D.J. v. Aviva Insurance Company of Canada, 2020 CanLII 40340

Released: 05/28/2020

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:

D.J.

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: S. Braun

APPEARANCES:

For the Applicant: J. Tran, Paralegal

For the Respondent: M. White, Counsel

HEARD: By way of written submissions

OVERVIEW

1D.J. (“the applicant”) was injured in an automobile accident (“the accident”) on October 26, 2013. She was taken out of the Minor Injury Guideline (MIG) as a result of the November 29, 2016 decision of Vice Chair Theoharis in (16-00098 v. Aviva Insurance Canada), 2016 CanLII 93136 (ON LAT).

2The applicant sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''), which the respondent denied. As a result, she submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

ISSUES

3I have been asked to decide the following issues:

i. Is the applicant entitled to a medical benefit in the amount of $3,030.00 for social work counselling (SWC) recommended by PRC Inc. in a treatment plan submitted on December 6, 2016 and denied on December 16, 2016 and on March 20, 2017?

ii. Is the applicant entitled to the cost of completion of a Disability Certificate (OCF-3) in the amount of $200.00 submitted by PRC on July 13, 2017 and denied on August 21, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $2,600.00 for physiotherapy, recommended by PRC in a treatment plan submitted on May 5, 2017 and denied on May 5, 2017?

iv. Is the applicant entitled to interest on any overdue payments?

v. Is the respondent entitled to costs associated with a December 4, 2019 motion brought to strike all or part of the applicant’s reply on the basis of it being inflammatory?

RESULT

4I find the applicant is entitled to:

i. $3,030.00 for social work counselling;

ii. $2,600.00 for physiotherapy

iii. Any applicable interest owing in accordance with the Schedule.

5She is not entitled to the cost of the OCF-3.

6No costs are payable in relation to the motion of December 4, 2019.

ANALYSIS

7The applicant submits that the treatment plan recommending social work counselling is reasonable and necessary. In support of her position, she argues that she was removed from the MIG based on psychological impairments which have continued, as well as the opinions of both her assessors and the respondent’s own IE assessors, which align with respect to post-accident psychological impairments requiring treatment in the form of counselling.

8The applicant was initially assessed by Ms. Pilc (registered social worker), on September 17, 2015 and 12 counselling sessions were recommended to address social and psychological concerns. Based on the results of this assessment, a December 6, 2016 OCF-18 completed by the applicant’s chiropractor recommended 12 sessions of social work counselling, the goals of which were to reduce emotional distress and promote coping mechanisms.

9On February 21, 2017, the respondent’s IE assessor, Dr. Syed (clinical psychologist), diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood as a result of the accident. She opined the applicant’s condition had deteriorated as compared to a previous IE conducted in 2015 and recommended 12 hourly sessions of psychological treatment. Dr. Syed specifically indicated that the treatment should be provided by a registered clinical psychologist, as distinct from a social worker. It was on this basis alone that she determined the proposed treatment plan was not reasonable and necessary.

10On June 19, 2019, the applicant was assessed by Karon Bernstein, M.A., (supervised by Dr. Bodnar, clinical psychologist). She was again diagnosed with Adjustment Disorder with Mixed Anxiety and Depressed Mood. This time, the assessor indicated that she also suffered from Specific Phobia (Driver Anxiety). It was opined the applicant would benefit from 12 x 90 minute counselling treatment sessions, including but not limited to: identifying triggers for anxiety and developing more functional responses and systematic desensitization to reduce fears with activities which engender anxiety.

11The applicant was also assessed by an anaesthesiologist with a special interest in chronic pain who is a pain consultant and practices chronic pain management. His diagnosis included chronic pain as well as depression and anxiety and he recommended physical and psychosocial treatments including psychological counselling.

12On the basis of the applicant’s evidence at an Examination Under Oath (EUO) in August 2019 that she “is not depressed, can control her emotions and feels anxious but not to the extent where…it will put [her] in a state where [she] cannot do anything”, the Respondent submits the proposed treatment plan is not reasonable, as the applicant’s symptoms are not debilitating and in these circumstances, treatment goals are unlikely to be met to a reasonable degree.

