Clifford v. Security National Insurance Company, 2024 CanLII 97867

Citation: Clifford v. Security National Insurance Company, 2024 ONLAT 22-011557/AABS

Licence Appeal Tribunal File Number: 22-011557/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:

Erin Clifford

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Nadia Mauro

APPEARANCES:

For the Applicant: Karen Vigmond, Counsel

For the Respondent: Matthew Samuels, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Erin Clifford, the Applicant, was involved in an automobile accident on June 8, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The Applicant was denied benefits by the Respondent, Security National Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are as follows:

1. Is the Applicant entitled to $5,109.38 for social rehabilitation counselling, proposed by Zoe Mentz Social Worker in a treatment plan/OCF-18 (“plan”) dated October 9, 2020?
2. Is the Applicant entitled to $515.21 ($615.65 less approved $94.78) for Botox and massage chair, submitted on a claim form (OCF-6) dated June 2, 2021?
3. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3The Applicant is entitled to the treatment plan for social rehabilitation counselling, reimbursement for the Botox and massage chair expenses, and interest on overdue payment pursuant to s. 51 of the Schedule.

ANALYSIS

4To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the Applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the Applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

5The Applicant submits that the denied treatment was supported not only by the Applicant’s treatment team and medical records, but also by the Respondent’s assessors, who confirmed the Applicant’s ongoing accident-related symptoms. The Respondent submits that the Applicant has not met her onus to prove that the benefits in dispute are medically necessary and reasonable.

The Treatment Plan (“OCF-18”) in the amount of $5,109.38 for Social Rehabilitation Counselling

6I find that the Applicant has demonstrated, on a balance of probabilities, that the OCF-18 for social rehabilitation counselling is reasonable and necessary.

7The Applicant submits that social work treatment is required to allow for continued progress and provide support to avoid reinjury, isolation, and deterioration of her mental health and overall functioning. The Applicant argues the Respondent’s s.44 assessor, Dr. Amena Syed, failed to address the two previously approved social work treatment plans and five-page progress report, dated October 15, 2020, provided by social worker, Ms. Zoe Mentz, when rendering her decision that the treatment plan was not reasonable or necessary. Moreover, Dr. Syed’s opinion was based on an incomplete record and insufficient information, and that neither Dr. Naeem nor Dr. Slonim’s reports were reviewed by Dr. Syed. As such, it is inappropriate to rely on those reports with respect to this dispute as the denial was based on Dr. Syed’s opinion alone.

8The Respondent submits that Dr. Syed indicated that the Applicant would benefit from psychotherapy rather than social work; similarly, psychologist Dr. Dalia Slonim recommended psychological treatment but did not identify social work intervention; neurologist, Dr. Omer Naeem, initially recommended social work, but on subsequent attendance recommended psychology for further psychiatric support; and that previous approvals do not place an obligation for future approvals.

9While I agree with the Respondent that a prior approval for treatment does not thereafter obligate perpetual approvals for the same treatment, I do not agree with Dr. Syed’s opinion, in this case, that there was a lack of rationale to justify the treatment plan as reasonable and necessary.

10The evidence indicates that by recommendation of neurologist, Dr. Omer Naeem, on November 1, 2019, the Applicant should engage with a social worker “to deal with her anxiety management”. The Applicant underwent an assessment with Ms. Mentz on November 29, 2019, and was recommended individual counselling sessions that were subsequently approved on two occasions, April 9, 2020, and June 25, 2020. The disputed OCF-18 is the third treatment plan submitted by Ms. Mentz, on October 9, 2020.

11There appears to be no dispute between various treating practitioners, from a psychological perspective, that the Applicant would benefit from treatment. In fact, Dr. Syed agreed treatment may be warranted. However, Dr. Syed opined that, “the disputed treatment plan currently being requested is for social work sessions with minimal rational to substantiate a need and this in consideration, the aforementioned is not considered to be reasonable and necessary.”

12I find this opinion to be lacking. The Applicant argues that Dr. Syed neither reviewed nor took into consideration Ms. Mentz’s progress report or previous treatment plans when rendering her opinion. I am persuaded by this argument, as previous treatment plans, progress reports, and documentation provided by Ms. Mentz speak specifically to the rationale in substantiating same.

13A review of said documentation would indicate that proceeding with social work treatment is necessary as it enables the client’s ongoing progress and provides the required support to avoid client risk of re-injury, isolation, and deterioration of mental health and overall function. Moreover, Progress Report of Ms. Mentz, dated October 15, 2020 (the “Progress Report”), states that through social work intervention, the Applicant learns effective strategies to manage stress, anxiety, and depressive symptomology. The goals of the treatment would include individual supportive, psychoeducational and adjustment counselling aimed at helping the Applicant process and integrate through emotional impacts of the motor vehicle accident. This is clear evidence of a rationale for the reasonableness and necessity of the OCF-18. I am not pointed to an opinion within Dr. Syed’s report that addresses same.

