Tribunal File Number: 17-001922/AABS
Case Name: 17-001922 v Aviva Insurance Company
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:
Applicant
Applicant
and
Aviva Insurance Company
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Thérèse Reilly
APPEARANCES:
For the Applicant: Michael Ferrante, Counsel
For the Respondent: Elka Dadmand, Counsel
Heard In Writing: August 21, 2017
OVERVIEW
1The applicant claims that as a result of an accident on July 11, 2015 she sustained a number of physical and psychological injuries. She sought accident benefits from the respondent pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant appealed the respondent’s denial of her request for two treatment plans for psychological and chiropractic services, and for the cost of three assessments.
3A written hearing was scheduled to address these claims. The only evidence submitted by the parties was documentary evidence. I have considered all of the documents submitted and conclude that the applicant is not entitled to the amounts claimed, for the reasons that follow.
ISSUES IN DISPUTE:
4The issues in dispute to be decided:
i. Is the applicant entitled to receive $897.72 for psychological services recommended by Excel Medical Services, dated December 6, 2015 and denied January 18, 2016?
ii. Is the applicant entitled to receive $3,047.50 for chiropractic services, recommended by Springdale Physiotherapy Services, dated May 18, 2016, and denied June 8, 2016?
iii. Is the applicant entitled to receive $2,048.68 for an attendant care assessment, recommended by Excel Medical Services, dated October 27, 2015 denied December 16, 2015?
iv. Is the applicant entitled to $2,000.00 for an orthopaedic assessment recommended by Springdale Physiotherapy Services, dated January 25, 2016, denied February 1, 2016?
v. Is the applicant entitled to payments for $600.00 for a naturopathic assessment recommended by Springdale Physiotherapy Services, dated May 18, 2016, denied June 8, 2016?
vi. Is the applicant entitled to interest for any overdue payment of benefits?
RESULT
5The applicant is not entitled to any of the claimed amounts.
6No interest is payable as there are no overdue payments.
ANALYSIS
The applicant is not entitled to receive $897.72 for psychological services.
7The treatment plan for psychological services dated December 8, 2015 was partially approved by the respondent, and thus, the $897.72 in dispute is the remaining balance on the plan. The treatment plan was for 12 therapy sessions at $224.42 an hour. The parties disagree on the hourly rate that was claimed by the applicant for the psychological services. The applicant applied the rate of $225 per hour based on the 2015 Ontario Psychological Association Guideline. The respondent claims the correct rate is $149.61, based on FSCO’s Professional Services Guideline #03/14 (the FSCO Guidelines), and that the hourly rate is also exempt from HST taxes.
8The FSCO Guidelines states that the hourly fee applies to all services rendered with regard to motor vehicle accidents on or after September 6, 2014. The FSCO Guidelines establishes the maximum expenses payable under the Schedule related to the services provided by the listed health care professionals. Insurers are not liable to pay expenses for professional services that exceed the maximum hourly rates set out in the FSCO Guidelines.
9The applicant did not provide any evidence of why the Psychological Association Guideline takes precedence over the FSCO Guidelines which specifically apply to motor vehicle accidents.
10I agree with the respondent that FSCO’s Guidelines applies to the rate charged for psychological services provided by a health care professional for a claim for benefits under section 15(2)(b) of the Schedule. The correct hourly rate, accordingly, is $149.61 per hour.
11As for the HST, I accept the respondent’s submissions and supporting documents that the hourly fee is exempt from taxation.
12Therefore, the amount of $897.72, being the balance of the treatment plan, is not reasonable and necessary and not payable by the respondent.
The applicant is not entitled to receive $3,047.50 for chiropractic services.
13On May 18, 2016, the applicant submitted a treatment plan for chiropractic services. In support of the plan, the applicant relies on the March 1, 2016 notes of her family doctor which states that treatment should now focus on treating the applicant’s left foot pain. The applicant claims the respondent’s IE assessor, Dr. Khaled, did not look at the updated clinical notes and records of her family doctor in denying the proposed treatment although the applicant had sent these notes to the respondent. Had Dr. Khaled reviewed the updated notes, the applicant claims, he would have approved the treatment plan for chiropractic services.
