Tribunal File Number: 19-005040/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:
A.A.
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
Adjudicator: Jesse A. Boyce
APPEARANCES:
For the Applicant: Anna Korolkova
For the Respondent: Louise Kanary
Heard via written submissions
OVERVIEW
1A.A. was injured in an automobile accident on February 8, 2017 and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). Aviva took A.A. out of the Minor Injury Guideline (“MIG”) based on his psychological impairments. He submitted multiple treatment and assessment plans, which Aviva denied on the basis that they were not reasonable and necessary and because his physical injuries are predominantly minor. A.A. disagreed and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service for resolution of the dispute.
ISSUES
2The issues in dispute are as follows: (i) Is the applicant entitled to medical benefits and cost of examination expenses recommended in treatment plans (OCF-18s) by Prime Healthcare Inc.:
(a) $1,675.95 for medical services submitted on May 31, 2017 and denied on June 14, 2017;
(b) $1,465.10 for medical services submitted July 27, 2017 and denied by the respondent on August 14, 2017;
(c) $1,406.80 for medical services submitted on September 21, 2017 and denied on September 29, 2017;
(d) $3,341.49 for psychological treatment submitted February 6, 2016 and denied on February 22, 2016;
(e) $2,000.00 for a psychological assessment submitted May 2, 2017 and denied on May 31, 2017;
(f) $2,000.00 for a chronic pain assessment submitted July 27, 2017 and denied on August 14, 2017; and
(g) $1,981.70 for a driving anxiety assessment submitted March 15, 2018 and denied April 5, 2018?
(ii) Is the applicant entitled to interest on overdue payment of benefits?
RESULT
3I find that A.A. is entitled to payment for the treatment plan identified in issue (d) up to the $1,994.93 approved by Aviva, as it is reasonable and necessary. I find A.A. is entitled to payment for the treatment plans identified in issues (e) and (g) up to the cost of $465.52 each, plus $200.00 for form completion, respectively. I find A.A. is entitled to the cost of the chronic pain assessment as it is reasonable and necessary.
4I find A.A. is not entitled to the remaining treatment plans in dispute as they are not reasonable and necessary.
ANALYSIS
Are the treatment plans in dispute reasonable and necessary?
5As a result of the accident, A.A. submits he suffers from Chronic Pain Syndrome, Adjustment Disorder with mixed anxiety and depressed mood and Specific Phobia (travelling in and around a vehicle). His physical impairments are identified consistently in the various OCF-18s as strain and sprain of his cervical and thoracic spine, post-traumatic headaches, anxiety and sleep disorder. The Disability Certificate (“OCF-3”) dated February 22, 2017 confirms these impairments. To date, A.A. continues to report pain in his neck and back, as well as depression and vehicle anxiety.
6Under sections 14-17 of the Schedule, an insurer shall pay for all reasonable and necessary medical and rehabilitation benefits incurred by an applicant as a result of an accident. The onus to prove entitlement on a balance of probabilities rests with the applicant. In submissions, A.A. states that his physical injuries are not predominantly minor and that his chronic pain and psychological impairments make the proposed treatment reasonable and necessary.
(a) $1,675.95 for medical services submitted on May 31, 2017
(b) $1,465.10 for medical services submitted July 27, 2017
(c) $1,406.80 for medical services submitted on September 21, 2017
7I find the three treatment plans for medical services comprising physiotherapy, acupuncture, massage, aqua therapy (if needed) and exercise are not reasonable and necessary.
8On review, the three OCF-18s are nearly identical with the exception that the first treatment plan was authored by Dr. Hefford and the latter two were by Dr. Le. The physical impairments identified in each—sprain and strains to the spine, headaches and anxiety—are the same and identify what are clearly minor physical injuries under the Schedule. The goals for treatment identified—pain reduction, increase strength, range of motion and return to daily activities—are legitimate goals for treatment but are the same across all three plans and are not tailored to A.A.’s specific issues. Seemingly, the only difference between the plans are A.A.’s subjective reporting of pain. His pain complaints range between 7-9/10 in his neck and back across the three plans. He reports that his headaches occur between 1-2 times per week and that he takes Tylenol to treat his pain. Aviva denied the first two OCF-18s on the basis that A.A.’s impairments were predominantly minor. It denied the third OCF-18 on the basis that it needed an updated medical opinion.
9In denying the treatment, Aviva relies on the s. 44 examination and paper review findings of Dr. Khan, general practitioner, who was asked for an opinion on the OCF-18s in dispute (issues a, b and c here) and the chronic pain assessment, addressed below. Dr. Khan found that A.A. sustained minor physical injuries, which had resolved with no ongoing restrictions at the time the OCF-18s were submitted. The report notes that A.A. demonstrated full range of motion in all areas of the cervical spine, thoracolumbar spine, and shoulder and that the neurological examination was normal. The clinical examination identified findings consistent with soft-tissue injuries and in Dr. Khan’s opinion, A.A. sustained a WAD II and sprain/ strain of the thoracic spine and lumbar spine. From a musculoskeletal perspective, Dr. Khan found A.A. sustained a predominantly minor injury.
