H.S.H. v. Aviva Insurance Canada, 2019 CanLII 110118

Citation: H.S.H. vs. Aviva Insurance Canada, 2019 ONLAT 18-002204/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:

H.S.H.

Appellant(s)

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Thérèse Reilly

Appearances:

For the Appellant: Yu Liang, Paralegal

For the Respondent: Timothy Leung, Counsel

Heard: In Writing Hearing: May 9, 2019

OVERVIEW

1The applicant was involved in an automobile accident on August 15, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant applied for medical benefits for chiropractic services, the cost for a functional abilities assessment and the cost of a catastrophic assessment, all of which the respondent denied on the basis that they were not reasonable and necessary.

2The respondent removed the applicant from the Minor Injury Guideline due to psychological injuries. The applicant maintains that she is entitled to the benefits in dispute as they are reasonable and necessary and, thus, appealed those denials to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“the Tribunal”).

ISSUES

3The issues are as follows:

i. Is the applicant entitled to the following medical benefits because they are reasonable and necessary:

a. Is the applicant entitled to receive a medical benefit in the amount of $2,827.38 for chiropractic treatment recommended by Perfect Physio and Rehab Centre in a treatment plan (OCF-18) dated October 30, 2017, received by the respondent on November 27, 2017 and denied on January 19, 2018?

b. Is the applicant entitled to $1,998.76 for the cost of a functional abilities assessment recommended by Perfect Physio and Rehab (FAE) in a treatment plan dated November 29, 2017, received by the respondent on December 2, 2017 and denied January 19, 2018?

c. Is the applicant entitled to $ 15,269.48 for the cost of a catastrophic assessment (CAT) recommended by Somatic Assessments & Treatment Clinic, in a treatment plan dated January 3, 2018, received by the respondent on January 18, 2018 and denied February 8, 2018?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4For the reasons below, I find that the medical benefit and assessments are not reasonable and necessary. Interest is not payable as there is no overdue payment of benefits.

THE APPLICANT’S POSITION

5The applicant submits that she suffers physical and psychological impairments from the accident which she argues continue and are ongoing. The applicant states she has seen her family doctor regularly since the accident for her injuries which included a concussion, impact to her head and the left side of her body, a left knee laceration, pain in her left ankle, increased anxiety around vehicles, affected sleep, and low mood. In any event, following the accident, the applicant received treatment at Perfect Physio and Rehab from August 2015 to November 2015. Diagnostic imaging taken after the accident did not reveal any fractures.

6The applicant was assessed at St. Michael's Head Injury Clinic for the head injury on September 1, 2015, October 2, 2015, and December 4, 2015. She reported nausea, headaches and dizziness, in addition to cognitive and psychological difficulties. The only recommended treatment was physical therapy to address her injury.¹

7In September 2015, the applicant saw Dr. Ming Che Yeh, psychologist, for a psychological assessment. He diagnosed her with adjustment disorder (with mixed anxiety & depressive reaction) and specific phobia related to travel.² In a report dated November 5, 2015, the respondent’s IE Assessor, Dr. Cheryl Bradbury, also found the applicant had an adjustment disorder but did not meet the full DSM-5 diagnostic threshold for any major depressive disorder, mood disorder or post traumatic stress disorder.³ Dr. Bradbury recommended 12 weeks of psychotherapy. The applicant then attended counselling sessions in May 2016 and in June 2018, after which she transferred to a different clinic for ongoing psychological counselling sessions.⁴

8In October 2017, the applicant attended for a chiropractic re-assessment by Dr. Tavares, a chiropractor,⁵ who noted in the OCF-18 that the applicant’s neurological and psychological complaints persisted, as did her headaches and dizziness, sleep disturbances and anxiety.

9In January 2018, the OCF-18⁶ for a catastrophic assessment – which is in dispute – proposed a psychology assessment, an occupational therapy in-home assessment, a neurological assessment, an overall analysis assessment summary, and two clinic file review assessments. The latter three assessments, at a total cost of $6000, are not explained.

