Released Date: 07/22/2020
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:
Amarjit Kanwar
Applicant
And
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
For the Applicant: Vismay Merja, Student-at-Law
For the Respondent: Sarah Fasih, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Amarjit Kanwar, (the “applicant”) was involved in an automobile accident on February 19, 2016, and sought benefits from Aviva General Insurance Company (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, however, were unable to resolve the issues in dispute. The matter proceeded to this written hearing.
ISSUES IN DISPUTE
3I have been asked to decide the following issues:
i. Is the applicant entitled to payment of a cost of examination in the amount of $2,486.00 for a neurological assessment, recommended by Injury Management and Medical Assessment in a treatment plan submitted June 13, 2017, and denied by the respondent on June 23, 2017?
ii. Is the applicant entitled to receive a medical benefit in the amount of $2,252.00 for physiotherapy treatment, recommended by Progressive Rehab Clinic in a treatment plan submitted June 22, 2017, and denied by the respondent on June 29, 2017?
iii. Is the applicant entitled to receive a medical benefit in the amount of $1,910.00 for physiotherapy treatment, recommended by Progressive Rehab Clinic in a treatment plan submitted October 26, 2017, and denied by the respondent on November 8, 2017?
iv. Is the applicant entitled to receive a medical benefit in the amount of $2,144.93 for psychological services, recommended by Injury Management and Medical Assessment in a treatment plan submitted December 22, 2017, and denied by the respondent on January 8, 2018?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4After reviewing the parties’ submissions and all the evidence I find the applicant is not entitled to any of the disputed treatment plans or interest as I do not find that they are reasonable and necessary.
BACKGROUND
5The applicant, a 79 -year-old woman was involved in a collision when her vehicle was rear-ended. She attended her family doctor’s office three days later complaining of neck, back and shoulder pain. This file is complicated by the fact that the applicant’s pre-accident medical history is significant as she suffered from diabetes mellitus, a prior diagnosis of microvascular angina, right shoulder pain, arthritis of the joints, carpal tunnel syndrome and chronic back and leg pain.
6The applicant maintains that despite having these pre-existing medical conditions she was independent in her activities of daily living and did not have any functional limitations. Post-accident the applicant asserts that she struggles to complete some of her activities of daily living and housekeeping and home maintenance tasks.
7The respondent submits that the accident did not cause the applicant’s impairments as her pre-accident medical history was significant for arthritis and chronic pain. In addition, it contends that the applicant failed in her onus to prove on a balance of probabilities that the treatment plans are reasonable and necessary.
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.
9I find the applicant is not entitled to the neurological assessment for the following reasons.
10The treatment plan for the neurological assessment dated June 23, 2017, in the amount of $2,486.00 was authored by Mailk Umair, psychotherapist. The goal of the treatment plan was to have the applicant assessed by a neurologist to determine whether there was any accident related neurological disorder. Under the additional comments section of the plan, the psychotherapist notes the applicant reported headaches associated with occasional dizziness and sensitivity to light and concentration difficulty. In addition, she was having problems with short term memory, sleep and ongoing pain and numbness. A neurological assessment was also recommended by the applicant’s assessor, Dr. Efala, orthopaedic surgeon, in the doctor’s report dated April 23, 2017 because the applicant complained about headaches, dizziness and problems with sleep.
11The respondent denied the treatment plan on the basis that the neurological assessment is not payable because it is a duplication of services, otherwise available under OHIP pursuant to s.47(2) of the Schedule. The applicant submitted the Tribunal’s Reconsideration Decision in G.T. v. Unifund1 in support of her position that insurers cannot just make a bare assertion that a benefit is available through OHIP or another collateral benefit provider without providing evidence of same. In G.T. v. Unifund, the Executive Chair clarified that if an insurer is going to take such a position then the onus is on the insurer to provide some evidence that the benefit was reasonably available to the insured from a collateral provider. The onus then shifts to the insured to prove that the benefit was not available.
12I agree with the Executive Chair that if an insurer is going to take the position that a benefit is available through another collateral provider then it should submit some evidence to prove same. I also agree with the applicant that the respondent did not submit any evidence to support its reason for the denial of this benefit. However, even though the respondent’s denial of the benefit was not sufficient, the onus is still on the applicant to prove that the benefit in dispute is reasonable and necessary.
13I find the applicant’s position on this issue fails because she was inconsistent in reporting her issues regarding headaches, dizziness and sleep problems around the same time period in which the treatment plan was submitted. As a result, I give her self-reports to assessors less weight. For example, in the clinical notes and records (“CNRs”) of Fenton Medical Centre (family doctor’s office) dated July 15, 2016, February 6, 2017 and April 7, 2017, the applicant reported that she had no headaches or dizziness and that her sleep was normal. Notably, Dr. Efala’s assessment was completed one week after the April 2017 visit to her family doctor and the applicant reported to Dr. Efala that she suffers from headaches, dizziness and poor sleep. The applicant did not provide an explanation for these inconsistencies in her submissions. Further, there were no visits to her family doctor in May and June 2017 complaining of headaches and dizziness. In my view, these CNRs raise issues with respect to the applicant’s credibility as her complaints to her family doctor and the assessors are not consistent. As a result, I do not find that the applicant has proven on a balance of probabilities that a neurological assessment is reasonable and necessary as a result of her accident related impairments.
