Citation: A.G. vs. Aviva Insurance Canada, 2020 ONLAT 19-003821/AABS

Released Date: June 10, 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:

[A.G]

Applicant

and

Aviva Insurance Canada

Respondent

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Richard Lebkowski, Counsel

For the Respondent: Sophia Chaudri, Counsel

HEARD: By way of Written Submissions

OVERVIEW

1[A.G] (the "applicant") was involved in an automobile accident on October 31, 2016 and sought benefits from Aviva Insurance Canada (the "respondent") pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule"). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service ("Tribunal").

2The parties participated in a case conference but were not able to resolve the issues in dispute. The matter proceeded to this written hearing.

ISSUES IN DISPUTE

3The issues in dispute were identified and agreed to as follows:

(i) Is the applicant entitled to receive a medical benefit in the amount of $795.33 for psychological treatment, recommended by Pilowsky Psychology Professional Corporation in a treatment plan submitted May 18, 2018, and denied by the respondent on August 14, 2018?

(ii) Is the applicant entitled to receive a rehabilitation benefit in the amount of $2,648.00 for medical services, recommended by DriveAgain in a treatment plan submitted April 19, 2018, and denied by the respondent on July 23, 2018?

(iii) Is the applicant entitled to receive a medical benefit in the amount of $3,157.06 for psychological treatment, recommended by Pilowsky Psychology Professional Corporation in a treatment plan submitted January 9, 2019, and denied by the respondent on March 18, 2019?

(iv) Is the applicant entitled to receive a medical benefit in the amount of $2,585.65 for chiropractic treatment, recommended by Dr. Nauth-Ali of Fit Clinic in a treatment plan submitted September 30, 2017, and denied by the respondent on December 1, 2017?

(v) Is the applicant entitled to receive a medical benefit in the amount of $1,222.16 for physiotherapy treatment, recommended by Monisha Nambiar of North Park Rehab in a treatment plan submitted October 25, 2017, and denied by the respondent on December 1, 2017?

(vi) Is the applicant entitled to receive a medical benefit in the amount of $1,670.29 for the expenses associated with the purchase of a mattress claimed in an OCF-6 submitted January 16, 2018, and denied by the respondent on January 17, 2018?

(vii) Is the applicant entitled to payments for the cost of examinations in the amount of $2,460.00 for a Chronic Pain Assessment, recommended by Dr. Tutak in a treatment plan submitted February 26, 2018, and denied by the respondent on May 10, 2018?

(viii) Is the applicant entitled to interest on any overdue payment of benefit?

RESULT

4After reviewing the parties' submissions and all the evidence I find as follows:

(i) The applicant is entitled to the following:

(a) partial funding in the amount of $1,995.32 of the $3,157.06 treatment plan for psychological therapy recommended by Pilowsky Psychology Professional Corporation submitted January 9, 2019, and denied by the respondent on March 18, 2019;

(b) partial funding in the amount of $2,048.75 of the $2,648.00 treatment plan for a driver's reintegration program recommended by DriveAgain submitted April 19, 2018, and denied by the respondent on July 23, 2018;

(c) $2,585.65 for chiropractic treatment, recommended by Dr. Nauth-Ali of Fit Clinic in a treatment plan submitted September 30, 2017, and denied by the respondent on December 1, 2017; and

(d) Interest on any overdue payments pursuant to the Schedule.

(ii) The applicant is not entitled to the following:

(a) $795.33 for the balance of the treatment plan for psychological treatment, recommended by Pilowsky Psychology Professional Corporation in a treatment plan submitted May 18, 2018, and denied by the respondent on August 14, 2018;

(b) $1,222.16 for physiotherapy treatment, recommended by Monisha Nambiar of North Park Rehab in a treatment plan submitted October 25, 2017, and denied by the respondent on December 1, 2017; and

(c) $2,460.00 for a chronic pain assessment, recommended by Dr. Tutak in a treatment plan submitted February 26, 2018, and denied by the respondent on May 10, 2018.