13It would appear as though the respondent ignores the opinion of its own IE assessor, Dr. Syed, a clinical psychologist, who diagnosed the applicant as having Adjustment Disorder with Mixed Anxiety and Depressed Mood. She indicated that the applicant’s condition had deteriorated since the last insurer’s psychologist assessment in 2015 and given this deterioration, post-accident psychological treatment was recommended in the form of 12 hourly counselling sessions.

14I placed little weight upon the answers of the applicant in the EUO and instead preferred the evidence of the mental health assessors, including Dr. Syed, who clearly agree that the applicant requires counselling to address her accident-related psychological injuries.

15While Dr. Syed recommended broadly similar treatment and the same number of sessions as in the OCF-18 and in the assessment by Karon Bernstein and Dr. Ana Bodnar, she concluded the disputed treatment plan was not reasonable and necessary simply because the proposed treatment would be provided by a social worker instead of a clinical psychologist. She provided no explanation for, or elaboration upon, this opinion.

16The Applicant directed the Tribunal to the Regulated Health Professions Act, 1991², noting that the treatment proposed is within the scope of a social worker registered with the OCSWSSW³.

17Although the respondent acknowledged that the RHPA allows social workers to provide psychotherapy, it argued the applicant did not provide any evidence on why the sessions should be provided by a social worker as opposed to a psychologist. With respect, the respondent also did not produce any evidence to substantiate Dr. Syed’s opinion that such services should be provided by a psychologist rather than a social worker.

18Given that the applicant’s assessors and the IE assessor are all of the opinion that the applicant suffers from accident-related psychological impairments which should be treated with counselling, I am persuaded that the disputed treatment plan is reasonable and necessary. Further, the RHPA allows for psychotherapy to be provided by a social worker registered with the OCSWSSW and I find no compelling evidence to suggest that the services contemplated in the disputed treatment plan cannot be provided by a social worker.

Physiotherapy

19The applicant submits she is entitled to the physiotherapy treatment plan, the stated goals of which are to reduce pain; increase range of motion; and increase strength in order to return the her to activities of daily living and pre-accident work activities or at least modified work duties.

20In support of her position, she relies in part upon an Independent Pain Assessment by Dr. Ta (anaesthesiologist, chronic pain management practitioner) and Functional Abilities Evaluation (FAE) by Dr. Bui (chiropractor). Dr. Ta diagnosed the applicant with among other things, chronic pain syndrome and symptoms of Complex Regional Pain Syndrome. He recommended the applicant continue with physiotherapy, participate in a multidisciplinary pain management program and thereafter, participate in an active rehabilitation program. Dr. Bui opined that the applicant continued to suffer from neck and back pain, and that the range of motion in her cervical and lumbar spine was not within normal limits.

21The applicant refers also to the diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood provided by the insurer’s psychological assessor, Dr. Syed, arguing that depression is very closely related to pain. Although the applicant’s submissions reference a scholarly article on the interrelated nature of pain and depression,⁴ I placed little weight upon same, as pain and pain experiences are unique to each individual. Instead, I preferred the very clear statement of Dr. Syed, who confirms in her assessment that for this particular applicant, “pain is a significant feature in [her] presentation, given the nature of her injuries”.

22The respondent submits the applicant is not entitled to the disputed treatment plan. In support of its position, it notes the conclusion of IE assessor, Dr. Karabatsos (orthopaedic surgeon), who conducted a paper review assessment which concluded that further supervised care was unlikely to accelerate the resolution of any residual symptomatology. It also relies in part, upon the assessment of Dr. Chaudry, dated August 15, 2016, finding the applicant sustained soft tissue injuries only and upon the decision of Vice Chair Theoharis, which determined the applicant reached maximal recovery for her sprain/strain type injuries. Further, the respondent relies upon the applicant’s EUO, in which she admitted to being able to do her job at work and perform ADLs such as housekeeping, cooking and shopping.

