Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-011068/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:
[K.A.] (A minor by their litigation guardian, [R.A.])
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Melanie Malach
APPEARANCES:
For the Applicant: Ken Singh, Counsel
For the Respondent: Ravinder Chahal, Counsel
HEARD: By way of written submissions
OVERVIEW
1[K.A.], the applicant, was involved in an automobile accident on May 28, 2018. At the time of the accident, she was 11 years old and was struck by a motorist while crossing the street, causing her multiple fractures to her left clavicle and left ankle.
2The applicant 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to $10,393.11 for chronic pain management, proposed by Downsview Healthcare, in a treatment plan, dated August 3, 2021?
ii. Is the applicant entitled to medical benefits proposed by 101 Physio Medical Rehabilitation, as follows:
(i) $2,410.66 for physiotherapy services, in a treatment plan, dated December 30, 2021?
(ii) $2,152.71 for physiotherapy services, in a treatment plan, dated March 4, 2022?
(iii) $1,862.52 for physiotherapy services, in a treatment plan, dated April 27, 2022?
(iv) $1,932.52 for physiotherapy services, in a treatment plan, dated June 17, 2022?
(v) $1,742.52 for physiotherapy services, in a treatment plan, dated August 5, 2022?
(vi) $1,742.52 for physiotherapy services, in a treatment plan, dated September 30, 2022?
iii. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
iv. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to costs pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules, 2023?
4The issue of costs was added by Motion Order dated January 17, 2024.
RESULT
5I find that the applicant is entitled to the chronic pain management program, proposed by Downsview Healthcare, in the treatment plan, dated August 3, 2021.
6I find that the applicant is entitled to the physiotherapy treatment plans proposed by 101 Physio Medical Rehabilitation, dated December 30, 2021, March 4, 2022, April 27, 2022, June 17, 2022, August 5, 2022, and September 30, 2022;
7I find that the applicant is entitled to interest on overdue benefits pursuant to s.51 of the Schedule.
8I find that the respondent is not liable to pay an award under s. 10 of Regulation 664.
9I find that the applicant is not entitled to costs pursuant to Rule 19.1.
ANALYSIS
Entitlement to Medical and Rehabilitation Benefits
10To receive payment for a treatment 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.
a) The applicant is entitled to the treatment plan dated August 3, 2021 for chronic pain treatment
11I find that the treatment plan, prepared by Dr. Grigory Karmy, at Downsview Healthcare, dated August 3, 2021, recommending a chronic pain management program is reasonable and necessary as a result of the accident.
12The chronic pain treatment plan identifies the goals of treatment as pain reduction, increase in strength, increased range of motion, and to improve participation in all activities of daily living. Progress on the goals will be evaluated by follow-up assessments, functional testing and psychological testing at specific intervals. The barriers to recovery were identified as, “female child with multiple, severe, initially life-threatening injuries, now chronic injuries, multiple fractures, post-concussion symptoms, emotional disturbances and severe impairment of all ADL”. To address these barriers, an interdisciplinary maintenance and treatment program was recommended aimed at addressing persistent joint, muscle dysfunction and symptoms of chronic multifocal injury, concurrent with a graduated rehabilitation program to facilitate further restoration of function and prevention of re-injury.
13The applicant submits that the treatment plan in dispute is reasonable and necessary based on the Follow-Up Chronic Pain Assessment Report of Dr. Karmy, dated July 25, 2021, and his recommendation for an interdisciplinary maintenance and treatment program. Dr. Karmy diagnosed the applicant with chronic left shoulder, left clavicle, left leg and left ankle pain. He noted that the left shoulder and left clavicle pain relapsed, and the left leg pain had worsened since his previous assessment on September 6, 2019. Based on the treatments she had received to date, including physiotherapy, hot/cold therapy, massage, TENs, laser therapy, acupuncture and an exercise program, Dr. Karmy opined that they were helpful, but she had only achieved partial long-term improvement. He opined that the applicant requires further comprehensive rehabilitation and a multidisciplinary approach to treatment. The applicant further submits that she has incurred $3,221.53 in treatment in respect to this treatment plan.
