Citation: H.T.T. vs. Aviva Insurance Canada, 2020 ONLAT 19-007384/AABS

Date: September 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:

H.T.T. Applicant

and

Aviva Insurance Canada Respondent

DECISION

ADJUDICATOR: Kimberly Parish

APPEARANCES:

For the Applicant: Jessie Tran, Paralegal

For the Respondent: Candace Mak, Counsel

Heard: By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on February 21, 2017 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 submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The disputed claims in this hearing are:

i. Is the applicant entitled to a cost of examination in the amount of $2,350.00 for a social work assessment recommended by Pain Rehabilitation Clinic Inc. in a treatment plan dated August 9, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $2,000.00 for chiropractic, massage and physiotherapy treatment recommended by Pain Rehabilitation Clinic Inc. in a treatment plan dated July 25, 2017?

iii. Is the applicant entitled to a medical benefit in the amount of $2,360.00 for chiropractic, massage and physiotherapy treatment recommended by Pain Rehabilitation Clinic Inc. in a treatment plan dated November 28, 2017?

iv. Is the applicant entitled to a transportation expense in the amount of $1,100.00 for transportation recommended by Pain Rehabilitation Clinic Inc. in a treatment plan dated August 31, 2017?

v. Is the applicant entitled to a cost of examination in the amount of $200.00 for the completion of an OCF-3 disability certificate recommended by Pain Rehabilitation Clinic Inc. in a treatment plan dated October 12, 2017?

vi. Is the applicant entitled to a cost of examination in the amount of $2350.00 for an in-home assessment recommended by Pain Rehabilitation Clinic Inc. in a treatment plan submitted on November 28, 2017, and denied by the respondent on December 8, 2017?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find all of the claimed benefits in dispute are not reasonable and necessary for the reasons I address below.

ANALYSIS

Social work assessment in the amount of $2,350.00

4I find this treatment plan (OCF-18) is not reasonable and necessary. The OCF-18 was prepared by Dr. S. Bui, a chiropractor at Pain Rehabilitation Clinic. I do not accept this proposed assessment is within Dr. S. Bui’s scope of expertise. I find the medical evidence relied on by the applicant in support of the OCF-18 is not persuasive for the reasons addressed below.

5The applicant relies on a three page Biopsychosocial Pre-Screen report which is signed and undated.¹ I afford no weight to this report as it is unclear who actually completed this report and when it was completed. Further, the report appears to be based upon the applicant’s self reporting and therefore I have not relied on it.

6I am not persuaded by an Initial Social Work Assessment Report dated November 3, 2019 which was prepared by Amber Williams (“Ms. Williams”), registered social services worker (RSSW.)² This report was prepared more than two years following the date of the OCF-18. The report does not outline the applicant’s condition at the time this OCF-18 was submitted. Therefore, I am not relying on it to consider whether this OCF-18 is reasonable and necessary. I find the decision submitted by the respondent, 16-002381 V. Royal & Sun Alliance Insurance Company of Canada³ persuasive and on point. In that decision, the adjudicator determined a proposed OCF-18 was not reasonable and necessary due to the applicant not submitting any medical evidence which addressed their condition at the time the OCF-18 was proposed. The adjudicator concluded the lack of medical information resulted in an inability to perform a meaningful analysis of the goals, efficiency, and cost of the proposed treatment, and whether other treatments are available. The applicant in the case before me has relied on medical evidence which is dated more than two years following the date the OCF-18 was submitted. I find this information does not assist me with assessing the OCF-18.

7The applicant attended an insurer’s examination (“IE”) with Dr. A. Syed, psychologist on November 21, 2019 and a report was issued.⁴ The assessment was comprehensive, and the report noted it took 4 hours and included a review of the applicant’s medical records and objective psychometric testing. The applicant was diagnosed with a psychological impairment as a result of the accident and was removed from the Minor Injury Guideline. However, none of this information was available at the time Dr. S. Bui recommended the social work assessment.