BACKGROUND

5On October 31, 2016, the applicant was involved in an accident when his vehicle was rear ended while stopped at a traffic light, pushing his vehicle into the car in front of him. He felt immediate pain in his neck, ribs, left shoulder, right knee and back and visited his family doctor's office shortly afterwards, who referred him for treatment. Following the accident, the applicant returned to his job at the [airport] as a result of financial necessity. He has actively participated in physiotherapy, massage, chiropractic treatment, psychological treatment and a driver's reintegration program which he found beneficial in alleviating his symptoms and improving his function.

6The applicant maintains he is entitled to all the treatment plans as he suffers from chronic pain, post-traumatic stress disorder ("PTSD"), depression and driving and passenger anxiety. Further, to date, he has not recovered from his accident related impairments nor has he returned to his pre-accident activities of daily living.

7The respondent argues that the applicant has reached maximum medical recovery from both his physical and psychological impairments and that none of the treatment plans are reasonable and necessary. The respondent takes the position that the accident was not the cause of the applicant's psychological complaints. It contends that the applicant had a pre-existing psychological impairment as a result of the death of his father in June 2016, which sadly occurred shortly before the accident.

ANALYSIS:

8Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.

9The applicant is not entitled to payment for the balance of this treatment plan for the following reasons.

10The respondent sent the applicant an explanation of benefits ("EOB") dated August 14, 2018 advising that it partially approved the treatment plan in the amount of $2,034.93 which consisted of $1,795.32 for 12 sessions of psychotherapy and $200.00 for the completion of the treatment plan (OCF-18). The disputed amount of $795.33 was for the following:

(i) $252.00 for documentation/support activity;

(ii) $94.50 for planning service;

(iii) $448.83 for a mental health assessment;

(iv) 149.61 for documentation/support activity;

(v) $20.00 for educational materials; and

(vi) $70.00 for documentation/support activity.

11In its EOB, the respondent provided the following rationale for the amounts it did not agree to pay:

(i) Insufficient medical information has been presented indicating that client related supervision services are reasonable and necessary. We will require additional information as to why client related supervision services are reasonable and necessary.

(ii) Any goods/services relating to planning/preparation/brokerage, as they are included in the $200.00 maximum fee allowable for an OCF 18 completion.

(iii) Any fee for a Progress report. The completion of an OCF 18, if additional treatment is required, will provide updated progress information. If additional progress information is required, we will request it and fund accordingly.

12The applicant argued that the respondent did not clearly explain what it was approving and what it was denying in its EOB. Further, that the treatment plan did not include anything related to supervision services. While I agree that the treatment plan did not include supervision of services, I disagree with the applicant's position that the respondent did not explain what was approved. The respondent advised that it was approving the psychotherapy and would pay the $200.00 for completion of the treatment plan. In his submissions, the applicant did not address why the disputed amounts noted above are payable or provide any authority in the Schedule to support same.

13The respondent submitted the Financial Services Commission of Ontario ("FSCO") Superintendent Guideline No.03/14 ("Guideline") in support of its position that the disputed amounts are not payable. Section 268.3(3) of the Insurance Act provides that the Guideline should be taken into consideration when it comes to interpreting the Schedule.¹ The Guideline sets out the maximum hourly rates service providers can charge and provides that an insurer is only liable to pay $200.00 for the completion of the treatment plan as an administrative fee. Further, the Guideline states that hourly rates for professional services include the following:

all administration costs, overhead, and related costs, fees, expenses, charges and surcharges. Insurers are not liable for any administration or other costs, overhead, fees, expenses, charges or surcharges that have the result of increasing the effective hourly rates, or the maximum fees payable for completing forms, beyond what is permitted under the Professional Services Guideline.