14The applicant further relies on the subsequent report of Dr. Johann Micallef, Neurologist, dated January 26, 2023, which noted that the applicant complained of pain along the posterior medial aspect of her left ankle, just posterior to the medial malleolus. He noted that her symptoms are worse when she stands or walks for prolonged periods. Dr. Micallef concluded that the applicant’s post-concussion symptoms present with physical, cognitive, sleep and emotional elements. He recommended a multi-disciplinary rehabilitative approach including active rehabilitation, occupational therapy and psychotherapy which is consistent with the recommended treatment in the treatment plan.
15The applicant also relies on the report of Dr. Kafai Lai, Orthopedic Surgeon, dated June 23, 2023, which noted that the applicant continued to experience pain along the posterior medial aspect of her left ankle, just posterior to the medial malleolus. On examination, he noted that she exhibited increased laxity along the lateral ligaments.
16The respondent submits that it denied the chronic pain treatment plan based on the lack of medical information provided by the applicant to assess the need for the treatment. The respondent submits that it further denied the treatment plan based on the Insurer’s Examination report, prepared by Dr. [E.S], Family Physician, dated June 11, 2019, and the report of Dr. [L.G], dated August 7, 2019. Dr. [S] concluded that her accident-related physical impairments had fully resolved at the time of the assessment and found no objective evidence of ongoing physical impairment on assessment. Dr. [G] concluded that the applicant is 15 months post-accident and appears to have recovered. Dr. [G] stated that” the applicant does not appear to have a traumatic related LLD, but rather an incidental right-sided contralateral LLD of just over one half an inch, for which a lift and long arch support for pes planovalgus is recommended.”
17I find that the applicant has met her onus of proving on a balance of probabilities that the treatment plan in dispute is reasonable and necessary for the following reasons.
18I find that the Follow-Up Chronic Pain Assessment report of Dr. Karmy, that notes several presentations of accident-specific pain complaints is persuasive for the following reasons. I note that the treatment plan in dispute was submitted shortly after the follow-up assessment by Dr. Karmy on June 15, 2021, with the report being prepared on July 25, 2021. Dr. Karmy compared his findings from his previous assessment and concluded that the applicant had still not reached maximal medical improvement and requires further comprehensive rehabilitation. He recommended a multidisciplinary approach, including a combination of active rehabilitation with passive physical modalities, a psychological approach and other medical interventions.
19I further find that the treatment plan submitted properly identified the barriers to the applicant’s recovery and the goals of the treatment plan aligned with addressing these barriers. The chronic pain program was to address persistent joint, muscle dysfunction and symptoms of chronic multifocal injury, concurrent with a graduated rehabilitation program to facilitate further restoration of function and prevention of re-injury.
20I also place weight on the subsequent reports by Dr. Micallef and Dr. Lai, where the applicant continued to make complaints of ongoing pain in 2023 which corroborates the need for the treatment plan in dispute. Dr. Micallef noted that the applicant’s current post-concussion symptoms present with physical, cognitive, sleep and emotional elements and recommended a multi-disciplinary rehabilitation program. Dr. Lai noted left ankle pain for the past four years, with pain worse with physical repetitive activities.
21I am not persuaded by the IE report of Dr. [S], dated June 11, 2019 relied on by the respondent. While this report dealt with a previous treatment plan submitted for a chronic pain assessment, Dr. [S] did not review the follow-up report prepared by Dr. Karmy which detailed the applicant’s ongoing complaints and updated medical status in 2021, or the subsequent reports by Dr. Micallef and Dr. Lai supporting her ongoing complaints and recommending further treatment. In addition, the applicant did report to Dr. [S] that she had mild left posterior ankle/Achilles pain as well as very intermittent soreness in her left upper trapezius muscle at the time of her assessment.
