Henry v. RSA Insurance, 2024 CanLII 54023

Henry v. RSA Insurance, 2024 CanLII 54023

Citation: Henry v. RSA Insurance, 2024 ONLAT 22-002672/AABS

Licence Appeal Tribunal File Number: 22-002672/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:

Jeffrey Henry

Applicant

and

RSA Insurance

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Julia Logoutova, Paralegal

For the Respondent: Symone Marlowe, Cousnel

HEARD: By Way of Written Submissions

OVERVIEW

1Jeffrey Henry (“the Applicant”) was involved in an automobile accident on September 10, 2021, and sought benefits from RSA Insurance (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”). The Applicant was denied medical benefits by the Respondent 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 medical benefits proposed by 2430303 Ontario Ltd., as follows:

(i) $2,227.73 for a physiotherapy plan, dated April 5, 2022;

(ii) $1,690.81 for a physiotherapy plan, dated June 10, 2022;

(iii) $1,207.27 for a physiotherapy plan, dated September 2, 2022; and

(iv) $1,207.27 for a physiotherapy plan, dated November 25, 2022?

ii. Is the Applicant entitled to medical benefits proposed by 2403037 Ontario Ltd. as follows:

(i) $1,795.40 ($4,837.99 less $3,042.59 approved by the Respondent) for a psychological treatment plan, dated April 13, 2022;

(ii) $2,709.04 ($4,464.30 less $2,128.95 approved by the Respondent) for a driving rehabilitation plan, dated May 20, 2022;

(iii) $2,641.62 for an aquatherapy treatment plan, dated June 28, 2022;

(iv) $4,837.99 for a psychotherapy plan, dated September 20, 2022;

(v) $6,540.68 for a chronic pain treatment plan, dated September 23, 2022;

(vi) $845.41 ($1,945.56 less $1,100.25 approved by the Respondent) for an attendant care assessment plan, dated April 27, 2022; and

(vii) $2,000.00 for a neurological assessment plan, dated June 28, 2022?

iii. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find the physiotherapy treatment plans dated April 5 and June 10, 2022 to be reasonable and necessary as a result of the accident. The Applicant is entitled to the goods and services proposed in these plans, and the Respondent is liable to pay for them once incurred and properly invoiced. Interest applies to these two plans, pursuant to section 51 of the Schedule.

4I find that the Applicant has not met his burden to demonstrate that the remaining benefits claimed are reasonable and necessary as a result of the accident. Accordingly, those benefits are not payable and no interest is payable as it relates to them.

BACKGROUND

5The Applicant was the passenger of a vehicle that was struck from behind by a tow truck while stopped in traffic on a major highway. The Respondent initially characterized the Applicant’s injuries as predominantly a minor injury and subjected him to the minor injury guideline (“the MIG”). The Applicant developed psychological symptoms following the accident and, as a result, the Respondent no longer subjected him to the MIG and the $3,500.00 funding limit for a minor injury as of April 5, 2022.

6The Applicant seeks entitlement to the treatment and assessment plans listed as issues in dispute. The onus is on him to demonstrate that they are reasonable and necessary as a result of the accident.

ANALYSIS

7The Applicant bears the onus to demonstrate entitlement to the benefits claimed. To do so, he should address whether the goods and services are reasonable and necessary as a result of the accident and should direct the adjudicator to the evidence which supports those submissions. The Respondent holds no burden to disprove the Applicant’s claims.

Physiotherapy plans dated April 5, June 10, September 2, and November 25, 2022

8I find that physiotherapy plans dated April 5 and June 10, 2022 are reasonable and necessary. Otherwise, I find that the Applicant has not met his onus to demonstrate that the remaining physiotherapy treatment plans are reasonable and necessary as a result of the accident.

9The physiotherapy treatment plans seek to reduce the Applicant’s pain, increase his range of motion (“ROM”) and strength, and return him to his activities of normal living and pre-accident work. The Applicant submits that they are reasonable and necessary because he suffers from significant loss of function compared to his pre-accident status. He is critical of the Respondent’s denial of the plans, characterizing the reason being that he never produced his family physician’s clinical notes and records (“CNRs”), despite not having one and not having visited a family physician for more than a year prior to the accident. Lastly, the Applicant submits that the Respondent never provided a denial letter for the September 2, 2022 plan, perhaps suggesting that it is payable by operation of section 38(11)2 of the Schedule.

