J.T. v. Aviva General Insurance, 2019 CanLII 122730

Citation: J.T. vs. Aviva General Insurance, 2019 ONLAT 18-003238/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.T.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

Appearances:

For the Applicant: Jono Schneider, Counsel

For the Respondent: Brittanny Tinslay, Counsel

Heard IN WRITING: February 4, 2019

OVERVIEW

1The applicant, J.T., was injured as a front-seat passenger in an automobile accident on October 2, 2014 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Aviva General Insurance (“Aviva”), the respondent.

2Aviva denied J.T.’s claim for several treatment plans, a functional abilities evaluation and payment for the completion of two disability certificates. As a result, J.T. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3The parties were unable to resolve the issues in dispute at the case conference and, as a result, a combination hearing was scheduled. Following J.T.’s November 30, 2018 motion, the hearing format was changed on consent to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is J.T. entitled to a medical benefit for acupuncture treatment recommended by Midland Wellness Centre as follows:

(a) $419.14 in a treatment plan dated March 29, 2016, and denied by Aviva on June 17, 2016?

(b) $360.95 in a treatment plan dated June 7, 2016, and denied by Aviva on June 17, 2016?

(ii) Is J.T. entitled to a medical benefit in the amount of $1,908.20 for physiotherapy and chiropractic treatment recommended by Midland Wellness Centre in a treatment plan dated May 10, 2016, and denied by Aviva on July 4, 2016?

(iii) Is J.T. entitled to a medical benefit for a multidisciplinary chronic pain program as follows:

(a) $6,635.12, representing an unpaid balance remaining of the initial claim for $7,185.12, recommended by Midland Wellness Centre in a treatment plan dated September 15, 2016, and denied by Aviva on November 3, 2016?

(b) $5,119.96, recommended by The Rehab Centre in a treatment plan submitted on August 11, 2017, and denied by Aviva on September 1, 2017?

(c) $5,564.80, recommended by The Rehab Centre in a treatment plan submitted on October 19, 2017, and denied by Aviva on December 20, 2017?

(iv) Is. J.T. entitled to payment for the cost of an examination in the amount of $1,640.00 for a Functional Abilities Evaluation (FAE) recommended by Midland Wellness Centre in a treatment plan submitted on April 12, 2016, and denied by the Aviva on June 17, 2016?

(v) Is J.T. entitled to payment for the completion of a disability certificate (OCF-3) by The Rehab Centre as follows:

(a) $200.00, which was submitted on August 11, 2017, and denied by Aviva on September 1, 2017?

(b) $200.00, which was submitted on October 19, 2017, and denied by Aviva on October 25, 2017?

(vi) Is J.T. entitled to interest on any overdue payment of benefits?

(vii) Is J.T. entitled to an award under O. Reg. 664 because Aviva unreasonably withheld or delayed payment of benefits?

PROCEDURAL ISSUE: Missing Documents

5After reviewing the parties’ submissions and evidence, none of the treatment plans in dispute, the disability certificates and J.T.’s affidavit were filed with the Tribunal despite being referred to by J.T. in her submissions.

6Following my Order dated July 4, 2019, Aviva took no position regarding J.T. filing the missing documents with the Tribunal. As a result, I order that the treatment plans, the disability certificates and J.T.’s sworn affidavit dated November 28, 2018 form part of the evidence in this hearing.

RESULT

7Based on the evidence before me, I find that J.T. is:

(i) entitled the two treatment plans dated March 29, 2016 and June 7, 2016 for acupuncture treatment with interest in accordance with s. 51 of the Schedule;

(ii) entitled to the May 10, 2016 treatment plan for physiotherapy and chiropractic treatment with interest in accordance with s. 51 of the Schedule;

(iii) entitled to the psychological treatment portion of the September 15, 2016 treatment plan for a multidisciplinary chronic pain program, with interest in accordance with s. 51 of the Schedule, but not to the remainder of this treatment plan;

(iv) not entitled to the August 11, 2017 treatment plan for a multidisciplinary chronic pain program;

(v) entitled to the psychological assessment as set out in the October 19, 2017 treatment plan for a multidisciplinary chronic pain program, with interest in accordance with s. 51 of the Schedule, but not to the remainder of this treatment plan;

(vi) entitled to the treatment plan for the FAE with interest in accordance with s. 51 of the Schedule;

(vii) not entitled to payment for the completion of two OCF-3s submitted on August 11, 2017 and October 19, 2017; and

(viii) entitled to an award of 25 per cent of the disputed amounts for the following treatments only:

(a) The May 10, 2016 treatment plan for physiotherapy and chiropractic treatment ($1,908.20);

(b) the psychological treatment portion of the September 15, 2016 treatment plan ($1,198.88); and

ANALYSIS

8Sections 14 and 15 of the Schedule provide that an insurer shall pay for medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant.

