Safety, Licensing Appeals and Standards Tribunals Ontario Licence Appeal Tribunal
Automobile Accident Benefits Service
Mailing Address: 77 Wellesley St. W., Box 250, Toronto ON M7A 1N3
In-Person Service: 20 Dundas St. W., Suite 530, Toronto ON M5G 2C2 Tel.: 416-314-4260
1-800-255-2214
TTY: 416-916-0548
1-844-403-5906
Fax: 416-325-1060
1-844-618-2566
Website: www.slasto.gov.on.ca/en/AABS
Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario Tribunal d'appel en matière de permis
Service d'aide relative aux indemnités d'accident automobile
Adresse postale : 77, rue Wellesley Ouest, Boîte no 250, Toronto ON M7A 1N3 Adresse municipale : 20, rue Dundas Ouest, Bureau 530, Toronto ON M5G 2C2
Tél. : 416 314-4260
1 800 255-2214
ATS : 416 916-0548
1 844 403-5906
Téléc. : 416 325-1060
1 844 618-2566
Site Web : www.slasto.gov.on.ca/fr/AABS
Tribunal File Number: 16-001418/AABS
Case Name: 16-001418 v Aviva Insurance Canada
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:
H. A. J.
Applicant
And
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES:
Counsel for the Applicant: Frank McNally Counsel for the Respondent: Joseph Griffiths HEARD: Written Hearing: December 15, 2016
Overview
1The applicant was injured in a motor vehicle accident on August 24, 2014. He applied for a medical benefit under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Aviva Insurance Canada (“Aviva”) denied a Treatment and Assessment Plan (OCF-18) for occupational therapy services. The applicant appeals to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for payment of this medical benefit and according interest.
Issues in Dispute:
2Is the applicant entitled to a medical benefit for occupational therapy services in the amount of $3,358.14, on a Treatment and Assessment Plan dated January 21, 2016, recommended by Functionability Rehabilitation Services?
3Is the applicant entitled to interest on any overdue payments?
Result:
4The applicant is entitled to payment of $3,358.14 for occupational therapy services on a Treatment and Assessment Plan dated January 21, 2016.
5The applicant is entitled to interest in accordance with the Schedule.
Discussion:
The Treatment Plan for Occupational Therapy
6In order to determine whether the proposed treatment plan is reasonable and necessary, a number of questions must be answered. Analytically, the questions can be divided into four steps:
What the nature of the applicant’s impairment?
What type of treatment will assist the applicant with his impairment?
What is the goal of the proposed treatment plan?
In light of the answers to the first three questions, is the proposed treatment plan a reasonable and necessary method of treating the applicant’s impairment?
7I will discuss each of the questions in turn.
1. What the nature of the applicant’s impairment?
8The applicant suffers from physical and psychological impairments. For reasons that will be explained in the discussion of question 4, the physical impairments are more pertinent to the issue of whether the proposed treatment plan is reasonable and necessary.
Physical Impairments
9The following diagnoses and comments are uncontested by the parties. I accept them as true based on the thorough testing conducted by the medical practitioners and their experience as an expert in their respective medical fields.
(1) The applicant attended an Independent Pain Assessment with Dr. Kevin Smith on July 20, 2015. Dr. Smith diagnosed the applicant with the following, among other things:
- chronic pain syndrome (mixed muscoskeletal and headache components), associated with sleep disruption and psychological emotional disturbance
- chronic muscoskeletal upper back pain due to myofascial pain
- chronic muscoskeletal low back pain due to mechanical, probable bilateral sacroiliac joint and possible facetogenic pain
(2) Dr. Smith also identified the following restrictions that the applicant was experiencing:
- prolong walking
- sitting
- standing
- repetitive bending/pushing/pulling
- heavy lifting
- repetitive abduction of the arms above the shoulder level and high impact physical activities (i.e. running and jumping)
(3) More recently, the applicant attended an independent examination on September 9, 2016 with Dr. Mussett, an orthopedic surgeon. The assessment was conducted in relation to a different treatment plan. Dr. Mussett diagnosed the applicant with chronic pain symptoms (not syndrome). Dr. Mussett noted that the applicant suffers from chronic type II whiplash associated disorder affecting his neck, together with ongoing back pain and loss of motion involving his thoracic and lumbar spine region.
Psychological Impairments
10The applicant was examined by Dr. Kim Payne, a neuropsychologist. Dr. Payne issued a report on July 17, 2015 diagnosing the applicant with the following as a result of the motor vehicle accident:
- major depressive disorder
- posttraumatic stress disorder
- somatic symptom disorder
- mild neurocognitive disorder
11Aviva has not presented medical information undermining these diagnoses. I accept Dr. Payne’s diagnoses as true.
