V.T. v. Aviva General Insurance, 2019 CanLII 72210

Date: 2019-06-14

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:

V.T.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Appellant: Victoria Gorbenko, Paralegal

For the Respondent: Anna Kirovske, Counsel

HEARD in writing on: December 5, 2018

OVERVIEW

1The applicant, (“V.T.”), was born in Vietnam and came to Canada in 1984 as a refugee. V.T. was injured in an automobile accident on June 17, 2016 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from Aviva General Insurance Company (“Aviva”), the respondent.

2Aviva denied V.T.’s claim for weekly income replacement benefits (“IRBs”) and several treatment plans for chiropractic services, psychological treatment and for the cost of a functional cognitive assessment. As a result, V.T. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3While the matter was originally scheduled for an in-person hearing for December 3, 4, and 5, 2018, the parties agreed, and the Tribunal granted V.T.’s request, to have the matter proceed to a written hearing on December 5, 2018.

ISSUES IN DISPUTE

4V.T.’s entitlement to IRBs is no longer in dispute between the parties. As such, the following remaining issues are to be decided:

(i) Is V.T. entitled to a medical benefit for chiropractic services recommended by Dr. Alexander Yu for the following:

(a) $1,236.85, in a treatment plan submitted on September 9, 2016, and denied by Aviva on September 26, 2016?

(b) $3,355.20, in a treatment plan submitted on September 20, 2016, and denied by Aviva on September 27, 2016?

(c) $3,074.34, in a treatment plan submitted on November 22, 2016, and denied by Aviva on November 30, 2016?

(d) $2,821.42, in a treatment plan submitted on March 1, 2017, and denied by Aviva on March 10, 2017?

(ii) Is V.T. entitled to a medical benefit in the amount of $3,817.63 for psychological treatment recommended by Dr. Gabidulina in a treatment plan submitted on April 9, 2017, and denied by Aviva on April 19, 2017?

(iii) Is V.T. entitled to payment for the cost of an examination in the amount of $1,400.00 for a functional cognitive assessment recommended by Evgen Amchislasky in a treatment plan submitted on January 5, 2017, and denied by Aviva on January 19, 2017?

(iv) Is V.T. entitled to interest on any overdue payment of benefits?

RESULT

5Based on the evidence before me, I find:

(i) V.T. is entitled, with interest in accordance with section 51 of the Schedule, to the treatment plans in the amounts of $1,236.85, $3,355.20 and $3,074.34 for chiropractic services and to the treatment plan for psychological services; and

(ii) V.T. is not entitled to the treatment plan for chiropractic services in the amount $2,821.42 and to payment for the cost of a functional cognitive assessment.

ANALYSIS

6Sections 14 and 15 of the Schedule provide that the 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 as a result of the accident.

7V.T. bears the onus of proving his entitlement to the claimed chiropractic services, psychological treatment and functional cognitive assessment as reasonable and necessary on a balance of probabilities.¹

Chiropractic Services

a) Treatment Plans for $1,236.85 (Denied September 26, 2016) and $3,355.20 (Denied September 27, 2016)

8I find that V.T. has proven on a balance of probabilities that the two treatment plans for chiropractic services in the amounts of $1,236.85 and $3,355.20 are both reasonable and necessary.

9All of the chiropractic treatment plans in dispute were completed by Dr. Alexander Yu, chiropractor. The first treatment plan recommended 5 sessions each of chiropractic treatment, stimulation of muscles of head and neck and stimulation of muscles of the back, a heat pack, 5 sessions of massage therapy and 5 sessions of “exercise, multiple body sites.” The goals of this treatment plan were pain and stiffness reduction, increase in strength and range of motion, return to activities of normal living, return to modified work activities, return to pre-accident work activities and strengthen weak muscles.