THE RESPONDENT’S POSITION

10The respondent notes that the family doctor records show that prior to the accident - from March 22, 2014 and April 7, 2014 - the applicant had pre-existing trauma to the wrist, hand and finger and in the months from October 2014 to April 2015 had pre-accident anxiety. In his notes of September 3, 2014, the doctor noted her sleep was poor.⁷

11The respondent questions the applicant’s complaints of ongoing impairment. It argues that, between 2016 and 2018, the applicant did not see her family doctor for her physical complaints other than for her left thumb. The respondent argues that the applicant’s OHIP summary from August 15, 2013 to June 18, 2018 shows that her last visit to a treating practitioner – for sprains or strains of the arm, neck, low back, or coccyx – was in September 2015. There are no other entries in 2016, 2017 or 2018 for sprains or strains of the arm, neck, low back, or coccyx.⁸

12Further, it argues that the family doctor’s records indicate that the applicant was working in October 2016 as a seamstress. In July 2016, she had returned to work. In June 2018, the family doctor records indicate that the applicant cannot work due to pain in her left thumb/hand (left thumb tenosynovitis). It argues that medical evidence of a thumb injury did not surface until two years after the accident. It submits that the left thumb injury is not related to the accident⁹ and is the cause of the applicant’s inability to work rather than the physical impairments from the accident.

13The respondent relies on the medical evidence from its IE assessors, which it submits conclude the applicant is not suffering from ongoing impairments.

14In an IE report dated January 16, 2018,¹⁰ Dr. Polyvos, chiropractor, following an in-person examination, noted that the applicant presented with a pain-focused demeanor, overtly-guarded movements, and exaggerated pain responses. The doctor concluded that, as a result of the accident, the applicant had sustained a cervical and lumbar sprain and strain injury, contusions and a laceration to her knee. These were soft tissue injuries with a normal healing time of 8 to 12 weeks. His formal testing revealed no objectively verifiable musculoskeletal impairments.¹¹ Dr. Polyvos concluded the applicant had reached maximum medical improvement and with no objectively verifiable injuries, the proposed treatment was not reasonable and necessary. He suggested a self-directed exercise program to address any of her residual symptomology.

15Dr. Polyvos also completed a paper review of the FAE on January 17, 2018. He referred to the results from his examination of the applicant on January 5, 2018 and found that the injuries sustained were primarily soft tissue sprains and strains with a normal healing time of 8 to 12 weeks. He concluded there was no objectively verifiable musculoskeletal injuries as a result of the accident and, ultimately, that the FAE was not reasonable or necessary.¹² The IE report and denial were sent to the applicant on January 19, 2018.

16In an IE report dated March 15, 2018, Dr. Khaled on review of the catastrophic assessment diagnosed the applicant with: "mechanical low back pain as well as grade 2 whiplash of the neck with associated headaches and left arm sprain/ strain." He further noted: "it is apparent that this patient is experiencing some residual pain, however the patient should be reassured that the present symptoms are benign."¹³ The applicant’s range of motion was greater than on formal testing. The physical examination did not identify any residual or ongoing musculoskeletal, neurological, or orthopedic accident-related injury or impairment. Dr. Khaled concluded the applicant did not require any further formal facility-based treatments or assessments from an ongoing physical accident-related standpoint. He concluded that, overall, the request for numerous assessments in determination of catastrophic impairment was not reasonable or necessary. The IE report and denial were sent to the applicant on March 27, 2018.

17The respondent submits that the applicant has not met her burden of proof regarding the need for further facility-based treatment for any physical issues. She has not seen her doctor for physical complaints other than her thumb for over three years.¹⁴ Moreover, it points out that only $300 of the chiropractic treatment has been incurred, while neither the FAE nor CAT assessment have been incurred.

THE LAW

18Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of a motor vehicle accident.

19The applicant bears the burden of proving, on a balance of probabilities, that the claimed chiropractic treatment, FAE and CAT assessment are reasonable and necessary. The applicant must show services requested will have a rehabilitative purpose or will, at a minimum, lead to a reduction of pain.

