R.V. v. Aviva General Insurance, 2019 CanLII 94032

Citation: R.V. vs. Aviva General Insurance, 2019 ONLAT 18-005606/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:

R.V.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Anna Korolkova, Paralegal

For the Respondent:

Suhasha Hewagama, Counsel

HEARD IN WRITING:

March 11, 2019

OVERVIEW

1The applicant, R.V., was injured in an automobile accident on June 19, 2016 (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 R.V.’s claim for four treatment plans for psychological treatment, physiotherapy treatment, chiropractic services and massage therapy and also denied R.V.’s claim for a psychological and a chronic pain assessment. As a result, R.V. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on November 13, 2018, and the matter proceeded to a written hearing on March 11, 2019.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Is R.V. entitled to payment for the cost of an examination in the amount of $2,000.00 for a psychological assessment recommended by Downsview Healthcare Inc. in a treatment plan submitted on September 30, 2016, and denied by Aviva on November 11, 2016?

(ii) Is R.V. entitled to a medical benefit in the amount of $2,887.14 for psychological treatment recommended by Downsview Healthcare Inc. in a treatment plan submitted on January 27, 2017, and denied by Aviva on February 10, 2017?

(iii) Is R.V. entitled to a medical benefit in the amount of $1,239.65 for physiotherapy, chiropractic and massage therapy services recommended by Downsview Healthcare Inc. in a treatment plan submitted on February 13, 2017, and denied by Aviva on March 1, 2017?

(iv) Is R.V. entitled to payment for the cost of an examination in the amount of $2,000.00 for a chronic pain assessment recommended by Downsview Healthcare Inc. in a treatment plan submitted on February 21, 2017, and denied by Aviva on March 7, 2017?

(v) Is R.V. entitled to interest on any overdue payment of benefits?

RESULT

5I find that:

(i) R.V. is entitled to the treatment and assessment plan for the psychological assessment and the chronic pain assessment and any interest payable in accordance with s. 51 of the Schedule;

(ii) R.V. is not entitled to the treatment and assessment plan for psychological treatment as I give no weight to the December 17, 2016 psychological report because it is unclear to me whose opinion is expressed in it and who is making the psychological diagnoses of R.V., the report contains contradictory statements regarding the severity of R.V.’s symptoms and R.V. fails to seek funding for all of the recommended treatment contained in the report; and

(iii) R.V. is partially entitled to the treatment and assessment plan submitted on February 13, 2017 for the follow-up assessment ($200.00), the functional exercise program (HR) ($451.28) and massage therapy ($174.60) plus any interest payable in accordance with s. 51 of the Schedule. R.V. is not entitled to the remainder of this treatment plan.

PROCEDURAL ISSUES

Exclusion of Evidence

6As part of its responding submissions, Aviva requests that the January 24, 2019 Chiropractic Medical Legal Report by Dr. Oleksandr Pivtoran, chiropractor, be excluded as evidence for this hearing. In her November 13, 2018 Order, Adjudicator Harper determined that the evidence of the hearing would be limited to documents previously exchanged between the parties on or by January 14, 2019. Aviva submits Dr. Pivtoran’s report was received on January 29, 2019 as part of R.V.’s submissions, and, therefore R.V. should not able to rely upon it for the purposes of this hearing.

7R.V. made no reply submissions and no other submissions regarding Aviva’s request.

8Aviva’s request to exclude Dr. Pivtoran’s report as evidence in this hearing is denied. Aviva has not provided any evidence or submissions on how it was prejudiced by the delivery of Dr. Pivtoran’s report on January 29, 2019. In the event that I am incorrect and R.V.’s service of Dr. Pivtoran’s report somehow did prejudice Aviva, the appropriate remedy would be for an extension of time for Aviva to file its materials, not the exclusion of the report. Aviva made no request for additional time to serve and file its materials and made no submissions that the service of Dr. Pivtoran’s report in some way prevented it from fully participating in this hearing.