10I agree with Aviva and find that Dr. Khan’s reports are consistent with the medical evidence of A.A.’s family physician, Dr. Cheung, and the walk-in clinic, Brampton Urgent Care, that his physical impairments are largely sprain and strain injuries that fall squarely within the MIG. I agree that A.A.’s limited accident-related follow-ups with his G.P., the fact that there are no post-accident prescriptions and that he returned to work all suggest that the need for continued physical facility-based treatment is unsubstantiated by the medical evidence.
11While treatment for pain is a legitimate goal and I accept that A.A. may continue to have some pain, on review of the OCF-18s, A.A.’s pain complaints do not decrease over time with these treatments and the severity of his complaints, in any event, are not supported by evidence of an actual physical impairment. On this basis, I question the necessity of the treatment proposed when A.A.’s pain reporting in his neck and back actually increased between the May plan and the September plan, from 7/10 to 9/10. Where there is evidence that the pain is increasing, even if it is subjective and A.A. is only taking Tylenol once per week for it, it is concerning to me that the treatment was not altered by the clinic between plans to specifically address A.A.’s issues. Indeed, I find it unhelpful that the OCF-18s and A.A.’s submissions are silent on why all of physiotherapy, chiropractic treatment, electrotherapy, stretching, exercising, heat, acupuncture, ultrasound and tera band exercises are continuously reasonable and necessary to treat soft-tissue injuries and pain complaints that are allegedly increasing under this clinic’s care during the period proposed.
12It is not sufficient to rely on the treatment plans as evidence that they are de facto reasonable and necessary. There must be an analysis on why the specific treatment is required to address the specific impairment, and especially so where the physical injuries identified are minor and the applicant has been removed from the MIG for psychological reasons. On the evidence, I find A.A. fell short of meeting this burden and find the treatment is not reasonable and necessary as a result.
(d) $3,341.49 for psychological treatment submitted February 6, 2016
(e) $2,000.00 for a psychological assessment submitted May 2, 2017
(g) $1,981.70 for a driving anxiety assessment submitted March 15, 2018
13I find A.A. is entitled to payment for the treatment plan identified in issue (d) up to the $1,994.93 amount approved by Aviva, as it is reasonable and necessary. I find A.A. is entitled to payment for the treatment plans identified in issues (e) and (g) up to the cost of $465.52 each, plus $200.00 for form completion.
14It is undisputed that A.A. was removed from the MIG for psychological impairments following the s. 44 report of psychologist Dr. Cobrin dated September 22, 2017, which diagnosed A.A. with a generalized anxiety disorder and specific phobia with respect to vehicular travel. On this basis, Aviva partially approved all three of the treatment plans and admits that they all remain reasonable and necessary. I have no reason to interfere with these determinations.
15However, in submissions, Aviva raised several concerns over whether Dr. Shaul actually participated in the assessments as indicated, which forms the basis for grouping these benefits together here and Aviva’s position that the costs proposed are not reasonable. At an Examination Under Oath on May 31, 2019, Aviva provided A.A. with a photocopy of the Driver’s Licence photo of Dr. Andrew Shaul. On review of the transcript, A.A. confirmed under oath that he had never seen Dr. Shaul before, with Aviva noting that A.A.’s exact evidence was “I’ve never seen this guy before”. For this reason, Aviva submits that A.A.’s reliance on the psychological assessment reports, OCF-18s and OCF-21s of Dr. Shaul should be given no weight because on A.A.’s own evidence he has never met Dr. Shaul.
16Turning to the treatment plans, the first OCF-18 in the amount of $3,341.49 was submitted by Dr. Shaul for 14 90-minute sessions of psychological counselling. A separate s. 44 report from Dr. Goodfield, psychologist, dated April 12, 2018, found 12 60-minute sessions to be reasonable and necessary. Accordingly, Aviva partially approved the plan up to $1,994.93 and advised A.A. via letter that services provided by a psychotherapist would be paid at an hourly rate of $58.19 and services provided by a psychologist like Dr. Shaul would be paid at an hourly rate of $149.61. Aviva advised that any rates not covered by the Professional Fee Guideline were to be determined by the parties.
17On the evidence, A.A. began sessions with Parmjit Rathaur, registered psychotherapist and not Dr. Shaul. Aviva submits that since registered psychotherapists are not listed in the Guideline, that it partially approved services in compliance with the Guideline, advising A.A. and the provider that the parties could propose alternative rates. On the evidence, I agree as it does not appear that A.A. or the provider indicated an opposition to the hourly rate approved or proposed a different rate. As s. 15(2)(b) of the Schedule states that an insurer is only liable for expenses that do not exceed the rates specified in the Guideline, and in the absence of evidence or submissions from A.A. to the contrary, I find A.A. is only entitled to payment for the treatment plan up to $1,994.93, as approved by Aviva, as it is reasonable and necessary and also supported by his removal from the MIG.
