M.B. vs. Aviva General Insurance Company
Tribunal File Number: 19-000030/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:
M.B.
Applicant
And
Aviva General Insurance Company
Respondent
DECISION
PANEL:
Jesse A. Boyce, Adjudicator
APPEARANCES:
For the Applicant:
Loreto Scarola
For the Respondent:
Jessica L. Rogers
HEARD:
In Writing on: December 17, 2019
OVERVIEW
1M.B. was injured in an automobile accident on December 11, 2015. M.B. applied for medical and rehabilitation benefits that were denied by the respondent, Aviva General Insurance Company, because it determined that his injuries were predominately minor and therefore subject to the Minor Injury Guideline (“MIG”). M.B. disagreed and applied to the Tribunal for resolution of the dispute. After a case conference, the parties narrowed the remaining issues in dispute and agreed to a written hearing to determine the applicant’s entitlement to the disputed treatment plans.
ISSUES
2The following issues are to be decided:
i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,017.60 for psychological treatment recommended by All Health Medical Centre, in a treatment plan (OCF-18) denied on July 25, 2018?
ii. Is the applicant entitled to a medical and rehabilitation benefit in the remaining amount of $10,355.32 [the original amount of $12,375.06 minus the approved amount of $2,019.74] for a multi-disciplinary chronic pain program, recommended by All Health Medical, in a treatment plan (OCF-18) submitted on November 3, 2017, and denied on March 20, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
ANALYSIS
The applicant’s entitlement to $2,017.60 for psychological treatment
3I find on the evidence that M.B. is entitled to partial payment for the treatment plan for the psychological services at the proper rate, as agreed by the parties, as it is reasonable and necessary. M.B. is not entitled to the remaining items in the treatment plan as they are not reasonable and necessary.
4In order for M.B. to receive payment for a medical or rehabilitation benefit under the Schedule, the benefit in dispute must be reasonable and necessary, pursuant to ss. 14-16. This plan was originally proposed in the amount of $4,312.14. On July 25, 2018, Aviva partially approved the plan in the amount of $2,294.54, for 12 sessions at the FSCO psychologist’s rate, as well as planning, preparation and completion of required forms. This leaves the outstanding $2,017.60 for the psychological treatment at issue. In submissions, M.B. conceded that the FSCO rate of $149.61 per hour was the proper rate for calculations, thus whittling the total in dispute down even further. What actually remains in dispute from the original treatment plan is, seemingly, $400.00 for a progress report and $720.00 for transportation to treatment.
5With regards to the disputed items, M.B. argues that it is “unusual” for an insurer to refuse a progress report in order to gauge how effective treatment is for an applicant or if further treatment would be beneficial and that the report should be payable as a result. In response, Aviva submits that it does not want a progress report and that it indicated the same to M.B. It argues that there are other ways to determine the effectiveness of a treatment and expressly denies that a report is reasonable and necessary.
6M.B. further argues that refusing transportation is unreasonable because of her severe driving anxiety, her well-documented blackouts and her fear of driving on highways. She submits that insurers routinely provide transportation to applicants in similar circumstances. In response, Aviva submits that under s. 15(2)(c) of the Schedule, an insurer is only liable to pay for authorized transportation expenses. Under s. 3(1), an authorized transportation expense relates to incurred expenses after the first 50 kilometres of a trip unless the applicant is catastrophically impaired. Aviva argues that this expense is not recoverable since M.B. is not catastrophically impaired and lives less than 10 kilometres away from the clinic.
7I agree with Aviva. First, although a progress report is a helpful way to chart an applicant’s progress during treatment with that provider, I agree that there are myriad ways—both objective and subjective—to determine how effective a particular treatment is, whether more is warranted and if same would be beneficial. I concur that a progress report is the most typical format in the accident benefits world, but also find that Aviva has been rather adamant that a progress report was not reasonably required at this time. While the submissions on this item were rather brief, I agree that M.B. has not demonstrated why the progress report is reasonable and necessary at the cost outlined in the treatment plan. Second, I find the Schedule is quite clear on what constitutes an authorized transportation expense and agree with Aviva that M.B. does not meet any of the requirements, given the clinic’s close proximity to her home and her non-catastrophic designation.
8As a result, I find neither of the remaining items in the treatment plan—being the progress report and transportation costs—are reasonable and necessary.
The applicant’s entitlement to $10,355.32 [the original amount of $12,375.06 minus the approved amount of $2,019.74] for a multi-disciplinary chronic pain program
9I find on the evidence that the chronic pain program is partially reasonable and necessary. Specifically, I find the rehabilitative components to be well-supported by the documentation and agree that one progress report would be beneficial. However, I do not find that a second progress report, the social work and education elements of the plan are reasonable and necessary.
10Again, M.B. must demonstrate that the benefit in dispute is reasonable and necessary, pursuant to ss. 14-16 of the Schedule. Aviva originally denied the program on the basis that M.B. was subject to treatment within the MIG. It later partially approved the chronic pain program in the amount of $2,019.74 for 12 hours of psychotherapy and 1.5 hours for the completion of a progress report, both at the FSCO rate, following s. 44 Insurer’s Examinations (“IE”) with an orthopedic surgeon and psychologist.
11In support of his claim, M.B. relies on the chronic pain report of Dr. Robertus, dated November 23, 2017, the accompanying OCF-18 proposing the program and the numerous clinical notes and records from both his family physician and the Centre for Pain Management. He argues the denied portion of the plan is reasonable and necessary to treat his well-documented and ongoing chronic pain.