10The second treatment plan in dispute for chiropractic services recommended 16 sessions of hyperthermy (multiple body sites), 16 sessions of manipulation (multiple body sites), 16 sessions of stimulation of the muscles of the back, 16 sessions of stimulation of muscles of head and neck and 16 sessions of massage therapy. In this treatment plan, Dr. Yu noted that V.T. experienced improvement in coping with his pain using the learned techniques since the last treatment plan. The goals of this treatment plan were substantially similar to the September 2, 2016 treatment plan with the additional of the following:

(i) return to activity maintains the health of soft-tissues and keep them flexible, correct posture, lifting techniques, pacing;

(ii) usage of aids in helping everyday function, control pain and stimulate healing; and

(iii) teaching V.T. strategies to ensure that he can return to his previous level of activity as soon as possible including correct posture, lifting techniques, pacing and usage of aids in helping everyday function.

11Aviva denied these two treatment plans by way of correspondence to V.T. dated September 26, 2016² and September 27, 2016,³ respectively. These letters explained that Aviva concluded that V.T. sustained “minor injuries” in the accident and that the applicable monetary limit of $3,500.00 for his medical and rehabilitation benefits had been exhausted. In both letters, Aviva advised that it was requiring V.T. to attend an insurer’s examination (“IE”) with Dr. Loredana Di Santo, physician.

12V.T. submits that these treatment plans should be funded because V.T. is now being treated outside of the Minor Injury Guideline (“MIG”),⁴ and the only reason the treatment plans were denied by Aviva was on the basis that V.T. sustained “minor injuries.” Aside from a brief comment about Dr. Yu reporting that V.T. has decreased range of motion in his cervical and lumbar spine, V.T. makes no further submissions regarding the reasonableness and necessity of these treatment plans. V.T. also submits that despite Aviva’s denial for funding, V.T. incurred the entire amount of both of these plans.

13I do not agree with V.T.’s position that simply because he was removed from the MIG that treatment plans that were denied when his treatment was confined to the MIG should consequently be approved. V.T. is still required to prove on a balance of probabilities that the treatment that he is seeking funding for is both reasonable and necessary.

14I find that V.T. has met his onus of proving that these two proposed treatment plans are both reasonable and necessary on a balance of probabilities because of the achievement of the stated goals in the plans. The results showed that the treatment was assisting VT in his recovery. For example, V.T.’s range of motion in his cervical and lumbar spine has gradually increased. The September 2, 2016 treatment plan included excerpts from Dr. Yu’s September 2, 2016 re-examination of V.T., which recorded, in degrees, increased range of motion in extension and right and left rotation of V.T.’s cervical spine and in his forward flexion, right and left lateral flexion and right and left rotation of his lumbar spine. The September 19, 2016 treatment plan included excerpts from Dr. Yu’s September 19, 2016 re-examination of V.T., which recorded, in degrees, increased range of motion in his extension and left and right rotation of her cervical spine and in his forward flexion and left and right rotation of his lumbar spine. Despite the increases, all of these measurements were still below the normal range. Nonetheless, it is clear that the treatment was assisting V.T. regain his range of motion in his spine as the LifePoint Medical Patient Sign-In Sheets⁵ indicated that V.T. attended for treatment 6 times from September 2, 2016 to September 19, 2016. I also place weight on Dr. Yu’s reporting that V.T. experienced improvement in coping with his pain between the first and second treatment plans.

15I place little weight on the report by Dr. Loredana Di Santo dated November 3, 2016,⁶ which was relied upon by Aviva in its denial of these two treatment plans. Dr. Di Santos opined that from a musculoskeletal perspective, V.T.’s injuries were predominantly minor in nature and, as a result, the proposed treatment plan was not reasonable and necessary.⁷ Dr. Di Santo’s conclusions, however, are problematic because she reports that V.T.’s back and neck range of motion were “normal,”⁸ but fails to include any measurements or information as to what she determines is “normal” range of motion. I also do not accept her finding that V.T. has received adequate rehabilitation therapies to date on the basis that, “there is no compelling evidence on history or file documentation of any pre-existing medical condition that would prevent him from achieving maximal medical recovery under the [MIG] cap of $3,500.00.”⁹ It is not clear from her report how these two findings are related.

b) Treatment Plan for $3,074.34 (Denied November 30, 2016)

16I find that the treatment plan for chiropractic services in the amount of $3,074.34 is both reasonable and necessary on a balance of probabilities.