22Similarly, the respondent relied on the report of Dr. [G] dated August 7, 2019, to deny entitlement to the treatment plan in dispute. However, Dr. [G] did not reexamine the applicant in 2021 at the time of submission of the treatment plan in dispute and therefore did not provide an opinion about the applicant’s current complaints in 2021 or the need for treatment.
23I give little weight to the Insurer’s Examination Report, prepared by Dr. Justine Auguste, Orthopaedic Surgeon, dated March 21, 2022, which concluded that the applicant does not require any further formal facility-based treatments of her accident-related injuries. Dr. Auguste did review the report of Dr. Karmy dated July 25, 2021, and summarized the findings in the report but did not comment on the diagnosis or recommendations. In addition, the report does note the applicant’s complaints of left thigh pain, left collar bone pain and left ankle pain. Dr. Auguste did not review the treatment plan in dispute or discuss her conclusions in respect to same.
24I find that the applicant has met her onus of demonstrating on a balance of probabilities that the treatment plan, dated August 3, 2021, is reasonable and necessary.
b) The applicant is entitled to the treatment plans dated December 30, 2021 to September 30, 2022 for physiotherapy
25I find that the six physiotherapy treatment plans, prepared by 101 Physio Medical Rehabilitation, submitted from December 30, 2021 to September 30, 2022, are reasonable and necessary as a result of the accident.
26The applicant submits that the six treatment plans recommending physical rehabilitation are reasonable and necessary in improving the applicant’s condition to a certain extent, allowing her to perform activities of daily living albeit with difficulty, and without the treatment this could not have been possible. She further submits that the treating practitioners documented the treatment sessions, progress, and have repeatedly recommended physiotherapy due to her accident-related injuries. The applicant participated in the treatment in an attempt to relieve her pain and reported improvement with it.
27The applicant further submits that all six treatment plans have been incurred which supports that the applicant attended on a consistent basis for treatment from January 5, 2022 to September 30, 2022.
28The respondent submits that the treatment plans in dispute were denied based on the reports prepared by Dr. [S], dated June 11, 2019, Dr. Narayanan, dated June 18, 2019, and Dr. [G], dated August 7, 2019. It also continued to adjudicate the file upon receiving further medical productions. The respondent further submits that treatment plans #3-6 were denied after the applicant was assessed by Dr. Auguste, with reliance on the conclusions from that assessment and the reports of Dr. [G] and Dr. Narayanan. It further notes that despite the applicant’s complaints made to Dr. Lai on May 20 and June 2023, Dr. Lai assured the applicant that the x-rays and ultrasound did not show any significant abnormalities. The respondent relies on the denials outlined in the Explanation of Benefits.
29I find that the applicant has met her onus of proving on a balance of probabilities that the six treatment plans in dispute are reasonable and necessary for the following reasons.
30I am persuaded by the report of Dr. Karmy, dated June 25, 2021 which concluded that the applicant’s accident-related impairments were still significant and she was experiencing functional limitations due to her musculoskeletal pain. Dr. Karmy recommended further treatment and rehabilitation and noted that since certain modalities of treatment were more helpful to her than others, she should continue with these treatments.
31Dr. Bill Nikols, chiropractor, who completed the initial treatment plan, dated December 30, 2021, noted the same injuries as Dr. Karmy, in addition to several others. He listed the barriers to recovery as the chronicity of her symptoms, poor sleep, and muscular imbalances likely due to the growth plate in her leg. To overcome these barriers, Dr. Nikols recommended adherence to pain-relieving modalities (physical rehab and therapy) and access to counselling to forestall psychological/emotional impairments arising from the accident. In the subsequent treatment plans, the different modalities for measuring progress were suggested. The treating practitioners documented treatment sessions, progress and repeatedly recommended ongoing physiotherapy which was in fact received by the applicant.
32I find that the applicant incurring the treatment sessions in dispute, indicates that she found the services beneficial by continuing to attend on a consistent basis, which supports the necessity of the treatment plans in dispute. The progression of the goals indicated in the treatment plans support the reasonableness of the goals and that they were being met to a reasonable degree.