Missing Evidence

9Following the case conference held on November 13, 2018, the parties were required to serve and submit their written submissions and evidence on each other, and file same with the Tribunal, according to the schedule outlined in the Tribunal’s November 13, 2018 Order for the written hearing.

10After reviewing the parties’ written submissions and evidence, the following documents were not filed with the Tribunal, despite being referred to by R.V. in her submissions:

(i) treatment and assessment plan (OCF-18) in the amount of $2,887.14 for psychological treatment submitted on January 27, 2017;

(ii) OCF-18 in the amount of $1,239.65 for physiotherapy, chiropractic and massage therapy services submitted on February 13, 2017; and

(iii) OCF-18 in the amount of $2,000.00 for the cost of a psychological assessment submitted on September 30, 2016.

11As a result, I issued an Order on June 18, 2019 requesting submissions from both parties on whether or not I should allow R.V. to file the above-listed documents as evidence for this written hearing given the Tribunal’s Reconsideration Decision of J.R. v. Certas Home and Insurance Company.¹ In that decision, Executive Chair Lamoureux highlighted the obligation of the Tribunal to ask parties to submit information that it believes a party meant to rely upon as evidence in a hearing.

12For the reasons that follow, the OCF-18s as set out above will be accepted into evidence for this hearing despite it not being filed with the Tribunal in accordance with the timelines set out in the November 13, 2018 Order.

13In response to my June 18, 2019 Order, R.V. made no submissions and only filed copies of the missing evidence.

14Aviva argues that the inquiry should not be whether or not the missing documents should be admitted as evidence, but rather whether or not the Tribunal has the authority to assist a party in meeting its evidentiary burden. Aviva submits that the Tribunal lacks authority to “demand that a party rely on evidence which the party omitted from their submissions.”² Aviva also argues that my request for the missing documents is a failure to act impartially and independently and is contrary to the mission and vision statements of the Safety, Licensing Appeals and Standards Tribunals Ontario (now the Safety, Licensing Appeals and Standards Division of Tribunals Ontario). Aviva requests that I only rely upon the evidence included in the parties’ initial submissions in order for the Tribunal to maintain its impartiality and independence.

15I disagree with Aviva that in requesting missing documents that the Tribunal is demanding that a party rely on evidence which the party omitted from their submissions. I agree with Executive Chair Lamoureux’s statement in J.R. v. Certas as follows:

Just as an insurer reviews a complete OCF-18 in order to properly decide whether to fund the insured’s request, the Tribunal generally requires the same document in order to properly understand both the insured’s request and the insurer’s response. Put simply, the Tribunal cannot fairly adjudicate an application in most cases without a complete copy of the very document giving rise to the parties’ dispute.³

16As such, the request for the missing OCF-18s was not a demand that R.V. rely upon these documents; rather, it was a request for documents to allow me to properly understand the insured’s request and the insurer’s response. I also disagree with Aviva that R.V. only intended to rely upon one treatment plan in dispute because she only referred to one OCF-18 by tab number in her submissions but ultimately failed to include this OCF-18 in her document brief. As R.V. referenced all of the OCF-18s in dispute in her submissions, it is clear that she had an intention to rely upon them. Moreover, I do not agree that requesting the missing OCF-18s impacts my obligation to adjudicate this matter impartially and independently. In fact, the admission of the missing OCF-18s into evidence allows me to adjudicate this matter with all of the relevant documentation before me.

17Aviva also submits that the broad application of rule 9.1 of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission’s Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”) adopted in J.R. v. Certas is contrary to s. 5.4(1) of the Statutory Powers Procedure Act (“SPPA”) to which the Rules are subordinate. Aviva argues that s. 5.4(1) of the SPPA only permits tribunals to make rules for the exchange of documents and any other form of disclosure. Aviva submits this section does not confer the power upon the Tribunal to compel parties to rely upon certain documents for the purposes of a hearing because of legislature’s specific reference in this section to the exchange of documents and disclosure. As a result, Aviva requests that I adopt a plain reading of Rule 9.1 as it argues that there is no evidence that the missing documents were not disclosed; rather, the only evidence before the Tribunal is that R.V. failed to rely upon them. As a result, Aviva also argues that the missing documents should be excluded as evidence pursuant to Rule 9.4 of the Rules because R.V. failed to serve and file them in accordance with the timelines set out in the Tribunal’s November 13, 2018 Order.

