Johnson v. Co-operators General Insurance Company, 2024 CanLII 49023

Citation: Johnson v. Co-operators General Insurance Company, 2024 ONLAT 22-003588/AABS

Licence Appeal Tribunal File Number: 22-003588/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:

Paul Johnson

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ludmilla Jarda

APPEARANCES:

For the Applicant:

George Siotas, Counsel

For the Respondent:

Jamie R. Pollack, Counsel

Serena Gohal, Counsel

HEARD:

By Written Submissions

OVERVIEW

1Paul Johnson (the “applicant”) was involved in an automobile accident on September 7, 2012, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2020 (the “Schedule”). The applicant was denied benefits by the Co-operators General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The respondent initially determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment and denied treatment outside the MIG. On April 13, 2015, the respondent determined that as a result of his pre-existing impairments, the applicant no longer qualified for treatment under the MIG and can be treated under the non-catastrophic impairment policy limit which has a cap of $50,000.00. As of April 13, 2020, the respondent has paid $3,500.00 for medical and rehabilitation benefits.

ISSUE

3The sole issue in dispute is whether the applicant is entitled to $19,097.00 for a catastrophic impairment assessment, proposed by Omega Medical Associates, in a treatment plan/OCF-18 (“treatment plan”) submitted March 12, 2020 and denied March 27, 2020.

RESULT

4For the reasons that follow, I find that the applicant is not entitled to the disputed treatment plan. The application is dismissed.

ANALYSIS

5To receive payment for the disputed treatment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefits are 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.

6Pursuant to s. 45(1) of the Schedule, an insured person who sustains an impairment as a result of an accident may apply to the insurer for a determination of whether the impairment is a catastrophic impairment.

7Section 25(1)5 of the Schedule provides that the insurer shall pay the following expenses incurred by or on behalf of an insured person: reasonable fees charged for preparing an application under s. 45 of the Schedule for a determination of whether the insured person has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.

8Section 25(5)(a) of the Schedule further provides that an insurer shall not pay more than a total of $2,000.00 in respect to fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it.

9The applicant submits that as a result of the accident, he suffers from physical, emotional, and psychological injuries. His physical injuries include injuries to his neck, spine, back, and rotator cuff. He also suffers from chronic post-traumatic headaches, post-traumatic stress disorder, sleep disorder, and tremors. The applicant states that despite the passage of time since the accident, and the treatment that he received, he continues to suffer from his injuries. Further, he claims that he has been unable to work since the accident, and he is now retired.

10The applicant submits that the disputed treatment plan is reasonable and necessary and relies on the opinion of Dr. Lisa Becker, physician, as set out in the additional comments section of the treatment plan. The applicant argues that based on his ongoing impairments, it is reasonably possible that he sustained a catastrophic impairment as a result of the accident and that a multidisciplinary evaluation is reasonably necessary.

11The applicant further argues that the respondent’s denial contravened ss. 25 and 45 of the Schedule. The applicant states that the reason provided for the denial was that the respondent did not believe that the applicant’s injuries meet the criteria for a catastrophic impairment, and that this position was taken without any input from a medical practitioner, or any assessments being done.

12In response, the respondent submits that the applicant sustained minor, soft tissue injuries to his neck and upper back, and post-traumatic headaches as a result of the accident and denies that the applicant suffers from a psychiatric impairment as a result of the accident. The respondent states that the applicant was removed from the MIG due to pre-existing psychiatric issues, and although the applicant has access to $50,000.00 for medical and rehabilitation benefits, he has only consumed $3,500.00 for medical and rehabilitation benefits since the accident.

13The respondent states that the applicant’s written hearing submissions contain factual inaccuracies and mischaracterizations of the facts and submits that the applicant has a significant medical history unrelated to the accident. Based on the applicant’s medical records, he has a significant pre-accident medical history including depression, bipolar disorder, chronic sinusitis (resulting in headaches), a deviated septum and nasal obstruction, restless leg syndrome, sleep apnea (requiring a continuous positive airway pressure (“CPAP”) machine), sleep disorders (including thrashing and yelling in his sleep), a hand tremor, Barrett’s esophagus (with a history of reflux symptoms), adjustment disorder with depressed mood, post-traumatic stress disorder, and back pain. Also, following the accident, the applicant completed a gradual return to work program and continued to work for approximately one-year post-accident.