9J.T. bears the onus of proving her entitlement to the claimed acupuncture treatment, physiotherapy, chiropractic treatment, chronic pain programs and FAE is reasonable and necessary on a balance of probabilities.¹

Acupuncture Treatment

10The first treatment plan (OCF-18) in dispute for acupuncture treatment is dated March 29, 2016 and was completed by Ms. Ginni Bajaj, physiotherapist. The goals of this treatment plan were pain reduction, increased range of motion, increased strength and a return to activities of normal living. The OCF-18 reported “no improvement” since the end of the previous treatment plan. The injury and sequelae information portion of the treatment plan listed the following: whiplash associated disorder (WAD 2) with complaint of neck pain with musculoskeletal signs; other disorders of muscle; sprain and strain of lumbar spine, sacroiliac joint, shoulder joint (NOS) and hip; other anxiety disorders; chronic post-traumatic headache; nonorganic sleep disorders; depressive episode; headache; trochanteric bursitis; patellofemoral disorders; and other soft tissue disorders not elsewhere classified.

11The second OCF-18 submitted for acupuncture was dated June 7, 2016 and was also completed by Ms. Bajaj. The goals of this treatment plan were the same as the March 29, 2016 OCF-18. The injury and sequelae information portion of the OCF-18 was also the same except for the removal of trochanteric bursitis and the addition of synovial cyst of popliteal space (Baker).

12Aviva denied both of these treatment plans on June 17, 2016 after determining that the treatment recommended in both plans was not reasonable and necessary for J.T.’s injuries. In doing so, Aviva relied upon the insurer’s examination (IE) Orthopaedic Surgeon Reports by Dr. Gilbert Yee, orthopaedic surgeon, dated May 5, 2016 and June 10, 2016.

13Dr. Yee’s May 5, 2016 report was based on a paper review and referred to his previous October 28, 2015 in-person examination of J.T. In this report, Dr. Yee considered the reasonableness and necessity of the March 29, 2016 treatment plan for acupuncture only. Dr. Yee opined that he did not feel that the treatment plan was reasonable and necessary given the time elapsed since the accident and the treatment rendered to date. Dr. Yee opined that any further passive modalities, such as acupuncture, would not provide any long-lasting clinical benefits to J.T.

14In his June 10, 2016 report, Dr. Yee opined as to the reasonableness and necessity of a treatment plan for a FAE and diagnosed J.T. with residual symptomatology related to myofascial strains of the cervical spine, trapezius and lumbar spine as a direct result of the subject accident. At no time did Dr. Yee consider either treatment plan for acupuncture treatment in this report.

15I find that J.T. has proven on a balance of probabilities that both of the treatment plans for acupuncture treatment are reasonable and necessary for the following reasons:

(i) One of the goals of the treatment plans was pain reduction. Dr. Yee noted in his June 10, 2016 IE Orthopaedic Surgery Assessment Report² that J.T. was attending physiotherapy once or twice a week where she received acupuncture and stretching. Dr. Yee noted that J.T. reported to him that this treatment, along with massage and chiropractic care, provided J.T. with temporary pain relief and that her neck and shoulder pain had improved. As a result, I find that the goal of pain reduction as set out in the OCF-18s was being met;

(ii) I also find that the goal of returning to activities of normal living was also being met, as Dr. Yee stated in his June 10, 2016 report that J.T. reported engaging in more activities around the house, she returned to driving and that she was walking with her granddaughter for 20 minutes to school;

(iii) I place greater weight on J.T.’s reporting of improvements to Dr. Yee following his in-person examination of J.T. than to Dr. Yee’s opinions in his paper review report dated May 5, 2016. It is clear that Dr. Yee relied upon his previous in-person examination of J.T. on October 28, 2015 in arriving at his conclusion that the March 29, 2016 treatment plan for acupuncture was not reasonable or necessary in his paper review report. Dr. Yee provided no comments or explanation regarding any changes to J.T.’s condition between his in-person examination of J.T., which occurred approximately five months prior to the submissions of the first treatment plan, and his paper review report; and

(iv) I also place greater weight on J.T.’s self-reporting of improvements to Dr. Yee as reported in his June 10, 2016 report than on the remark of “no improvement” on the March 29, 2016 OCF-18³ and the clinical notes and records (CNRs) of Midland Wellness Centre. The CNRs do not cover the period of time that the OCF-18s were submitted for consideration and there is no discussion of what “no improvement” means on the OCF-18. In contrast, Dr. Yee’s June 10, 2016 Report, which was based upon an in-person examination of J.T., is more detailed about J.T.’s reported improvements regarding pain, daily functioning and her range of motion as a result of treatment that included acupuncture.

16For all of the reasons set out above, J.T. is entitled to both the March 29, 2016 and the June 7, 2016 OCF-18s for acupuncture treatment with interest in accordance with s. 51 of the Schedule.

Physiotherapy and Chiropractic Treatment

17The May 10, 2016 OCF-18 was completed by Rashmi Moraskar, physiotherapist, and sought funding for physiotherapy and chiropractic treatment. The goals of this treatment plan were pain reduction, increased range of motion, increased strength and a return to activities of normal living. The injury and sequelae information section listed the same conditions that were set out in the June 7, 2016 OCF-18 for acupuncture. This OCF-18 noted that J.T. reported a 30 per cent improvement in her neck, shoulder and knee pain since the end of the previous treatment plan.