17The third treatment plan in dispute for chiropractic treatment recommended 14 sessions of hypothermy (multiple body sites), 14 sessions of manipulation of the spine and multiple body sites, 14 sessions each of exercise of shoulder joint and back NEC and 14 sessions of stimulation of the muscles of the back. The goals of this treatment plan were substantially the same as the two previous treatment plans with the addition of the following: 1) maintenance or restoration of normal range of motion in affected joints; 2) provisions of individualized home care program to maximize functional mobility and to prevent re-injury to V.T.; and 3) develop strategies to reduce symptoms and to teach strategies in order to decrease pain.

18Dr. Yu again noted in this treatment plan that at the end of the previous plan, V.T. reported improvement in coping and in pain. While V.T.’s range of motion in his lumbar spine remained the same from the previous treatment plan, improvement was reported, in degrees, in V.T.’s range of motion in the extension and left and right rotation of his cervical spine. All measurements were still below normal.

19Aviva advised V.T. via correspondence dated November 30, 2016, that it was unable to determine whether the recommendations were reasonably required for the injuries that he sustained in the accident. Aviva again relied upon Dr. Di Santo’s November 3, 2016 report and her finding of “normal” range of motion in V.T.’s neck and back.

20On December 14, 2016, Aviva confirmed that it would not fund the treatment plan based on a December 12, 2016 Physician Paper Review Report by Dr. Di Santos,¹⁰ which determined that the treatment recommended was not reasonable and necessary from the injuries sustained in the accident. In this report, Dr. Di Santos reported, “from a purely musculoskeletal perspective, [V.T.’s] physical impairments are predominantly minor in nature and he has received an adequate course of rehabilitation therapy.”

21V.T. submitted that this treatment plan should be funded because V.T. was removed from the MIG and made no submissions regarding its reasonableness or necessity. V.T. also submitted that despite Aviva’s denial for funding, V.T. incurred the entire amount of this treatment plan.

22Despite a lack of submissions on reasonableness and necessity of the treatment plan, I find that the evidence proves that this treatment plan is both reasonable and necessary on a balance of probabilities because:

(i) The treatment set out in the plan is achieving the goal of increased range of motion in V.T.’s cervical and lumbar spine and V.T.’s increased ability to cope with his pain;

(ii) The treatment plan set out a goal of establishing an individualized home care program and, while my critique of Dr. Di Santo’s November 3, 2016 report as set out above remains, Aviva did rely upon her report and highlighted her recommendation of a home exercise program. As such, it is unclear to me why a portion of this treatment plan was not approved by Aviva for at least the establishment of a home exercise program; and

(iii) Dr. Di Santo’s December 12, 2016 report only reviewed additional psychological documentation and found that there was no additional file information provided that would alter her opinion with respect to V.T.’s impairments from a purely musculoskeletal perspective and he has received adequate rehabilitation therapies to date.¹¹ For the reasons set out above, I do not accept Dr. Si Santo’s opinion regarding V.T.’s impairments from her November 3, 2016 report.

c) Treatment Plan for $2,821.42 (Denied March 10, 2017)

23I find that V.T. has failed to prove on a balance of probabilities the treatment plan for chiropractic services in the amount of $2,821.42 is reasonable and necessary.

24The fourth treatment plan in dispute for chiropractic services recommended the exact same services to achieve the exact same goals as in the November 21, 2016 treatment plan. No new injury or sequelae information was added to this treatment plan.

25On March 10, 2017, Aviva sent correspondence to V.T. indicating that it was unable to determine whether the recommendations were reasonably required for the injuries that V.T. sustained in the accident. Aviva also provided notice at this time that it was scheduling an IE.

26Aviva advised V.T. on April 18, 2017 via correspondence¹² that it was denying the proposed treatment plan on the basis of Dr. Deborah Kopansky-Giles, chiropractor, IE report dated April 13, 2017¹³ as she found that the treatment was not reasonable and necessary. At this time, Aviva advised that it agreed to fund Dr. Kopansky-Giles’ recommended treatment of 2 to 3 sessions of instruction in progressive, self-directed home exercises over the course of 1 to 2 months and requested that V.T. submit a treatment plan for this amount.