ANALYSIS AND DECISION

20For the reasons set out below, I find that the medical benefit and the assessments are not reasonable and necessary.

Are the treatment plans reasonable and necessary?

21The OCF-18 for chiropractic treatment list 29 injuries, including a concussion, open wound of the knee, open wound of the arm, dizziness, nausea, non-organic sleep disorder, and stress and muscle strains and sprain, headaches and dizziness. It also lists non-organic sleep disturbances, phobic anxiety and emotional symptoms, which are psychological in nature and beyond the scope of expertise of a chiropractor. The reference to a sleep disorder contradicts the records from the family doctor, who noted, for example, on January 6, 2016 and February 13, 2016 that the applicant’s sleep is “OK” and, likewise, on May 10, 2017 that the applicant was sleeping well. The OCF-18 also fails to present an updated list of injuries and identify those requiring further chiropractic treatment. For example, in August 2016 the chiropractor’s notes state the applicant had chest wall tenderness and the small wound in her upper arm where glass was removed had healed. In contrast, the OCF-18 refers to an open would on the knee and arm, which appear to be different complaints.

22The clinical notes and records¹⁵ of the family doctor indicate the applicant did continue to see her family doctor regularly. I find, however, the doctor’s notes show that from late 2015 onward that the physical injuries are improving and resolving. Her psychological condition in 2016 and 2017 appears good with no evidence of anxiety or panic attacks or sleep issues. I find her worsening depression by late 2017 and 2018 is not due to the injuries sustained from the accident. The notes, for example, refer to the following:

a. In September 2015, her neck and back pain were better and range of motion in the shoulder was good.

b. On August 31, 2016, the doctor noted she appeared calm. The range of motion in her neck and back was good.

c. The notes from February 2016, April 2016, August 25, 2016 and October 2016, indicate the applicant did not have anxiety, panic attacks, her sleep was good, her mood and depression were better.

d. On October 26, 2016, it was noted that the applicant was now working full time. She was sleeping well.

e. In May 2017, it is stated she is feeling better and working full time. She was sleeping well. There was no anxiety. No panic attacks. Her pain was better.

f. In October 2017, the doctor notes the applicant was upset and angry. She was angry at the lawyer and insurance company suggesting she may be faking pain. The notes state the applicant could not work due to severe left thumb pain. She was referred to a specialist in November 2017 for the left thumb pain.

g. In December 2017, her depression is worse. The notes state she received a letter from a lawyer indicating she was being sued by an old friend, who was in the vehicle at the time of the accident. She was upset at the police finding her at fault for the accident.

h. In March 2018, the doctor notes that the thought of getting sued is upsetting her.

23I agree with the respondent that the family doctor records – her treating physician – as noted above do not support an ongoing medical condition requiring physical treatment.

24In addition to the family doctor records, the evidence from the IE assessors which provide a current and updated assessment of the applicant’s condition 2.5 years post accident. The IE assessors, Dr. Polyvos and Dr. Khaled, did not find any ongoing impairments from the soft tissue injuries sustained in the accident.

25The only current physical injury shown from the medical records is a left thumb injury which I find is not accident related.

26I am not persuaded by references by Dr. Law to chronic pain and PSTD disorder in his report. Her conclusions are not supported by the medical evidence. The applicant presented no evidence to support a finding of a chronic pain disorder. Moreover, she does not support her qualifications, as a treating psychiatrist to diagnose a chronic pain disorder. As to PSTD, this is contrary to the findings by Dr. Bradbury in October 2015. She did not find the applicant met the test for a mood disorder or PSTD.

27As to the FAE, the applicant previously underwent a section 44 insurer examination on October 17, 2015 and a job site evaluation on October 7, 2015. The respondent maintains that, at the initial FAE, the applicant provided unreliable data and inconsistent performance with severe guarding in all tested areas.¹⁶ I find the applicant has not presented medical evidence to support the need for an FAE. The evidence suggests that her inability to work is due to a non-accident related injury (the left thumb) and there are no new accident-related injuries. The FAE is not reasonable and necessary in light of the updated information concerning the state of the physical and psychological injuries as noted in the family doctor records and the IE assessor reports.

