Citation: D.K. vs. Aviva General Insurance, 2020 ONLAT 19-000723/AABS

Released Date: 05/26/2020

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.K.

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Patricia Conway

APPEARANCES:

For the Applicant:

Loreto Scarola, Counsel

For the Respondent:

Leah Dick, Counsel

HEARD: In Writing

May 7, 2020

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was involved in an automobile accident on December 16, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). .The applicant was denied certain benefits by the respondent and applied to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The applicant, 41 years of age at the time, was driving to work in icy conditions and was side-swiped by a snow plow. Her car was a write-off. She was taken to hospital where she was noted to be very upset. Her knee was x-rayed as she complained of knee pain. No injury to the knee was shown on the x-ray. She was discharged home under her sister’s care.

3Over the next day she started to have back and shoulder pain. She went to her family doctor, who recommended taking a week off work and going to physiotherapy. She started physiotherapy immediately and continued with this treatment through 2017 and 2018.

4She returned to work after one week because she has to support her children. She works part time and was given modified duties that do not require heavy lifting. Nonetheless, performing some of the tasks required aggravates her pain.

5In the aftermath of the accident she became very anxious and depressed and afraid of driving which she must do every day, going to work and transporting her children to their various activities and appointments. In April 2017 she was referred by her lawyer to a psychologist to address her anxiety and depression, and she has been receiving psychological treatment since then.

6In August 2017, after receiving a psychological report from Dr. Moshiri, a psychologist retained by the insurer, the insurer advised the applicant that her injuries were outside the Minor Injury Guidelines. To date, the insurer has paid for more than $13,000 for treatments and assessments.

7The applicant’s claim requests payment for additional physiotherapy treatment and psychological assessment and treatment, much of which she has already received and paid for.

ISSUES IN DISPUTE

8Is the applicant entitled to a benefit of $2,200 for a psychological assessment recommended by Pilowski Psychological Services (Pilowski) in an OCF 18 dated April 3, 2017 and denied by the respondent on June 8, 2017? After denying the benefit, the insurer required the applicant to attend for an independent examination. This examination took place in August 2017. The examiner, Dr. Moshiri, submitted a report on August 16, 2017 concluding that an assessment was necessary, but that the cost was too high. He recommended that the insurer pay $1322.07 of the $2,200 cost, and on August 28, 2017 the respondent agreed to do so. The applicant’s claim is for the remainder of $877.93. Thus the sole issue in dispute is whether the cost of the assessment is reasonable.

9Is the applicant entitled to a benefit of $3129.48 for a course of psychological treatment recommended by Pilowski in an OCF 18 dated June 19, 2017 and denied by the respondent on June 23, 2017? Dr. Moshiri found the treatment plan reasonable and necessary in his report of August 16, 2017 but questioned the therapeutic value of two items. The insurer, based on Dr. Moshiri’s recommendation, agreed to pay $2483.75. The applicant’s claim is for the remainder, $645.73. Again the sole issue in dispute is whether the cost of the treatment plan is reasonable.

10Is the applicant entitled to a benefit of $200 requested by Pilowski for preparation of a disability certificate and denied by the respondent on June 16, 2017? The insurer has agreed to pay that amount In its submissions, without explanation of its change of position.

11Is the applicant entitled to a benefit of $1882.49 for a course of physiotherapy treatments recommended by Complete Rehabilitation Centre (CRC) in an OCF 18 dated July 18, 2017 and denied by the respondent on August 1, 2017? In its submissions, the respondent has stated that it now agrees to pay this amount. It does not offer any explanation for this change of position.

12Is the applicant entitled to a benefit of $1882.49 for a further course of physiotherapy treatment recommended by CPC in an OCF 18 dated November 14, 2017 and denied by the insurer on November 30, 2017? The insurer required the applicant to attend an independent examination conducted by Dr. Siddiqui on January 25, 2018. Dr. Siddiqui prepared a report finding the OCF 18 partially reasonable and necessary, in the amount of $500. The applicant is seeking the remainder of $1382.49.

13Is the applicant entitled to the benefits of two treatment plans each in the amount of $1656.87 , each for physiotherapy treatment recommended by CPC in OCF 18’s dated June 1, 2018 and November 29, 2018 and denied by the insurer on June 25, 2018 and December 20, 2018, respectively?

14Is the applicant entitled to interest on the amounts it is claiming?

15Is the applicant entitled to an Award under Regulation 664?

LAW

16The insurer’s obligation is to pay for medical assessment and treatment if it is “reasonable and necessary” given the applicant’s condition resulting from the accident. (Schedule, s 14) In deciding if the assessment or treatment is reasonable and necessary case law states that the decider should consider two things: the prospect that the treatment will address and ameliorate the applicant’s impairment(s) resulting from the accident, and the overall cost of the treatment. There is a Guideline of charges for services which are considered reasonable under the Schedule.