14In my view, the hourly rate for professional services includes things like documentation to support activity and planning. Without further explanation from the applicant, I find the additional fees outlined on the treatment plan excessive. In addition, I agree with the respondent that charging for a future mental health assessment when one may not be required is premature and is not a reasonable expense. For these reasons, I do not find the balance of this treatment plan reasonable and necessary.

15The respondent also argues that the applicant is not entitled to payment of the approved portion of this treatment plan as he is in non-compliance with s.33 (1) of the Schedule, which requires an insured to comply with the insurer's request for information within 10 days. In its explanation of benefits, the respondent requested information regarding who would be providing the psychotherapy, their registration number, as well as the format of the treatment. An insurer is not liable to pay for any benefit during the time period an insured is in non-compliance with s.33(1). The respondent argues that, to date, the applicant has not complied with its request for this information.

16In his submissions for this hearing, the applicant provided the information the respondent had requested. I find it puzzling why the applicant did not comply with the respondent's request for this information until filing his submissions for this written hearing as this issue could have easily been resolved. However, s. 33(8)(a) is clear that once an insured complies with a request for information, an insurer shall resume payment of the benefit. Therefore, in my view this is a non-issue and the respondent can now issue payment for the approved portion of the treatment plan. However, I do not find interest payable on the approved amount as a result of the applicant's non-compliance with s.33 (1) of the Schedule.

(ii) Is the applicant entitled to receive a medical benefit in the amount of $3,157.06 for psychological treatment, recommended by Pilowsky Psychology Professional Corporation in a treatment plan submitted January 9, 2019, and denied by the respondent on March 18, 2019?

17I find that the applicant is entitled to partial funding for this treatment plan in the amount of $1,995.32 for the following reasons.

18Part 9 of the treatment plan states that its goal was to decrease the applicant's psychological impairment in order to return him to his normal activities of daily living. I find that the medical records and reports of all the assessors support that the applicant consistently reported that he suffered from persistent nightmares, has become socially withdrawn due to lack of motivation and fatigue and suffers from driving and passenger anxiety as a result of the accident. Further, while the applicant returned to work following the accident, his sleep was impacted as a result nightmares and pain, which made him snappy at work. As a starting point, I find the goals and objective of the treatment plan reasonable and necessary.

19I find that as of January 9, 2019 (the date the treatment plan was submitted), the applicant was still suffering from ongoing psychological complaints. This is supported by the last session note of Dr. Sagrati dated January 23, 2019 in which the applicant reported that his mood was flat, and he does not want to socialize. While the last session note dated February 13, 2019 highlights an improvement as a result of a change in the applicant's medication, he reported that he was still having nightmares about the accident at that time. The respondent contends that the CNRs of Dr. Persaud, the applicant's family doctor dated January 26, 2019, August 15, 2019 and September 2019 demonstrate that the applicant was no longer suffering from any impairment. However, the one reference in January 2019 the doctor made was a note relating to back pain. In my view, just because the applicant's psychological concerns are not mentioned in one CNR is not strong evidence that the applicant no longer suffered from any impairment. In addition, the CNRs for August and September 2019, which support that the applicant's mood had stabilized post-date the date the treatment plan by 7 months. In my view, this is a substantial gap in time for the applicant to make improvements.

20With the exception of the last psychological insurer examination (IE) of Dr. Syed dated March 6, 2019 (which I will address later), the psychological reports of Dr. Pilowsky dated February 16, 2018 and IE psychological assessors Dr. Nemeth dated December 20, 2017 and Dr. Syed dated July 23, 2018, support that the applicant sustained a psychological impairment as a result of the accident. In particular, the applicant was diagnosed with PTSD with secondary depression by Dr. Pilowsky. Dr. Nemeth diagnosed the applicant with specific phobia relating to driving a motor vehicle and Dr. Syed diagnosed him with PTSD, resolving. Both IE assessors provided a psychological diagnosis as a result of the accident. Consequently, I find the respondent's argument on causation in its submissions unfounded as its own assessors disagree. I find that the applicant consistently reported his accident-related psychological symptoms to all assessors, there were no issues with malingering or exaggeration and the results on all psychometric tests were deemed valid. Moreover, the session notes of Dr. Sagrati demonstrate that the applicant participated in treatment which significantly improved his symptoms. The fact that the applicant was benefitting from treatment is also verified by the CNRs of Dr. Persaud.