12In response, Aviva contends that the treatment plan is not reasonable and necessary, that it is a duplication of services that M.B. does not want to receive and that the plan is covered by M.B.’s collateral benefits and has not been incurred. Aviva relies on the IE report of Dr. Jaroszynski, orthopedic surgeon, (who determined that M.B.’s injuries were treatable within the MIG and that there is “absolutely no role for further facility-based treatment” due to M.B.’s subjective complaints) and Dr. Moshiri, psychologist, who found the psychological components of the plan are reasonable and necessary and that M.B.’s impairments fall outside of the MIG.
13I agree with M.B. To begin, contrary to Aviva’s submission, I find M.B.’s complaints of pain to his family physician and treating practitioners are consistent, continuous and voluminous. I find M.B.’s level of pain rises to considerable levels (self-reporting 9/10 quite regularly) and that his pain affects certain aspects of his daily functioning. I find the chronic pain report of Dr. Robertus to be comprehensive and fair and in line with the bulk of the evidence and M.B.’s complaints. That M.B. continues to suffer from pain nearly four years post-accident, coupled with his psychological diagnoses, is, in my view, an indication that a structured plan with assessments at certain intervals is necessary to ensure that he regains function and is on the correct path towards his maximal medical recovery. I find additional physical treatments (as well as the psychological sessions approved) would be beneficial for M.B.’s recovery due to his recurring complaints of pain post-accident and the fact that his pain complaints are lingering. Finally, I find that the goals identified in the treatment plan are modest and, in my view, achievable.
14I prefer the report of Dr. Robertus over the reports of Dr. Moshiri and Dr. Jaroszynski. To be frank, I found that Dr. Jaroszynski’s report was not proportional to the bulk of the evidence at all and his seeming ability to bifurcate what pain was a result of the accident and what was not—over three years post-accident—was, in my view, questionable. On the evidence, I also reject Dr. Jaroszynski’s contention that there is no role for further facility-based treatment to address chronic pain when M.B. has consistently sought various modalities to treat his ongoing pain. That Dr. Jaroszynski also determined that M.B.’s impairments would resolve in 8-12 weeks and were treatable within the MIG—even though it had already been three years post-accident and Aviva later removed him from the MIG—led the Tribunal to assign his report limited weight. While I assign some weight to Dr. Moshiri’s report based on his finding that there is a psychological component to M.B.’s pain, I find his assertion that there is no pain disorder to be incongruent with the evidence and with M.B.’s consistent complaints of pain.
15Aviva points to M.B.’s consistent work attendance in the past four years and lack of a diagnoses of chronic pain from his family physician as evidence that a chronic pain program is not required. I disagree. First, many people live and work with pain. This fact does not mean that they should have to or that a program designed to help them live and work with less or no pain is de facto unreasonable. Second, M.B.’s complaints of pain are well-documented, and a diagnosis was provided by Dr. Robertus in her specialized report. For completion, I disagree in whole with Aviva’s assertion that the treatment plan is a “duplication of services that M.B. is not interested in receiving.” Other than a cherry-picked quote, I find no evidence to suggest that M.B. does not want access to the very treatment plan he is disputing. Similarly, I decline to follow Aviva down the rabbit hole of its submissions on M.B.’s collateral benefits and how s. 47(2) “may” apply where no supporting evidence has been offered by it.
16Where I do agree with Aviva is that not all of the components of the treatment plan are reasonable and necessary. While I understand M.B.’s argument that it is a “comprehensive” chronic pain program and that all of the elements are required in order to increase the odds of success, I do not see the need, on the evidence, for the social work and education components of the plan. In submissions, M.B. only offers Dr. Robertus’ credentials as evidence that these amounts ($650 for social work, $500 for “education” from a nurse) are reasonable and necessary. On review of Dr. Robertus’ report, it remains unclear what the basis for the “intervention” from a social worker is and the education component at the cost proposed seems unreasonable in order to help M.B. deal with stress and pain management. Similarly, I find a second progress report is an unreasonable expense where one has already been approved. As it is M.B.’s burden to prove that all of the components of a treatment plan are reasonable and necessary, I find he has not met his onus on these particular items.
17Accordingly, M.B. is entitled to partial payment for incurred portions of the treatment plan for a chronic pain program, being the rehabilitative components and one progress report, as they are reasonable and necessary. I do not find that a second progress report, the social work and education elements of the plan are reasonable and necessary and therefore M.B. is not entitled to payment for those items.
Interest
18As I have found certain benefits are overdue, M.B. is entitled to payment for interest on any overdue amounts, pursuant to s. 51 of the Schedule.
CONCLUSION
19I find M.B. is entitled to partial payment for the treatment plan for the psychological services at the proper rate as it is reasonable and necessary. M.B. is not entitled to the remaining items in the treatment plan for the psychological services as they are not reasonable and necessary.
20I find M.B. is entitled to partial payment for incurred portions of the chronic pain program treatment plan, being the rehabilitative components and one progress report, as they are reasonable and necessary. M.B. is not entitled to payment for a second progress report, the social work and education elements of the plan as they are not reasonable and necessary.
21M.B. is entitled to payment for interest on any overdue amounts, pursuant to s. 51 of the Schedule.
Released: January 6, 2020
___________________________
Jesse A. Boyce
Adjudicator