Licence Appeal Tribunal File Number: 22-002443/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 Zaina
Applicant
and
Northbridge Commercial Insurance Corporation
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Michael Giordano, Counsel
For the Respondent:
Paul Sykes, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Paul Zaina, the applicant, was involved in an automobile accident on October 3, 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, Northbridge Commercial Insurance Corporation (“Northbridge”), 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 $2,200.00 for psychological services, proposed by Prime Health Care Inc. in a treatment plan/OCF-18 (“plan”) submitted April 9, 2021 and denied April 23, 2021?
ii. Is the applicant entitled to $3,447.20 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a plan submitted August 18, 2021 and denied September 1, 2021?
iii. Is the applicant entitled to $3,795.50 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre Inc. in a plan submitted June 21, 2021 and denied July 14, 2021?
iv. 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?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has failed to demonstrate that the proposed treatment plans (OCF-18’s) are reasonable and necessary for his accident-related injuries. As a result, the OCF-18’s in dispute are not payable. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule and an award does not apply.
4The application is dismissed.
ANALYSIS
5To receive payment for a treatment plan (OCF-18) under 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. 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 same are reasonable.
Is the psychological assessment reasonable and necessary?
6I find there is no corroborating evidence in support of OCF-18 dated April 9, 2021 by psychologist, Dr. Jacqueline Brunshaw in the amount of $2,200.00 for a psychological assessment. The applicant relies on consultation report dated May 30, 2019 by Dr. Adele Efendov, psychologist, a pre-screening report dated March 8, 2021 and a treatment plan report dated April 9, 2021 by Dr. Brunshaw, psychologist. In the pre-screening report, Dr. Brunshaw acknowledges the applicant’s significant pre-existing physical problems and aggravated physical injuries as a result of the accident. Dr. Brunshaw suggests a psychological assessment to determine the applicant’s psychological injuries as a result of the accident.
7In support of the OCF-18 by Dr. Brunshaw, the applicant submits that there has been a change in his psychological state since 2019. The applicant admits to pre-existing adjustment disorder caused by his long-standing chronic pain condition. The applicant relies on a report dated May 30, 2019 and Dr. Efendov regarding his attendance at the Centre for Addiction and Mental Health (“CAMH”) for cognitive behavioural therapy (“CBT”) starting before and continuing after the accident. The author of the May 30, 2019 report is Dr. Robert Levitan, a psychiatrist at CAMH. Dr. Levitan diagnosed adjustment disorder with a differential diagnosis of psychosomatic disorder or delusional spectrum disorder. The evidence suggests that the applicant’s psychological condition in 2019 remained the same in comparison to a few months before the accident. For example, Dr. Stefan Kloiber, a psychiatrist at CAMH also made a differential diagnosis of somatic symptom disorder and delusional disorder approximately three months before the accident.
8The applicant does not point to any specific accident-related cause for his alleged change in psychological condition since 2019. The medical evidence suggests the applicant has unrelated psychological difficulties. In his report, Dr. Levitan, indicates the applicant is seen by an addiction’s counsellor, Dr. Joel Bordman, for pain and addiction medicine. Dr. Bordman diagnosed the applicant with complex psychological personality traits. Dr. Levitan explains that the applicant’s anxiety is difficult to distinguish from his suspiciousness concerning healthcare providers over a long period of time. The applicant’s family physician, Dr. Matthew Kereliuk notes on December 10, 2018 that the applicant is not willing to reduce opioids, despite the recommendations of his psychiatrists.
9In response, Northbridge scheduled a s. 44 Insurer’s Examination by psychologist, Dr. Rubenstein who found no psychological impairments as a result of the accident. Northbridge points to letter dated May 8, 2019 from the applicant to CAMH declining further group therapy. Northbridge submits that the pre-accident diagnosis of Dr. Kloiber is the same as the post-accident diagnosis of Dr. Levitan. Northbridge refers to the psychological assessment of Dr. Fiati dated February 21, 2019 which addressed the applicant’s psychological condition after the accident. Dr. Fiati recommends CBT which the applicant did not attend. The respondent also submits that on October 15, 2021, Dr. Jodi Lofchy, psychiatrist found no mental impairment affecting the applicant’s ability to carry on daily activities.
10I find that Dr. Brunshaw does not consider the applicant’s significant pre-existing psychological complaints. For example, in the month preceding the accident, in a report dated September 5, 2018, Dr. Michael Wainsbrough, pain specialist notes the applicant has sleep difficulties, memory loss, concentration difficulties, anxiety, irritability and reduced functional abilities. Dr. Brunshaw suggests a psychological assessment to address the applicant’s social functioning. However, in report dated October 15, 2021, Dr. Lofchy indicates the applicant is well supported by his friends and church affiliations. The applicant has not worked since 2014. The applicant states in his application for Canada Pension Plan Disability Benefits that his recreational activities of volunteering, boating, baseball and hockey ceased in 2010-2012.
11I find that the applicant has failed to demonstrate that the OCF-18 of Dr. Brunshaw is reasonable and necessary. Dr. Kereliuk, Dr. Kloiber and Dr. Fiati have all recommended psychotherapy which the applicant has not attended. In addition, Dr. Rubenstein and Dr. Lofchy have found no psychological condition to warrant a further psychological assessment. The applicant has failed to establish that the OCF-18 for a psychological assessment is reasonable and necessary as a result of the accident.