28I prefer the reports of Dr. Polyvos dated January 16, 2018 and January 17, 2018 and Dr. Khaled’s report dated March 15, 2018 over the OCF-18s as they provide updated medical assessments of the applicant’s medical condition. The applicant’s psychological condition appears to continue to be affected but I do not find this is due to the injuries sustained. For example, the family doctor records show the applicant is stressed due to a finding of fault for the accident which may be due to failing to stop at a red light. Her friend who was in the vehicle is suing her for the injuries she sustained in the accident. These are two major sources of stress and depression. These do not arise from the impairments from the accident. As such, I find there is insufficient medical evidence presented by the applicant to support the physical and psychological components of the CAT assessment and her position that the CAT assessment is reasonable and necessary. Moreover, the CAT assessment referred to an overall analysis assessment summary, and two clinic file review assessments. These were not explained in the OCF-18 or the applicant’s submissions.

Compliance with section 38 of the Schedule

29In her submissions with respect to the claim for a medical benefit for chiropractic services and the FAE, the applicant submits that she was not provided a copy of the denial letters from the insurer and, as such, the respondent failed to meet its obligation under section 38 of the Schedule. She denies that the insurer met its obligation to assess and reassess her as new information became available. I find no merit in these arguments as the insurer provided denial letters and the IE assessments to the applicant.¹⁷ I find that it did re-assess the applicant’s condition as evident from the IE assessments completed by Dr. Polyvos in 2017 and 2018 and Dr. Khaled in March 2018.

CONCLUSION

30For the reasons outlined, I find that the applicant is not entitled to the treatment plan and cost of the assessments as they are not reasonable and necessary. The applicant is not entitled to interest.

Released: October 30, 2019

___________________________

Thérèse Reilly

Adjudicator

Footnotes

1. 1Written submissions of the applicant, paragraph 5, Tab 1, Hospital records from St. Michael's Hospital.
2. 2Written submissions of the applicant, Tab 11, Records from Perfect Choice Psychological Services.
3. 3Written submissions of the applicant, Tab 12, Report of Dr. Bradbury, dated November 5, 2015.
4. 4Written submissions of the applicant, paragraphs 19, 20. Tab 8: Affidavit of the Applicant, September 24, 2018.
5. 5Written submissions of the applicant, paragraph 15.
6. 6Written submissions of the applicant, paragraph 21, tab 13, OCF-18 dated January 3, 2018, Somatic Assessments and Treatment Clinic.
7. 7Written submissions of the respondent, paragraph 3.
8. 8Written submissions of the respondent, paragraph 32, Tab 1, OHIP summary.
9. 9Written submissions of the respondent, paragraph 9.
10. 10Written submissions of the respondent, Tab 4, OCF-18 and Tab 5, section 44 IE Chiropractic Assessment Report.
11. 11Written submissions of the respondent, paragraph 12.
12. 12Written submissions of the respondent, paragraph 14, Tab 7.
13. 13Written submissions of the respondent, paragraph 17, Tab 19. Physician Assessment Report dated March 15, 2018.
14. 14Written submissions of the respondent, paragraph 30.
15. 15Written submissions of the applicant, paragraphs 6, 7, Tab 2A, Tab 2B: Updated records from Dr. Benjamin Choy (Mar 2017-Nov 2017), Tab 2C: Updated records from Dr. Benjamin Choy (Nov 2017-Jul 2018).
16. 16Written submissions of the respondent, paragraph 30.
17. 17Written submissions of the respondent, the OCF-18 was not received by the insurer until November 27, 2017, see Tab 4 for correspondence to the applicant denying the OCF-18 dated December 4 and 14, 2017 and the IE assessment report at tab 18. See also Tab 6 and 7, for the correspondence sent to the applicant on January 8, 2018 for the treatment plan received December 2, 2018 and denied January 19, 2018.