14The applicant also argues that chiropractic treatment is required to treat the foot pain suffered by the applicant.1 She states that Dr. Khaled noted in his report that the applicant complained of left foot pain as a result of the accident. Despite this, Dr. Khaled did not find the treatment plan to be reasonable and necessary.
15The respondent relies on the IE assessment of Dr. Khaled who conducted his physical examination of the applicant on July 11, 2015. He found that the applicant had ongoing non-specific low back pain, left foot pain and neck pain which has mostly resolved. He found these to be mostly soft tissue injuries and not a functional impairment. As such, the recommended treatment was not reasonable and necessary. Further, as the accident occurred more than a year ago, in his view, the applicant no longer required this type of treatment.
16The respondent maintains, based on Dr. Khaled’s report, that treatment for chiropractic services for one year after the accident would not be an effective treatment and is thus not reasonable and necessary. The respondent submitted that it should not be expected to fund ineffective treatment and it relies on the case of The General Accident Assurance Co. of Canada v. Violi for that proposition.2
17As for the left foot pain, the respondent maintains that there is no reference to left foot pain in the family doctor notes between July 11, 2015 and October 9, 2015, despite repeated visits to the family doctor. The applicant saw a chiropodist in November 2015, however, no clinical notes of that visit were produced. As such, it submits that an adverse inference must be drawn from the failure to produce these documents. Further, the treatment plan is not warranted as there is no objective evidence of an orthopaedic injury as noted by Dr. Bhargava in his IE orthopaedic assessment. Dr. Bhargava stated that based on a review of the documentation the left foot pain was not accident related.3
18I find that the notes of the family doctor dated November 24, 2015 refer to left foot pain but the note also states the foot pain started after the birth of the applicant’s son in August 2015,4 which suggests that the foot pain is not accident related. Also, the Disability Certificate dated August 5, 2015 did not list a left foot injury among the list of injuries sustained by the applicant.
19I do not agree that a treatment plan may not be effective simply because it is more than one year after the accident. To accept this means treatment beyond one year is not effective.
20However, I find that the treatment plan is not reasonable and necessary for a number of reasons. First, I accept Dr. Khaled’s finding that the applicant had mostly soft tissue injuries which did not amount to an impairment, making the treatment plan not reasonable and necessary. Second, in March 20, 2016, Dr. Bhargava found the applicant had received extensive treatment, and given the time elapsed from the date of the report and accident, the applicant had reached maximum recovery and should be discharged from further treatment. He also found that from an orthopaedic perspective, the applicant did not suffer an impairment as a result of the accident. Third, as noted above, the family doctors’ notes suggest that foot pain was not related to the accident. As such, I accept the finding that the recommended treatment for chiropractic services is not reasonable and necessary.
The applicant is not entitled to receive the cost of an attendant care assessment.
21The applicant claims the cost of $2,048.68 for an attendant care assessment recommended by Excel Medical Services, dated October 27, 2015 and denied December 16, 2015. This assessment cost was denied by the respondent based on its IE assessor, an OT, J. Duong. J. Duong found that during the October 2015 assessment, the applicant demonstrated the capability to perform all of her personal self-care.5
22The applicant maintains that the respondent should have approved the cost of the assessment in November 2015 because in March 2016, Dr. Bhargava had noted that the applicant required modifications to some of her self-care activities, such as shaving her legs and washing and blow drying her hair. The applicant submits this would show that by March 2016 the recommended assessment was reasonable and necessary.
23The respondent maintains that three IE assessments were completed, including a psychological assessment by Dr. Syed (who found the applicant was capable of self-care with some modification), the assessment by Dr. Khaled discussed above and the OT, J. Duong, who both found the applicant was capable and independent and could perform most of her tasks. The denial was based on the IE assessments that found the applicant demonstrated capabilities for self-care.6 The respondent relies on the LAT decision in the case of 16-001810 v. Aviva Insurance7 dated June 22, 2017 that found an applicant was not entitled to an attendant care assessment where the evidence established the applicant was independent with the majority of her self-care tasks. In that case, it was found the applicant had resumed independence with the majority of her self-care activities.
