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:
F. F.
Appellant
and
Aviva Insurance Canada
Respondent
DECISION
PANEL:
Derek Grant, Adjudicator
APPEARANCES:
For the Applicant:
Dianna Morello
For the Respondent:
Thomas Hughes
HEARD:
In Writing on: February 25, 2019
OVERVIEW
1The applicant ("F.F.") was "involved" in an automobile accident on November 19, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'')1. F.F. was denied certain benefits by the respondent ("Aviva") and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service ("Tribunal").
2Prior to the subject accident, F.F. had impairments from a workplace accident that had still not resolved. In fact, by the time of the accident, F.F had little use of his right wrist, was suffering from chronic pain, depression and insomnia, and was receiving WSIB & CPP benefits. He submits that the subject motor vehicle accident worsened his workplace impairments and caused new injuries.
3Regarding the accident F.F. applied to Aviva for and received benefits under the Statutory Accident Benefits Schedule–Effective after September 1, 2010 (the "Schedule"). When it denied further benefits, he appealed to this Tribunal.
ISSUES
4The issues to be determined are:
a. Is the treatment plan in the amount of $6,066.80 for medical marijuana, recommended by Medical Marijuana Group, and submitted on October 20, 2016, and denied on December 15, 2016, reasonable and necessary?
b. Is the treatment plan in the amount of $517.75 for payment of an invoice for a doctor assessment and completion of documentation by Medical Marijuana Group, and submitted on May 30, 2016, and denied on December 15, 2016, reasonable and necessary?
c. Is F.F. entitled to interest on any overdue payment of benefits?
d. Is F.F. entitled to an award under Ontario Regulation 6642 because Aviva unreasonably withheld or delayed the payment of benefits?
RESULT
5Based on the evidence, I find that:
a. The treatment plan for medicinal marijuana is reasonable and necessary;
b. The treatment plan for invoice payment and documentation completion is reasonable and necessary;
c. As a result of finding the treatment plans reasonable and necessary, interest is payable on any overdue payment of benefits; and
d. F.F. is not entitled to an award under Regulation 664.
LAW
6Sections 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 the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.3 F.F. has met his burden.
ANALYSIS
The treatment plans are reasonable and necessary
7F.F. has satisfied his onus and persuaded me that the proposed treatment plans are reasonable and necessary to address his impairments resulting from the accident. Based on the lack of improvement F.F. experienced using other treatment modalities and improvement he experienced using medical marijuana, I find the treatment in dispute to be reasonable and necessary. I find that insomnia and anxiety relief and/or reduction of same are reasonable and legitimate goals of treatment which enable F.F. to engage in his daily activities without experiencing ongoing impairment.
8In denying F.F.'s claims, Aviva relies on an insurer examination conducted by Dr. Ludomir Luczak, Psychiatrist. In a report dated March 2, 2017 Dr. Luczak states that F.F. "...presents with the symptoms of a Major Depressive Episode with anxious distress. This is related to the accident in question. There was also a longstanding history of sleep problems being aggravated by the more recent onset of his depression". Dr. Luczak opined that "cannabis is not recommended for the treatment of depression or anxiety".
9F.F. submits that he is entitled to medicinal marijuana treatment as he is suffering from an anxiety disorder and insomnia as a result of the accident. The goals of the treatment are to help F.F. sleep, and in turn, help relieve his anxiety. F.F.'s Family Physician, Dr. Sasson and his medical professionals have recommended medicinal marijuana to assist F.F. in his recovery. In a January 13, 2018 notation, Dr. Sasson states that F.F. has participated in psychotherapy, chronic pain treatment and trials of various prescription medications. Dr. Sasson noted that F.F.'s various treatment regimens did not resolve his impairments. I am persuaded by the opinions of the medical professionals and find F.F.'s impairment complaints credible with the medical evidence presented.
10To meet his burden of proof, F.F. relies on a number of reports and recommendations from an array of physicians including medical specialists. His case for ongoing pain issues is based on:
i. Disability Certificate ("OCF-3") dated September 16, 2016;
ii. Medical Report of Dr. Rod dated September 20, 2016;
iii. Medical letter from Natalia Pilch dated October 22, 2018; and
iv. CNRs of Family Physician Dr. Sasson
11Aviva highlighted Dr. Luczak's findings that "evidence-based treatment includes anti-depressants and psychotherapy". In his addendum report, dated August 2, 2018, Dr. Luczak reiterates his opinion on the use of medicinal marijuana, stating, "there is limited research to support the use of marijuana ....for anxiety as a symptom. Medical marijuana is not indicated for F.F.'s accident-related psychiatric diagnosis".