23While I acknowledge the foregoing, the applicant is diagnosed with chronic pain and symptoms of complex regional pain syndrome in addition to sprain/strain type injuries. She consistently reported to assessors that she suffers from pain in her shoulders, neck and back, that she continues with physiotherapy and massage which she finds helpful, and that her pain is often increased with activity.

24In her EUO, the applicant indicated that she was able to perform her job-related duties and was able to cook, shop and clean. She also indicated that she experienced pain “most of the time through the week, especially when it’s Thursday or Friday because like you work Monday, Tuesday, Wednesday, Thursday and Friday”.

25She reported to Ms. Pilc, the social worker, “[The pain is] really keeping me back from moving forward”. The social worker notes, however, that she remains positive - “at the same time, I am hoping to recover from my accident, anger and health, functionally [I wish] to be active, and maintain a level of lifestyle”. Karon Bernstein and Dr. Bodnar indicate the applicant reports increased pain while performing household chores and dressing.

26I found the foregoing to be in keeping with the evidence provided by Drs. Ta and Bui. Dr. Bui in the FAE indicates the applicant reports pain, which worsens when engaging in activities and that this pain is relieved with rehabilitative treatment in the form of massage and physiotherapy. Dr. Ta indicates that the applicant has difficulties with certain activities such as dressing, housekeeping, shopping and walking, due to pain. He further indicates that although she has returned to full time work, she occupies a different position than pre-accident, which allows her to pace herself and take rests, something which was not possible prior to the accident. Dr. Ta’s recommendations include, but are not limited to: continuation of her current physiotherapy; participation in a chronic pain management program combined with medical management, with both physical and psychosocial treatments; and thereafter, participation in an active rehabilitation program.

27Dr. Ta does not suggest that the applicant is unable to perform her job duties or ADLs but rather, that she finds it difficult to perform same due to pain, or requires pacing and rest to complete same, whereas prior to the accident she reported no difficulties.

28Both Dr. Bui and Dr. Ta are of the opinion that the applicant may benefit from continued physiotherapy, in conjunction with other modalities of treatment. I preferred their opinions to that of the orthopaedist, Dr. Karabatsos, as these individuals (one of whom is specially trained in chronic pain management) performed physical examinations and in person interviews with the applicant, while Dr. Karabatsos’ assessment was conducted on paper only.

29The disputed treatment plan is focused on pain reduction and increasing strength and range of motion. I am not persuaded that simply because the applicant is able to perform ADLs and work duties, she does so in the absence of pain and/or difficulty, nor am I persuaded that her ability to engage in ADLs renders the goals of pain reduction and increase of strength/ROM unreasonable.

Incurred

30The respondent argued that, because the applicant failed to provide or submit any proof that she incurred any of the treatment plans in dispute, even if they are found to be reasonable and necessary, they are not payable.

31The applicant’s reply indicates that the respondent was provided with sign-in sheets and SOAP notes completed by treating practitioners demonstrating that the applicant attended the treatments in dispute. There was no evidence before me to determine whether the disputed treatment plans were or were not incurred. As such, having found the disputed treatment plans to be reasonable and necessary, if they have otherwise been incurred by the applicant, they are payable by the respondent.

OCF-3

32The applicant submits that she is entitled to the cost of the OCF-3 because it is a required form used determine the types and levels of care required by the injured party and without this form, the insurer cannot assess an applicant’s continued health-related issues. It is argued that the respondent is practising a wilful blindness strategy in denying the OCF-3, thus precluding it from learning about the applicant’s condition. She cited 17-002589 v. Wawanesa Mutual Insurance⁵, in which it was found that an OCF-3 updating the insurer with information respecting the applicant’s new impairments was payable.

33The respondent submits that the OCF-3 at issue was not requested and is therefore not payable pursuant to s. 25(1) of the Schedule, which obliges the insurer to pay for reasonable fees for the preparation of a disability certificate if required under sections 21, 36 or 37. Section 21 deals with lost educational expenses. Section 36 deals with the initial application for a specified benefit. Section 37 permits an insurer to request a new disability certificate in order to determine ongoing entitlement to specified benefits.