10The Respondent contends that the Applicant has failed to meet his onus and submits that he has not tendered any evidence to demonstrate that the benefits claimed are reasonable and necessary as a result of the accident. It highlights that no treating physicians recommended physiotherapy or chiropractic care. It also noted that it is not liable to pay for goods and services that have not been incurred.

11I find that the plans dated April 5 and June 10, 2022 are reasonable and necessary as a result of the accident. However, I find that the plans dated September 2, and November 25, 2022 are not reasonable and necessary as a result of the accident.

12The Applicant appears to have sustained mild disc bulges in his back as a result of the accident and physicians recommended that he engage in physiotherapy as a result. The MRI report dated February 18, 2022 shows that the Applicant suffers from mild disc bulges at L4-L5 and L5-S1 and mild degenerative issues. The disc bulges and degenerative issues coincide with the Applicant’s ongoing complaints of low back pain. CNRs from the walk-in clinic indicate that the Applicant was referred for physiotherapy on January 26, 2022 when he complained of reduced mobility due to low back pain. The Applicant continued to complain of low back pain and, on July 5, 2022, was advised to try cyclobenzaprine, reminded of the benefits of regular stretching, and was referred for physiotherapy. The issues listed above and the recommendations from physicians are contemporaneous with the treatment plans, rendering the plans reasonable and necessary.

13I find that the walk-in clinic CNRs sufficiently outweigh Dr. Khan’s opinion as it pertains to the first two treatment plans, but not the remaining two. Dr. M. Khan, physiatrist, assessed the Applicant and issued a report dated February 23, 2022. The physical assessment provided unremarkable results, but for some tenderness in the neck and low back. Dr. Khan concluded that there was no objective accident-related physical impairment or musculoskeletal pathology and considered him to have sustained a minor injury. Dr. Khan maintained the same opinion in addendum reports dated March 8 and April 6, 2022. The walk-in clinic CNRs are sufficient because they demonstrate that the Applicant had ongoing complaints related to a physical impairment for which he was referred to physiotherapy, whereas Dr. Khan’s assessment and reports focus primarily on whether the Applicant sustained a minor injury, not whether the goods and services proposed in the plans are reasonable and necessary.

14While I agree that the May 2, 2022 report of Dr. K. Efala, orthopaedic surgeon, supports the Applicant’s claims here for ongoing physiotherapy, I find the report to be unpersuasive. Dr. Efala did not undertake a fulsome review of the Applicant’s medical record and, thus, relied too heavily on the Applicant’s self-reported symptoms. The assessment included a review of only three documents from the Applicant’s medical record as part of the assessment – Dr. Hewchuk’s report, and MRI reports for the lumbar and cervical spine. Moreover, Dr. Efala’s assessment revealed no functional impairment to the cervical and lumbar spine but nevertheless diagnosed the Applicant with post traumatic cervical and lumbar spine dysfunction. This contradiction considerably undermines the persuasiveness of Dr. Efala’s report.

15I find that the Applicant has not met his onus to demonstrate that the remaining physiotherapy plans are a reasonable and necessary because he provided no contemporaneous evidence in support of these claims. I recognize that the Applicant does not have a family physician and may not have the same access to healthcare as others; however, it does not mean that he is excused from presenting evidence to support his claim. The Applicant accessed healthcare through walk-in clinics throughout 2021, 2022, and into 2023, and the CNRs for those visits support the need for the first two physiotherapy plans, but not the remaining two.

16It appears that physiotherapy provided little relief to the Applicant by late 2022 and into 2023 and it is not reasonable and necessary to fund ongoing treatment that is ineffective. During a visit on February 3, 2023, the Applicant complained that his medication was not helping, and it appears he requested a referral to a pain specialist and the treating nurse practitioner obliged the request and noted that the Applicant “…may want to continue physio.” This comment suggests that physiotherapy is optional for the Applicant at this time and not a reasonable and necessary therapy. The Applicant then had a telephone consultation with Dr. N. Khetani, a pain specialist, on February 15, 2023, and received an epidural steroid injection a week later from the same physician. The Applicant reported relief, but not 100%, following the procedure. From the records, there is no indication that physiotherapy provides any meaningful benefit to the Applicant, unlike the steroid injection. The Applicant engaged in various physical and psychological treatments following the accident, yet he never produced any records from those facilities to support his claims. It leaves me with no information on the benefit, if any, physiotherapy and the other modalities were providing the Applicant. As a result, I find that the Applicant has not met his onus to demonstrate that the physiotherapy plans dated September 2 and November 25, 2022 are reasonable and necessary.

17Lastly, I find that the Applicant has not demonstrated that he is entitled to any of these plans by operation of section 38(11)2 of the Schedule. The Applicant suggested that he may be entitled to the plans because the Respondent failed to provide clear denials to his claims. Pursuant to section 38(11)2, the Respondent is liable to pay for the goods and services described in a treatment and assessment plan that are incurred during a period of noncompliance – which could include an unclear denial. However, the Applicant has not demonstrated that any of the goods and services have been incurred. It follows then that the Applicant is not entitled to any payment by operation of section 38(11)2 of the Schedule.

The psychological treatment plan dated April 13, 2022

18I find that the Applicant has not demonstrated that he is entitled to the unapproved balance of the April 13, 2022 psychological treatment plan. The unapproved balance of the plan related to a dispute over the length of treatment session. The Applicant seeks 1.5-hour treatment sessions as well as $598.54 in administration fees and the Respondent agreed to pay for 1-hour sessions and none of the administration fees.

19The Applicant directs me to the psychological assessment report by V. Tolmatshov, social worker, supervised by Dr. E. Hewchuck, psychologist, dated April 19, 2022 to support his claim. However, he does not elaborate on this and upon my review of the report, I find no information to indicate that 1.5-hour sessions are reasonable and necessary. Similarly, there is no information before me to justify the administration fees considering that the Respondent agreed to pay the $200.00 form fee, as permitted via the Professional Services Guideline – Superintendent’s Guideline no.03/14 (“the PSG”). As a result, I find that the Applicant has not met his onus to demonstrate his entitlement to the unapproved balance of the psychological treatment plan.

The psychotherapy plan, dated September 20, 2022

20I find that the Applicant has not demonstrated that he is entitled to the psychotherapy treatment plan dated September 20, 2022.

21The Applicant submits that Dr. Hewchuk’s opinion should be preferred over Dr. C. L. Gooden’s, that the Respondent failed to consider Dr. Hewchuk’s opinion, and he is critical of the analysis in Dr. Gooden’s report dated February 23, 2022. The Respondent never addressed this plan directly, but submitted generally that the Applicant has not met his onus to demonstrate that the plans are reasonable and necessary.

22The Applicant never submitted a copy of this treatment plan for the hearing and never outlined the services proposed in the plan. However, the plan was proposed by the same service provider as the April 13, 2022 plan and is the same cost as the other plan. Thus, I assume it is the same or very similar to the April 13, 2022 plan, addressed above; however, this has no impact on the Applicant’s entitlement to the plan because he has not demonstrated that additional psychotherapy is reasonable and necessary.

23From a substantive perspective, the Applicant has not met his onus to demonstrate that additional psychotherapy is reasonable and necessary. He never submitted any contemporaneous evidence with this plan that suggests he requires ongoing psychological treatment. The Respondent approved the psychotherapy treatment plan dated April 13, 2022, in accordance with Dr. Hewchuk’s recommendation but there is no similar recommendation for the plan dated September 20, 2022. Alternative to a report, the Applicant can provide treatment or physician records to support a claim for ongoing psychotherapy, yet never did so. The chronic pain report by Dr. J. H. Cho, dated September 23, 2022 is the only medical evidence to suggest that the Applicant requires ongoing psychotherapy however, the report is uncompelling as I will explain in greater detail later in this decision.

The driving rehabilitation plan dated May 20, 2022

24I find that the Applicant has not met his onus to demonstrate that the unapproved fees for the driver’s rehabilitation plan are reasonable and necessary.

25The Applicant submits that the unapproved amount relates to transportation of the Applicant due to the nature of the in-vehicle treatment and that the services require advanced desensitization instruction that cannot be provided by a driving instructor, warranting the hourly rate of a registered psychologist.

26I find no information before me to indicate that the services provided must be done by a psychologist and not a driving instructor. The Applicant’s submissions are not evidence and there is nothing in the medical record that leads me to conclude that a driving instructor is entitled to the hourly rate of a registered psychologist. Further, the evidence indicates that a driving instructor provided the services, and the report includes no psychological evaluation to justify the increased hourly rate. Thus, I find that the Applicant has not demonstrated entitlement to an hourly rate above that of an unregistered professional, as outlined in the PSG.

27Further, the Applicant has provided no information to justify paying the service provider for their travel time as well as their mileage to treatment. Authorized transportation expenses are subject to a 50 km deductible, and the Applicant has not provided any information to indicate that he travels more than 50 km for the treatment. Additionally, the Applicant made no submissions to differentiate the mileage expense from the provider travel time. Accordingly, I find that the Applicant has not met his onus to demonstrate entitlement to the unapproved balance of this plan.

$2,641.62 for an aquatherapy treatment plan, dated June 28, 2022

28I find that the Applicant has not met his onus to demonstrate that the aquatherapy treatment plan is reasonable and necessary as a result of the accident.

29The Applicant submits that this treatment is reasonable and necessary because it is in line with the recommendation from his pain and spine specialist, Dr. Khetani, who recommended a low impact exercise program. He is critical of the Respondent’s reasons for denial and submits that it was wrongly denied based on a lack of CNRs from a family physician. Lastly, the Applicant submits that the Respondent failed to review the denial once it received updated CNRs. The Respondent submits that the plan was denied based on the opinion of Dr. Khan, whose reports were discussed earlier.

30I find Dr. Khetani’s opinion to be irrelevant when analysing whether this plan is reasonable and necessary because the recommendation occurred about eight months following the submission of the treatment plan. Otherwise, there is no other evidence indicating that aquatherapy is reasonable and necessary. Further, the recommendations at the time of the treatment plan were for the Applicant to engage in physiotherapy – which I previously found reasonable and necessary.

$6,540.68 for a chronic pain treatment plan, dated September 23, 2022

31I find that the Applicant has not met his onus to demonstrate that the chronic pain treatment plan is reasonable and necessary. The chronic pain treatment plan seeks $1,212.03 in assessments fees, $330.00 in planning fees, $1,212.03 in preparation fees, $554.74 in education, promoting health and preventing disease, $150.00 in undisclosed educational materials, and allocates only $2,911.96 to therapy.

32The Applicant highlights that Dr. Cho diagnosed him with chronic pain syndrome in the report dated September 30, 2022 and that the Respondent failed to consider the reports of Dr. Efala and Dr. Cho when responding to the plan. The Respondent never addressed this plan directly, but noted generally that the Applicant never met his onus to demonstrate that a chronic pain treatment plan is reasonable and necessary as a result of the accident.

33I find no evidence or submissions in support of the specific goods and services proposed in the treatment plan. The plan includes various ancillary fees beyond therapy which the Applicant has not addressed. Further, the plan includes assessment fees totalling $1,212.03, which are proposed in addition to the chronic pain assessment which the Respondent approved. I question how these additional assessment fees are reasonable and necessary. Likewise, the Applicant has not provided any reason why he may be entitled to an additional $330.00 in planning fees, on top of the $200.00 form fee and it is unclear what the education and promoting health fee is associated with, as well as what the educational materials consists of.