17The burden of proof that the treatment or assessment is necessary and that the cost is reasonable is on the applicant, who must establish both elements to the satisfaction of the Tribunal on a balance of probabilities.

RESULT

18On the basis of the analysis set out below, the Tribunal finds that the benefits requested are necessary and the cost is reasonable. Therefore, the respondent is ordered to pay the requested amounts on production of invoices as stipulated in the Schedule.

19The applicant is also entitled to interest on all amounts it has paid for assessment and treatment, in accordance with section 51 of the Schedule.

20The applicant is not entitled to an award under Regulation 664, because the applicant has not made any submissions arguing the basis of the entitlement claimed.

EVIDENCE AND ANALYSIS

Psychological assessment and treatment

21The applicant submitted an OCF 18 to the insurer on April 3, 2017, asking for a psychological assessment. The OCF 18 was written by Dr. Pilowski, a psychologist. Dr. Pilowski stated that after a telephone interview, summarized in the OCF 18, she believed that the applicant was in need of psychological assessment and treatment. The insurer originally denied the OCF 18 on the basis that the assessment was not reasonable and necessary. The insurer subsequently requested that the applicant submit to an independent examination under section 44 of the Schedule. This examination was conducted by Dr. Moshiri in August 2017. In the interim, Dr. Pilowski had proceeded with her assessment. Dr. Pilowski stated in a report dated June 19, 2017, that she had proceeded with the assessment notwithstanding the insurer’s denial, because in her professional opinion, “the patient warranted psychological intervention”. Her report concluded that the applicant was suffering from PTSD with phobic symptoms with respect to driving in vehicles, and adjustment disorder with depressed mood. She stated that these injuries did not fall within the Minor Injury Guidelines. (MIG).She proposed, in an OCF 18 dated June 19, 2017 which accompanied her report of the same date, a treatment plan for psychotherapy at a total cost of $3,129.48.

22The insurer directed its independent examiner, Dr. Moshiri, to address both the assessment plan (OCF 18 dated April 3, 2017) and the treatment plan (OCF 18 dated June 19, 2017) as well as Dr. Pilowski’s report following her assessment in the report he was to prepare.

23Following his independent examination of the applicant and review of relevant documentation including the two OCF 18’s prepared by Dr. Pilowski and her report following her assessment, Dr. Moshiri prepared a report dated August 21, 2018. His report agreed that the applicant was suffering from a psychological impairment as a result of the accident. He agreed that an assessment was reasonable and necessary to determine the nature and extent and extent of the impairment and its appropriate treatment but stated that the assessment could be completed for less money, recommending that the insurer agree to pay $1,322.07.

24He also agreed that the treatment plan proposed by Dr. Pilowski was largely reasonable and necessary, with the exception of two items, planning and session notes, costing together $645.73. These he found to be “not necessarily of therapeutic significance” and therefore not reasonable and necessary.

25In support of this position, the respondent has referred to a case, CD v Aviva, 17-002814/AABS, wherein arbitrator Ferguson looked at a proposed psychological assessment prepared by Dr. Pilowski and criticized as too expensive by Dr. Moshiri following his independent examination on behalf of the insurer. In that case, the report prepared by Dr. Moshiri set out how many hours it should take to interview the applicant, to conduct the tests and to prepare an assessment report. Arbitrator Ferguson’s reasons note that Dr. Pilowski’s proposal for an assessment called for 10 times the hours Dr. Moshiri proposed, and on this basis the arbitrator finds Dr. Pilowski’s proposed cost is unreasonable.

26In the case before me, Dr. Moshiri’s report states that the psychological assessment of the applicant is necessary, but that it can be completed for less money. He does not state what part of the assessment plan is unnecessary or overly costly. He does indicate how long he thinks interviewing and other parts of the assessment should take. Respondent’s counsel notes that Dr. Pilowski’s OCF 18 requesting an assessment does not set out how long it will take to interview the applicant or prepare her report and suggests that this fact alone should signal that Dr. Pilowski is not proposing to charge a calculated amount but is simply claiming the maximum amount permitted by the Schedule. Therefore, counsel would have me conclude that the amount claimed is excessive.

27I reject that approach. I do not find it surprising that Dr. Pilowski refrains from setting out a precise time frame within which the interview will be conducted, the tests will be administered, the results analysed, and the report prepared. It is to be expected that these time frames will depend on the interactions with the applicant and the results of the testing. It is not unusual, in my view, that different therapists will have different approaches and will take varying amounts of time. Dr. Moshiri approved as reasonable and necessary $1322.07 of $2,200. This is not near the level of difference remarked on by Arbitrator Ferguson. The respondent has offered no reasoned basis on which to conclude that Dr. Pilowski’s cost is excessive; the argument is simply that Dr. Moshiri would perform the assessment for less. I decline on that basis to find that the applicant has failed to satisfy the onus on her to establish that the treatment plan is reasonable. The full amount of $2,200 should be paid.