18I disagree with Aviva’s interpretation of s. 5.4(1) of the SPPA. This section refers to a rule making power, not the Tribunal’s general power to control its own proceedings. The Tribunal has authority to determine its own proceedings and the power to establish rules for this purpose pursuant to s. 25.0.1 of the SPPA. I also disagree with Aviva’s request to adopt a plain reading of Rule 9.1 because Rule 3.1 mandates me to interpret the Rules liberally to facilitate a fair, open and accessible process, and to allow effective participation by all parties. Adopting a restrictive interpretation of Rule 9.1, and rejecting the broad interpretation applied to this rule in J.R. v. Certas, is also contrary to s. 2 of the SPPA which states that rules shall be liberally construed to secure the just, most expeditious and cost-effective determination of every proceeding on its merits.

19I am also not persuaded by Aviva’s reliance upon Rule 9.4 to exclude the missing documents, as Aviva failed to acknowledge that Rule 9.4 also allows a party to rely upon documents as evidence despite a failure to comply with the Rules or Tribunal Orders with the consent of the Tribunal. I am providing my consent to allow the submission of the missing OCF-18s into the hearing as evidence in this matter because these documents are necessary for my full and satisfactory understanding of the issues in dispute, there is no dispute between the parties that these documents exist and also because the OCF-18s are the very documents giving rise to the dispute between the parties in this matter.

20In the event that I did allow the missing OCF-18s into evidence, Aviva requested that it be permitted to provide additional submissions on the contents of the missing OCF-18s.

21Without further details, it is unclear to me what additional submissions would be required from Aviva on the disputed OCF-18s. Aviva made fulsome submissions on the treatment plans and on the treatment sought by R.V. via the OCF-18s. Furthermore, allowing additional submissions at this juncture of the hearing would prolong my decision and be contrary to my mandate to ensure a timely resolution of this matter, which is also required pursuant to Rule 3.1(b). For these reasons, I am denying Aviva’s request to make further submissions.

ANALYSIS

22Sections 14 and 15 of the Schedule provide that the insurer shall pay 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.

23R.V. bears the onus of proving her entitlement to the claimed treatment and assessments by proving they are reasonable and necessary on a balance of probabilities.⁴

a) Psychological Assessment

24On a balance of probabilities, I find that the treatment plan for a psychological assessment is reasonable and necessary.

25The September 30, 2016 OCF-18 was completed by Dr. Andrew Shaul, psychologist, with Dr. Oleskandr Pivtoran, chiropractor, listed as the regulated health professional. It sought funding for a psychological assessment and the goals of the treatment plan are to evaluate R.V.’s psychological and emotional repercussions following the accident and to return to activities of normal living. The injuries and sequelae information listed on the OCF-18 include: behaviour – state of emotional shock and stress, unspecified; behaviour – symptoms and signs involving emotional state; behaviour – unspecified behavioural syndromes; and behaviour – limitation of activities due to disability.

26R.V. argues that this treatment plan, along with the treatment plan for psychological treatment, is reasonable and necessary because the medical evidence sufficiently establishes that R.V. suffers from chronic pain as well as from an Adjustment Disorder (unspecified) and a specific phobia (travelling in a vehicle), and that she would benefit from further psychological therapy to improve and/or manager her psychological distress.

27A psychological pre-screen interview report was included as part of the OCF-18 following a pre-screen with R.V on August 30, 2016. The pre-screen report is signed by both Dr. Shaul, as the supervising psychologist, and by Ms. Helen Illios, a registered psychotherapist. The pre-screen report states, “based on our interview, we have determined that [R.V.] requires a comprehensive psychological assessment and examination in order to help her overcome the many difficulties that she currently faces.”

