Released Date: 08/07/2020
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:
Herma Taylor
Applicant
And
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Stefan Juzkiw, Counsel
For the Respondent:
Sarah Fasih, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Herma Taylor, (the “applicant”) was involved in an automobile accident on December 26, 2016, and sought benefits from Aviva 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 but were unable to resolve the issues in dispute. The matter proceeded to this written hearing.
ISSUES
3I have been asked to decide the following issues:
(i) Is the applicant entitled to a medical benefit in the amount of $1,222.80 for assistive devices recommended by Promed in a treatment plan (OCF-18) submitted July 13, 2017, and denied by the respondent on July 24, 2017?
(ii) Is the applicant entitled to a medical benefit in the amount of $3,671.24 for psychological treatment recommended by Promed in a treatment plan (OCF-18) submitted January 9, 2018, and denied by the respondent on January 23, 2018?
(iii) Is the applicant entitled to interest on overdue payment of benefits?
RESULT
4After reviewing the parties’ submissions and all the evidence and caselaw, I find that the applicant is not entitled to either treatment plan in dispute or interest as I do not find that the treatment plans are reasonable or necessary.
BACKGROUND
5On December 26, 2016, the applicant was involved in an accident when her vehicle slipped on black ice resulting in her vehicle flipping over onto its roof into a ditch. Sadly, the collision resulted in the death of the applicant’s dog. The applicant maintains that she suffered from injuries to her neck, shoulder, lower back, and ankle as well as a psychological impairment. Further, that her ongoing pain from these injuries prevent her from performing her activities of daily living.
6Following the accident, the applicant attended Mackenzie Medical Centre for physical treatment and switched to Promed Rehabilitation Centre in the summer of 2017.
7On June 23, 2020, I issued an order requesting the applicant to submit a copy of the treatment plans in dispute. Despite this request, the applicant failed to comply. Since the applicant failed to submit the treatment plans, it is unclear whether either contained any additional information that would have assisted the Tribunal in deciding this matter.
(i) Is the applicant entitled to a medical benefit in the amount of $1,222.80 for assistive devices recommended by Promed in a treatment plan (OCF-18) submitted July 13, 2017, and denied by the respondent on July 24, 2017?
8The applicant is not entitled to the treatment plan in the amount of $1,222.80 for assistive devices recommended by Promed.
9The applicant argues that the treatment plan is reasonable and necessary as she still suffers from ongoing pain as a result of her accident related impairments which has interfered with her ability to carry out her pre-accident activities of daily living. Further, that she has incurred the cost of the treatment plan, therefore, it is reasonable and necessary.
10The respondent maintains that the treatment plan is not reasonable and necessary as the applicant has failed to submit any evidence that she has any ongoing physical impairments which require the assistive devices proposed in the treatment plan. Moreover, the fact that the applicant has incurred the treatment plan is irrelevant to whether it is reasonable and necessary. For the following reasons I agree with the respondent.
11According to the applicant’s submissions and the insurer examination (“IE”) of Dr. Kopansky-Giles, chiropractor, the treatment plan submitted by Promed recommended a heat pad at a cost of $165.00; biofreeze gel at a cost of $45.00; a cervical pillow at a cost of $150.00; a TENS unit at a cost of $450.00 and $412.81 for documentation and to support activity for the provision of these services. The goals of the treatment plan were for pain reduction, aid in performance of personal care tasks, prevent secondary injuries, aid in independent functional performance and to return the applicant to activities of normal living.
12In support of her entitlement to the treatment plan, the applicant submitted the IE of Dr. Kopansky-Giles, chiropractor, dated August 18, 2017, a consult note and clinical notes and records (“CNRs”) of Mackenzie Medical Centre and documents from Promed confirming that the treatment plan was incurred. I find that the evidence relied upon by the applicant does not support that the treatment plan is reasonable and necessary.
13Dr. Kopansky-Giles conducted an IE to determine whether the treatment plan was reasonable and necessary. The doctor diagnosed the applicant with “a) left shoulder rotator cuff tendinopathy (supraspinatus and mild teres minor) with functional limitation; b) minor, residual strain of the Achilles tendon/soleus muscle in the right ankle in the absence of functional limitation; and c) resolved strain/sprain of lumbosacral spine with residual, subjective report of pain in the absence of objective findings.”
14Dr. Kopansky-Giles opined that the treatment plan is not reasonable and necessary because the proposed goods would not result in any substantive improvement to the applicant’s current accident-related impairments. The doctor indicated that the assistive devices are passive approaches to treatment and that the applicant requires more active treatment. Dr. Kopansky-Giles recommended that the applicant be provided with access to a fitness facility for a period of 3 to 4 months where she can participate in exercise 3 to 4 times per week and also recommended a personal trainer. In the absence of any competing expert opinion supporting that the proposed assistive devices are reasonable and necessary, I accept Dr. Kopansky-Giles’s opinion.