28With respect to the OCF 18 June 19, 2017 treatment plan, Dr. Moshiri points to two specific items, planning and session notes, as “not necessarily of therapeutic significance”. He does not explain his reasoning, and I do not find his statement persuasive. Different therapists may have varying techniques, and my view is that overall, unless a proposed cost is demonstrably out of line, the author of the plan should not be second guessed on the details of their treatment plan when the plan itself has been agreed to as necessary and reasonable. Specifically, I understand the value of planning for therapy or counseling sessions, and the necessity of detailed session notes for ongoing assessment of the patient, her progress and the ultimate effectiveness of the treatment. I find that the whole amount of $3,129.48 is reasonable and necessary and should be paid.

29I am fortified in this view by the fact that two subsequent treatment plans proposed by Dr. Pilowski in June and December 2018 were approved in full, apparently without further reference to Dr. Moshiri. This indicates to me that the insurer was satisfied on the basis of the earlier course of treatment that Dr. Pilowski’s services were necessary and not overpriced.

Physiotherapy assessment and treatment

30Complete Rehabilitation Centre (CRC) submitted an OCF 18 dated November 14, 2017 requesting physiotherapy and related treatment on behalf of the applicant. The OCF 18 described the applicant’s injuries resulting from the accident as, among other things, sprain and strain of the cervical, thoracic and lumbar spine. It recommended a course of treatment including exercise instruction and chiropractic and massage therapy. It also recommended a psychological assessment.

31The insurer requested an independent examination which was performed by Dr. Siddiqui, a family physician. I note this because although Dr. Siddiqui states that he has experience diagnosing and treating chronic pain resulting from motor vehicle accidents, he notes that his field of expertise is as a physician, and he notes no expertise as a physiotherapist. Dr. Siddiqui carried out an examination of the applicant lasting 45 minutes. He diagnosed sprain and strain to the lumbar spine only. He described these as soft tissue injuries. He concluded that from a solely musculoskeletal perspective, he saw no need for the full treatment plan proposed by CRC. He said that that the applicant would benefit from one or two one- hour educational treatments to teach her strengthening exercises that she could perform at home, and on this basis the insurer approved $500 of the $1882.49 proposed. Despite this, the applicant undertook and paid for the full course of therapy recommended by the treatment plan.

32The applicant’s counsel submits that Dr. Siddiqui did not ask the applicant during his meeting with her whether she found the physiotherapy helpful in dealing with her pain. This is true, and in my view, remarkable. Case law indicates that alleviation of pain is an acceptable objective, and if a treatment plan does accomplish this, the treatment plan may be reasonable. (See 17-006736 v Aviva Insurance Canada, 17-006736/AAABS ) In fact, CRC’s OCF 18 of November 14, 2017 noted specifically that the applicant felt that her pain is alleviated by the treatment she was receiving.

33Dr. Siddiqui also failed to detect, or at least to mention in his report, the applicant’s psychological state. We know that she was receiving psychotherapy at this time. A report prepared by Pilowski in September of 2017 indicated that the applicant was responding well to psychological therapy but was still anxious and depressed and in need of further treatment. We also know that the insurer agreed to pay for that therapy. Dr. Siddiqui’s failure to detect or consider the applicant’s mental and emotional state in his report indicates to me that in deciding the applicant would be able to “heal herself” with home-based exercise he failed to consider the applicant’s impairment as anything other than a simple soft tissue injury. Thus he assumed that the applicant would be able to manage on her own with home exercise. Given her psychological state, as described by Dr. Pilowski’s report, this was, in my view, an incomplete and erroneous assessment of the applicant’s abilities.

34CRC submitted two subsequent treatment plans June 1, 2018 and November 29, 2018, each for $1656.87. Both were denied by the insurer. In response to the June 1, 2018 plan, the insurer asked Dr. Siddiqui to perform a paper review. The applicant was not interviewed nor reassessed. In his report following this review, Dr. Siddiqui notes that the applicant is now 1 ½ years post-accident and has probably reached her maximum recovery. He adds that passive treatment is probably not helpful; she needs to perform strengthening exercises. He states that the treatment plan of June 1, 2018 is not reasonable or necessary. No new information he has reviewed, including an MRI of November 2017, is mentioned.

35The insurer simply denied the November 29, 2018 treatment plan, referring again to Dr. Siddiqui’s earlier paper review.

