tribunal may award up to 50 per cent of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. For conduct to attract a s. 10 award, the conduct must rise above being an incorrect decision and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”: see Plowright v Wellington Insurance Co., 1993 OIC File A-003985 (FSCO).
82The applicant submits that the respondent ignored her issues despite medical records and in-person assessments supporting the treatment plans and the OT CAT assessment. The respondent ignored its own assessor, Dr. Dharamshi, who opined that the OT CAT assessment was partially reasonable. The respondent denied treatment plans and stated it would carry out its own OT and OT CAT assessments but after more than 4 years had not done so. The applicant’s counsel sent a reminder letter on May 9, 2019 regarding
83The respondent submits that it engaged the services of medical professionals to review the medical records produced by the applicant and to conduct IE assessments to address the recommendations proposed in the various treatment plans. The respondent relied on the medical records in its file and the expert opinions of its IE assessors in adjusting the claim. The applicant did not provide some records to the respondent and accordingly could not consider them in the adjustment process. The respondent submits that it could not conduct the in-person assessment because of political issues between Canada and China, safety concerns with travelling to China, and the Covid-19 pandemic. Accordingly, it acted reasonably throughout, therefore a special award is not warranted.
84I find an award is appropriate because the respondent unreasonably withheld or delayed payment of $2,200.00 plus applicable HST for the OT CAT assessment, the structured interview form, the OCF-18 and OCF-19 forms. With respect to all other treatment plans, I found that the applicant failed to prove beyond a reasonable doubt that they were reasonable and necessary, and therefore find that the respondent did not unreasonably withhold or delay those benefits.
85Firstly, the respondent did not accept its own CAT assessor’s opinion that the OT CAT assessment and structured interview form were reasonable and necessary, which it is entitled to do. But, it advised the applicant it would carry out its own OT CAT assessment and structured interview form, but after more than 4 years has not done so. Secondly, the political issues between Canada and China, safety concerns and the pandemic would have resulted in some delay, but they certainly do not explain or justify over 4 years of delays. As of the date of its submissions, the respondent still had not done the assessment and structured interview form. Accordingly, I find that overall, the respondent’s conduct rises to the level of being “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”.
86Having found that the respondent unreasonably withheld or delayed the payment of certain benefits, consideration must now be given to the quantum of the special award. The Tribunal has found that the following factors may be considered in determining the quantum of a special award: (i) the blameworthiness of the respondent’s conduct; (ii) the vulnerability of the applicant; (iii) the harm or potential harm directed at the applicant; (iv) the need for deterrence; (v) the advantage wrongfully gained by the insurer from the misconduct; (vi) should take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and (vii) the overall length of the delay.
87I find that due to the respondent’s conduct the applicant was deprived of access to certain benefits. Furthermore, the applicant’s advanced age at the date of the disputed treatment plans (i.e., 72 years of age at time of accident, and 76 as at date of the Case Conference), living in a different country (i.e., China), and not understanding the English language, made her more vulnerable to the respondent’s conduct. I also find that the delay was extraordinarily long, and the respondent gained monetarily by not incurring the cost of the assessment and structured interview form, and by not paying the benefits. This type of conduct should be deterred.
88Overall, the respondent’s conduct is concerning. It is not so egregious as to justify an award at the high end of spectrum, but on the other hand, it cannot be at the lowest end. All things considered, I find that an appropriate special award is $440.00 being 20% of the $2,200.00 payable that I identified above, together with interest in accordance with the Schedule.
ORDER
89For the above-noted reasons, I find that:
a. The applicant is entitled to $2,200.00 plus applicable HST for part of the treatment plan submitted on January 25, 2019, namely an OT CAT assessment, the structured interview form, the OCF-18 and OCF-19, together with interest payable pursuant to s. 51 of the Schedule.
b. The applicant is entitled to an award pursuant to s. 10 of O. Reg. 664 in the amount of $440.00, together with interest payable pursuant to s. 51 of the Schedule.
c. The applicant is not entitled to any other treatment plans in dispute.
Released: May 13, 2024
Nick Iannazzo
Adjudicator