21Finally, the respondent relied on the IE report of Dr. Syed in support of its denial of this treatment plan which it contends supports that as of March 2019, the applicant's psychological impairment had resolved. I did not find Dr. Syed's IE report persuasive as (except for a few amendments) the report was practically identical to the doctor's initial report completed in July 2018. Further, I agree with the applicant that the results of the psychometric testing from Dr. Syed's second IE report are very similar to the initial report. In my view, the psychometric test results do not support the doctor's conclusion that the applicant no longer suffers from a psychological impairment. The psychometric test results demonstrate that the applicant's symptoms were the same, and or had increased/decreased slightly in certain areas. Despite this, Dr. Syed concludes that the applicant has reached maximum medical recovery and opines that further treatment is not required. However, what I found lacking from Dr. Syed's conclusion was an explanation on how the doctor reached her conclusion. I found Dr. Syed's opinion inconsistent with the rest of her report as well as the other medical documentation.

22While I find that additional psychological treatment is reasonable and necessary, I find the quantum of the treatment plan excessive for the same reasons I have already highlighted above. I find $1,995.32 reasonable for 12 sessions of psychotherapy and $200.00 for the completion of the treatment plan. The treatment plan included $1,361.74 for planning, documentation to support activity, educational material and preparation of an additional mental health assessment. I do not find these amounts payable as they are either not in compliance with the Guideline and I find a future mental health assessment is premature.

23The applicant has met his onus in proving on a balance of probabilities that he is entitled to partial funding of the treatment plan for psychological treatment in the amount of $1,995.32.

(iii) Is the applicant entitled to receive a rehabilitation benefit in the amount of $2,648.00 for medical services, recommended by DriveAgain in a treatment plan submitted April 19, 2018, and denied by the respondent on July 23, 2018?

24I find the applicant is entitled to partial funding for this treatment plan in the amount of $2,048.75 for the following reasons.

25Under activity limitations, the treatment plan states that the applicant is limited in his ability to be in a vehicle as a passenger at this time due to extreme hypervigilance and mirror checking which distracts the driver. His driving has been improving but he needs more exposure. Under Part 9, the treatment plan states that the goal of the treatment plan is to increase the applicant's confidence by providing exposure to a variety of driving situations in order to decrease anxiety. More importantly, the treatment plan will focus on addressing the applicant's passenger anxiety so he can drive with others without feeling embarrassed. I find the goal of the treatment plan to be a reasonable in that the applicant has consistently reported his symptoms of driving and passenger anxiety to Dr. Persaud, Dr. Sagrati and all IE assessors.

26Dr. Nemeth, who conducted the first psychological IE, recommended that the applicant participate in a driving reintegration program and approved the first treatment plan. The applicant has actively participated in treatment which has improved his symptoms and has increased his confidence in driving. However, the applicant has also consistently reported to all assessors that he has yet to overcome his passenger anxiety. In my view this supports that additional treatment is required.

27The respondent relied on Dr. Syed's first IE completed in July 2018 to deny this treatment plan. The applicant argues that Dr. Syed's IE is flawed as even though the applicant consistently reported his driving and passenger anxiety to all assessors including Dr. Syed, she concludes that the treatment plan is not reasonable or necessary and does not provide an explanation as to why. I agree with the applicant that Dr. Syed fails to explain why she does not find the treatment plan reasonable and necessary. In my view Dr. Syed's opinion is inconsistent with all the evidence before me. I find the applicant's driving and passenger anxiety remained unresolved as of the date the treatment plan was submitted. For the above-noted reasons I find the treatment plan partially reasonable and necessary.