36In my view, the applicant has established that all the treatment plans are reasonable and necessary and should be approved and paid for by the insurer. My reasons are set out below.

37First, I note the physical evidence of a reason for the pain in her right lower spine in particular. The applicant has submitted in evidence the results of an MRI done on her spine in November 2017 at Brampton Hospital. It shows that there is a bulging disc at the L5 area that is protruding and may be impinging on nerves in the area. She has also had ultrasound on her spine that shows mild degeneration at all levels of her spine. Her family physician’s clinical notes and records indicate that she hurt her lower back while lifting at work in 2015 and as a result was off work for a time. This indicates to me that the applicant had a pre-existing condition at the time of the accident that made her vulnerable to suffering a more serious than expected injury as a result of the accident. Dr. Siddiqui does not mention her pre-existing injury following his first assessment, nor the results of the MRI following his paper review. His failure to address these detracts from the reliability of his conclusions in my opinion.

38Second, her family physician has frequently recommended physiotherapy to address her injuries from the accident. She was referred for shoulder pain to an orthopaedic specialist, Dr. Langsam, who recommended physiotherapy to strengthen her muscles surrounding her rotator cuff. Brampton Hospital prescribed physiotherapy after assessing the results of her MRI in November 2017. Thus there is independent evidence that physiotherapy is required to address her physical impairments.

39Third, the applicant has undertaken all the courses of treatment under consideration in this decision. They were refused by the insurer in whole or in great part and paid for by the applicant. This indicates to me that from the applicant’s perspective they were necessary. As noted above in paragraph 38 of this decision, physiotherapy was frequently recommended to deal with her pain. Each of the treatment plans submitted by CRC states that the applicant feels better having received treatment.

40Fourth, there is evidence that the treatment has had good effect. In her interview with Dr. Moshiri in August 2017, the applicant is reported as stating that some of her pain is improved – left lower back 70%; knees 100%. However she still complains of pain in her shoulders and her right lower back.

41Fifth, Dr. Siddiqui’s objection is to passive treatment, i.e. massage. He asserts that the applicant needs an active core strengthening exercise program. But this is a substantial part of the treatment CRC proposes in each of the OCF 18’s submitted by them on behalf of the applicant. The aim is “active functional restoration”. Applicant’s submissions note that this involves strengthening of core and ancillary muscle groups, education on how to carry out activities without pain, how to distinguish harmful from non-harmful pain in exercise and strategies for coping with pain.

42Further, the OCF 18s prepared by CRC report that the applicant is doing, or trying to do, her at-home exercise regime, but is having a hard time understanding how to perform exercises correctly without hurting herself. This indicates that she had a need to continue her sessions to learn proper exercise technique. Thus, the applicant and her caregivers establish that the extensive program of physiotherapy requested by the applicant is both reasonable and necessary. Dr. Siddiqui’s opinions that a couple of hours of exercise instruction would suffice are defeated by the evidence of the applicant and her caregivers.

43Lastly, the psychological assessments and reports submitted by Dr. Pilowsky emphasize how detrimentally affected the applicant is by her pain. She is described as feeling helpless and useless, severely depressed and anxious. In my view, her overall improvement and recovery depend on a combination of continued physical and psychological help. I do not accept Dr. Siddiqui’s statement that the applicant had reached her maximum recovery level in June 2018. From the comments made by her treating caregivers, she continues to improve. It is perhaps a slower process than others might experience, but the combination of psychological and physical impairment she is contending with makes this understandable and credible, in my view.

44Thus, I conclude that the applicant has satisfied its onus to prove on the balance of probabilities that the treatment plans are reasonable and necessary. I find further that they have been beneficial to her condition, and helpful with her pain. Pain reduction is a legitimate objective of treatment. In the applicant’s case, there is also persuasive evidence from her caregivers in the statements I have already referred to that pain reduction is important to addressing her psychological impairments resulting from the accident.

Interest

45I have found that the amounts claimed by the applicant are all reasonable and necessary. The applicant has stated in her submissions that she has already undertaken and paid for most of them. I find that where she has done so, she is entitled to interest as set out in s. 51 of the Schedule. The applicant should present the respondent with proof of payment as required in the Schedule in order to be reimbursed with interest.

Award pursuant to Regulation 664?

46Although an award is requested by the applicant in her application to the Tribunal, she has made no submissions explaining how and why she is entitled to an award. I do not see evidence is the material before me of the insurer engaging in the kind of conduct that would attract an award. Therefore I decline to order one.

ORDER

47Therefore, I order the respondent to pay to the applicant all of the amounts she claims in paragraphs 8 through 13 of this decision, together with interest according to section 51 of the Schedule.