18Aviva denied this treatment plan on July 4, 2016 based on Dr. Yee’s opinion in his June 23, 2016 IE Orthopaedic Surgery Paper Review Report⁴ that he did not feel that any further facility-based rehabilitation would provide any long-lasting clinical benefit to J.T.

19I find that J.T. has proven on a balance of probabilities that the May 10, 2016 treatment plan for physiotherapy and chiropractic treatment is reasonable and necessary for the following reasons:

(i) I find that the goals of the treatment plan of pain reduction and returning to activities of normal living were being met based on J.T.’s self-reports to Dr. Yee in his June 10, 2016 IE Orthopaedic Surgery Assessment Report following treatment, including stretching and chiropractic treatment, as discussed above in relation to the OCF-18s for acupuncture;

(ii) J.T.’s self-reports to Dr. Yee were corroborated with the additional information provided in this OCF-18 that J.T. reported a 30% improvement in her neck, shoulder and knee pain since the end of the previous treatment plan;

(iii) I give little weight to Dr. Yee’s opinion in his June 23, 2016 IE Orthopaedic Surgery Paper Review Report that the treatment plan in dispute was not reasonable and necessary. Dr. Yee reported that he felt that any further formal facility-based rehabilitation would not provide any long-lasting clinical benefits to J.T.; Dr. Yee, however, failed to comment on J.T.’s reported pain relief or functional improvement in his report; and

(iv) Aviva made no submissions disputing the reasonableness and necessity of this treatment plan.

20For all of the reasons set out above, J.T. is entitled to this treatment plan plus interest in accordance with s. 51 of the Schedule.

Chronic Pain Programs

21There are three OCF-18s in dispute that each propose a multidisciplinary chronic pain program. The dates of the three OCF-18s are as follows: September 15, 2016 (recommended by Midland Wellness Centre); August 11, 2017 (recommended by The Rehab Centre); and October 19, 2017 (recommended by The Rehab Centre). The onus is on J.T. to show, on a balance of probabilities, that each individual modality of each of the multidisciplinary treatment plans is both reasonable and necessary.

22I find that:

(i) J.T. has proven the reasonableness and necessity of the portion of the September 15, 2016 OCF-18 for psychological treatment. As a result, she is entitled to this treatment;

(ii) J.T. is not entitled to the remainder of the unapproved portions of the September 15, 2016 OCF-18;

(iii) J.T. is not entitled to any part of the August 11, 2017 OCF-18;

(iv) J.T. is entitled to the portion of the October 19, 2017 treatment plan for a psychological assessment as she has proven on a of balance of probabilities that the assessment was reasonableness and necessary; and

(v) J.T. is not entitled to the remainder of the October 19, 2017 treatment plan.

September 15, 2016 OCF-18 recommended by Midland Wellness Centre

23The first OCF-18 for a chronic pain program was dated September 15, 2016 and was completed by Ms. Bajaj at the Midland Wellness Centre. This treatment plan sought funding for a multidisciplinary chronic pain program including physical rehabilitation, massage therapy, acupuncture, a psychological re-assessment, psychological treatment and a 1-day workshop in Aquatic Physical Therapy Basics.

24The injury and sequelae information section of this OCF-18 listed substantially the same conditions that were set out in the June 7, 2016 OCF-18 for acupuncture. The OCF-18 noted that the proposed services were based on recommendations made in the July 25, 2016 Chronic Pain Assessment Report by Dr. Daniel Yim, physician. The goals of this treatment plan were pain reduction, increased range of motion, increased strength, a return to activities of normal living, improved function and increased self-reliance, minimization of the pain experience and to gain skills for pain management.

25On November 3, 2016, Aviva approved the amounts sought for the Aquatic Physical Therapy Basis Workshop and completion of the OCF-18. The remainder of the treatment plan was denied on the basis of Dr. Yee’s opinion in his November 2, 2016 IE Orthopaedic Surgery Assessment Report⁵ that J.T. would not benefit from any further facility-based treatment. Aviva also provided notice of J.T.’s required attendance at a s. 44 assessment to determine if the amounts for a psychological re-assessment and psychological treatment were reasonable and necessary.

Physical Rehabilitation, Massage Therapy and Acupuncture

26The OCF-18 sought funding for physical rehabilitation which included passive therapy (Heat pack, IRC, TENS, ultrasound), active therapy (stretches and strength training focusing on problematic areas) and education and counselling. It also sought funding for eight sessions each of massage therapy and acupuncture.

27In his July 25, 2016 Chronic Pain Assessment Report, Dr. Yim diagnosed J.T. with the following conditions: chronic pain/chronic pain disorder; whiplash associated disorder type II; myofascial pain syndrome of cervical spine muscles (C1-C7 on the rights side); myofascial pain syndrome of thoracic spine (T1-T3 on the right side); myofascial pain syndrome of lumbar spine muscles (T12-L5 bilaterally); chronic myofascial pain at right shoulder; knee dysfunction at right knee; post-traumatic headaches (tension/cervicogenic); post-traumatic sleep disturbances; major depressive disorder; generalized anxiety disorder; post traumatic stress disorder; and history of disability, sleep disorder (worsened after the accident) and anxiety and depression (worsened after the accident). As a result, Dr. Yim recommended that J.T. attend his clinic’s chronic pain program comprised of multidisciplinary treatment including cognitive behavioural therapy, group therapy sessions, education on methods of stress and pain management, a graduated exercise program and adjunctive therapies. Dr. Yim explained that the adjunctive modalities included TENs, ultrasound, massage therapy, acupuncture and exercise.