14The respondent submits that the disputed treatment plan is not reasonable and necessary and that the proposed multidisciplinary assessments are not supported by the applicant’s medical evidence. The applicant has provided little to no explanation as to why the treatment plan is reasonable and necessary. Specifically, no evidence has been provided to support the need for the proposed multidisciplinary assessments, no medical evidence has been relied upon, and the necessity of each of the individual assessments requested have not been particularized. The respondent states that the applicant has not met his onus of proof. The respondent further argues that the applicant is attempting to circumvent the $2,000.00 cap for the cost of assessments under s. 25(5)(a) of the Schedule as it relates to the file review, the psychiatry assessment, and the occupational therapy assessments.

15The respondent denies that it contravened ss. 25 and 45 of the Schedule or that it improperly denied the disputed treatment plan. The respondent states that the denial letter dated March 27, 2020 provided medical reasons, including a lack of psychological or physical impairment related to the accident, causation with respect to the accident, and insufficiency of evidence that the applicant’s injuries would meet any of the catastrophic impairment criteria.

16The respondent relies on various insurer examination reports including a physiatry examination report dated April 11, 2013 completed by Dr. Max Kleinman, physiatrist, and a psychiatry assessment report dated March 27, 2015 completed by Dr. Stanley Debow, psychiatrist. The respondent also relies on the applicant’s medical records as referenced in its written hearing submissions.

17On reply, the applicant maintains that the respondent’s denial was improper as it was based solely on the opinion of its claim adjuster, without the review of medical records, a medical background, and without the opinion of a physician. The applicant also argues that there is a substantive explanation as to why the multidisciplinary assessments are reasonable and necessary and states that the reasons are fully set out in the treatment plan.

The disputed treatment plan is not reasonable and necessary

18I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated March 12, 2020 for a catastrophic impairment assessment in the amount of $19,097.00 is reasonable and necessary.

19The plan proposes the following assessments, fees, and services for a catastrophic impairment determination:

1. Centralized Comprehensive File Review by Dr. Harold Becker, general practitioner physician – $2,000.00;
2. Physiatry Assessment by Dr. Chris Fortin, physiatrist – $2,000.00;
3. Psychiatry Assessment by Dr. Tatiana Melnyk, psychiatrist – $6,500.00;
4. Occupational Therapy Activities of Daily Living and Community Assessment by Ali Habash, occupational therapist – $2,000.00;
5. Occupational Therapy Situational Assessment by Mr. Habash – $2,000.00;
6. Catastrophic Impairment Summary, Analysis, and Overall Ratings under each applicable Criteria by Dr. H. Becker – $2,000.00;
7. Completion of an Application for Determination of Catastrophic Impairment (OCF-19) form by Dr. L. Becker – $200.00; and
8. Completion of a Treatment and Assessment Plan (OCF-18) form by Dr. L. Becker – $200.00.

20I am not persuaded by the applicant’s submissions and evidence that the treatment plan is reasonable and necessary. The applicant primarily relies on the treatment plan which was completed by Dr. L. Becker. Although Dr. L. Becker indicated that she reviewed the file provided, it is unclear what medical records, if any, were reviewed in determining that a catastrophic impairment assessment was reasonably required. In my view, relying on the treatment plan on its own is insufficient.

21I further find that the applicant has failed to direct the Tribunal to any corroborating medical evidence to support the treatment plan. Although the applicant has included in his document brief the clinical notes and records (“CNRs”) of Dr. Patrick Rowe, physician, and Dr. Sameena Shah, physician, a Decoded OHIP Summary, Records from Health Insurance British Columbia, and a Canada Pension Plan Disability file, the applicant does not refer to any of these records in his written hearing submissions. The applicant must direct the Tribunal to the relevant evidence in support of his case and explain why the treatment plan is reasonable and necessary. The applicant cannot submit evidence and leave it up to the Tribunal to connect the dots and make his case. The applicant must explain why the evidence is supportive of his case. He has failed to do so.