24I find the applicant has not presented evidence that the treatment plan is reasonable and necessary. The reports of the three IE assessors noted above support the position as outlined in the LAT decision 16-001810 – i.e. the applicant could perform the majority of her self-care tasks.
25As the applicant was independent for her personal self-care tasks (except for shaving her legs and washing and blow drying her hair), the applicant has not met her burden of proof to establish that the attendant care assessment is reasonable and necessary.
The applicant is not entitled to receive the cost of an orthopaedic assessment for $2000.
26The applicant submitted a treatment plan for $2000 dated January 25, 2015 for an orthopaedic assessment.
27The respondent denied the cost of the orthopaedic assessment as reasonable and necessary based on its assessor’s report, which concluded that the applicant had not sustained an orthopaedic injury from the accident. Dr. Bhargava, as outlined above, in his March 2016 report, found the applicant did not sustain an orthopaedic injury as a result of the accident. He opined that given the time lapse since the accident, she had likely achieved maximal recovery and should be discharged from further formal therapy.
28The applicant maintains the family doctor was supportive of a referral to “an ortho” as noted in the clinical notes of the family doctor. I find that being supportive of a referral does not establish that the treatment plan is reasonable and necessary.
29Further, Dr. Bhargava did not find an orthopaedic injury arising from the accident. As such, I find the orthopaedic assessment is not reasonable and necessary.
The applicant is not entitled to the cost of a naturopathic assessment for $600.
30The applicant submitted a treatment plan for a naturopathic assessment for $600. The applicant maintains that naturopathic treatment, which is an alternative form of treatment, would assist the applicant with her physical and psychological issues. The treatment plan refers to chronic pain and issues involving medications and the applicant’s concerns with their side effects. The applicant claims the family doctor discussed balance of life issues with the applicant and noted her concerns about the side effects of medications in his clinical notes and records.
31The respondent disputes that the treatment is reasonable and necessary on the basis that the applicant is already receiving psychological therapy and thus a naturopathic assessment to address psychological issues is not warranted. The respondent claims there is no evidence that the applicant was receiving pharmacological care for which alternatives are necessary.
32The applicant also asserts that Dr. Khaled has a personal bias against naturopathy and maintains the insurer did not prove or explain why the naturopathic treatment would not be successful or provide medical reasons to prove the treatment plan is reasonable and necessary.
33I find the applicant has not met its burden to present evidence on why the treatment plan is reasonable and necessary. First, the applicant is currently receiving psychological services and thus a naturopathic assessment for naturopathy to address the psychological impairment would be unnecessary and a duplication of effort. Second, as to the physical injuries, the treatment plan refers to chronic pain. This was not noted in the family doctor notes or IE assessor reports of Dr. Khaled or Dr. Bhargava. I find the applicant failed to provide evidence of how the recommended naturopathic assessment would assist with the physical injuries from the accident which two IE assessors claim are mostly resolved and the applicant has reached maximum recovery. The treatment plan is not reasonable and necessary.
CONCLUSION
34For the reasons outlined above, I find that the applicant is not entitled to receive $897.72 for psychological services, the treatment plan for the chiropractic services or the cost of any of the three assessments. Interest is not payable as there are no overdue amounts.
Released: November 10, 2017
___________________________
Thérèse Reilly, Adjudicator
Footnotes
- Written submissions of the applicant, at para 18.
- The General Accident Assurance Co. of Canada and Violi, [2000] OFSCID No. 171.
- March 10, 2016 Report of Dr. Bhargava, Orthopaedic Assessment, at page 8.
- Clinical Notes of the family doctor, dated November 24, 2015.
- Report of John Duong, OT, at page 5.
- Written submission of respondent, paragraph 24.
- 16-001810 v. Aviva Insurance, 16-001810/AABS, June 22, 2017, paragraphs 62-67.