28I give little weight to Dr. Yim’s report and his recommendations for physical rehabilitation, massage therapy and acupuncture for the following reasons:

(i) No documentation was provided for Dr. Yim’s review at the time of J.T.’s assessment;

(ii) J.T. reported to Dr. Yim that she was attending rehabilitation two-to-three times per week and that these treatments included TENS, acupuncture, massage, chiropractic treatment, stretches and exercises. Both parties conceded that, at this time, J.T. was not reporting any improvements from her current therapy and, in fact, she reported to Dr. Yee that she stopped attending therapy in October 2016. Dr. Yim fails to provide an analysis as to why additional treatment of the same modalities, such as passive therapy, exercises, massage therapy and acupuncture, would assist in meeting the goals of the treatment plan given J.T.’s reports that such therapies stopped providing her with any further improvements; and

(iii) Dr. Yim provides no details in his report regarding his credentials for diagnosing and making recommendations to treat chronic pain and/or chronic pain disorders. The credentials portion of Dr. Yim’s report only states that he has a “special interest” in psychiatry and chronic pain with no further details of any specialized training or certification that he holds in either of these areas.

29J.T. also relied upon an August 21, 2018 Report which I do not place weight on as it was not in existence at the time the treatment plan was submitted to Aviva for consideration and, instead, was authored almost two years later. Even if I am incorrect in not placing weight on this report because of its lack of contemporaneousness, I place little weight on the report because two versions of this report, both dated August 21, 2018, were filed with the Tribunal. One version is signed by Ms. Ginni Bajaj and the second version is signed by both Ms. Bajaj and Mr. Rashmi Moraskar. As the report speaks in the first person, I am unable to determine who authored the report and whose opinion the report reflects. Furthermore, the report provides an opinion that “the treatment plan” was reasonable and necessary when submitted; however, it is not clear what treatment plan the report is referring to.

30Finally, while I agree with J.T. that Dr. Yee did not provide any analysis or discussion on the goal of pain reduction in his November 2, 2016 IE Orthopaedic Surgery Assessment Report, which was relied upon by Aviva as the basis of its denial of this treatment plan, the burden is on J.T. to prove the reasonableness and necessity of the treatments in dispute. At no time does this burden shift to Aviva to disprove J.T.’s entitlement to any components of this or any other treatment plan.

31Based on the reasons set out above, I find that J.T. has failed to prove on a balance of probabilities the reasonableness and necessity of the amounts sought for physical rehabilitation, massage therapy and acupuncture and, therefore, she is not entitled to these components of the treatment plan in dispute.

Psychological Re-assessment and Psychological Treatment

32The OCF-18 sought funding in the amount of $1,800.00 for a psychological re-assessment and $1,196.88 for eight sessions of ongoing psychological therapy sessions.

33I find that J.T. has proven on a balance of probabilities the reasonableness and necessity of the portion of the treatment plan for psychological treatment but not for the psychological re-assessment based on the following evidence:

(i) While I place little weight on Dr. Yim’s July 25, 2016 Chronic Pain Assessment Report for the reasons discussed above and also because Dr. Yim provided no analysis on J.T.’s past medical history of sleep and mood disorders in relation to his diagnoses of J.T., Dr. Yim did not recommend a psychological re-assessment;

(ii) In an August 8, 2016 report by Dr. Karen Abrams, psychiatrist, and Ms. Tracy Neale, psychometrist, J.T. is diagnosed with the following conditions: Somatic Symptom Disorder with predominant pain; major depressive disorder (pre-morbid, exacerbated); generalized anxiety disorder with panic attacks (pre-morbid, exacerbated); posttraumatic stress disorder; and cannabis use disorder (mild).⁶ The report recommends, among other treatment, 16 sessions of cognitive behavioural therapy to address her anxiety, depression and sleep difficulties and psychiatric intervention with a new provider as her previous psychiatrist had retired;⁷ and

(iii) A June 24, 2016 IE Psychology Assessment Report, which was dated less than three months prior to the treatment plan in dispute, by Dr. Arpita Biswas, psychologist,⁸ noted that J.T. reported a worsening in her psychological symptoms since her last assessment with Dr. Biswas on May 19, 2015. J.T.’s reported worsening of symptoms was corroborated by psychometric testing results compared to her previous assessment which now revealed a depression in the “severe” range which was only on the “moderate” range previously.⁹ Dr. Biswas diagnosed J.T. with Adjustment Disorder with Mixed Anxiety and Depressed Mood as a direct result of the accident.¹⁰

34Dr. Biswas’ diagnosis of J.T. is consistent with Dr. Abram’s findings and, in my opinion, supports J.T.’s need for psychological treatment. As a result, I find that J.T. has proven on a balance of probailities that the portion of the treatment plan for psychological treatment is reasonable and necessary.