28The difficulty that I have in placing weight on the pre-screen report is that it is unclear who is making the recommendation for a psychological assessment. The report states that the recommendation was made to gain a better understanding of R.V.’s reported feelings of pain, nervousness when travelling in a vehicle and difficulty in engaging in many of her pre-accident activities of daily living, “based on the information provided during this interview with [R.V.].” While the report notes that it is ultimately Dr. Shaul who determines if an OCF-18 is submitted, it appears as though Ms. Illios conducted the interview which was the basis for the recommendation of the assessment. I acknowledge a further explanation in the report that Ms. Illios prepared the report under the direct supervision of Dr. Shaul, and that she was assisted in completing portions of the pre-screen process, but the report also refers to “we” in determining that a psychological assessment of R.V. was warranted.

29Aviva denied this treatment plan by way of correspondence dated November 11, 2016 in which Aviva advised that it did not have sufficient documentation on file to support the need for a mental health assessment. At this time, Aviva provided notice to R.V. of her required attendance at an insurer’s examination (IE) to determine if the OCF-18 was reasonable and necessary.

30On January 25, 2017, R. V. attended an IE Psychologist Assessment with Dr. Amena Syed who authored a report dated February 8, 2017.⁵ Dr. Syed stated that the purpose of his report was to respond to, among other issues in dispute, the September 30, 2016 treatment plan. Following an interview with R.V. and the administration of several self-reporting questionnaires, Dr. Syed opined that R.V., “is not suffering from any psychological impairment that would warrant a diagnosis as per the DSM-V as a result of the subject accident.”⁶ As such, Dr. Syed was of the opinion that no further treatment or investigations were warranted and, that from a psychological perspective, R.V. had reached maximum medical recovery.⁷

31I place little weight on Dr. Syed’s report because he appears to acknowledge that R.V. has a psychological impairment as he noted that, “results of this evaluation indicate that [R.V.]…suffers from some symptoms of anxiety with features of depressed mood along with pain being a concern for her,” but then opines that the nature and severity of R.V.’s distress is considered to be subclinical without further explanation.⁸ Additionally, Dr. Syed’s report notes that R.V., “does not appear to be significantly impaired psychologically, as there are only subtle indications that she may have a current and active depressive and anxiety experience,”⁹ and that, “[R.V.] denied experiencing any problems with feeling overly anxious since the accident.”¹⁰ However, while Dr. Syed opines that R.V. is not significantly impaired psychologically and not overly anxious, he fails to comment on whether or not R.V. is impaired psychologically or anxious. Finally, the reason for Dr. Syed’s conclusion that the treatment and assessment plan in dispute is not reasonable and necessary is only that R.V. sustained minor injuries – he does not speak to any substantive reasons for his opinion or provide a connection to how minor physical injuries results in not needing a psychological assessment.

32When I examine the totality of the evidence before me, I find on a balance of probabilities that the treatment plan in dispute was reasonable and necessary at the time it was submitted to Aviva for consideration. R.V. submitted as evidence a disability certificate (OCF-3) dated November 26, 2016, in which Dr. Pivtoran listed as an injury “behaviour – symptoms and signs involving emotional state” and recommended a psychologist consultation likely because any diagnosis was outside of his area of expertise. Additionally, R.V. was making ongoing driving anxiety complaints to several health professionals in or about the time that the OCF-18 was submitted. For example, in an IE physician assessment on December 8, 2016, R.V. reported ongoing driver and passenger anxiety¹¹ and R.V.’s own psychological assessment report dated December 17, 2016 noted that while she has driven in a vehicle since the accident, she has become very nervous as a driver and as a passenger.¹² Furthermore, while I agree there was a substantial gap in time of information submitted by R.V., it is clear that she continued to make ongoing complaints regarding driver and passenger anxiety in 2018 and into 2019.

b) Psychological treatment

33I find that R.V. has failed to prove on a balance of probabilities that the treatment plan for psychological treatment was reasonable and necessary.