8Further, in the proposed OCF-18 Dr. S. Bui identifies the applicant’s impairments. Under Part 6 (Injury and Sequelae Information), it noted the applicant experiences problems in the following areas: social environment, certain social circumstances, relationship with spouse or partner, problems relating to housing and economic circumstances. It was noted under Part 8 (Activity Limitations) that these impairments affect her employment tasks and her activities of normal life. It further noted she is unable to sustain work and has difficulty coping with her social-emotional impairment. The goals of the OCF-18 note pain reduction, increased range of motion, and to determine if she needs psycho-social intervention. Dr. S. Bui identified and noted a barrier to her recovery is that she shows signs of psycho-social impairment. Page 10 of the OCF-18 identifies the social worker’s role during the assessment and the issues to be addressed by the assessment. I find what Dr. S. Bui has identified and proposed falls outside of his scope as a chiropractor. For all these reasons, I am not persuaded that the OCF-18 is reasonable and necessary

Two OCF-18’s in the amounts of $2,000.00 for chiropractic, massage and physiotherapy treatment and $2,360.00 for chiropractic, massage and physiotherapy

9I find both of the OCF-18’s noted above are not reasonable and necessary. Other than the OCF-18’s themselves, there has been no corroborating medical evidence which supports the applicant’s pain complaints and her level of functioning at the time the OCF-18’s were proposed.

10Both OCF-18’s noted the applicant’s injuries were sprain/strain injuries to her back and pelvis. The goals noted within both OCF-18’s propose reducing pain, increasing strength and range of motion. Further goals included the applicant being able to return to her activities of normal living, return to pre-accident work activities/modified work activities. Both OCF-18’s identified no barriers to recovery. These OCF-18’s were initially denied by the respondent on August 10, 2017 and December 8, 2017 as the respondent held that the Minor Injury Guideline applied.

11I am persuaded by the findings of the IE physiatry report by Dr. S. Naaman, dated August 10, 2017.⁵ This assessment addressed the following: the applicability of the Minor Injury Guideline, an OCF-18 submitted by Dr. S. Bui which was not in dispute for this hearing, and income replacement benefits. Dr. Naaman noted the applicant’s physical complaints and his assessment included a physical examination. He concluded that she sustained soft tissue injuries in the areas of her neck, back, and shoulders as a result of the accident. Upon physical examination it was noted that range of motion produced some irritation to the lumbar spine. He noted the sprain/strain type injuries should resolve within 6-8 weeks with appropriate treatment, including the continuation of an active home exercise program – with the applicant doing stretching exercises on a regular basis. Further, he noted that her soft tissue injuries from the accident would have resulted in her being unable to return to work for 4-6 weeks following the accident. However, he noted this was temporary and should have resolved and the applicant should be back to regular activity. I find this information supports that at the time of this assessment she did not suffer from any functional impairments preventing her from performing her work duties.

12I prefer this information in Dr. Naaman’s report as his assessment included a physical examination with an explanation of his findings which I accept. In both OCF 18’s Dr. S. Bui provides no details of what the applicant’s limitations are as they relate to her returning to her activities of normal living and returning to her pre-accident work duties. Dr. Naaman’s report noted there were no CNRs of the family doctor nor any diagnostic imaging reports to review. I am persuaded by the conclusion reached by Dr. Naaman as his conclusion is based on his physical objective findings noted within his report. While the family doctor’s CNRs were not available for Dr. Naaman’s review, I find they would have provided little value in addressing the applicant’s accident-related impairments as the OHIP summary produced for the hearing (addressed further in paragraph 14) noted the applicant did not see her family doctor, Dr. Quan for any accident-related impairments after February 2017 - November 2018.