22I also find that the applicant’s submissions and evidence fail to demonstrate that the respondent improperly denied the treatment plan. While the applicant alleges that the respondent contravened ss. 25 and 45 of the Schedule, neither of these provisions require the respondent to conduct assessments or obtain the input from a medical practitioner under s. 44 of the Schedule in order to deny the applicant’s entitlement to a treatment plan.

23Further, the respondent’s denial letter complied with the Schedule as it contained the medical reasons and all the other reasons why the respondent considered the multidisciplinary assessments and the proposed costs of them not to be reasonable and necessary. Specifically, the respondent provided the following reasons:

1. There is insufficient information on file to support that the applicant suffers from a psychological and/or physical impairment related to the accident.
2. There is insufficient information that the applicant suffers from injuries related to the accident that would meet the criteria of 55% of whole-body impairment (WPI).
3. The treatment plan indicates that the applicant has sustained soft tissue injuries as a result of the accident based on the impairments listed on the treatment plan.
4. The treatment plan indicates that there was a file review to prepare the treatment plan; however, there is a $2,000.00 fee to review the file as part of the assessment. It is therefore unclear as to what was reviewed to come to the determination that the applicant may require a $19,097.00 assessment 8 years after the accident.
5. It has previously been documented that the applicant moved to British Columbia and that he was involved in another accident out there. The applicant has not provided any documentation (as previously requested) with regard to the accident in British Columbia, or the CNRs of his treating psychiatrist.
6. It has been over 2 years since the applicant last attended any known treatment and updated medical records from any and all treating practitioners that the applicant has seen since the accident is required. These records include, but are not limited to, an OHIP summary, a British Columbia Health summary, the CNRs from the applicant’s last known psychiatrist in British Columbia and any documentation with regards to any hospitalization in Canada or elsewhere.
7. The respondent further requested that the applicant advise whether he was in receipt of or had applied for any British Columbia disability benefits, Canada Pension Plan benefits, or Canada Pension Plan Disability benefits, and that the applicant advise whether he was attending any treatment in British Columbia and if so, to provide information regarding the nature, type, and dates of treatment.

24I find that there is insufficient evidence to support that the disputed treatment plan, including its overall cost, is reasonable and necessary. While the applicant argues that it is reasonably possible that he sustained a catastrophic impairment as a result of the accident, I do not agree. Rather, I find that the medical evidence supports that the applicant sustained soft tissue injuries as a result of the accident, and there is no evidence to support that he sustained a psychiatric impairment as a result of the accident.

25At the time of the accident, the applicant was stopped at a stop sign when a third-party vehicle struck the driver’s side of his vehicle. According to the Emergency Record from Lakeridge Health dated September 7, 2012, following the accident, the applicant complained of neck pain and left shoulder pain. There were no neurological deficits. He was diagnosed with a whiplash injury and discharged home.

26A week later, on September 14, 2012, the applicant was assessed at the Oshawa Clinic Physiotherapy Sports and Rehab by Gowtham Pidaparthi, physiotherapist. The applicant complained of neck pain, low back pain, left shoulder pain, and headaches. Mr. Pidaparthi found that the applicant appeared to have sustained a whiplash associated disorder (level II) injury to his cervical spine, strained his low back, and strained his rotator cuff muscle of the left shoulder.

27A few days later, on September 19, 2012, the applicant consulted his family physician, Dr. David Thow, regarding his whiplash injury. The applicant reported that he was experiencing neck stiffness and that he was having difficulty sleeping. He advised that he had not returned to work since the accident but that he would try modified duties. He also noted that he was going on vacation for two weeks. Dr. Thow assessed the applicant with neck spasm and indicated that the applicant should be off work until September 28, 2012.