34This OCF-18 is dated January 27, 2017 and was completed by Dr. Shaul with Dr. Pivtoran listed as the regulated health professional. It sought funding for 12 one-and-a-half-hour psychotherapy sessions, a psychotherapy progress report and psychoeducational material. The goals of this treatment plan are to, “provide psychological counselling to help the claimant manage their emotion response to the difficulties they are experiencing,” and a return to activities of normal living. The OCF-18 states that it will use psychological assessment methods to monitor ongoing change and recovery. The injury and sequelae information section lists the following: behaviour – adjustment disorder (unspecified); and behaviour – specific phobia.

35Aviva denied this treatment plan on February 10, 2017 as it determined it was not reasonable and necessary. Aviva again relied upon Dr. Syed’s February 8, 2017 Psychological IE report in which Dr. Syed opined that R.V. had no psychological impairment that would warrant any DSM-V diagnosis as a result of the accident.

36Despite Aviva’s denial of the treatment plan for a psychological assessment, R.V. underwent the assessment on November 28, 2016 which resulted in a Psychological Report dated December 17, 2016.¹³ The December 17, 2016 report was signed by both Ms. Illios and by Dr. Shaul and was completed by Ms. Illios under the supervision of Dr. Shaul. The purpose of the report was to determine the nature and extent to which R.V. was suffering from psychological and emotional difficulties as a result of the accident. The report stated that, “the assessment included a clinical interview and the administration of 3 psychological self-report questionnaires,” and confirmed that R.V.’s interview was conducted by Ms. Illios. The report concludes, “it is my opinion that [R.V.’s] presentation is consistent with the following DSM-5 diagnostic criteria: 1) adjustment disorder (unspecified) 2) specific phobia (travelling in a vehicle)”¹⁴ and recommends 12 counselling sessions, a psychotherapy progress report and psycho-educational material.¹⁵

37I disagree with R.V. that the medical evidence sufficiently establishes that she suffers from an Adjustment Disorder (unspecified) and a specific phobia (travelling in a vehicle) as I am unable to assign any weight to the December 17, 2016 report for the following reasons:

(i) it is unclear to me whose opinion is reflected in the report and who is diagnosing R.V. For example, the diagnoses above are based on R.V.’s “overall presentation, based on clinical interview and self-report questionnaires.” If Dr. Shaul did not conduct the clinical interview, or even meet R.V. to observe her, I am unclear how he is making his diagnosis;

(ii) the report contains several contradictory statements regarding the severity of R.V.’s symptoms. For example, the report states that R.V. scored in the minimal range for both the Beck Anxiety Inventory and the Beck Depression Inventory questionnaires which indicated that she is experiencing low levels of emotional distress but later the report describes R.V. as suffering from “elevated levels of anxiety and sadness”¹⁶ and states that she is “experiencing significant psychological symptoms as a result of her index accident.”¹⁷ There is an attempt to explain the discrepancies, as “although her scores…revealed low levels of symptoms of depression and anxiety, her report during the clinical interview provided different information. During the clinical interview, she indicated that she continues to be distressed because of the various issues resulting from the accident including her fear and anxiety when travelling in a vehicle, physical and emotional limitations, and changes in her mood, level of social activity, and memory and concentration.”¹⁸ It appears as though a significant amount of weight is placed upon the clinical interview in an effort to establish that R.V.’s psychological symptoms are more than minimal but it was not conducted by Dr. Shaul;

(iii) There is no explanation as to what the psycho-educational material is comprised of and no reasons stated for its recommendation; and

(iv) The report also recommended a driver-passenger rehabilitation evaluation¹⁹ but no funding was sought for this treatment separate from the psychological treatment on the OCF-18. It is unclear to me why R.V. would seek funding for some of the treatment recommendations but not others.

