Citation: T.M. vs. Aviva Insurance Canada, 2019 ONLAT 18-008402/AABS
Tribunal File Number: 18-008402/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:
T.M. Applicant
And
Aviva Insurance Canada Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Maria Papadopoulos, Paralegal For the Respondent: Michael Silver, Counsel
HEARD: In Writing on March 18, 2019
OVERVIEW
1The applicant was injured in an automobile accident on April 7, 2016 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.
ISSUES
2The parties participated in a case conference and the Tribunal ordered the matter be decided by written hearing. The parties did not receive a copy of the order prior to the start of the hearing and, in written submissions, disagreed on which issues are in dispute. The parties were delivered the written order following the exchange of submissions and neither party objected to the issues outlined in the order. Considering the parties’ silence on the matter following receipt of the order, I will address the issues as outlined in the order.
3The disputed claims in this hearing are:
- Is the applicant entitled to medical benefits for treatment recommended by Brampton Civic Care Centre for the following;
a. $2,326.28 for chiropractic services submitted in a treatment plan dated February 15, 2017?
b. $3,469.08 for chiropractic services submitted in a treatment plan dated May 4, 2017?
c. $3,341.87 for psychological services submitted in a treatment plan dated October 15, 2018?
Is the applicant entitled to the costs of examinations in the amount of $2,198.00 for a chronic pain assessment recommended by Ontario Independent Assessment Centre in a treatment plan dated October 28, 2016?
Is the applicant entitled to the costs of examinations in the amount of $1,850.00 for a cognitive assessment recommended by Dr. J. Amichslavsky in a treatment plan dated July 18, 2017?
Is the applicant entitled to the costs of examinations in the amount of $1,966.13 for a driving reintegration assessment recommended by Dr. N. Belyakova in a treatment plan dated March 13, 2018?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The cognitive and driver’s reintegration assessments are not reasonable and necessary.
5The remaining benefits are reasonable and necessary.
6Interest is payable on overdue payments.
7Neither party is entitled to costs.
BACKGROUND
8The applicant was the driver of a vehicle travelling on a major highway which struck a vehicle while swerving to avoid another vehicle. The applicant did not seek medical attention immediately following the accident but began chiropractic treatment with Brampton Civic Care Centre about a week later.
9The applicant initiated a claim for accident benefits and was treated in accordance with the Minor Injury Guideline (the “MIG”). The applicant was removed from the MIG about six months later and received physical and psychological treatments. The respondent funded treatment until it decided further treatments and assessments were not reasonable and necessary.
ANALYSIS
10Based on the totality of the evidence, I find the applicant receives pain relief and improved psychological and physical functionality from engaging in physical treatment. There is evidence of this throughout the applicant’s medical records. For example;
The applicant regularly engaged in physiotherapy, chiropractic, and massage therapy treatment following the accident and the clinical notes and records (“CNRs”) of Brampton Civic Care Centre note reported relief of back stiffness following treatment;
The CNRs of M. Chiodo, psychological associate, note an increase in complaints of pain following the cessation of physical treatment in May 2017;
The applicant consistently complained of neck and back pain, fatigue and anxiety to the various treatment providers;
The applicant’s social interactions and conversations tend to focus on health problems; and
The applicant stopped working about a year after the accident, has yet to reemploy, and is prevented from pursuing fulltime work due to pain and fatigue.
The chiropractic treatment plans dated February 15, 2017 and May 4, 2017
11I have reviewed the submissions and evidence and find the chiropractic treatment plans dated February 15 and May 14, 2018 are reasonable and necessary. My reasons are as follows.
12The treatment plans contain goals which are relevant to the applicant’s subjective situation. They include reducing pain and increasing strength and endurance, and returning the applicant to activities of normal living and employment.
13Only having one complaint of pain noted in the applicant’s family [physician’s] records, as submitted by the respondent, is not reason to deny the applicant entitlement to treatment which provides pain relief and improved functionality. This is because the applicant’s family physician is not the only medical practitioner involved in the applicant's care and there are several other records and assessment reports which note the applicant’s consistent complaints of mid and low back pain. For example, Dr. S. Sangheras, psychologist, in an IE report dated April 27, 2018 noted the applicant’s clinically relevant pain catastrophizing and observed the applicant demonstrated an unusual degree of concern about physical functioning and health matters. Previously, Dr. S. Soriano, orthopaedic surgeon, in an insurer’s examination (“IE”) report dated October 12, 2016, stated the applicant benefited from physiotherapy and recommended the applicant engage in more physiotherapy treatment.