33I am not persuaded by the findings of Dr. Auguste, in his report dated March 21, 2022. This assessment was conducted several months after the submission of the December 30, 2021, treatment plan which is the issue in dispute before Dr. Auguste. Dr. Auguste concluded that the applicant likely reached maximal medical recovery long before the current examination and relies on the reports of Dr. [S], Dr. Narayanan and Dr. [G]. She concludes that there are no objective clinical findings of any substantive musculoligamentous, osseous or neurologic impairments on orthopedic assessment today.
34I find that Dr. Auguste did not provide her own rationale as to why she believes the applicant has reached maximal medical recovery. There is no mention in her report of the treatment the applicant was undergoing at the time of the assessment, nor any benefit being received from such treatment. Dr. Auguste also does not comment on the report from Dr. Karmy, dated June 25, 2021, or any of the updated findings reached in that report. Her only reference is to the reports from 2019.
35I find that the applicant has met her onus of demonstrating on a balance of probabilities that the six treatment plans for physical rehabilitation are reasonable and necessary.
Entitlement to Interest
36The applicant is entitled to the interest on any overdue payment of benefits in accordance with s. 51 of the Schedule.
Entitlement to an Award
37I find that the applicant is not entitled to an award under s.10 of Regulation 664
38Under 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 test for a s.10 award is whether the insurer’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
39While I find that the treatment plans in dispute are reasonable and necessary, the applicant has not demonstrated that the respondent’s conduct meets the threshold to warrant a s. 10 award.
40The applicant submits that the respondent has unreasonably withheld payment of medical benefits, without giving due consideration to entire medical records before them. It further submits that the respondent has prejudiced the applicant and caused undue hardship, as the applicant has been without treatment, limiting her recovery or any chance of her achieving maximum medical recovery.
41The respondent submits that it relied on the relevant medical documentation in its possession and complied with the Schedule in denying these plans.
42I find that the respondent followed the opinions of its assessors in making its determination of the treatment plans in dispute. The respondent relied on its denials, as it is so entitled to do. Where a party may disagree with a determination made by an insurer, this is not grounds for an award. Similarly, despite the denials, the applicant did continue to attend for treatment as is set out in the submissions of the applicant. There is no evidence before me which supports that the respondent has unreasonably withheld or delayed payment of benefits.
Entitlement to Costs
43Turning to the issue of costs, I find that the applicant has not met the high threshold necessary for ordering costs.
44Rule 19.1 provides that a party may make a request to the Tribunal for its costs where a party believes that “another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.” Rule 19.5 provides a list of factors the Tribunal shall consider when determining whether to order costs (and if so, how much).
45The applicant supports its request by submitting that the respondent did not comply with the deadlines set out in the Case Conference Report and Order (“CCRO”) dated June 5, 2023. The applicant submits that due to the delay in receiving these productions, it was significantly more difficult to prepare its submissions.
46I find that the applicant has not established that the respondent’s behaviour merits a cost order. I find that the email from the respondent to the applicant dated July 27, 2023 confirms that productions were provided in accordance with the CCRO. They were again resent on January 8, 2024 with a note that the attachments were sent back on July 27, 2023. I was not provided with any correspondence between the parties specifically about the production of the AB File & Summary, other than the motion documents. Once the respondent was advised that this production was still outstanding, the respondent replied in a reasonable amount of time.
47For the reasons outlined above, I find that the applicant has not established that the applicant’s behaviour merits a cost order pursuant to Rule 19.1 and the claim for costs is dismissed.
ORDER
48For the reasons outlined above, I find:
i. The applicant is entitled to the treatment plans in dispute;
ii. The applicant is entitled to interest in accordance with s. 51 of the Schedule;
iii. The respondent is not liable to pay an award under s.10 of Regulation 664;
iv. The applicant is not entitled to costs pursuant to Rule 19.1.
Released: October 11, 2024
Melanie Malach Adjudicator