38I am also not persuaded that the clinical notes and records (“CNRs”) of R.V.’s family doctors submitted as evidence, prove that the treatment plan is reasonable and necessary on a balance of probabilities. R.V. has attended two family doctors since the accident. R.V. only first reported any driving anxiety to her family doctor, Dr. Mekhael, on June 9, 2018, which was well over 18 months since the accident. R.V. also complained of driving anxiety on November 21, 2018 to her second family doctor, Dr. Lipszyc. Both doctors made a referral to the North York General Mental Health Services, but I agree with Aviva that no CNRs or reports have been submitted from this location and there is no evidence that R.V. ever attended for mental health treatment there. The CNRs were not in existence at the time that the treatment plan was submitted for consideration by Aviva and there were no referrals for psychological treatment made by either Dr. Mekhael or Dr. Lipszyc at any time prior to 2018. Therefore, these CNRs do not support the reasonableness or necessity of the proposed treatment plan.

39R.V. failed to submit any other medical documentation as evidence that was in existence at the time that the treatment plan was submitted to Aviva to support her position that it was reasonable and necessary.

c) Physiotherapy, chiropractic and massage therapy services

40I find that R.V. has proven on a balance of probabilities that the follow-up assessment ($200.00), the functional exercise program (HR) ($451.28) and massage therapy ($174.60) are reasonable and necessary. R.V. is not entitled to the remainder of the treatment plan.

41This February 13, 2017 OCF-18 was completed by Dr. Pivtoran and sought funding for a follow-up assessment, 6 thirty-minute sessions of physiotherapy, 8 sessions of a functional exercise program, 6 thirty-minute sessions of massage therapy and 4 twelve-minute sessions of mobilization (RMT) HR. The goals of this treatment plan were pain reduction, increased strength and range of motion, a return to activities of normal living and to pre-accident work-activities. The injury and sequelae information sections included: chronic cervical joint dysfunction with myofascial symptoms; lumbar spine – chronic lumbar joint dysfunction; head – chronic post-traumatic headache; shoulder – other shoulder lesion (Bilateral); Thorax – costovertebral joint dysfunction; and behaviour – symptoms and signs involving emotional state. The OCF-18 states that R.V. demonstrated increased pain-free range of motion, decreased pain and increased functional abilities with respect to activities of daily living since the previous treatment plan. There were also residual impairments noted that required further attention with no further details provided and that R.V.’s overall improvement was estimated at 50 to 60 percent.

42R.V. argues that this treatment plan, along with the treatment plan for a chronic pain assessment, is reasonable and necessary because the medical evidence sufficiently establishes that R.V. suffers from chronic pain and that she would benefit from further physical therapy to improve and/or manage her pain. R.V. did not direct me to any specific medical documents to support her position on this treatment plan.

43Aviva denied this treatment plan by way of correspondence dated March 1, 2017 which advised that it did not agree to fund the proposed goods and services based on the section 44 IE conducted on December 8, 2016 by Dr. Todd Levy, physician. Dr. Levy found that R.V. sustained soft tissue injuries and found no significant findings on his examination to suggest any serious ongoing organic pathology. Aviva also took the position at this time that R.V. reached maximum medical recovery from a physical point of view and, therefore, Aviva was of the position that the proposed treatment plan was not reasonable or necessary.

44R.V. submitted as evidence Dr. Mekhael’s CNRs and in the July 18, 2016 entry there is a reference for massage as part of R.V.’s plan for care and another entry dated April 11, 2017 that notes that she is receiving massage for her lower back pain.

45R.V. reported to Dr. Syed during her IE psychological assessment on January 25, 2017 that she was receiving massage therapy, heat and exercises and that she was finding it helpful and expressed a desire to continue to receive it.²⁰ These self-reports were consistent with R.V.’s self-reports to Dr. Levy in her IE physician assessment on December 8, 2016 that massage provides her with temporary pain relief from her intermittent bilateral upper trapezius muscle pain and lower back pain that radiates into her buttocks, thighs and knees.²¹