13The applicant attended an IE assessment with Dr. F. Loritz, general practitioner who issued a report dated December 5, 2019.⁶ This report was for the purpose of assessing an orthopedic assessment, a chronic pain assessment, a chronic pain treatment plan, and a functional abilities evaluation. I find his report has persuasive value. There was a physical examination of the applicant and Dr. Loritz noted he had reviewed the 2017-2019 CNRs from Pain Rehabilitation Clinic, the treating clinic and the clinic which prepared the disputed OCF-18’s. Dr. Loritz noted he reviewed the 2016 - 2019 CNRs from the family doctor, Dr. Quan, which he noted were handwritten and partially legible. However, as noted in the paragraph below, the OHIP summary supports the applicant did not see Dr. Quan for accident-related complaints after February 2017 - November 2018. Dr. Loritz reviewed x-rays of the applicant’s cervical and lumbar spine, dated February 23 and March 10, 2017 which noted no abnormal findings.⁷ Dr. Loritz reviewed prior treatment received by the applicant and provided an explanation to support his conclusion that further passive treatment had limited effect and why Dr. Loritz recommended the applicant undergo active treatment. For example, page 3 of his report noted that following the accident, she received rehabilitative treatment twice per week which consisted of: acupuncture, massage, chiropractic manipulation and TENS without active exercises at a frequency initially of two treatments per week. He noted she did not complete active exercises at home or at the gym. He further noted that she is receiving similar treatments on a weekly basis which provide symptomatic relief. Further, Dr. Loritz noted she “characterized the treatment efficacy as having reached a plateau and rated her overall recovery at less than 50%.” While this assessment was done more than two years since the OCF-18’s had been submitted and does not address the disputed OCF-18’s, I find it is persuasive. This is because it addresses that the passive treatment the applicant was receiving had limited effectiveness. I find this information consistent with Dr. Naaman’s recommendations noted within his August 2017 report which recommended the applicant perform active home exercises; including stretching on a regular basis to address her soft tissue injuries sustained as a result of the accident.

14I do not afford much weight to the handwritten note from Dr. Quan, dated January 7, 2020⁸ which notes the applicant has seen Dr. Quan many times since the accident for neck, back, and arm pain as there have been no clinical notes and records (“CNRs”) of Dr. Quan produced for the hearing. The applicant saw Dr. Quan following the accident and diagnostic imaging results for the chest and cervical spine, dated February 23, 2017 noted no fractures or abnormalities.⁹ The OHIP summaries which were produced up to November 2018¹⁰ support that the applicant saw Dr. Quan following the accident since February 2017, but it was for non accident-related complaints between July 17, 2017 - November 8, 2018. I find this evidence does not support the applicant saw Dr. Quan many times for accident-related impairments.

15Both of these OCF-18’s were further assessed by the respondent through a paper review by Dr. Loritz.¹¹ who relied on his findings noted within his prior IE report dated December 5, 2019. He concluded both OCF-18’s were not reasonable and necessary because by the time both OCF-18’s were submitted, her soft tissue injuries from the accident had resolved. I am persuaded by the medical opinion of Dr. Loritz as it was based on objective findings and included a review of the CNRs from Pain Rehabilitation Clinic. I find the CNRs of Dr. Quan from February 2017 to November 8, 2018 would have offered little assistance with addressing the applicant’s accident-related complaints. I rely on the OHIP summary up to November 8, 2018 which noted no accident related visits to Dr. Quan after February 23, 2017.

16An orthopaedic assessment report prepared by Dr. L. Bui, dated January 13, 2020¹² diagnosed the applicant with chronic back pain and recommended further facility based treatment for her neck, back, and shoulders. I afford little weight to this report which relies on the applicant’s self-reporting and the results noted by Dr. L. Bui from range of motion and orthopedic testing. Dr. L. Bui noted the applicant reported that she followed up with Dr. Quan regarding the injuries she sustained from the accident and that she continued to follow-up with him. However, based on the documents which Dr. L. Bui noted reviewing, the notes from Dr. Quan were not listed. As a result, I give little weight to what the applicant reported to Dr. L. Bui with regards to her following up and continuing to follow-up with Dr. Quan in relation to her accident related injuries as it is not supported by contemporaneous medical records; namely Dr. Quan’s CNRs. I am not persuaded by Dr. L. Bui’s conclusion noted on page 6 of his report in which he noted the applicant demonstrated evidence of residual impairments and restricted range of motion in her cervical and lumbar spine. Dr. L. Bui concluded the applicant suffers from WAD III, residual Lumbar Spondylosis, Chronic Back Pain, and Cervicosegmental Somatic Dysfunction. I find Dr. L. Bui has not provided an explanation regarding what the results from the range of motion and orthopedic testing mean. Further, the applicant’s self report is not supported by any CNRs from Dr. Quan and the assessment by Dr. L. Bui was done almost three years following the accident. Further, Dr. L. Bui has recommended further facility based treatment despite it being noted that the applicant reported that when she goes for treatment, the therapy program helps her temporarily for a few days before the pain and discomfort recurs.¹³ As Dr. L. Bui has not provided an explanation of how continued passive treatment will provide benefit to the applicant in light of the applicant reporting it only provided temporary relief, I am not persuaded that the OCF-18’s were reasonable and necessary at the time they were submitted.