12I find the treatment goals set out in the OCF-18 to be reasonable. I do not find Dr. Luczak's report to be persuasive. He does not consider the previous treatment modalities and/or prescription medications that three of F.F.'s treating physicians have commented have not proven effective. Secondly, Dr. Luczak recommends psychotherapy treatment, which again, was acknowledged by F.F.'s treating physicians, and by F.F. to be of little benefit.
13I reject the conclusion that the treatment plan is not reasonable and necessary because F.F. has tried several modes of treatment to deal with his accident-related psychological impairments and pain. Dr. Luczak's report fails to address the medical evidence amassed in the CNRs and reports by F.F.'s various medical assessors. These other medical reports and CNRs clearly support the position that F.F. still requires treatment.
14F.F. submits that the IE reports by Dr. Luczak should carry little weight in determining whether the treatment plan is reasonable and necessary. F.F. contends that Dr. Luczak did not consider F.F.'s desire not to continue with prescription medication or that the previous treatment was tried for an extensive period of time without success. Further, Dr. Luczak notes that medical marijuana was not the first line of treatment for depression, however, he does not address the fact that anti-depressants and psychotherapy have not been successful in resolving F.F.'s impairments after various attempts. F.F. contends that "reasonable alternatives should be considered when the first and second choice do not work". I agree with F.F.'s submissions.
15Moreover, in a letter dated October 22, 2018, Natalia Pilch, Registered Nurse, notes that F.F. reports improvement with sleep quality after using medical marijuana. Ms. Pilch further noted that F.F. received relief from pain, anxiety and depression, and increased energy level.
16In a letter dated October 31, 2018, Dr. Sasson notes the use of medical marijuana has been "far superior to prescription medication for pain, anxiety, anti-depressants and medications for insomnia". Dr. Sasson opined that medical marijuana has been both reasonable and necessary for the treatment of F.F.'s impairments.
17Dr. Sasson's clinical notes indicate that F.F. was seen by Dr. Sasson and other treating physicians frequently between August 2016 and December 2018, and consistently reported little relief from anti-depressant medication and psychotherapy. Alternatively, the reports from the use of medical marijuana show marked improvement in F.F.'s psychological and physical well-being.
18Further, I find that the invoice for the assessment and documentation completion is reasonable and necessary, as a part of the treatment plan for medicinal marijuana. The assessment is necessary to determine what would be an appropriate marijuana product for F.F. to rely on for treatment. In addition, I do not find the fee to be unreasonable with the inclusion of documentation completion.
19As a result of the foregoing findings, I conclude that the treatment plans are reasonable and necessary.
AWARD
20Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. F.F.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Aviva) has "unreasonably" withheld or delayed payments.
21Although I have found the treatment plans to be reasonable and necessary, I do not find that Aviva unreasonably withheld or delayed payments. Aviva relied on the reports of its assessor as the basis for denying the treatment plans. They agreed with their assessor and doing so does not meet the threshold for an award.
22F.F. submits that because the treatment is not experimental and has been shown to provide relief, Aviva should have paid for the treatment. I disagree. A differing of opinions regarding treatment does not establish the grounds for an award claim. The threshold for an award is high for good reason; to ensure that an insured is not unjustly awarded because an insurer 'reasonably' denied a claim. For example, where an insurer clearly went against the recommendation(s) of its assessor that were in favour of an insured, then an award would be warranted. This is not the case in the subject proceeding, as such, I find an award is not appropriate.
CONCLUSION
23F.F. has satisfied his onus to establish the treatment plans are reasonable and necessary.
24F.F. is not entitled to an award.
ORDER
25I find that the treatment plans are reasonable and necessary and therefore payable. As such, F.F. is entitled to interest on any outstanding payment of benefits.
Released: August 8, 2019
___________________________
Derek Grant
Adjudicator
Footnotes
- O. Reg. 34/10.
- i.e. s.10, Regulation 664, R.R.O. 1990, Insurance Act
- Scarlett v. Belair, 2015 ONSC 3635