27V.T. submitted that despite Aviva’s denial for funding, V.T. incurred the entire amount of this treatment plan.

28I find that V.T. has not proven on a balance of probabilities that this treatment plan is reasonable and necessary. Despite the treatment plan reporting further improvement in V.T.’s range of motion in his flexion and right and left lateral flexion in his cervical spine and improvement in his forward flexion lumbar spine range of motion, this treatment plan is a duplicate of the November 21, 2016 treatment plan. One of the goals of the previous November 21, 2016 treatment plan was to provide an individualized home care program and I agree with Dr. Kopansky-Giles’ concerns that no exercises were prescribed to V.T. in the past 9 months for strengthening and stabilization. There is also no information provided on why there was no progression towards an independent home based exercise program and also no information to support V.T.’s need for the exact same number of treatment sessions that were previously requested in November 21, 2016 treatment plan.

Psychological Treatment

29I find that V.T. has proven on a balance of probabilities the treatment plan for psychological treatment is reasonable and necessary.

30The treatment plan in dispute for psychological treatment recommended 14 sessions of mental health therapy, a mental health test, “planning, service” and a progress report. Dr. Svetlana Gabidulina, the psychologist who completed the treatment plan, lists in the injury and sequelae information specific (isolated) phobias and moderate depressive episode. The goals of this treatment plan are pain reduction, to practice mindfulness, to reduce V.T.’s anxiety, to improve sleep, to return V.T. to activities of normal living and to increase functional capacities.

31On April 19, 2017, Aviva sent correspondence to V.T. indicating that Aviva was unable to determine whether the recommendations were reasonably required for the injuries that V.T. sustained in the accident and provided notice that it was scheduling a section IE. On June 8, 2017, Aviva confirmed its denial of the treatment plan to V.T. based on the June 2, 2017 Psychological Assessment Report by Dr. Howard Waiser, psychologist.¹⁴ Aviva relied upon Dr. Waiser’s finding that V.T.’s emotional distress was “mild” in nature and opined that further counselling was no longer warranted in this matter.¹⁵ I place no weight on Dr. Waiser’s conclusion as his characterization of V.T.’s emotional distress contradicts his reported findings of V.T.’s score on the Beck Depression Inventory, which was a score indicating “moderate” depression.¹⁶

32Despite Aviva’s denial for funding, V.T. incurred the entire amount of this treatment plan.

33I find that this treatment plan is both reasonable and necessary based not only on the recommendations of Dr. Gabidulina, V.T.’s supervising psychologist, and of Dr. Harinder Mrahar, psychologist, who both support future psychological treatment to focus on V.T.’s anxiety and depression, but also based on the findings of Aviva’s experts.¹⁷

34As an aside, numerous reports, including Dr. Mrahar’s, V.T.’s own assessor, confirmed that V.T. is not fluent in English. V.T., however, reported that although his psychological treatment sessions were provided in English, his service providers “explain very slowly” and that he found the intervention to be helpful.¹⁸ If any future psychological treatment is sought by V.T., it would likely be more productive for V.T. if interpretation services were provided to allow him to fully participate in the counselling sessions at a quicker pace.

Functional Cognitive Assessment

35I find that V.T. has failed to prove on a balance of probabilities the treatment plan for a functional cognitive assessment is reasonable and necessary.

36This treatment plan in dispute was completed by Evgeni Amchislavsky, occupational therapist, with Dr. Gabidulina listed as the Regulated Health Professional, and was dated December 30, 2016. It sought funding for completion of the OCF-18 and for a Functional Cognitive Assessment. The goals of this treatment plan were to return V.T. to activities of normal living, to identify current cognitive level of functioning and any impairment in the areas of attention skills, such as sustained attention, selective attention and divided attention as well as memory skills such as long-term memory, short-term/working memory and processing speed. Dr. Gabidulina reported in the treatment plan that V.T. has on more than one occasion voiced complaints about his cognitive functioning since the accident but that such an assessment was outside of Dr. Gabidulina’s practice.

