Tribunal File Number: 18-006576/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:
J.C.
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
For the Applicant: Lisa Bishop, Counsel
For the Respondent: Suzanne Clarke, Counsel
HEARD: In Writing on: November 15, 2019
OVERVIEW
1The applicant, J.C. was injured in an automobile accident on January 12, 2017 and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (Schedule).
2J.C. sustained a fractured rib in the accident and was therefore not subject to treatment within the Minor Injury Guideline (“MIG”). He also sustained injuries to his left shoulder, back, left side ribs and right knee, has difficulty sleeping and alleged psychological impairments. Despite being out of the MIG, it remains his onus to prove that any additional treatment is reasonable and necessary. He applied for chiropractic treatment and costs of examinations for psychological and orthopedic assessments that were denied by Aviva on the basis that they were not reasonable and necessary. J.C. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal) for resolution of the dispute.
ISSUES TO BE DECIDED
3The following are the issues to be decided, as per the case conference order dated March 5, 2019:
(i) Is the applicant entitled to a medical benefit in the amount of $3,029.18 for chiropractic treatment recommended by Health Pro Wellness in a treatment plan (OCF-18) submitted on July 5, 2017, and denied on July 19, 2017?
(ii) Is the applicant entitled to the cost of examinations in the amount of $2,197.29 for a psychological assessment, recommended by Health Pro Wellness in a treatment plan submitted on May 30, 2017, and denied on June 13, 2017?
(iii) Is the applicant entitled to the cost of examinations in the amount of $2,281.00 for an orthopedic assessment, recommended by Health Pro Wellness in a treatment plan submitted on July 25, 2017, and denied on August 8, 2017?
(iv) Is the applicant entitled to interest on any overdue payment of benefits?
(v) Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
4I find on the evidence that J.C. is not entitled to the chiropractic treatment or either of the costs of examinations for psychological and orthopedic assessments as he has not demonstrated that they are reasonable and necessary. J.C. is not entitled to interest or an award.
ANALYSIS
Is the chiropractic treatment reasonable and necessary?
5I find J.C. is not entitled to the medical benefit for chiropractic treatment as it is not reasonable and necessary.
6J.C. submits that the treatment plan in the amount of $3029.18, which includes active therapies and massage, is reasonable and necessary to reduce his ongoing pain, increase his strength and range of motion and to assist him in returning to his activities of daily living. He argues that he cannot perform any household activities that include bending, lifting, reaching, crawling or kneeling and cannot grocery shop or do outdoor activities. He cites the August 29, 2017 family doctor diagnosis that an x-ray revealed an “undisplaced rib 10 left sided fracture”. He argues that a rib fracture makes doing natural things like breathing, coughing and sneezing extremely painful and this treatment is necessary to help him overcome his pain. He states that his August 2017 fall on his boat resulted in pain on his right side and is unrelated to his left side pain.
7In response, Aviva contends that other than the treatment plan itself, there are no documented recommendations for J.C. to seek the treatment he claims. It relies on the orthopedic examination report and paper review of Dr. Soon-Shiong which found active range of motion, a healed rib fracture and did not find that further physical treatment was necessary to treat J.C.’s accident-related impairments. While Aviva agrees that pain reduction is a legitimate goal for treatment, it argues that the treatment plan cannot be considered reasonable and necessary when J.C. was discharged from the clinic in July 2017 because he no longer had any pain and, in any event, that J.C. has not met his onus to demonstrate why the treatment is reasonable and necessary to assist in his recovery.
8I agree with Aviva. I find J.C. is not entitled to payment for the chiropractic treatment. While I find it likely that he would have required some active and passive treatment in the weeks and perhaps months following the accident, the evidence before the Tribunal indicates that he was no longer experiencing pain at the time the plan was submitted, as the treatment note of July 25, 2017 indicates that he was discharged from Health-Pro because he had “no pain”. Further, I find the doctor notes from June 2017, the closest notes to the date of the treatment plan, reveal no pain complaints to prompt additional treatment. Indeed, it was only after J.C.’s boat fall in August 2017 that his pain complaints resurfaced, and the August 28, 2017 note indicates that his pain had already improved by then. The September 11, 2017 note then refers to right-side pain owing to his boat fall.
9While pain is a legitimate goal for treatment, I find that J.C. has simply not demonstrated why the specific treatments outlined in this plan are reasonable and necessary to treat the injuries he sustained as a result of the January 2017 accident. Therefore, I find the treatment is not reasonable and necessary.
Is the cost of the psychological assessment reasonable and necessary?
10I find that J.C. is not entitled to the costs of the psychological assessment as it is not reasonable and necessary.
11J.C. submits that the psychological assessment is reasonable and necessary based on J.C.’s complaints that he has difficulty sleeping, extreme driving anxiety, loss of independence, difficulty enjoying his pre-accident leisure activities, stress in the form of ruminating about the accident, avoidance of driving, traffic and nighttime driving and highways. On the basis of these complaints, the clinic had J.C. participate in a psychological pre-screen assessment to determine if further psychological treatment was required for his anxiety, stress and sleep issues. J.C. submits that the pre-screen revealed that further psychological assessment is necessary to determine further treatment. He argues that it is not realistic to require evidence of a psychological impairment before the assessment stage and that the pre-screen results and findings of a psychologist should be sufficient evidence that the costs of a full assessment are reasonable and necessary. Finally, J.C. argues that the psychological opinion on which Aviva relies was related to his entitlement to non-earner benefits and did not consider whether the psychological assessment proposed was reasonable and necessary.