15I also did not find the consult notes or CNRs of Mackenzie Medical Centre helpful in determining that the treatment plan is reasonable and necessary as the records do not make any recommendations that the applicant receive the assistive devices in dispute. The point that the notes reflect that the applicant made a few complaints about pain and did not have full range of motion does not prove that the treatment plan in dispute is reasonable and necessary. Moreover, the fact that the applicant was prescribed pain medication does not support that the assistive devices are reasonable and necessary. What I found lacking from the applicant’s evidence is an opinion of any medical expert justifying the need for these assistive devices as a result of the applicant’s accident related impairment.
16In addition, I agree with the respondent that the fact that the applicant incurred the treatment plan is not relevant to determining whether the treatment plan is reasonable or necessary. It is well established law that the test to prove that a medical benefit is reasonable or necessary is a) the treatment goals, as identified, are reasonable; b) the treatment goals are being met to a reasonable degree; and c) the overall costs of achieving these goals are reasonable. The applicant failed to submit evidence to establish the above.
17The applicant submitted the Tribunal’s decision in 17-007626 v. Aviva1 in support of her position that the treatment plan is reasonable and necessary. In that decision, the adjudicator determined that the insured was entitled to assistive devices. The respondent maintains that that decision is distinguishable because the insured in that case was removed from the Minor Injury Guideline (“MIG”) as a result of a physical impairment. In this case, the applicant was removed from the MIG as a result of a psychological impairment. I did not find this decision relevant to the present analysis as the insured in that case submitted affidavit evidence and it is unclear what medical evidence the adjudicator had before him in reaching his determination.
18The applicant has not met her onus in proving on a balance of probabilities that the treatment plan for assistive devices is reasonable and necessary.
(ii) Is the applicant entitled to a medical benefit in the amount of $3,671.24 for psychological treatment recommended by Promed in a treatment plan (OCF-18) submitted January 9, 2018, and denied by the respondent on January 23, 2018?
19The applicant is not entitled to the balance of the treatment plan for psychological treatment recommended by Dr. Vitelli.
20Both parties agree that the applicant sustained a psychological impairment as a result of the accident. The applicant’s psychologist, Dr. Vitelli, diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood. Dr. Mandel, IE psychological assessor, diagnosed the applicant with adjustment disorder with mixed anxiety. The parties also agree that the applicant required psychological intervention, however, they disagree on the quantum of the treatment plan.
21The exact details of the treatment plan are unknown as the applicant failed to comply with the Tribunal’s order requiring her to submit a copy of the treatment plan in dispute.
22In her submissions, the applicant contends that the proposed psychological services included the costs for therapy sessions, educational materials, progress notes, and planning. The goal of treatment plan was to address negative thought patterns, driving and passenger anxiety and provide cognitive restructuring techniques to deal with her depression, anxious mood, cognition, pain management techniques and sleep improvement techniques. The applicant asserts that since she suffers from a psychological impairment and incurred the full cost of the treatment plan, it is reasonable and necessary. As already highlighted, the fact that the applicant incurred the treatment plan does not establish that it is reasonable and necessary.
23The respondent submitted an Explanation of Benefits (EOB) dated January 23, 2018 partially approving the treatment plan in the amount of $2,369.33 consisting of one-hour sessions of psychotherapy (exact number unknown) and two hours (instead of four) for the preparation of a progress report. The respondent denied the portion of the treatment plan relating to educational materials in the amount of $180.00 as it determined that the cost for print-outs was not a reasonable expense. In her submissions, the applicant did not acknowledge that this treatment plan was partially approved, nor did she address why the balance of the treatment plan is reasonable and necessary. She maintains that she was provided with the educational materials, cognitive behavioural therapy workbook, and a stress ball to assist with the therapy. Absent any explanation or submissions on this issue, I accept the respondent’s reason for partially denying the treatment plan. In my view, the applicant’s submissions and evidence fell short on proving her entitlement to the balance of the treatment plan as she failed to submit the treatment plan itself. Therefore, it is unclear to me what exactly is in dispute or why the balance is reasonable and necessary.
24The applicant has not met her onus in proving on a balance of probabilities that the remaining balance of the treatment is reasonable and necessary.
(iii) Is the applicant entitled to interest on any overdue payment of benefits?
25Section 51 of the Schedule provides that interest is payable if it is determined that benefits are overdue. Since I have determined that the treatment plans are not reasonable and necessary no benefits are overdue. Therefore, the applicant is not entitled to interest.
ORDER
26For all of the above reasons, I find:
i. the applicant is not entitled to either treatment plan in dispute or interest.
ii. the application is dismissed.
Released: August 7, 2020
Rebecca Hines
Adjudicator
Footnotes
- 17-007626 v. Aviva Canada Inc., 2018 CanLII 95584 (ON LAT), 2018 CanLII 095584(ON LAT)