I.N. v. Aviva General Insurance, 2020 CanLII 34470

Citation: I.N. vs. Aviva General Insurance, 2020 ONLAT 19-002541/AABS

Tribunal File Number: 19-002541/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:

I.N.

Applicant

and

Aviva General Insurance

Respondent

AMENDED DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES:

For the Applicant: Marina Korshunova (amended)

For the Respondent: Annemarie N. White

Heard by way of written submissions

OVERVIEW

1I.N. was injured in an automobile accident on September 14, 2017. I.N. was removed from treatment within the Minor Injury Guideline and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). Aviva denied the treatment plans on the basis that the examinations were not reasonable and necessary. I.N. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The issues as outlined in the Case Conference Order are:

i. Is the applicant entitled to receive a medical benefit in the amount of $1,600.00 for an in-home cognitive assessment, recommended by Knead Wellness in a treatment plan submitted April 23, 2018, and denied by the respondent on July 3, 2018?

ii. Is the applicant entitled to receive a medical benefit in the amount of $2,100.00 for chiropractic and massage treatment, recommended by Knead Wellness in a treatment plan submitted August 27, 2018, and denied by the respondent on August 31, 2018?

iii. Is the applicant entitled to receive a medical benefit in the amount of $2,155.00 for chiropractic and massage treatment, recommended by Knead Wellness in a treatment plan submitted March 18, 2018, and denied by the respondent on June 1, 2018?

iv. Is the applicant entitled to receive a medical benefit in the amount of $673.26 for a psychological assessment, recommended by Knead Wellness in a treatment plan submitted November 13, 2017, and denied by the respondent on November 16, 2017?

v. Is the applicant entitled to receive a medical benefit in the amount of $744.05 for psychological services, recommended by Knead Wellness in a treatment plan submitted December 10, 2018, and denied by the respondent on December 16, 2018?

vi. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that I.N. is entitled to payment for the cognitive assessment and the cost of both chiropractic and massage treatment plans as they are reasonable and necessary.

4I find that I.N. is not entitled to payment for the remainder of the partially approved psychological assessment or the withdrawn psychological services as they are not reasonable and necessary.

ANALYSIS

Are the treatment plans in dispute reasonable and necessary?

5Section 15 of the Schedule provides that an insurer is liable to pay for medical and rehabilitation benefits that are reasonable and necessary as a result of an accident. I.N. bears the onus of proving on a balance of probabilities that each treatment and assessment plan is reasonable and necessary.

$1,600.00 for an in-home cognitive assessment

6I find that I.N. is entitled to payment for the cognitive assessment as it is reasonable and necessary.

7I.N. submits that the assessment was recommended due to his reported decline in cognitive functioning from his concussion/head injury, for example: he loses focus while watching television, his mind wanders, he stutters, he noticed changes in his memory, and reported that he is always misplacing and losing items. He argues that a cognitive assessment is necessary because it evaluates important areas of brain function, including memory, concentration, processing speed, language, and reasoning capabilities and because regular cognitive assessments help to track changes in brain health and helps to identify early signs of problems. The proposed cognitive assessment includes two tests: Everyday Attention (TEA) to measure important aspects of attention and the Rivermead Behavioural Memory test (RBMT-3) designed for adults with acquired, non-progressive brain injury. On this basis, he asserts that it is clear that a cognitive assessment serves a completely different and necessary purpose as opposed to a psychological evaluation and treatment.

8In response, Aviva submits that there is a lack of medical evidence to support I.N.’s claim that he suffered a concussion. In particular, it highlights that his impairment was classified as “minor trauma to the forehead,” he self-reported that his memory was fine, and that his MOCA score was within normal range. It submits that I.N. never lost consciousness and relies on the report of Ms. Goldlust, occupational therapist, who determined that the proposed treatment was not reasonable and necessary because the proposed cognitive psychotherapy would address his needs instead.

9I agree with I.N. Contrary to Aviva’s claims, I find there are records from [The Hospital] indicating “head injury” and a note from Dr. Liu on October 13, 2017 diagnosing a “mild concussion”. The Jane Medical Centre records also diagnose concussion, indicate headaches, dizziness and reported stuttering when I.N. speaks. While not voluminous, I find there are medical records demonstrating head trauma and concussion that justify further investigation to not only treat symptoms but ascertain potential long-term effects. I agree with I.N.’s submission that it appears Ms. Goldlust ignored or perhaps missed the medical records detailing these impairments and only relied on the disability certificate, which I find undermines her opinion. Further, I agree with I.N. that in light of the symptoms identified—losing focus, memory issues, stuttering, headaches—a cognitive assessment would serve a different purpose than the psychological assessment and treatment proposed as sufficient by Aviva. While Aviva did not take issue with the cost, it is, in my view, a reasonable expense given the symptoms reported.

10Accordingly, on the evidence I find it reasonable and necessary to fund the cognitive assessment in order to investigate I.N.’s alleged cognitive impairments.

$2,100.00 for chiropractic and massage treatment

$2,155.00 for chiropractic and massage treatment

11I find I.N. is entitled to the cost of both treatment plans as they are reasonable and necessary.