46I find on a balance of probabilities that R.V. has established that this treatment plan is reasonable and necessary in part. Specifically, R.V.’s self-reporting to her family doctor and to the IE assessors in or about the time that this treatment plan was submitted supports my finding that the portions sought for massage therapy and the functional exercise program are reasonable and necessary to meet one of the stated goals of the OCF-18 of pain reduction. Funding for a follow-up assessment is also reasonable and will assist in determining if the stated goals of the treatment plan are being met. However, I find that R.V. has failed to prove on a balance of probabilities that the amounts sought for physiotherapy and mobilization (RMT) HR are reasonable and necessary as there is no evidence to support that a referral was made for these services and also because there is no evidence that any such therapies would assist in meeting the stated goals of the plan.

d) Chronic Pain Assessment

47This February 13, 2017 OCF-18 was completed by Dr. Pivtoran and it sought funding for a chronic pain assessment. The goals of this treatment plan were to evaluate the extent of the “patient’s chronic injuries and psychological complaints and to provide a prognosis and recommendations for recovery” and a return to activities of normal living. The OCF-18 also noted that recommendations for future care could be made and an appropriate treatment regime could be determined. The injury and sequelae information section included: other sprain and strain of cervical nature; dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis; chronic post-traumatic headache; other shoulder lesions; other and unspecified injury of muscle and tendon at thorax level; symptoms and signs involving emotional state. The additional comments to the OCF-18 state that clinical guidelines report that the injuries sustained by the patient should have resolved as it is 7 months post-accident, but it is clear that maximum medical improvement has not been achieved.

48Aviva denied this treatment plan on March 7, 2017 and relied upon the psychological IE conducted on February 8, 2017 by Dr. Amena Syed, psychologist, that opined that R.V. does not suffer from a psychological impairment that would warrant a diagnosis as per the DSM-V as a result of the accident. Aviva also advised that there was no evidence of any pre-existing psychological conditions that would interfere with R.V.’s activities of daily living and that it did not consider the OCF-18 to be reasonable and necessary.

49A chronic pain assessment would, in my view, be for the purposes of diagnosing chronic pain syndrome and, in determining the reasonableness and necessity of a treatment plan for same, I must consider whether or not it is reasonably possible that R.V. may have chronic pain syndrome.²² The Tribunal has accepted that chronic pain is a condition that persists for three to six months after an initial trigger or injury.²³

50The OCF-18 in dispute was submitted approximately 8 months after the accident. It is clear that R.V. was still reporting pain at this time. For example, Dr. Syed acknowledged in his February 8, 2017 report that R.V. complained of lower and upper back pain with a reported pain rating of 7 out of 10 and noted that her physical symptoms have remained the same since the accident. R.V. also reported to Dr. Syed functional limitations regarding household chores, lifting her infant daughter, cooking, laundry and grocery shopping. R.V. also made similar complaints to Dr. Levy of intermittent bilateral upper trapezius muscle pain that occurred once or twice per month at a pain intensity of 7 out of 10. R.V. also reported pain with bending forwards, walking for more than 10 minutes or performing cleaning duties at home to Dr. Levy and also intermittent low back pain that radiated down her buttocks, both thighs and knees. Additionally, while Dr. Levy opined that R.V. had reached maximum medical recovery from a physical point of view, he acknowledged that deeper palpation during his examination caused reported tenderness in the midline lower lumbar region.²⁴ R.V. also continued to report pain to her family doctor on April 11, 2017.

51Aviva submitted that the chronic pain assessment was not reasonable or necessary because R.V. returned to her activities of daily living, having returned to work in May 2018, and that she was independent with her personal hygiene. While Aviva acknowledges R.V.’s reports of limitations with childcare activities and that she required assistance to carry-out her pre-accident household activities, Aviva failed to make any further submissions on these functional limitations and their impact on a possible chronic pain syndrome diagnosis.