14The IEs of Dr. S. Henderson, chiropractor, and the conclusion no further facility-based treatment is required do not outweigh the balance of the evidence. Dr. Henderson’s conclusion was reached in the IE report dated April 25, 2017 and was based on the applicant not exhibiting any physical limitations which require treatment. However, Dr. Henderson notes the applicant’s pain during testing and substantial non-physical complaints. Dr. Henderson “defers to the appropriate evaluator to comment on any limitation in this (non-physical) regard”. Considering the applicant’s substantial psychological injuries identified at the time and Dr. Soriano’s previous recommendation to engage in physiotherapy because of the benefit the applicant feels from it, I find this opinion leaves open the possibility the physical treatment plan can be reasonable and necessary from a psychological perspective.
The chronic pain assessment
15Further to my reasons above, I find the chronic pain assessment is reasonable and necessary because the applicant shows symptoms of a chronic pain condition which is impacting the applicant’s functioning.
The cognitive assessment
16I find the cognitive assessment is not reasonable and necessary because the applicant does not show symptoms of cognitive impairment which warrant further investigation. Few symptoms of cognitive issues such as difficulty concentrating are noted in the various assessments and CNRs and, those complaints are attributed to the applicant’s on-going pain or anxiety.
17I recognize the CNRs of Dr. L Shimanovsky, family physician, note the applicant was experiencing headaches following the accident however, the applicant did not explain why or how the headaches relate to a need for a cognitive assessment. Nevertheless, the applicant was referred to Dr. V. Prigozhikh, neurologist, for a consultation which was OHIP funded . The records show the applicant, on Dr. Prigozhikh’s advice, was able to manage the headaches through dietary supplements.
The psychological treatment plan dated October 15, 2018
18This treatment plan proposed treatment in the amount of $3,341.87 and was partially approved up to $2,694.04. The respondent submits it refused to pay for progress reports and approved the treatment at an hourly rate of $58.19 for a psychotherapist instead of $149.61 for psychologists. I reject the respondent’s argument for three reasons. First, this position appears inaccurate based on the amounts approved. The unapproved portion totals $647.83, which is, instead, the equivalent of the cost of the progress reports plus the fee for completing the treatment plan. Whereas the difference in the hourly rate over a span of 12 hour and a half sessions is more than twice that amount. Second, the treatment plan states the psychological treatment is to be completed by M. Chiodo, psychological associate, who is permitted by the superintendent’s guideline to charge the higher hourly rate of $149.611. Lastly, the respondent has not provided a medical reason to deny funding for the progress reports despite it being required to do so pursuant to section 38(8).
19Considering the above, I find the entirety of the psychological treatment plan dated October 15, 2018 reasonable and necessary.
The driver’s reintegration assessment dated March 13, 2018
20I find the driver’s reintegration assessment not reasonable and necessary because the applicant’s driver’s phobia is secondary to the other psychological complaints and can be explored through the approved psychological treatment. This follows the recommendation of M. Chiodo in the psychological reassessment dated June 5, 2017 and the psychological IE by Dr. S. Sanghera dated April 27, 2018.
COSTS
21Both parties requested an order for the opposing party to pay costs but provided no further submissions on the issue.
22I decline to award costs in this matter as I have no evidence before me to show either party acted unreasonably, frivolously, vexatiously, or in bad faith during the proceeding.
CONCLUSION AND ORDER
23The treatment and assessment plans for a chronic pain assessment dated October 28, 2016, chiropractic treatment dated February 15 & May 4, 2017 and psychological treatment dated October 15, 2018 are reasonable and necessary.
24The applicant has incurred part of the treatment plans dated February 15 and May 4, 2017 and is entitled to interest on these amounts incurred. The applicant is entitled to the balance of the reasonable and necessary treatment plans and the respondent is liable to pay for it once it has been consumed and invoiced in accordance with the Schedule.
25The treatment and assessment plans for a cognitive assessment dated July 18, 2017 and the driver’s reintegration assessment dated March 13, 2018 are not reasonable and necessary.
26Neither party is entitled to costs.
Released: August 09, 2019
Brian Norris, Adjudicator