34The respondent cited 17-000502 v. RSA Insurance Company,⁶ where the applicant was not entitled to payment for the cost of an OCF-3 because the insurer did not make such a request and it was not required under sections 21, 36 or 37 of the Schedule.

35In this case, the respondent did not request the OCF-3, nor was it required pursuant to the relevant sections of the Schedule. Moreover, the OCF-3 no new medical information beyond what was contained in medical records and assessments which were already within the possession of the insurer. As such, the applicant is not entitled to the cost of the OCF-3.

Costs

36The respondent filed a motion to have the applicant’s reply struck, in whole or in part, on the basis that it was inflammatory and prejudicial. The motion was heard by Adjudicator Maedel on December 4, 2019. Adjudicator Maedel did not strike any part of the applicant’s reply but rather allowed the respondent to file a sur-reply to cure any prejudice. He also indicated that the parties could make submissions in the context of this hearing with respect to costs of the motion.

37Pursuant to Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, (the “Rules”) a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted in an unreasonable, frivolous, vexatious manner or in bad faith. The foregoing is a high threshold.

38The respondent argued that parts of the applicant’s reply reformulated her initial submissions to articulate the position that the subject motor vehicle accident aggravated pre-existing medical conditions from a 2009 accident, whereas it had previously been noted that injuries from the 2009 accident had been successfully treated and she fully recovered.

39I found the discussion in the parties’ replies with respect to the applicant’s previous motor vehicle accident of 2009 irrelevant to the issues in dispute and as such, gave these submissions very little weight. The applicant was already removed from the MIG by virtue of a previous Tribunal decision. The issues in this hearing turned on whether the treatment plans at issue were reasonable and necessary, and I found them to be so on the basis of the ongoing nature of the applicant’s physical and psychological complaints and the opinions of various assessors.

40The respondent also argued that parts of the applicant’s reply were inflammatory and prejudicial, in that they alleged the questioning of the applicant during the EUO included ‘leading’, ‘putting words in the applicant’s mouth’ and further alleged the applicant was, at times, confused/misunderstood questions and required rephasing or clarification which was not forthcoming from the respondent’s representative. Finally, the applicant’s reply suggests that the quotations from the EUO used in the written submissions of the respondent were without context and biased.

41In this case, the applicant’s representative attempted to use the reply as a mechanism to object to some of the questioning conducted by the respondent’s representative, objections which should have been raised at the time of the EUO. My reading of the transcript suggests the applicant’s representative participated in the EUO but she did not raise any objections to any of the questions posed at the time. While I am of the view that this is not a proper use of the reply, I am also of the view that it does not rise to the high threshold required for an award of costs.

42I am not persuaded that the applicant’s reply constituted unreasonable, frivolous, vexatious or bad faith conduct warranting an award of costs

ORDER

43The applicant is entitled to the following benefits, if incurred:

i. $3,030.00 for social work counselling (SWC) recommended by PRC Inc. in a treatment plan submitted on December 6, 2016; and

ii. $2,600.00 for physiotherapy services, recommended by PRC in a treatment plan submitted on May 5, 2017 and denied on May 5, 2017?

44She is also entitled to any applicable interest owing in accordance with the Schedule.

45The applicant is not entitled to the cost of completion of an OCF-3 Disability Certificate in the amount of $200.00 submitted by PRC on July 13, 2017.

46No costs are payable in relation to the December 4, 2019 motion.

Released: May 28, 2020

_____________________________

S. Braun

Adjudicator

Footnotes

Ontario Regulation 34/10.
S.O. 1991, c. 18, s. 27(2)(14).
Ontario College of Social Workers and Social Service Workers.
Pain and Depression: A Systematic Review”, Harvard Review of Psychiatry, 26(6):352-363, November 2018.
2018 CanLII 83505 (ON LAT).
2018 Can LII 81878 (ON LAT).