14Lastly, I am not persuaded by the Respondent’s argument that Dr. Naeem and Dr. Slonim ‘did not recommend’ social work intervention. In fact, Dr. Naeem was the practitioner that recommended the social work treatment, and I have not been pointed to evidence that Dr. Naeem thereafter disagreed with continued social work treatment. While Dr. Slonim did not made a specific recommendation for social work intervention, I have not been pointed to evidence of this assessor disagreeing with the need for social work counselling. Both assessors made their respective recommendations at or around the time that the Applicant was already undergoing her social work treatment and neither assessor was asked to opine on whether social work intervention was reasonable or necessary.

15Given the foregoing, I am satisfied that the Applicant has proven, on a balance of probabilities, that the treatment plan is reasonable and necessary.

The Applicant is entitled to the Botox and massage chair expenses

16I find that the Applicant has demonstrated that the Botox and massage chair expenses are reasonable and necessary, and she is entitled to payment under the Schedule.

17The Applicant submits that the Botox injections provide improvement in frequency and severity of her headaches and migraines, and the massage chair would prevent from further injury and allow her to work more efficiently and effectively. The Applicant argued that s.44 neurological assessor, Dr. Nagib Yahmad’s opinion was an inadequate basis for Respondent to deny Botox, as he did not conclude that the treatment was unreasonable or unnecessary, and the Respondent was provided with sufficient medical evidence to substantiate the need for the massage chair. Moreover, the Respondent does not have evidence that the massage chair expense was not reasonable or necessary.

18The Respondent argues that neither Dr. Andrzej Ghwardjan (s. 44 physiatrist), Dr. Slonim, nor Dr. Yahmad, recommended Botox or a massage chair. Moreover, the Respondent submits that months prior to trial of Botox, the Applicant reported improvement, noted by changes in medication regimen of neuropsychologist, Dr. Diana Velikonja.

19The Applicant replied to the Respondent stating that both Dr. Gwardjan and Dr. Slonim were inappropriate assessors to comment on the Botox and massage chair. Dr. Gwardjan was not asked to consider these expenses, and it would have been outside of Dr. Slonim’s scope of practice.

20I agree with the Applicant, that the Respondent has been provided with sufficient medical evidence to substantiate the Botox and massage chair expenses.

21Neurologist, Dr. Naeem, was the referring doctor to physiatrist, Dr. Gihan Perera. It was Dr. Perera who recommended Botox for the Applicant’s posttraumatic headaches. Clinical notes and records (“CNRs”) of Dr. Perera report an improvement in both frequency and severity of her migraines after the administration of the Botox treatment.

22While Dr. Yahmad concludes in his report dated October 3, 2022, ‘from a purely neurological perspective’, Botox in not reasonable and necessary, he plainly states thereafter that, “comment on whether Botox treatment is reasonable and necessary from a musculoskeletal perspective is deferred to the appropriate assessor.” I have not been pointed to any other assessor that has commented on the reasonableness or necessity of the Botox injections. In any event, this appears to be consistent with the Applicant’s medical history prior to this assessment. The Applicant was prescribed and administered Botox from a physiatrist, not her treating neurologist. As such, I find that the Botox expense to be reasonable and necessary.

23With respect to the massage chair, the Applicant contends that she has struggled with pain in her back, neck, and shoulders, and that these symptoms have worsened when she returned to work. Physiotherapist Cara Cutaia’s letter, dated August 20, 2021, indicates that the Applicant has returned to work and would benefit from an ergonomically supportive chair as she works from home. I agree with the Applicant that Dr. Slonim would be opining outside of her scope with respect to the necessity of a massage chair, and Dr. Gwardjan’s report appears to have been completed prior to the Applicant’s return to work. I have not been pointed to compelling evidence that comments on the Applicant’s work abilities since her return, other than the physiotherapist’s recommendation. Given same, I find the massage chair to be a reasonable and necessary expense.

24In summary, I find that the Applicant has met her onus to establish that the expenses for Botox and the massage chair are reasonable and necessary.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The Applicant is entitled to interest for any overdue amount relating to the treatment plan for social rehabilitation counselling and to the unapproved balance of the Botox and massage chair expenses.

ORDER

26For the reasons outlines above, I find that:

i. The Applicant is entitled to $5,109.38 for social rehabilitation counselling.

ii. The Applicant is entitled to the Botox and massage chair expenses.

iii. The Applicant is entitled to interest pursuant to s. 51 of the Schedule.