18With regards to the psychological assessment in the amount of $2,000 submitted by Dr. Shaul, Aviva admits that the s. 44 examination report of Dr. Cobrin also found the assessment to be reasonable and necessary. I will not interfere with that determination. However, Dr. Cobrin found the cost to be excessive and determined that 8 hours was sufficient to complete the assessment. Aviva submits that a s. 25 psychological report was submitted by Helen Ilios and Dr. Shaul, dated October 27, 2017. Aviva submits that according to the report, A.A. was interviewed by Ms. Ilios under Dr. Shaul’s supervision but argues that there is no indication from the report that Dr. Shaul was present during the assessment or how much time he spent rendering services as opposed to directly completing the assessment or why the higher cost is required. Further, as noted, since A.A. has confirmed that he has never met Dr. Shaul, Aviva takes the position that the assessment is only payable up to a cost of $465.52 (being the 8 hours recommended by Dr. Cobrin at the Guideline rate of $58.19) plus $200.00 for form completion. On review of the report, I agree. As A.A.’s submissions are silent on why it is reasonable and necessary for the assessment to be conducted at the higher cost, I agree with Aviva.
19Finally, concerning the driving anxiety assessment, Aviva again admits that following the s. 44 paper review report of Dr. Cobrin, the driving assessment was partially approved at a cost not to exceed $1,9871.70, as it was reasonable and necessary based on his and Dr. Shaul’s diagnosis of vehicle-related anxiety. Here, again, Aviva argues that although the s. 25 driving assessment report dated October 27, 2017 was submitted by Ms. Ilios and Dr. Shaul, there is no indication from the report that Dr. Shaul was present during the assessment or how much time he spent rendering services as opposed to directly completing the assessment. Again, where A.A. confirmed that he has never met Dr. Shaul, Aviva takes the position that the assessment is only payable up to a cost of $465.52 (being the 8 hours recommended by Dr. Cobrin at the Guideline rate of $58.19) plus $200.00 for form completion. As A.A.’s submissions are silent on why it reasonable and necessary for the assessment to be conducted at the higher cost, I agree with Aviva and find that is all that is payable.
$2,000.00 for a chronic pain assessment submitted July 27, 2017
20I find that A.A. is entitled to payment for the cost of the chronic pain assessment as it is reasonable and necessary and supported by his pain complaints.
21This OCF-18 was prepared by Dr. Karmy, chronic pain specialist, and features a chronic pain evaluation, medical documentation review and a report. In the OCF-18, the impairments identified in the other treatment plans remain, but the modifier “chronic” has been added to the cervical and thoracic spine injuries. A.A. submits that on this basis and given that he continues to experience pain 2.5 years post-accident, the goals of the plan to identify his chronic injuries, psychological impairments and prognosis for same are reasonable and necessary. A.A. submits that he has chronic pain syndrome necessitating the need for the evaluation.
22In response, Aviva submits that the assessment is not reasonable and necessary and relies again on the reports of Dr. Khan, who found no medical evidence of musculoskeletal impairment and no compelling objective findings that would warrant a chronic pain assessment.
23Here, I agree with A.A. While subjective, I find the one consistent complaint in the medical documentation is that A.A. continues to experience pain and that he rates this pain quite high. These complaints are reflected in the clinic notes, the doctor notes and in the OCF-18s. While I do not accept that the physical injuries A.A. sustained are more than minor injuries, it is accepted by both parties and the assessing psychologists that A.A. suffers from psychological impairments that may be affecting his recovery. Since there is often a psychological component to continuous or chronic pain, I find it reasonable at this stage post-accident to provide payment to allow a chronic pain specialist to investigate the connection between A.A.’s subjective, lingering pain complaints and the objective psychological diagnoses from both sides in order to determine a prognosis and perhaps tailor a treatment plan specific to A.A.’s impairments. I find Dr. Khan’s report lumped this chronic pain assessment in with the physical treatment in finding that it was not reasonable and necessary, and that it should have been considered alongside A.A.’s psychological impairments instead. I find, on a balance of probabilities, that A.A. should be entitled to payment for this OCF-18 as it reasonable and necessary.
Interest
24Having determined that some benefits are payable, it follows that A.A. is entitled to interest on any overdue benefits incurred, pursuant to s. 51 of the Schedule.
CONCLUSION
25A.A. is entitled to payment for the treatment plan identified in issue (d) up to the $1,994.93 approved by Aviva, as it is reasonable and necessary. A.A. is entitled to payment for the treatment plans identified in issues (e) and (g) up to the cost of $465.52 each, plus $200.00 for form completion, respectively. I find A.A. is entitled to the cost of the chronic pain assessment as it is reasonable and necessary. Interest applies on overdue benefits incurred, pursuant to s. 51.
26I find A.A. is not entitled to the remaining treatment plans in dispute as they are not reasonable and necessary.
Released: May 5, 2020
Jesse A. Boyce
Adjudicator