37On January 19, 2017, Aviva sent correspondence to V.T. indicating that Aviva was unable to determine whether the recommendations were reasonably required for the injuries that he sustained in the accident and provided notice that it was scheduling an IE. A further denial letter from Aviva was not provided as evidence from either party.

38V.T. submits that this assessment should be funded based on V.T.’s treating psychologists finding that V.T. suffers memory and concentration impairments. I disagree with V.T.’s submission because in his December 2, 2016 Psychological Assessment Report,¹⁹ Dr. Harinder Mrahar, who was also one of V.T.’s treating psychologists,²⁰ found that V.T. did not appear to have any significant cognitive impairment.²¹

39I find that V.T. has not satisfied his onus of proving on a balance of probabilities that a Functional Cognitive Assessment is reasonable and necessary. Aside from the few instances of forgetfulness, V.T. has failed to report or submit any evidence of any significant memory issues or cognitive impairments that affect his functional performance. In contrast, Aviva has submitted and relied upon an Executive Summary Report by Dr. Sherali Esmail, neurologist, and Mr. Gord Hirano, occupational therapist, dated March 17, 2017,²² which found that V.T. was not experiencing any cognitive challenges and no cognitive impairment. In the absence of any evidence to the contrary, I accept these findings and, therefore, V.T. is not entitled to funding for a Functional Cognitive Assessment.

Interest

40V.T. claims entitlement to interest in overdue payments pursuant to section 51 of the Schedule. Aviva submits that no interest is owed because of the denials for the issues in dispute in this matter were proper and in accordance with the Schedule.

41As I have found that V.T. is entitled to the treatment plans in the amounts of $1,236.85, $3,355.20 and $3,074.34 for chiropractic services and to the treatment plan for psychological treatment, section 51 of the Schedule requires Aviva to pay interest on any amounts incurred to date for these three treatment plans.

CONCLUSION

42For the reasons outlined above, I find:

(i) V.T. has proven on a balance of probabilities that the treatment plans in the amounts of $1,236.85, $3,355.20 and $3,074.34 for chiropractic services and the treatment plan for psychological services are all reasonable and necessary and, therefore, is entitled to these treatment plans along with interest in accordance with section 51 of the Schedule; and

(ii) V.T. has failed to prove on a balance of probabilities that the treatment plan for chiropractic services in the amount $2,821.42 and the treatment plan for the cost of a functional cognitive assessment are reasonable and necessary and, therefore, he is not entitled to these medical benefits.

Released: June 14, 2019

___________________________

Lindsay Lake

Adjudicator

Footnotes

1. 1Scarlett v. Belair Ins. Co., supra note 10, paras. 20-24.
2. 2Applicant’s Submissions, tab 8a.
3. 3Applicant’s Submissions, tab 8b.
4. 4Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
5. 5Applicant’s Submissions, tab 12.
6. 6Applicant’s Submissions, tab 16.
7. 7Ibid. at page 7.
8. 8Ibid. at pages 5 and 7.
9. 9Ibid. at page 7.
10. 10Applicant’s Submissions, tab 17.
11. 11Ibid. at page 4.
12. 12Written Submissions of the Respondent, tab 13.
13. 13Written Submissions of the Respondent, tab 12.
14. 14Applicant’s Submissions, tab 23.
15. 15Ibid. at pages 9 and 11.
16. 16Ibid. at page 8.
17. 17See Dr. Di Santo’s December 12, 2016 report in which she recommended psychological treatment as the “most beneficial route” to help V.T. regain his previous levels of functioning, the March 17, 2017 Neurological Assessment Report by Dr. Sherali Esmail in which she opines that V.T.’s memory issues are likely related to his psychological issues and Mr. Gord Hirano’s Occupational Therapy In-Home Assessment, where V.T. scored a moderate severe depression on a patient health questionnaire.
18. 18Psychological Assessment Report by Dr. Howard Waiser dated June 2, 2017, Written Submissions of the Respondent, tab 14, page 3.
19. 19Written Submissions of the Respondent, tab 17.
20. 20Applicant’s Submissions, para. 18.
21. 21Supra note 19 at page 3.
22. 22Applicant’s Submissions, tab 18.