35I do not find that the funding sought for a psychological re-assessment is reasonable and necessary. It appears from Dr. Biswas’s June 24, 2016 IE Report that Aviva approved a psychological assessment less than three months prior to the submission of this treatment plan. J.T. provided no explanation or reasons for the need for a psychological re-assessment or even confirmation that the previously approved psychological assessment had occurred. As a result, J.T. is not entitled to the psychological re-assessment.

August 11, 2017 OCF-18 – The Rehab Centre

36The second OCF-18 for a chronic pain program was dated August 11, 2017 and was completed by Dr. Alireza Kachooie, physician, at The Rehab Centre. This treatment plan sought funding for a multidisciplinary chronic pain program including physiotherapy, therapeutic intervention NEC (arm NEC), acupuncture, a psychological assessment, massage therapy and a Sacro-iliac (SI) Belt. The injury and sequelae information section of the OCF-18 listed the following conditions: whiplash associated disorder (WAD 3) with compliant of neck pain with neurological signs; low back pain; other chronic pain; other sleep disorders; sciatica; and gonarthosis (arthrosis of knee). The goals of the treatment plan were pain reduction, increased range of motion and strength and a return to activities of normal living.

37Aviva denied this treatment plan on September 1, 2017 as it considered this OCF-18 to be a duplication of services already addressed by Aviva. Aviva also noted that its denial was based on no new medical documentation submitted to support a change or deterioration in J.T.’s condition as a result of the accident. Aviva referred to the September 15, 2016 OCF-18, which was partially approved for an aquatic workshop, with the remainder being denied based on Dr. Yee’s opinion that further facility-based treatment would not benefit J.T. Aviva also noted that J.T. had not used the funding approved from the previous OCF-18 for the aquatic workshop.

38Dr. Kachooie authored a letter to Dr. Christopher Tam, J.T.’s family physician, dated August 11, 2017, the same date as the OCF-18 in dispute. Following his assessment of J.T., Dr. Kachooie made the following diagnosis in his letter: chronic pain syndrome; degenerative joint disease of cervical and thoracic area; spinal stenosis; querry peripheral vascular disease; sacroiliac joint disorder; and early osteoarthritis in her knee joints. None of these diagnoses appear on the treatment plan, despite it also being completed by Dr. Kachooie, and no submissions or explanation was provided by J.T. regarding this discrepancy.

39Further, the information on this OCF-18 is inconsistent when compared to Dr. Kachooie’s August 11, 2017 letter regarding whether or not J.T. had any disease, condition or injury that could affect her response to treatment prior to the accident. While the OCF-18 indicated “no” in response to the inquiry, Dr. Kachooie’s August 11, 2017 letter, however, noted that J.T. had been on ODSP for over the past five-to-six years as she suffered from Crohn’s disease. Dr. Kachooie also reported that J.T.’s pain in her lower back, hip and groin area began prior to the accident and this pain was aggravated since the accident. The information regarding J.T.’s pre-accident conditions on this OCF-18 is also inconsistent with information provided on the other treatment plans in dispute in this matter that pre-date this OCF-18. All of the prior treatment plans reported that J.T. suffered from pre-existing osteoarthritis, clinical depression, high cholesterol and Crohn’s Disease prior to the accident. J.T. herself conceded that she had a health history prior to the accident that would affect her ability to recover from the collision.¹¹

40In any event, I find that J.T. has failed to prove on a balance of probabilities that the individual treatment modalities of which this treatment plan is comprised are reasonable and necessary for the following reasons:

(i) While the additional comments portion of the OCF-18 provided a more detailed explanation of acupuncture and massage therapy and how these modalities can assist in recovery, Dr. Kachooie made no recommendation for these types of treatment in his August 11, 2017 letter;

(ii) There is no explanation of what “therapeutic intervention NEC (arm NEC)” is, what its purpose is and how it would be used to achieve the goals of the treatment plan;

(iii) Dr. Kachooie did recommend physiotherapy. However, there is no discussion provided as to how additional physiotherapy would achieve the goals of pain reduction, increased range of motion, increased strength and a return to activities of normal living when J.T. ceased similar treatment in October 2016 as a result of it providing her with no further improvements;

(iv) Dr. Kachooie made additional treatment recommendations, including enrollment in an aqua fit exercise program, which was previously approved by Aviva and not incurred by J.T., but J.T. did not seek funding for all of Dr. Kachooie’s recommendations. For example, J.T. did not seek funding for soft tissue steroid injection or viscosupplementation, which were both recommended by Dr. Kachooie, and there is no explanation as to why some forms of the recommended treatment were pursued while others were not;

(v) J.T. submitted that her repeated attendance at her family doctor to report pain in her neck, back, shoulders and a worsening of her emotional symptoms supported the need for the disputed treatment plan. Dr. Tam’s CNRs are largely illegible and while there are visits recorded between the submission of the previous treatment plan for a chronic pain program and this treatment plan, the entries contain only two complaints made on March 21, 2017 and April 7, 2017 of pain in J.T.’s back and hip. It is unclear from Dr. Tam’s CNRs if he referred J.T. to any specialists or for any treatment as a result of these two complaints;