12In response, Aviva submits that other than a single complaint of sleep issues, that there are no reports of psychological symptoms from J.C. in any of the clinical notes from his family doctor. Similarly, there is no indication that the accident exacerbated any pre-existing psychological impairments. Aviva relies on the report of Dr. Moshiri from April 6, 2017, which stated that J.C. was not experiencing any depression, denied any driving phobias, did not stop driving after the accident, that his activities of daily living were not affected from a psychological perspective, that his sleep was fine, and he was not experiencing any flashbacks. The report concluded that J.C. had “clinically insignificant” scores on the psychological testing and that he did not suffer from a diagnosable psychological condition as a result of the accident. Finally, Aviva submits that, contrary to J.C.’s argument that Dr. Moshiri did not consider the assessment, in his paper review of the proposed assessment just five weeks later, Dr. Moshiri concluded that there was no justification for the alleged changes in J.C.’s psychological condition, as outlined in the OCF-18 and pre-screen report. Aviva points to the psychological and validity tests results as evidence that the assessment is not reasonable and necessary.
13I agree with Aviva. While I am alive to J.C.’s argument that it is not realistic to require evidence of a psychological impairment before the assessment stage, I disagree that the pre-screen results from a psychologist should be sufficient evidence that the costs of a full psychological assessment are, by default, reasonable and necessary. I find this is especially so given the complete dearth of evidence to support the pre-screening findings. Indeed, on review of the reports in evidence, J.C.’s psychological complaints do appear to pop up a mere four days following his visit with Dr. Moshiri. On the evidence, there is no continuous or even corroborating complaints from J.C. in the family doctor notes and the psychological pre-screen was prompted on the recommendation of the same clinic’s orthopedic assessment and not by an independent medical practitioner with knowledge of J.C.’s file or pre-existing impairments.
14Put another way: other than his self-reporting to the clinic’s psychologist, J.C. has not provided evidence to overcome Dr. Moshiri’s conclusion that J.C. had “clinically insignificant” scores on the psychological testing and that he does not suffer from a diagnosable psychological condition as a result of the accident. Given J.C.’s lack of psychological complaints to his family doctor and contrary self-reporting to Dr. Moshiri just days prior, the findings of the psychological pre-screen are, in my view, not proportional to the complaints in the rest of the file or the injuries sustained in the accident. On this basis, I sincerely question the veracity of the pre-screen report and, on a balance of probabilities, find further psychological assessment to not be reasonable and necessary.
Is the cost of the orthopedic assessment reasonable and necessary?
15I find that the cost for the orthopedic assessment is not reasonable and necessary.
16In support of his entitlement to the orthopedic assessment in the amount of $2281.00, J.C. submits that he participated in the assessment with Health-Pro because he was having difficulty completing his activities of daily living, as noted above. The goal for the assessment was to examine—six months post-accident—his prognosis for recovery due to his fractured rib and soft-tissue injuries and for the orthopedic surgeon to “diagnose any injuries or disorders of the skeletal system as well as joints and ligaments caused by the accident.”
17In response, Aviva submits that it is not reasonable and necessary to conduct an orthopedic assessment over six months following the accident in order to address the prognosis of J.C.’s rib fracture. Aviva argues that J.C. had been discharged from the clinic because he was pain free before this assessment was even submitted and that the accident-related fracture had healed by this time.
18Again, I agree with Aviva. In my view, the timing of this assessment is somewhat curious, as the evidence before the Tribunal indicates that J.C. was pain free and discharged from treatment in July 2017, only for the clinic to then recommend and conduct an orthopedic assessment in order to determine a prognosis for his recovery shortly after. Further, the items proposed in the OCF-18 cannot be considered reasonable expenses to achieve what the assessment intends to achieve, as I find the majority of the costs are allocated to administrative exercises like reviewing the file materials, preparing the report and the completion of the OCF-18. The remaining amount of $850 for the assessment may have been reasonable if conducted shortly after the accident, but I find, overwhelmingly on the evidence, that it is not a necessary expense to diagnose J.C.’s impairments over six months following the accident when it was originally proposed. Therefore, I find the assessment to not be reasonable and necessary.
Interest
19As no benefits are overdue, no interest is payable under s. 51 of the Schedule.
Award
20J.C. claims entitlement to an award under s. 10 of O. Reg. 664, arguing Aviva unreasonably denied the treatment plans and withheld payment without providing sufficient medical opinions and failing to consider all of the evidence. Under s. 10, the Tribunal may award up to 50% of the total benefits in dispute if it is determined that the insurer unreasonable withheld or delayed the payment of benefits. As I have found no benefits are payable, an award is not warranted. Even if benefits were payable, I find nothing on the evidence to suggest that Aviva unreasonably withheld or delayed the payment of benefits or conducted itself in bad faith.
CONCLUSION
21For the reasons outlined above, I find J.C. is not entitled to any of the treatment or assessment plans in dispute as they are not reasonable and necessary. As no benefits are overdue, J.C. is not entitled to interest or an award.
Released: December 2, 2019
___________________________
Jesse A. Boyce
Adjudicator