28While I find additional treatment to be reasonable and necessary, I find the cost of the treatment plan excessive. I find the treatment plan partially reasonable in the amount of $2,048.75 which includes 10 sessions of driving therapy and cognitive behaviour training and $200.00 for the preparation of the treatment plan. The treatment plan included $599.25 for planning services, documentation to support activity and an amount for a future assessment report. As already established, the Guideline provides that these types of things are included in the hourly rates charged for professional services. In addition, as already determined I find charging for a future assessment that may not be required is premature.

29The applicant has met his onus in proving on a balance of probabilities that the treatment plan for a driving reintegration program is partially reasonable and necessary in the amount of $2,048.75.

30I find the applicant is entitled to payment of this treatment plan in the amount of $2,585.65 for the following reasons.

31The treatment plan states that the goals are to reduce pain and increase strength and range of motion ("ROM") in order to return the applicant to his activities of daily living. I find this to be a reasonable objective as the applicant consistently reported to Dr. Persaud and IE assessors that he suffered from chronic back pain and that it interfered with his ability to conduct his housekeeping and home maintenance tasks. Further, he had difficulty with prolonged standing and sitting. The treatment plan recommended ten sessions of chiropractic treatment at a cost of $1,128.10; 10 sessions of massage therapy for a total cost of $581.90, a tens unit for $500.00, tens unit accessories for $100.00 and $200.00 for the completion of the treatment plan. I do not find these amounts excessive.

32I find that the treatment plan is reasonable and necessary as the applicant consistently reported to all doctors that chiropractic treatment was very beneficial in alleviating his symptoms of pain which enabled him to function in his job and other daily activities. It is well accepted law that ongoing treatment is considered reasonable and necessary if it alleviates a person's pain and improves their function. Therefore, I find the treatment plan reasonable and necessary.

33The respondent argued that there is no evidence that the applicant had any issues with his ROM. I disagree. Dr. Persaud's CNR dated December 17, 2017 noted that upon examination, the applicant had limited ROM. Dr. Persaud recommends that the applicant continue with chiropractic treatment. This note was two months after the treatment plan was submitted. The respondent argued that Dr. Persaud's CNRs support that the treatment plan is not reasonable or necessary as the applicant's physical symptoms had resolved. It referred to three CNRs from 2019. In my view, this does not support the respondent's position as the CNRs it referred to were almost two years after the treatment plan was submitted. The applicant submitted the account of FitClinic which demonstrates that he incurred the treatment plan as he required further treatment at the time it was submitted. Therefore, I find the fact that the applicant's symptoms had resolved in 2019 irrelevant to the present analysis.

34The respondent relied on the IE of Dr. Abuzgaya, orthopaedic surgeon dated November 28, 2017 to deny this treatment plan. Dr. Abuzgaya's report reflects that the applicant suffered from throbbing pain in his low back and that chiropractic treatment had resulted in a 40 to 50% improvement. Dr. Abuzgaya diagnosed the applicant with soft tissue injuries and opined that the treatment plan was not reasonable or necessary. As already determined, I find that the applicant was consistent in his reports of pain to all doctors and assessors and that chiropractic treatment assisted with pain relief and improved his functioning. Therefore, I disagree with Dr. Abuzgaya and find the treatment plan to be reasonable and necessary.

35I find the applicant has met his onus on a balance of probabilities that the treatment plan for chiropractic treatment in the amount of $2,585.65 is reasonable and necessary.

36I find the applicant is not entitled to this treatment plan for the following reasons.

37The treatment plan dated October 25, 2017 for physiotherapy recommended by North York Rehab in the amount of $1,222.16 recommended 8 sessions of physiotherapy at a cost of $788.00, 4 sessions of massage therapy in the amount of $224.16 and $200.00 for the cost of preparing the treatment plan. The goals of the treatment plan are for pain reduction, increase ROM and increase strength.