(vi) Further explanation is provided in the OCF-18 for the SI Belt, the stated purpose of which was to help restore J.T.’s SI joint function. The OCF-18 states that the SI joint can become inflamed and painful in individuals presenting with SI-joint pain symptoms and that the SI belt can reduce the amount of laxity or movement that may be contributing to the chronicity of the patient’s pain and symptoms. Dr. Kachooie noted in his August 11, 2017 letter that he found J.T.’s sacroiliac joints were tender and scheduled her for an SI x-ray. J.T., however, underwent several x-rays on April 21, 2017, including an x-ray of her SI joint, which was normal with no arthropathy. This finding is confirmed by the x-ray of J.T.’s SI joints ordered by Dr. Kachooie which took place on August 23, 2017 and also reported no abnormalities. Given that the SI Belt was to treat inflammation in the SI joint and there is no evidence supporting any such inflammation in the x-rays or otherwise, I find that the SI Belt was not reasonable or necessary;

(vii) While the additional comments portion of the OCF-18 explain that the psychological assessment would determine a comprehensive psychological intervention for J.T., J.T. has clearly been diagnosed with psychological conditions as a result of the accident by both her experts and an IE assessor. There is no discussion, however, for the reason for an additional psychological assessment in light of these diagnoses; and

(viii) I also do not place weight on the August 21, 2018 Report in determining the reasonableness and necessity of this treatment plan because it was not in existence at the time the treatment plan was submitted to Aviva for consideration and, instead, was authored a year later. Again, even if I am incorrect in placing little weight on this report for this reason, I have discussed other reasons for placing little weight upon this report in paragraph [29] above.

41Based on all of the reasons set out above, J.T. has failed to prove that modalities that make up the treatment plan in dispute are reasonable and necessary. Therefore, J.T. is not entitled to the August 11, 2017 treatment plan for a multidisciplinary chronic pain program.

October 19, 2017 OCF-18 – The Rehab Centre

42The third OCF-18 for a chronic pain program was dated October 19, 2017 and was the exact same as the August 11, 2017 OCF-18 except the total amount of the treatment plan was greater and, in the injury and sequlae portion, sciatica is removed and sacrococcygeal disorders, not elsewhere classified is added. J.T. concedes that this treatment plan is duplicative to the August 11, 2017 OCF-18¹² and offered no new submissions to those previously made regarding her entitlement to the August 11, 2017 OCF-18.

43While additional evidence was included in J.T.’s hearing material dated between the August 11, 2017 OCF-18 and the October 19, 2017 OCF-18, this evidence was not specifically referred to by J.T. to support her position that the October 19, 2017 OCF-18 was reasonable and necessary. The evidence included in J.T.’s hearing material that was dated between the two treatment plans in dispute, however, does not demonstrate any significant changes to J.T.’s health between the two treatment plans.

44Aviva denied this treatment plan on December 20, 2017. Aviva relied upon the December 6, 2017 IE Physiatry Assessment Report by Dr. Alborz Oshidari, physiatrist,¹³ in which Dr. Oshidari opined that the treatment plan was not reasonable or necessary for the treatment of J.T.’s injuries sustained in the accident as J.T. suffered non-complicated soft-tissue injuries and contusions. Aviva also relied upon the December 6, 2017 IE Psychological Assessment Report by Dr. Shari Schwartz, psychologist,¹⁴ who did not feel that the treatment plan was reasonable or necessary for the injuries that J.T. sustained in the accident as there was no psychological diagnosis and there was no evidence of any sustained psychological impairments from as a direct result of the accident.

45I agree with J.T. that there are deficiencies with Dr. Schwartz’s report and, as a result, I give little weight to her opinion regarding the reasonableness and necessity of the treatment plan. I agree with J.T. that Dr. Schwartz only opines on the reasonableness and necessity of psychological treatment whereas the treatment plan sought funding for a psychological assessment. In her report, Dr. Schwartz also failed to provide an explanation for her not diagnosing J.T. with a psychological condition as a result of the subject accident when Dr. Schwartz’s test results were substantially similar to the test results reported in Dr. Biswas’ June 24, 2016 IE Report in which Dr. Biswas diagnosed J.T. with Adjustment Disorder with Mixed Anxiety and Depressed Mood as a direct result of the accident.

46What is clear from Dr. Schwartz’s report is that J.T. was still experiencing the same level of psychological symptoms as what she had been experiencing at the time of her assessments with Dr. Biswas and Dr. Abrams. As a result, I find that a psychological assessment is reasonable and necessary to ascertain J.T.’s psychological status at the time the OCF-18 was submitted to, in turn, determine the most appropriate course of treatment for her ongoing psychological symptoms.

47For all of the reasons set out above, I find that J.T. is entitled to $1,927.64 of this treatment plan for a psychological assessment as she has proven the reasonableness and necessity of this portion of the OCF-18 on a balance of probabilities. J.T. is not entitled to the remainder of this treatment plan.