2. What type of treatment will assist the applicant with his impairment?
12Dr. Mussett conducted an independent medical examination and considered a pain management program to be reasonable and necessary treatment for the applicant’s chronic pain symptoms. This suggests that pain reduction, or at least pain management, is a type of treatment that will assist the applicant with his physical impairment.
13An independent medical examination was conducted in relation to the proposed treatment plan by Ingrid Neufeld, a registered occupational therapist. Ms. Neufeld did not comment on what type of treatment will assist the applicant with his impairment. Ms. Neufeld considered the proposed treatment plan not reasonable or necessary because the applicant had, in her view, no functional limitations or restrictions precluding him from resuming all of his pre-accident activities of daily living.
3. What is the goal of the proposed treatment plan?
14The treatment plan is for occupational therapy. The applicant has provided the definition of occupational therapy from the Canadian Association of Occupational Therapists, which I accept:
Occupational Therapy is the art and science of enabling engagement in everyday living, through occupation, of enabling people to perform the occupations that foster health and well- being; and of enabling a just and inclusive society so that all people may participate to their potential in the daily occupations of their life.
… Occupation refers to everything that people do during the course of everyday life.
15The treatment plan’s specific goals are identified in the Treatment and Assessment Plan dated January 21, 2016. They are:
- Most importantly for my analysis, to assess the applicant’s pain management strategies and explore the initiation of a pain management program with a focus on increasing functional activity such as the Progressive Goal Attainment Program (PGAP)
- To further assess and address equipment and assistive device needs to increase the applicant’s participation in certain programs
- To work towards a gradual return to productive activities, such as returning to school
- To provide education on a program
- To assess the applicant’s functional cognition and provide compensatory cognitive strategies and remedial cognitive rehabilitation to increase his participation in everyday activities
4. Is the proposed treatment plan a reasonable and necessary method of treating the applicant’s impairment?
16I find that the proposed treatment plan is a reasonable and necessary method of treating the applicant’s impairment. I accept that pain management or reduction is a reasonable goal for the applicant’s physical impairment. He has significant pain issues. At the highest he has chronic pain syndrome, as noted by Dr. Smith. At the lowest, he has chronic pain symptoms, as noted by Dr. Mussett.
17Even if I only accept the lesser of these two diagnoses, that is, Dr. Mussett’s diagnosis, this implies that the applicant has chronic type II whiplash associated disorder affecting his neck, together with ongoing back pain and loss of motion involving his thoracic and lumbar spine region. A method of treatment designed to manage or reduce this pain is reasonable and necessary.
18The proposed occupational therapy treatment plan does just that. One of the goals of the treatment plan is to assess the applicant’s pain management strategies and explore the initiation of a pain management program with a focus on increasing functional activity such as the Progressive Goal Attainment Program (PGAP).
19Ms. Neufeld believes that the proposed treatment plan is not reasonable or necessary because the applicant has no functional limitations or restrictions precluding him from resuming all of his pre-accident activities of daily living. It appears that Ms. Neufeld believes that pain management or reduction is not reasonable treatment goal for the applicant’s impairment. We disagree on this issue.
20While I find the proposed treatment plan to be reasonable and necessary almost entirely in relation to the applicant’s physical impairment, I am mindful of his psychological impairment. At the least, the proposed treatment plan’s pain management/reduction goal will assist the applicant in dealing with his psychological difficulties. This does not itself make the treatment plan reasonable and necessary. However, it strengthens the conclusion.
21There could be a fifth question in the analysis; a question about the reasonableness of the proposed treatment plan’s cost. Submissions on this point were not provided by the applicant or Aviva. The parties focused their disagreement on the reasonableness and necessity of the type of proposed treatment. I have looked at the cost breakdown in Part 12 of the Treatment and Assessment Plan. Over 50% of the cost is for programming. Much of the remaining 50% is for documents and mileage. The cost does not strike me as unreasonable. In the absence of compelling evidence to the contrary, I am satisfied that the treatment plan’s cost is reasonable.
Interest
22In light of my decision, the Applicant is awarded interest on the outstanding payment for the treatment plan in accordance with the Schedule.
Conclusion:
23The applicant is entitled to payment of $3,358.14 for occupational therapy services on a Treatment and Assessment Plan dated January 21, 2016. The applicant is also entitled to interest on this payment in accordance with the Schedule.
Released: March 16, 2017
Chris Sewrattan, Adjudicator