38I do not find this treatment plan to be reasonable or necessary as in his submissions, the applicant indicated that he had started attending Fit Clinic as of October 2017. Moreover, in the previous treatment plan submitted by Fit Clinic late September 2017, it states that "previous clinics the applicant had attended were poor treatment quality and provided little to no benefit as per patient. Initial treating clinic shut down and second clinic reportedly did not even conduct an assessment of his injuries." In my view, this does not support that this treatment plan is reasonable or necessary as the applicant reported little to no benefit in past physiotherapy treatment or treatment provided by this clinic. Further, no rationale was provided by the applicant for why this treatment plan was submitted when he had switched clinics as the time period for the two treatment plans overlap.

39In addition, I find that the applicant was inconsistent in his reports that past physiotherapy was beneficial to him as he reported to his own assessors Dr. Pilowsky and Dr. Abraham that he did not find physiotherapy helpful in alleviating his symptoms of pain or improving his function. For these reasons, I find the applicant has not met his onus in proving on a balance of probabilities that this treatment plan is reasonable or necessary as a result of his accident related impairments.

(vi) Is the applicant entitled to payments for the cost of examinations in the amount of $2,460.00 for a Chronic Pain Assessment, recommended by Dr. Tutak in a treatment plan submitted February 26, 2018, and denied by the respondent on May 10, 2018?

40I find the applicant is not entitled to funding for the chronic pain assessment for the following reasons.

41Under Part 8 of the treatment plan for the chronic pain assessment the author states "unknown" under activity limitations. I find that the author of the treatment plan had very little knowledge of the applicant's status when he prepared this treatment plan. Under part 9, it lists that the goal of the treatment plan was to return the applicant to his normal activities of daily living. What I find perplexing is if the author of the treatment plan was not aware of the applicant's activity limitations then how is the purpose of the assessment justified in returning the applicant to his normal activities of daily living. Further, under barriers to recovery the treatment plan states that the applicant may have "a possibility of developing chronic pain." In my view, I do not find the possibility of developing chronic pain a strong enough justification for a chronic pain assessment, especially when the author seems to have very little information about the applicant's activity limitations or status.

42I find that the most recent CNRs of Dr. Persaud support that as of the date of this hearing the applicant suffered from minimal pain and was pretty much back to normal. At some point, the applicant acquired the services of a personal trainer which improved the applicant's strength and symptoms of physical pain. This was in line with the applicant's assessor, Dr. Abraham's who recommended in his report dated October 9, 2018 that the applicant participate in more aggressive physical exercise. Based on the records before me it appears that the applicant's treatment regime was a success as the CNRs note significant improvements with physical pain after the applicant retained the personal trainer. While he still complained of having mild back pain in some of the CNRs the evidence as of the date of this hearing do not support that a chronic pain assessment is required. Therefore, I find that the applicant has not met his onus in proving on a balance of probabilities that the chronic pain assessment is reasonable and necessary as a result of his accident related impairments.

ORDER

43For all of the above reasons, I order as follows:

(i) The applicant is entitled to the following:

(c) $2,585.65 for chiropractic treatment, recommended by Dr. Nauth-Ali of Fit Clinic in a treatment plan submitted September 30, 2017, and denied by the respondent on December 1, 2017; and

(d) Interest on any overdue payments pursuant to the Schedule.

(ii) The applicant is not entitled to the following:

(b) $1,222.16 for physiotherapy treatment, recommended by Monisha Nambiar of North Park Rehab in a treatment plan submitted October 25, 2017, and denied by the respondent on December 1, 2017; and

(c) $2,460.00 for a chronic pain assessment, recommended by Dr. Tutak in a treatment plan submitted February 26, 2018, and denied by the respondent on May 10, 2018.

Released: June 10, 2020

__________________________

Rebecca Hines

Adjudicator

Footnotes

Insurance Act, R.S.O.1990, c.1.8

A.G. v. Aviva Insurance Canada, 2020 CanLII 42648

Case Summary