Functional Abilities Evaluation (FAE)

48This April 12, 2016 OCF-18 was completed by Ms. Bajaj and sought funding for a FAE in the amount of $1,640.00. Ms. Bajaj explains that the FAE utilizes scientific principals and measurements to analyze the abilities of a specific individual relevant to their pre-injury level of function. Results would then be used to aid in direction of clinical treatment and a return to activities of daily living. Furthermore, the data is used to identify tasks, environments and equipment that present barriers to recovery and restoration of functional capacity. The goals of this treatment plan are pain reduction, increased strength and range of motion and a return to activities of normal living.

49This treatment plan was denied by Aviva on June 17, 2016 after determining that the treatment recommended was not reasonable and necessary for the injuries that J.T. sustained in the accident. Aviva based its determination on the IE Orthopaedic Surgeon Reports by Dr. Yee dated May 5, 2016 and June 10, 2016. Aviva also submitted that a FAE was unnecessary because J.T, was being followed by several health professionals who could have, and should have, addressed J.T.’s functional abilities and determined appropriate treatment for J.T.

50I find that J.T. has proven on a balance of probabilities that the treatment plan for a FAE is reasonable and necessary. There is evidence that, at the time the treatment plan was submitted, J.T. was continuing to have difficulties with her personal care tasks. Specifically, J.T. reported to Dr. Yee that she was still having difficulties with washing her hair and required assistance from her daughter. J.T. also reported to Dr. Yee that she required assistance from her daughter with other heavier household tasks, such as grocery shopping and laundry.¹⁵ Therefore, I find that J.T. has proven that the proposed FAE would meet at least one of the stated goals of assisting J.T. in returning to her activities of daily living.

51For all of the reasons set out above, I find that J.T. is entitled to the treatment plan for the FAE.

Completion of Disability Certificates

52Payment for the completion of two OCF-3s submitted on August 11, 2017 and October 19, 2017 in the amount of $200.00 each is also in dispute. J.T. concedes that the second OCF-3 was a duplication of the first OCF-3,¹⁶ but requests payment for at least one of the OCF-3s.

53On September 1, 2017, Aviva relied upon s. 25(1)1 of the Schedule and denied payment for the completion of the August 11, 2017 OCF-3 as the disability certificate was not requested by Aviva. At that time, Aviva also noted that any dispute over J.T.’s entitlement to non-earner benefits (NEBs) had been addressed in June 2015. Payment for the October 19, 2017 OCF-3 was denied on October 25, 2017 by Aviva for substantially the same reasons.

54I find that J.T. has failed to prove on a balance of probabilities the reasonableness and necessity for the payment for the completion of the two OCF-3s. J.T. relies upon the following paragraph in two of Aviva’s correspondences to her:

What you need to do

Provide any additional relevant or necessary documents you may have for the review of your medical condition to the assessment facility no later than five business days before your examination date. We’ll forward all medical documentation we have on file.

55This paragraph does not request J.T. to have an OCF-3 completed. Further, if there was any confusion over what was required of J.T., she could have requested clarification from Aviva. No evidence was submitted that she sought such clarification.

56Therefore, I find that J.T. is not entitled to payment for the two OCF-3s submitted on August 11, 2017 and October 19, 2017.

Interest

57J.T. is entitled to interest for the two treatment plans for acupuncture treatment, the treatment plan for physiotherapy and chiropractic treatment, the amount for the psychological treatment as set out in the September 15, 2016 treatment plan for a multidisciplinary chronic pain program, the psychological assessment amount as set out in the October 19, 2017 treatment plan for a multidisciplinary chronic pain program and the treatment plan for the FAE. Interest is payable in accordance with s. 51 of the Schedule.

Award

58Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

59I find that J.T. is entitled to an award of 25 per cent of the disputed amounts as a result of Aviva unreasonably withholding the following treatment:

(a) The May 10, 2016 OCF-18 for physiotherapy and chiropractic treatment ($1,908.20);

(b) the psychological treatment portion of the September 15, 2016 treatment plan ($1,198.88); and

60Both parties agree that the requirements of good faith discussed in the Financial Services Commission of Ontario (“FSCO”) decision of Beltrame and Dominion of Canada General Insurance¹⁷ apply for determining what is an unreasonable delay or withholding. That decision held that the insurer’s obligation includes carrying out a proper investigation of a claim to carefully consider all of the available information and give appropriate weight to that information in a fair and even-handed manner. While I am not bound by FSCO decisions, I agree that these are some of an insurer’s obligations to its insured.

61J.T. primarily argues that she is entitled to an award because the adjuster log notes do not reveal any considerations to any other information or documents other than the opinions of Aviva’s s. 44 IE assessors in making its decisions on the reasonableness and necessity of the treatment plans in dispute. Specifically, J.T. argues that nothing is mentioned in the log notes regarding any information included in the OCF-18s, any s. 25 reports or any of the CNRs of J.T.’s treating doctors.¹⁸ As a result, J.T. submits that Aviva outsourced its decision-making to its assessors and did not conduct a reasonable and competent investigation as required.¹⁹

62While I agree with J.T.’s assessment of the adjuster log notes, no information was submitted on when J.T. provided any of the s. 25 reports or any CNRs to Aviva. The earliest dated s. 25 report submitted as evidence by J.T. was Dr. Yim’s July 25, 2016 Chronic Pain Assessment Report. All of the CNRs from J.T.’s treating health care providers all reflect a received date in 2018. Because the two treatment plans for acupuncture treatment and the treatment plan for the FAE pre-date J.T.’s s. 25 reports, I find that it was not unreasonable for Aviva to continue to rely upon its IE assessors’ reports until new medical documentation was provided to Aviva by J.T. As a result, I find that J.T. has failed to prove on a balance of probabilities that Aviva unreasonably withheld or delayed payment of the two treatment plans for acupuncture treatment and the treatment plan for the FAE. J.T. is not entitled to an award for these issues in dispute.