52Furthermore, I also disagree with Aviva that this situation is akin to previous decisions it relied upon where the Tribunal found treatment plans for chronic pain assessments were not be reasonable and necessary. For example, in 17-006162 v Aviva Insurance Canada,²⁵ the Tribunal determined that a chronic pain assessment was not reasonable or necessary as it was not presented with medical evidence to support the applicant’s assertion that her pain developed into chronic pain or chronic pain syndrome.²⁶ The Tribunal preferred the medical evidence of the respondent, as none of the IE assessors concluded that she may be suffering from chronic pain or chronic pain syndrome. Additionally, the Tribunal held in 17-007052 v Unica Insurance Inc.,²⁷ that the applicant did not meet her onus of proving that a proposed chronic pain assessment is reasonable and necessary for several reasons, including that the submissions provided no analysis on the benefits of further assessment and that a series of extracts from reports and records is insufficient to establish the need for the proposed treatment. In this decision, the Tribunal was persuaded by an IE report and alternate treatment recommendations provided.

53This matter is distinguishable from the decisions relied upon by Aviva because the OCF-18 for a chronic pain assessment was not put to any IE assessors for their opinions and no specific questions were put to the IE assessors of whether or not R.V. suffered from chronic pain or chronic pain syndrome.

54As R.V.’s pain complaints persisted after the time period of three to six months after the accident and she had accompanying reports of functional limitations, I find that it is reasonably possible that R.V. suffers from chronic pain or chronic pain syndrome. Therefore, the treatment plan for a chronic pain assessment is both reasonable and necessary as, in my opinion, it would meet the goals stated therein and be of assistance to R.V. in recommendations for future care and development of an appropriate treatment regime.

Interest

55R.V. is entitled to interest for the cost of the OCF-18 for the psychological assessment and the chronic pain assessment, for the partial amounts of the OCF-18 submitted on February 13, 2017 for a follow-up assessment, a functional exercise program and massage therapy. Interest is payable in accordance with s. 51 of the Schedule.

CONCLUSION

56For the reasons outlined above, I find:

(i) R.V. is entitled to the treatment and assessment plan for the psychological assessment and the chronic pain assessment and any interest payable in accordance with s. 51 of the Schedule as R.V. has proven that both OCF-18s are reasonable and necessary on a balance of probabilities;

(ii) R.V. is partially entitled to the treatment and assessment plan submitted on February 13, 2017 for the follow-up assessment ($200.00), the functional exercise program (HR) ($451.28) and massage therapy ($174.60) plus any interest payable in accordance with s. 51 of the Schedule as she has proven on a balance of probabilities that these portions of the OCF-18 are reasonable and necessary. R.V. is not entitled to the remainder of this treatment plan; and

(iii) R.V. is not entitled to the treatment and assessment plan for psychological treatment as she has failed to prove on a balance of probabilities that this OCF-18 is reasonable and necessary.

Footnotes

1. 12018 CanLII 13161 (ON LAT) (“J.R. v. Certas”).
2. 2Written Submissions of the Respondent dated July 4, 2019 at para. 3.
3. 3Supra note 1 at para. 21.
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, paras. 20-24.
5. 5Written Submissions of the Respondent dated February 11, 2019, tab 4.
6. 6Ibid. at page 18.
7. 7Ibid. at pages 18 and 23.
8. 8Ibid. at page 18.
9. 9Ibid.
10. 10Ibid. at page 14.
11. 11Insurer’s Examination Medical Physician Assessment by Dr. Todd Levy, physician, dated February 8, 2017, Written Submissions of the Respondent, tab 9, page 4.
12. 12Psychological Report dated December 17, 2016, Written Submissions of the Applicant, tab 11, page 9.
13. 13Ibid.
14. 14Ibid. at page 11.
15. 15Ibid. at page 12.
16. 16Ibid. at page 11.
17. 17Ibid. at page 13.
18. 18Ibid. at page 11.
19. 19Ibid. at page 12.
20. 20Supra note 5 at page 16.
21. 21Supra note 11 at page 3.
22. 22See 16-001934 v Aviva Insurance Canada, 2017 CanLII 19197 (ON LAT) (“16-001934”).
23. 23See the reconsideration decision of 17-000835 v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) at para. 19.
24. 24Supra note 11 at page 6.
25. 252018 CanLII 112102 (ON LAT).
26. 26Ibid. at paras. 10 and 13.
27. 272018 CanLII 83523 (ON LAT).