14The applicant is not entitled to either treatment plan for physiotherapy, chiropractic treatment or massage recommended by Progressive Rehab Clinic for the following reasons.
15The first treatment plan in the amount of $2,252.00 for physiotherapy authored by Derek Ginter submitted August 20, 2017 recommended 12 sessions of physiotherapy and massage plus the cost of preparing the treatment plan. Under activity limitations, it stated the applicant has pain and discomfort with static postures, prolonged sitting, standing and bending. Further, she has difficulties with lifting tasks and overuse of upper limbs which interfere with her ability to do household activities. The goal of the treatment plan is for pain reduction, increase in strength and promote core strength and stability. Mr. Ginter states that the applicant has been doing well in the program, but no further particulars are provided regarding improvement.
16The second treatment plan in the amount of $1,910.00 for chiropractic treatment and massage authored by Dr. Rujeedawa, chiropractor, submitted October 19, 2017 recommends 10 sessions of each modality. The plan is identical as far as identifying the applicant’s activity limitations and the goals are similar. No progress from past treatment is noted on this plan.
17In support of her position that the two treatment plans for physiotherapy are reasonable and necessary, the applicant relies on the chronic pain assessment of Dr. Efala dated April 23, 2017, and CNRs of Fenton Medical Centre. Dr. Efala diagnosed the applicant with chronic pain of the cervical and lumbar spine, degenerative disc disease (cervical and lumbar spine); myofascial pain of the bilateral shoulders; left knee contusion; left lateral collateral ligament tendinosis and left quadriceps tendon calcific tendinosis. In addition, Dr. Efala recommended that the applicant have an MRI of the cervical and lumbar spine, ultrasound of left shoulder and x-ray of left knee. Dr. Efala indicated that once this imaging is reviewed, the doctor would then make recommendations for future treatment which may include further physiotherapy amongst other treatment. Dr. Efala also recommended that the applicant undergo a neurological and psychiatric assessment. Dr. Efala opined that, without further treatment, the applicant’s condition could deteriorate and it is likely that she will require an extended period of rehabilitation.
18The respondent relied on two insurer examination (“IE”) reports of Dr. Belfon, general practitioner, dated December 14, 2016 and August 4, 2017. Dr. Belfon’s first IE assessed the applicant regarding a previous treatment plan for physical therapy in October 2016. In the report dated December 14, 2016, Dr. Belfon diagnosed the applicant with sprain and strain of the lumbar spine, shoulder girdles and post-traumatic headaches as a result of the accident. In my view, since the respondent’s own assessor determined that the applicant’s impairments were accident-related, I do not think it is necessary to do an analysis with respect to causation. Dr. Belfon opined that the radiographic evidence showed that the applicant had pre-existing degenerative disc disease in her neck and back and that these findings, compounded by the applicant’s age, will likely delay her recovery. It was the doctor’s opinion that the treatment plan was reasonable and necessary.
19Dr. Belfon’s second IE report dated August 4, 2017 was to assess whether the treatment plan in the amount of $2,252.00 for physiotherapy and massage recommended by Derek Ginter, chiropractor, was reasonable and necessary. The doctor’s physical examination of the applicant revealed that her range of motion (“ROM”) of the cervical spine was performed in a slow and guarded manner. The doctor’s examination of the applicant’s lumbar spine demonstrated that her ROM was brisk and fluid but with pain. Dr. Belfon notes that there was a significant improvement in the applicant’s ROM since the first assessment. She displayed full ROM in her neck, back and shoulders with some residual myofascial pain. Dr. Belfon opined that the applicant’s pre-existing condition has delayed recovery but that further therapy is unlikely to bring about any therapeutic benefit 17 months post-accident. However, Dr. Belfon recommended that the applicant continue with yoga, apply a tens unit and continue with her home exercise program.
20I do not find either Dr. Efala or Dr. Belfon’s reports helpful in determining whether the applicant requires ongoing physical therapy. Significantly Dr. Efala’s report lists the incorrect date of loss. The report states that the accident occurred on February 16, 2015 and the accident happened in 2016. This was not a mere typographical error as the doctor refers to it being 26 months post-accident as of the date of the assessment. In addition, it is not clear from Dr. Efala’s report which diagnoses are related to the accident and which impairments were pre-existing. Dr. Efala opines that there is a probable causal link between the applicant’s impairments and the accident. For these reasons, I find it difficult to accept Dr. Efala’s opinion regarding the applicant’s impairments or future prognosis. Moreover, Dr. Efala recommended that the applicant undergo various diagnostic tests prior to giving an opinion on future treatment. No evidence is before me that the applicant underwent these diagnostic tests and an addendum report was not completed by Dr. Efala making any recommendations. Finally, the applicant reported to Dr. Efala that despite receiving physiotherapy, her symptoms remain the same.