63I do find, however, that J.T. has proven on a balance of probabilities that Aviva unreasonably withheld and/or delayed payment of benefits to her for the May 10, 2016 treatment plan for physiotherapy and chiropractic treatment. The information on this OCF-18 was that J.T. reported a 30 per cent improvement in her symptoms. There is no discussion in the adjuster log notes, or in the related Explanation of Benefits (EOB), that this information, which formed part of my finding that J.T. was entitled to this treatment plan, was considered or analyzed by Aviva, especially in light of J.T.’s self-reports to Dr. Yee of her improvements in function and symptoms. As a result, J.T. is entitled to an award for this benefit in dispute.

64While there is no evidence before me as to when J.T. submitted her s. 25 reports and CNRs to Aviva, I do find that Aviva unreasonably withheld funding for the psychological treatment sought in the September 15, 2016 OCF-18 and the psychological assessment as set out on the October 19, 2017 treatment plan because Aviva failed to consider all of the information available to it contained in its own s. 44 reports. For example, I relied upon Dr. Biswas’s diagnosis of J.T. with Mixed Anxiety and Depressed Mood as a direct result of the accident in her June 24, 2016 IE Psychology Assessment Report as one of the reasons that the psychological treatment portion of the September 15, 2016 treatment plan was reasonable and necessary. Dr. Biswas’s psychological diagnosis and opinion regarding causation was information in Aviva’s possession at the time the September 15, 2016 treatment plan was submitted and there is no discussion or analysis of this diagnosis by Aviva in the adjuster log notes, or in the related EOB, of J.T.’s previous diagnosis in relation to the psychological treatment sought in the September 15, 2016 OCF-18.

65Furthermore, J.T.’s psychological testing results did not change from Dr. Biswas’s assessment to the December 6, 2017 IE Psychological Assessment Report by Dr. Schwartz, which was relied upon by Aviva to deny the October 9, 2017 treatment plan for a multidisciplinary chronic pain program. There is no discussion or consideration evident in the log notes, or in the related EOB, regarding Dr. Schwartz’s inconsistent finding that J.T. did not have a diagnosable psychological condition with Dr. Biswas’ diagnosis of J.T.

66As I have found that Aviva unreasonably withheld both the psychological treatment portion of the September 15, 2016 treatment plan and the psychological assessment portion of the October 19, 2017 treatment plan, J.T. is also entitled to an award for these two treatment amounts.

67Pursuant to s. 10 of O. Reg. 664, I have discretion to award up to 50 per cent of the disputed amount, including interest, for amounts unreasonably withheld or delayed.

68The approach to determining the amount of an award is based on the principles of rationality and proportionality. The amount of the award should be proportionate to the following factors:

(i) The blameworthiness of the insurer’s conduct;

(ii) The vulnerability of the insured person;

(iii) The harm or potential harm directed at the insured person;

(iv) The need for deterrence;

(v) The advantage wrongfully gained by the insurer from the misconduct;

(vi) Consideration of any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and

(vii) The overall length of the delay.²⁰

69J.T. sought an award in the amount of $15,000.00 which she calculates as 50 per cent of the total disputed amount, with interest. J.T., however, did not provide any further submissions on the quantum of the award.

70Aviva made no submissions as to the quantum of the award.

71After considering the above-listed factors, I find that the appropriate quantum of the award is 25 per cent of the disputed amount for the following treatment that I found was unreasonably withheld by Aviva:

(a) The May 10, 2016 OCF-18 for physiotherapy and chiropractic treatment ($1,908.20);

(b) the psychological treatment portion of the September 15, 2016 treatment plan ($1,198.88); and

72I am not awarding the maximum amount of 50 per cent of the disputed amount for the treatment that I have found owing to J.T. as requested by J.T. because while there is evidence of Aviva delaying or withholding benefits, there is no evidence of such egregious conduct by Aviva that would call for the maximum amount of the award. Further, while J.T. did suffer from pre-existing conditions, there is no evidence that J.T. is particularly more vulnerable than any other injured person. An award higher than a minimal amount is called for in this situation, however, due to the harm resulting from the delayed psychological benefits to J.T. Between two psychological assessment IEs conducted by Dr. Biswas, J.T.’s psychological condition deteriorated, and she presented at the second IE assessment with symptoms of severe depression and anxiety. An award of 25 per cent provides a balance of the factors set out above and the fact that Aviva did not gain any specific advantage as a result of its conduct or the delays.

CONCLUSION

73For the reasons outlined above, I find that J.T. is: