J.P. vs. Aviva General Insurance Company
Citation: J.P. vs. Aviva General Insurance Company, 2020 ONLAT 18-007398/AABS Tribunal File No.: 18-007398/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.P.]
Applicant
and
Aviva General Insurance Company
Respondent
AMENDED DECISION
Adjudicator: Nidhi Punyarthi
Appearances:
For the applicant: [J.P.], Applicant Harpreet Sidhu and Roger Foisy, Counsel Rusald Laloshi, Paralegal Daniel Berman, Student-at-law
For the respondent: Christine Mansbridge, Litigation Specialist Suzanne Clarke, Counsel
Heard: In-Person on August 28, 2019
OVERVIEW
1The applicant was involved in an automobile accident on February 19, 2015. She claimed certain benefits from the respondent under the Statutory Accident Benefits Schedule – Effective September 2010, O. Reg. 34/10 (“Schedule”). The respondent denied the applicant’s claim for benefits. The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for an adjudication of the dispute arising from her denied benefits.
ISSUES IN DISPUTE
2The application proceeded to an in-person hearing before me. The issues in dispute were as follows:
a. Is the applicant entitled to the following medical benefits for physiotherapy treatment:
i. The amount of $1,652.00 recommended by Club Physio Plus in a treatment plan (OCF-18) submitted on May 30, 2016 and denied on August 19, 2016; and
ii. The amount of $1,167.25 recommended by Club Physio Plus in a treatment plan (OCF-18) submitted on March 8, 2017 and denied on March 20, 2017.
b. Is the applicant entitled to a medical benefit for other assistive devices in the amount of $704.85 ($1,154.84 less the partially approved amount of $449.99) recommended by Entwistle Power Occupational Therapy in a treatment plan (OCF-18) submitted on December 21, 2016 and denied on May 3, 2017?
c. Is the applicant entitled to a medical benefit for psychological treatment in the amount of $1,944.93 ($3,790.64 less the partially approved amount of $1,845.71) recommended by Dr. B. MacDonald in a treatment plan (OCF-18) submitted on April 10, 2018 and denied on May 2, 2018?
d. Is the applicant entitled to a medical benefit for chiropractic treatment in the amount of $2,678.72 recommended by Dr. Monica Edmark in a treatment plan (OCF-18) submitted on April 18, 2018 and denied on April 25, 2018?
e. Is the applicant entitled to interest on any overdue payments of benefits?
f. Is the applicant entitled to an award under Ontario Regulation 664 (“Regulation 664”) on the basis that the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
3I find that the applicant is entitled to the treatment plans and interest at issue.
4The applicant is also entitled to an award under Regulation 664 as she has established, on a balance of probabilities, that the respondent unreasonably delayed or withheld payments of the benefits at issue. The amount of this award shall be 50% of the ordered benefits, and interest will accrue as per Regulation 664.
ANALYSIS
5The test for whether a medical benefit is payable under the Schedule is that it be reasonable and necessary.
A. Physiotherapy Treatment Plans
6During the hearing, the applicant testified at length about the benefits she experienced from the physiotherapy treatment identified in the treatment plans in question. The respondent was unable to challenge this testimony during its cross-examination of her at the hearing.
7Additionally, there was a question as to whether these treatment plans were covered by her employer’s benefit plan at the time. At the hearing, the respondent submitted that the basis for denying these plans was because the applicant had alternate coverage for same through her employer.
8I was pointed to an exhibit which showed the difference between the paid and unpaid portions of this treatment upon use of the coverage available from the applicant’s employer. Not only did this exhibit demonstrate the number of physiotherapy treatment sessions that the applicant underwent and submitted claims for; it also appeared from this evidence that there remained unpaid balances even after the applicant applied to her employer for coverage. It should be noted, however, that none of the denial letters referenced the existence of alternate coverage as a reason for the denials.
9The initial denial letter which refused the first proposed treatment plan for physiotherapy stated that the medical reason for denial was that “the frequency of care does not generally diminish over time.”
10The second denial letter referenced the report of Dr. Kopyto dated August 17, 2016 as providing support for the denial. Dr. Kopyto was a physician tasked to examine the applicant in relation to the treatment plan under s. 44 of the Schedule. Dr. Kopyto opined that “the treatment plan is not reasonable and necessary as it relates to the injuries sustained in the accident. Claimant has achieved maximal medical recovery from the accident related injuries and no ongoing impairment was identified warranting further facility-based physical therapy.”
11On October 16, 2016, the applicant sent a detailed e-mail disputing the report of Dr. Kopyto. She included in her e-mail that Dr. Kopyto was incorrect about the type of physiotherapy treatment she had received, the number of sessions she had attended and was attending, and the benefits she was experiencing from the treatment. She also included other errors that she believed to exist in Dr. Kopyto’s report.
12Dr. Kopyto issued an addendum report on November 1, 2016. He acknowledged the applicant’s e-mail in the body of the report but did not list her e-mail in the appendix of documents reviewed. He did not appear to have addressed the concerns in her email, which included her concern about the physiotherapy treatment she was undergoing and the benefits she was receiving.
13The applicant sent a second treatment plan for physiotherapy dated March 8, 2017 in the amount of $1,167.25. The respondent denied this plan on March 20, 2017 based on the same reports of Dr. Kopyto referred to previously.
14However, the respondent also had, as of January 27, 2017, a set of clinical notes and records (“CNRs”) of the applicant.1 These CNRs do not appear to have been provided by the respondent to Dr. Kopyto for an addendum or even considered by the respondent when denying the second physiotherapy treatment plan.
15On a balance of probabilities, the physiotherapy treatment plans claimed are reasonable and necessary, and the amounts claimed are not otherwise covered through alternate insurance coverage. The applicant is entitled to medical benefits for physiotherapy as set out in the treatment plans in the amounts of $1,652.00 and $1,167.25.
B. Other Assistive Devices
16The respondent approved just under 50% of the treatment plan for other assistive devices. The question remained as to whether the balance of the treatment plan for assistive devices was reasonable and necessary.
17The treatment plan in question was supported by a report authored by the recommending occupational therapist, Entwistle Power, on December 14, 2016. This report indicates the various assistive devices that were recommended and the reasons for same.
18The respondent’s occupational therapy assessor, Mr. Dhillon, provided the below explanation in his report as to why two of the assistive devices claimed were approved and why the others were rejected:
During the assessment, [J.P.] demonstrated functional range of motion in her neck and upper extremities, and the ability to bend forward, and kneel (with support). She demonstrated the ability to carry 5 lb. on 6 steps. Devices such as the mini chopper, good grips brush, long handle toilet brush, long handle dustpan, and books for managing neck and back pain are not reasonable and necessary. However, [J.P.] did report difficulties with prolonged standing and this therapist opines that the following devices are reasonable: anti-fatigue mat to improve standing tolerance while cooking and one large moist heat pack (the neck and king size heat pads are not necessary; one is sufficient) to apply to her symptomatic areas. The provision of these two devices will reduce symptom aggravation while engaging in her daily activities.
19Mr. Dhillon described and made recommendations with respect to the applicant’s functional needs. It is not clear why Mr. Dhillon preferred two of the recommended assistive devices over the others. If, in Mr. Dhillon’s opinion, she needed an anti-fatigue mat and a moist heat pack to help with pain and standing tolerance, it is unclear why she would not have needed the other recommended devices to help manage her pain and limitations in her day-to-day activities. The test results of carrying 5 pounds over 6 steps in one instance seems narrowly focused and de-contextualized. It is reasonable to infer that if she had the functional needs for the two approved items, she also had the functional needs to justify the rest of the recommended assistive devices.
20Accordingly, I find Mr. Dhillon’s opinion to be unpersuasive and insufficiently explained. Contrasting this with the applicant’s testimony and the rationale set out for the assistive devices in the treatment plan, I am satisfied, on a balance of probabilities, that the applicant is entitled to the remaining assistive devices in the amount of $704.85. These outstanding expenses are reasonable and necessary.
C. Psychological Treatment
21The respondent approved a portion of the treatment plan at issue for psychological treatment. The question remained as to whether the balance of the treatment plan for psychological services was reasonable and necessary.
22The applicant testified that notwithstanding any events that caused her psychological distress prior to the accident, the accident aggravated her anxiety. She also testified that as a result, she found the recommended psychological treatment beneficial. The respondent attempted to challenge this testimony during cross-examination, but the applicant maintained her answers in a consistent and credible manner.
23The treatment plan in question referred to a report from the applicant’s treating psychologist from the same date, i.e., April 10, 2018. This report was written following 12 sessions of psychological treatment from December 2016 to December 2018. The applicant was diagnosed with adjustment disorder with anxiety, major depressive disorder, specific phobia, situational type, and somatic symptom disorder due to the accident.
24The respondent obtained an assessment of the applicant under s. 44 by a psychologist, Dr. Moshiri. Dr. Moshiri authored a report dated August 1, 2018. He went through the history of the psychological treatment plans that had been submitted for the applicant. He indicated that they were approved by the respondent. With respect to the current treatment plan, he approved 50% of the sessions claimed as reasonable and necessary. In his reasoning, he indicated: “I believe that the following goods and services will help the claimant overcome the symptomologies,” and “the claimant has received extensive psychological treatment.”
25The frequency and intensity of past approved treatment is not a reason to deny future treatment if it is found to be warranted on the evidence. After reviewing the evidence, I find, on a balance of probabilities that the applicant continued to experience psychological impairments from the accident, and that the recommended psychological treatment was reasonable and necessary to help alleviate these impairments. The report of Dr. MacDonald, the applicant’s treating psychologist, set out in detail the reasons why additional intervention was necessary at that stage, despite historical treatment sessions.
26I find the explanations and justifications provided by Dr. MacDonald to be compelling and supported by the evidence. I therefore prefer the opinion of Dr. MacDonald to that of Dr. Moshiri in this case. I find that the applicant is entitled to a medical benefit for psychological treatment in the outstanding amount of $1,944.93.
D. Chiropractic Treatment
27The applicant testified that she attended and benefited from chiropractic treatment since July 2017. This testimony remained unchallenged during her cross-examination.
28The treatment plan at issue was submitted on April 19, 2018. It recommended 48 sessions of chiropractic treatment.
29The respondent’s denial letter of April 25, 2018 indicated that “the patient’s subjective physical complaints appear to be unchanged despite continuing treatment.” Later, the respondent obtained a s. 44 report by Dr. Getsos, chiropractor, dated August 9, 2018.
30Dr. Getsos indicated in his report that instead of chiropractic treatment, a chronic pain program would be more appropriate. He did not deny the applicant’s claimed impairments or the fact that she had benefited from chiropractic treatment to date.
31Dr. Getsos’ report was excerpted in the respondent’s letter dated August 10, 2018. The excerpt provided:
Her complaints are now chronic, and there is also indication of neurological symptoms as she describes them subjectively which I could not objectively elicit during examination. Further comment in this regard may be deferred to a neurologist. Considering her ongoing and persistent symptoms, it may also be beneficial to have her evaluated by a chronic pain specialist or neurologist (at the discretion of the claimant’s family doctor. Either of these services can be arranged via OHIP) who has expertise in regards to headaches given the persistence of her headaches.
32The treatment plan in question indicates that the goals of the chiropractic sessions were to reduce pain, increase range of motion, and strength. Dr. Getsos explicitly acknowledges the applicant’s experiences of pain but does not persuade in his opinion that the chiropractic sessions as recommended are unhelpful and unnecessary. In other words, Dr. Getsos’ opinion as worded does not persuade that the applicant would not get relief and other treatment benefits from the chiropractic treatments being claimed.
33On a balance of probabilities, considering the unchallenged testimony of the applicant in regards of her experiences of treatment and the benefits, the descriptions in the treatment plan, and Dr. Getsos’ lacking justification for denying the treatment claimed, I find that the applicant is entitled to the medical benefit for chiropractic treatment in the amount of $2,678.72 as the expenses are reasonable and necessary.
E. Interest
34The respondent shall pay interest on any overdue amounts payable in accordance with s. 51 of the Schedule.
F. Award under Regulation 664
35As I have previously found, the respondent:
a. Provided reasons for denial to the applicant that were not consistent with its actual reasons for denial; and
b. Failed to consider medical treatment records on file when deciding to deny the applicant’s requests for treatment.
36By engaging in this conduct, the respondent unreasonably delayed or withheld payments to the applicant.
37The respondent was unable to dispute this conclusion on the evidence before me. Not only did the log notes tendered in evidence support this conclusion, the respondent tendered a witness at the hearing who did not have first-hand involvement in the adjustment of the file in the relevant time period. The respondent’s witness was unable to satisfactorily explain the omissions noted above.
38Pursuant to my authority under s. 10 of Regulation 664, I order the respondent to pay an award to the applicant at 50% of the denied benefits and interest at issue. The omissions of the respondent are a significant breach of its obligations to the applicant. A quantification of the award at the maximum limit of 50% is warranted.
39Interest on this award will also accrue in accordance with Regulation 664.
CONCLUSION
40The respondent shall pay the treatment plans at issue, overdue interest as per the Schedule, and award and interest under Regulation 664.
Date of Decision: January 3, 2020
Nidhi Punyarthi
Adjudicator