21I find Dr. Belfon’s opinion in the IE report dated August 4, 2017 contradictory as well. On the one hand, the doctor opines that the applicant’s pre-existing condition has delayed recovery but then the doctor indicates that the applicant will not receive any further therapeutic gain from further treatment. However, the doctor then recommends the applicant do yoga, apply a tens unit and continue with home exercises. I find these two recommendations contradictory.
22Since I find both expert reports to be problematic, the CNRs of the applicant’s family doctor are important. The applicant has consistently attended her family doctor’s office since the accident, complaining of pain in her back, neck, shoulders and leg. The accident is referenced as being the cause on several occasions. There are a few references in the CNRs where the family doctor refers the applicant to a pain clinic. What I found lacking from the Fenton Medical Centre’s Records was any reference to past physiotherapy or treatment being helpful in alleviating the applicant’s pain or improving her function. Even Dr. Efala’s report notes that the applicant did not report any difference in her symptoms following therapy. Further, the applicant did not submit any session or progress reports from Progressive Rehab Clinic noting that treatment was alleviating the applicant’s pain or noting any progress from treatment. Part of the test to determine whether a treatment plan is reasonable and necessary is that the treatment plan will meet its stated objectives. While I do believe that the applicant still suffers from accident related pain, I am not convinced that future physiotherapy or massage is going to increase her ROM, decrease her pain or improve her function.
23The applicant has not met her onus in proving on a balance of probabilities that the two treatment plans for physical therapy, massage and chiropractic treatment recommended by Progressive Rehab Clinic are reasonable and necessary.
24The applicant is not entitled to the treatment plan for psychological services recommended by Injury Management and Medical Assessment Centre for the following reasons.
25The treatment plan in the amount of $2,144.93 submitted by Leanne Wagner, psychological associate, recommended 10 sessions of psychotherapy as well as fees for planning and preparation of the treatment plan. The goal of the treatment plan was to address the applicant’s overall adjustment to the accident and underlying emotional experience.
26The applicant relied on the progress report of Ms. Wagner, dated November 6, 2017 in support of her position that she requires ongoing psychological treatment as a result of the accident. In that report, Ms. Wagner highlights that the applicant had undergone 12 sessions of psychotherapy and although her mood had improved with therapy she still suffers emotionally because her physical pain makes her frustrated and sad. The applicant reported being worried about her health as well as not have anyone to help her with housekeeping as her husband had open heart surgery a few years prior. Further, the applicant continues to express anxiety, irritability and has become socially withdrawn. The therapy received by the applicant so far has taught her deep breathing exercises and mindfulness meditation techniques which have helped stabilize her mood. Ms. Wagner indicates that her prognosis for recovery is good as she has been responsive to treatment. However, additional therapy is recommended so that the applicant’s condition does not deteriorate.
27The respondent relied on the IE of Dr. Zakzanis, psychologist, dated May 28, 2018 who opined that the disputed treatment plan is not reasonable and necessary. The applicant reported to Dr. Zakzanis that she found the psychological treatment received thus far to be helpful but denied interest in receiving additional psychotherapy. Further, Dr. Zakzanis notes that the applicant reported that she is happy now, she denied having any further depressive symptoms and reported that physical pain is her sole issue. The applicant did express feeling anxiety in worrying about pain and future functioning as well as concern about caring for her sick husband. However, Dr. Zakzanis concluded that, from a psychological standpoint, the applicant has “achieved near psychological recovery” and that further psychological treatment is not reasonable or necessary.
28I prefer Dr. Zakzanis’s opinion over Ms. Wagner’s as Dr. Zakzanis report was more thorough and involved psychometric testing. Further, the applicant was inconsistent in reporting her psychological complaints to Ms. Wagner and Dr. Zakzanis and no explanation was provided in her submissions for these inconsistencies. I also agree with the respondent that the applicant’s psychological complaints were not consistently documented by her family doctor while some of her other complaints were.
29The applicant submitted a psychological referral from her family doctor dated January 21, 2020 which states “ongoing complaints of low mood, poor concentration, insomnia, anxiety and reliving/dreaming about mvas (motor vehicle accidents). Her symptoms started after the mva – worsening over the past few months.” In my view, if the applicant’s psychological symptoms started following the accident then they would be documented throughout the family doctor’s CNRs. Instead, the psychological referral of the family doctor post-dates the denial of the treatment plan by two years. For this reason, I give it less weight.
30The applicant has not met her onus in proving on a balance of probabilities that the treatment plan for psychological treatment recommended by Ms. Wagner is reasonable and necessary.
ORDER
31For all the above reasons:
i) the applicant is not entitled to any of the disputed treatment plans or interest as I do not find that they are reasonable and necessary.
ii) the application is dismissed.
Released: July 22, 2020
Rebecca Hines Adjudicator
Footnotes
- G.T. v Unifund Assurance Co., 2017 CanLII 81567 (ON LAT)