Are the Mackenzie Medical Rehabilitation Centre OCF-18’s reasonable and necessary?
12The applicant seeks payment for an OCF-18 dated June 21, 2021, in the amount of $3,795.50 and OCF-18 dated August 18, 2021, in the amount of $3,447.20 for chiropractic services to address his persistent chest, shoulder, hip and knee complaints with reduced functional abilities. The applicant relies on the clinical notes of Dr. Gurmeet Dhillon, Dr. Matthew Kereniuk and various MRI reports and consultation reports.
13The applicant admits to significant pre-existing chronic pain involving disc herniations in the lumbar and thoracic spine, bilateral osteoarthritis of the hips, right hip arthroplasty, right shoulder tear requiring surgery, knee pain and depression. The applicant submits that he sustained injuries and aggravated injuries to his hip, back, shoulders, knees, brain and chest as a result of the accident. The applicant has not provided any medical evidence in support of an accident-related brain injury. The medical evidence suggests that the applicant has unrelated physical complaints from previous conditions and procedures.
14The medical evidence does not point to an exacerbation of the applicant’s condition wherein chiropractic services are recommended. The applicant points to report dated October 18, 2021, by Dr. Atul Kamath, orthopaedic surgeon which indicates he has failed physical rehabilitation regarding his right hip and surgery is recommended. The applicant has reported prolonged episodes of urinary and bowel incontinence after chiropractic manipulation.
15In addition, the evidence would suggest contradictory reports of the applicant’s physical abilities after the accident. Although the applicant alleges reduced functional abilities since the accident, Dr. Lofchy indicates that the applicant exercises routinely and walks his dog. Further, on November 4, 2021, the applicant advised cardiologist, Dr. Anthony Graham that he walks up to 3 kilometres per day. Dr. Kereliuk indicates that the applicant’s left shoulder complaints are related to overcompensating with his left arm after right shoulder surgery. In follow up report dated November 12, 2019, Dr. Ian Whatley, orthopaedic surgeon indicates the applicant has considerable improvement of his right shoulder after surgery and strengthening exercises are suggested.
16The applicant has reported subsequent unrelated injuries to his treating physicians. For example, on June 4, 2019, the applicant reported a left knee injury while wrestling to Dr. Erin McCarvill, his family doctor. Dr. Barry Cayen indicates the MRI result shows a tiny partial thickness meniscus tear but in his report dated October 22, 2019, Dr. Cayen indicates that the applicant’s left knee pain has nearly resolved. He recommends a physiotherapy program with quadriceps strengthening.
17In contrast, Northbridge points to the consultation report dated March 28, 2019 by Dr. Abdullah M. Al Ahmeri, physiatrist, clinical notes and treatment records of Mackenzie Medical Rehabilitation Centre, addendum report dated October 22, 2021 by Dr. Shariff Dessouki, physiatrist and various clinical notes and records of treating practitioners and specialists. The respondent submits that the applicant’s reduced functional abilities pre-date the accident. In a consultation report dated September 11, 2018, Dr. Neilank Jha, neurosurgeon indicates the applicant reports sleep impairment, bowel and bladder incontinence and restricted walking. The applicant reported incontinence following chiropractic treatments. The respondent points to various specialists including Dr. Michael Stoffman, neurosurgeon recommending an active exercise routine.
18The respondent also relies on the report of Dr. Dessouki dated June 30, 2021 indicating the applicant’s aggravated injuries have returned to baseline and he has returned to his activities of daily living. In addition, Dr. Khalid Ali Syed, orthopaedic surgeon and Dr. Marek Gawel, neurologist confirmed that chiropractic treatments cause incontinence.
19I find that the applicant is not entitled to further chiropractic services since his treating doctors and specialists have only recommended an active strengthening program. In fact, several specialists have advised that chiropractic treatments have the deleterious effect of causing incontinence. The applicant has failed to prove that the OCF-18’s for chiropractic services are reasonable and necessary as a result of the accident.
Interest
20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant was not successful on the OCF-18’s in dispute for psychological assessment and chiropractic services are reasonable and necessary, no benefits are owing and interest does not apply.
Award
21The 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. The applicant did not provide any submissions for an award within the 12-page limit set in the Case Conference Report and Order. However, since no benefits are payable, an award under s.10 of O. Reg. 664 is not warranted.
Costs
22Both parties are seeking costs, but they do not provide any submissions for an amount for costs within the 12-page limit. Under Rule19 of the Licence Appeal Tribunal Rules, 2023, the Tribunal may grant costs if it finds that a party acted unreasonably, frivolously, vexatiously or in bad faith. I find that the parties have not provided the reasons or particulars of the conduct giving rise to a claim for costs.
ORDER
23For the reasons set out above, I find that:
The applicant is not entitled to the treatment plans in dispute.
The applicant is not entitled to interest or an award.
The parties are not entitled to costs.
The application is dismissed.
Released: August 6, 2024
Lisa Holland
Adjudicator