28The applicant saw Dr. Thow again on October 17, 2012. At that time, he continued to report neck pain and some headaches since the accident, but he stated that his back and shoulders were fine now. On physical examination, Dr. Thow noted that the applicant had a good range of motion of his lower back and shoulders.

29When the applicant was assessed by Dr. Kleinman on March 28, 2013, the applicant reported that he was independent with his personal care and grooming, and that he was able to complete all his housekeeping and home maintenance activities. He also reported that he continued to experience difficulties with his neck and upper back, and headaches. On physical examination, with respect to his complaints of neck and upper back pain, there was no tenderness in the head and neck region. Cervical flexion was limited by stiffness more so than pain, and range of motion of the upper extremity joints was free and painless. With respect to his ongoing headaches, there was no cranial tenderness and extra ocular movements were full.

30Dr. Kleinman concluded that the applicant sustained a variety of soft tissue sprain/strain injuries to the neck and upper back, and post-traumatic headaches as a result of the accident. There was no evidence of a neurological impairment such as a radiculopathy or peripheral nerve entrapment. Although the applicant continued to have some stiffness with residual pain, Dr. Kleinman found that the applicant’s soft tissue injuries had healed given the length of time since the accident, the nature of his injuries, and his current presentation. Dr. Kleinman opined that the applicant’s physical impairments were considered minor as defined by the MIG.

31When the applicant was assessed by Dr. Debow on March 3, 2015, it was noted that the applicant had a pre-existing history with a diagnosis of bipolar disorder, and that he had experienced various episodes of rage and suicidal behaviour. Further, although the applicant reported experiencing a psychiatric episode and rage attack in December 2014 unrelated to the subject accident, there was no evidence of depressive affect or facies at the time of the assessment. Dr. Debow concluded that the applicant suffered from bipolar disorder which was in partial remission and that his diagnosis was not related to the accident. While there was no compelling evidence that the applicant suffered from a psychiatric condition as a result of the accident that would prevent him from achieving maximal recovery within the MIG, Dr. Debow found that his pre-existing psychiatric condition would prevent him from achieving maximum recovery if treated within the MIG.

32Considering the medical evidence before me and the lack of treatment sought by the applicant following the accident, I find that there is no evidence to support that the applicant may have sustained a catastrophic impairment as a result of the accident. As such, the applicant has not established that a multidisciplinary catastrophic impairment assessment is reasonable and necessary.

33I further find that the applicant has failed to demonstrate that the overall cost of the treatment plan is reasonable and necessary.

34First, the applicant provided no evidence to support that the cost of the centralized comprehensive file review is reasonable and necessary. The applicant does not explain how the centralized comprehensive file review differs from the file review completed by Dr. L. Becker when she prepared the disputed treatment plan or the file review to be completed in preparation of the OCF-19.

35Second, the applicant provided no evidence to support that the cost of the psychiatry assessment is reasonable and necessary. While the applicant acknowledges that the respondent is not required to pay more than a total of $2,000.00 in respect to fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it pursuant to s. 25(5)(a) of the Schedule, the applicant does not explain why a psychiatry assessment in the amount of $6,500.00 is reasonably required.

36Third, the applicant provided no evidence to support that the cost of the two occupational therapy assessments is reasonable and necessary. The applicant does not explain why two assessments are required when both propose addressing whether the applicant suffers from a marked impairment or an extreme impairment due to a mental or behavioural disorder. Further, the applicant does not explain why the combined cost of the occupational therapy assessments in the amount of $4,000.00 is reasonable and necessary.

37Finally, despite having access to $50,000.00 for medical and rehabilitation benefits, during the 10-year period following the accident, the applicant only incurred $3,500.00 for treatment, and the applicant did not incur any non-catastrophic assessments despite having access to $46,500.00.

38Based on the evidence as a whole, I find that the applicant has not established that the treatment plan is payable.

ORDER

39For the reasons outlined above, I find that the applicant is not entitled to the disputed treatment plan.

40The application is dismissed.