34I find Dr. Cho’s report to be anomalous to the Applicant’s medical record and assign it no weight. The chronic pain treatment plan was created on September 23, 2022, yet the chronic pain assessment report was issued a week later, on September 30, 2022. I query how Dr. Cho can recommend a chronic pain treatment plan before completing a chronic pain assessment report. Nevertheless, Dr. Cho’s conclusions that the Applicant meets four of the six hallmarks for a chronic pain condition are without merit. Contrary to Dr. Cho’s findings, I see no evidence of secondary physical deconditioning due to disuse and/or fear avoidance of physical pain – the Applicant’s overall ROM is within normal limits. The Applicant has not withdrawn from social milieu including work and other social contacts as he enrolled in electrical engineer courses at a local college – something that he was not doing prior to the accident. At most, he developed psychological sequelae following the accident, which he engaged in psychotherapy for. However, he has provided no compelling evidence indicating that he remains psychologically impaired following the various courses of psychological treatment.

35Considering the above, I conclude that the Applicant has not met his onus to demonstrate that a multidisciplinary chronic pain treatment plan is reasonable and necessary as a result of the accident.

$845.41 ($1,945.56 less $1,100.25 approved by the Respondent) for an attendant care assessment plan, dated April 27, 2022

36I find that the Applicant has not met his onus to demonstrate that the unapproved balance of the attendant care assessment plan is reasonable and necessary as a result of the accident.

37The Applicant made no submissions on whether this plan is reasonable and necessary and, instead, submits that the Respondent’s denial is deficient because it is unclear what was approved and what was not approved. The Respondent submits that the Applicant has not met his burden and highlights that the Applicant has resumed his personal care tasks following the accident and he has not produced evidence to support the notion that the attendant care assessment is reasonable and necessary.

38I find that the Applicant has not established that the denial of this benefit was deficient. The response to the treatment plan clearly states that it does not agree to fund the items in lines 2 to 6 of the treatment plan but agrees to fund the remaining goods and services. Even if the denial was unclear, it only permits the Applicant to incur the benefit before the deficiency is remedied. However, the Applicant has not directed me to any evidence to suggest that the denied benefits were incurred. Accordingly, I find that the Applicant has not demonstrated that the denied portion of this treatment plan is reasonable and necessary.

$2,000.00 for a neurological assessment plan, dated June 28, 2022

39I find that the Applicant has not met his burden to demonstrate that the neurological assessment is reasonable and necessary.

40The Applicant submits that this plan was denied on the basis that his injuries fall within the minor injury definition and that the Respondent failed to revisit the plan once he was no longer subject to the minor injury guideline and once CNRs from the Applicant’s treating healthcare practitioners were provided. Similar to the other plans, the Respondent never addressed this plan directly, but noted that the Applicant never provided evidence indicating that a neurological assessment is reasonable and necessary as a result of the accident.

41I find that the Applicant has not met his onus because he has provided no submissions and directed me to no evidence to support his claim that a neurological assessment is reasonable and necessary. While the Applicant is free to criticize the Respondent’s handling of his claim, it does not alleviate his need to submit evidence and make submissions in support of his claim because the burden remains with him to demonstrate entitlement. Here, he has directed me to no evidence that indicates he suffers from neurological symptoms to the extent that an assessment is warranted. I note that there is no evidence to suggest that the Applicant sustained a concussion or a head injury as a result of the accident.

42Considering these factors, I find that the Applicant has not met his burden to demonstrate that a neurological assessment is reasonable and necessary.

Interest

43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that the Applicant is entitled to the physiotherapy treatment plans dated April 5 and June 10, 2022, it follows that he is entitled to interest as it relates to those plans only.

CONCLUSION AND ORDER

44The physiotherapy treatment plans dated April 5 and June 10, 2022 are reasonable and necessary as a result of the accident. The Applicant is entitled to the goods and services proposed in the plans, and the Respondent is liable to pay for them once incurred and properly invoiced. Interest applies to these two plans, pursuant to section 51 of the Schedule.

45I find that the Applicant has not met his burden to demonstrate that the remaining benefits claimed are reasonable and necessary as a result of the accident. Accordingly, those benefits are not payable and no interest is payable as it relates to them.

Released: June 11, 2024

__________________________

Brian Norris

Adjudicator