12In submissions, I.N. argues that both of the treatment plans are reasonable and necessary because it will help him achieve the stated goals of pain reduction, increased range of motion, recovery of muscular strength, agility, power and co-ordination, recovery of aerobics fitness and endurance, recovery of postural alignment, return to pre-accident work activities, return to normal housekeeping activities and return to normal sleep patterns. I.N. submits that these plans’ goals are in line with the recommendations made by Dr. Liu and Dr. Remtulla, and that there are multiple medical records supporting that he sustained physical impairments and continues to suffer from chronic pain to date. I.N. submits that he had ongoing pain and physical limitation at the time when the treatment plan was submitted, and his reported symptoms were consistent with x-rays, ultrasound and MRI findings taken. He submits that he reasonably required therapy in order to reduce his pain and improve physical limitations and that facility-based treatment was recommended by his family physician, the specialist at The Pain Clinic and Dr. Remtulla. After Aviva’s denial, he continued to fund treatment out of pocket.

13In response, Aviva submits that further treatment is not reasonable and necessary since, after over two years of treatment, I.N. has shown limited improvement. It relies on the report of Dr. Marchuk, who determined that I.N. had achieved maximal medical improvement and that further facility-based treatment would not be beneficial to his recovery. In finding that I.N. had plateaued from treatment, Dr. Marchuk instead recommended trigger point injections, cortisone injections and a lumbar support brace. Aviva notes that I.N.’s family physician also recommended injections to deal with his ongoing pain.

14I agree with I.N. Contrary to Aviva’s argument, I find limited evidence of a consensus between Dr. Marchuk and I.N.’s assessors that he had plateaued. While I find that assessors certainly agreed that injections to manage his chronic pain were required, I find that Dr. Remtulla and Dr. Mehrabian, pain specialist, recommended that he continue facility-based physical treatment in addition to the injections because of the benefit he was receiving and the fact that pain continued. Indeed, on January 2, 2019, Dr. Remtulla recommended that I.N. continue therapy “given marked benefit on patient’s quality of life and easing of his chronic pain” and recommended physiotherapy, massage, chiropractor treatment and acupuncture. This recommendation is supported by Dr. Remtulla’s previous finding that physiotherapy would be a “long term process” coupled with the injections. While pain reduction on its own is a legitimate goal for treatment, the plans in evidence identify humble, achievable goals at a reasonable cost on a realistic timeline.

15For these reasons, I find I.N. has met his burden of proof and find that both treatment plans for physiotherapy, chiropractic treatment and massage are reasonable and necessary.

$673.26 for a psychological assessment

16I find this item is not payable as I.N. has not demonstrated why it is reasonable and necessary beyond the partial approval by Aviva.

17Here, I.N. submits that the total amount of the psychological assessment was $1995.33. Upon conducting its s. 44 psychological assessment, Aviva partially approved the assessment in the amount of $1,322.07 due to its assessor opining that “the proposed psychological assessment can be provided at a more reasonable cost”. The assessor proposed the following: “1.5 hours of clinical interview, 1.5 hours of psychological test; 1.5 hours of evaluation and interpretation of test results; 2 hours of report preparation; 1 hour of feedback interview; at an hourly rate of $149.61.” I.N. refers the Tribunal to s. 25(5)(a) of the Schedule to support his argument that the rate proposed in the treatment plan was not unreasonable because it was proposed at the rate of $149.61 and the assessor, Dr. Singh, assigned more time to complete it because s. 25 and s. 44 assessments require different testing instruments, which accounts for the difference in time allocation and analysis. I.N. argues that Aviva paid more for its s. 44 report than it was willing to pay for I.N.’s s. 25 assessment and does not provide an explanation for same.

18In response, Aviva relies on the s. 44 report of Dr. Moshiri, who determined that the assessment could be done in a less expensive manner. Aviva asserts that just because s. 25(5)(a) establishes a maximum amount that is payable, it does not mean that I.N. is automatically entitled to the full amount. On this basis, it argues that I.N. has not demonstrated why the remaining $673.26 of the treatment plan that was not approved is reasonable and necessary.

19Here, I agree with Aviva. First, I.N.’s assertion that Aviva is required to provide an explanation for its s. 44 assessment expenses is misguided, as it is well-established that it is I.N.’s burden to prove that treatment and assessment plans are reasonable and necessary. I find he has not satisfied that burden and how much Aviva has spent is, generally, irrelevant. Aviva partially approved the assessment at the Guideline rate. While Dr. Moshiri’s estimations for time are rather tight and the approved cost is certainly on the low end for s. 25 assessments, I agree that I.N. has not demonstrated why more time is necessary for Dr. Singh aside from submitting that s. 25 and s. 44 assessments use different testing instruments, without expanding on why different tests require more or less time than others. To I.N.’s credit, the total claimed is still below the s. 25 maximum of $2,000, but that does not mean what remains is automatically payable. Accordingly, I find this item is not payable as I.N. has not demonstrated why it is reasonable and necessary beyond the partial approval.

$744.05 for psychological services

20In submissions, I.N. withdrew this issue. Accordingly, it is not payable.

Interest

21Interest is payable on all overdue amounts, pursuant to s. 51 of the Schedule.

CONCLUSION

22I find I.N. is entitled to payment for the cognitive assessment and the cost of both physiotherapy treatment plans as they are reasonable and necessary. I.N. is entitled to applicable interest.

23I find I.N. is not entitled to payment for the remainder of the partially approved psychological assessment or the withdrawn psychological services as they are not reasonable and necessary.

Footnotes

1. 1O. Reg. 34/10, as amended.