17A functional abilities assessment report was issued by Dr. S. Bui, chiropractor, dated January 15, 2020.¹⁴ I am not persuaded this type of assessment appropriately addresses the disputed OCF-18’s. This was not a chronic pain assessment report and Dr. S. Bui concluded the applicant suffers from chronic pain of the lumbar spine and chronic neck pain. Dr. S. Bui is a chiropractor and I find that it is outside of his scope to provide a diagnosis of chronic pain. Dr. S. Bui noted “an evaluation with a chronic pain specialist is warranted given the chronicity of her symptoms.”¹⁵ I find this evidence supports that a chronic pain specialist would be the appropriate assessor to diagnose the applicant’s chronic pain. Dr. S. Bui relied on the applicant’s self reporting, range of motion and orthopaedic testing in reaching his diagnosis. Dr. S. Bui’s documentation review included “various IE reports and clinical notes and records of Pain Rehabilitation Clinic.”¹⁶ I find this document review description to be too vague. It does not note which IE assessments were reviewed, nor comment on any information which Dr. S. Bui may have relied on to reach his findings. For all these reasons, I find this report provides little value in assisting with determining if the two disputed OCF-18’s are reasonable and necessary.

18Further, the CNRs of Pain Rehabilitation Clinic were not produced for the hearing, so it is unknown what information contained within the CNRs was relied on by Dr. S. Bui. I also find it worth noting that Pain Rehabilitation Clinic was the applicant’s treating clinic and Dr. S. Bui was her treating chiropractor and if his CNRs were of assistance in helping Dr. S. Bui reach his conclusions, I do not understand why these CNRs were not produced for the hearing. Finally, Dr. S. Bui noted the applicant would like to continue her treatments to manage pain and improve function. He recommended she continue with her active and passive rehabilitation program to alleviate her pain.¹⁷ Dr. S. Bui does not address the effectiveness of passive treatment received by the applicant for almost three years since the accident, nor does he address the specific benefits that ongoing passive treatment will provide. I find his report does not explain how the results of the range of motion/orthopaedic testing impact upon the applicant’s functional abilities. Specifically, testing results which measure the specific functions the applicant can or cannot perform were not noted within the report. I find the omission of this information was a fatal flaw within Dr. S. Bui’s report.

19An IE addendum report was completed by Dr. Loritz, dated March 6, 2020.¹⁸ Dr. Loritz reviewed Dr. L. Bui’s orthopaedic assessment report dated January 13, 2020 and Dr. S. Bui’s functional abilities assessment report dated January 15, 2020. His prior opinion remained unchanged. Dr. Loritz noted that the functional abilities assessment report did not note functional testing results which I concur with and have also addressed above. Dr. Loritz also referenced the disputed 2017 OCF-18’s and concluded at the time these treatment plans were proposed, the applicant’s soft tissue injuries would have resolved. I accept this conclusion and I am not persuaded by the applicant’s evidence. For all of the reasons I have addressed, I do not find the treatment plans are reasonable and necessary.

Transportation expenses in the amount of $1,100.00

20I find the applicant is not entitled to the claimed transportation expenses. I find even though it was noted that the applicant reported experiencing driving and passenger anxiety¹⁹, I do not find this expense is payable as per the Schedule and per the Superintendent’s Guideline No. 04/16: Transportation Expense Guideline (the “Guideline”)²⁰ as the 50 kilometre deductible applies to transportation expenses to and from treatment. The distance the applicant traveled to attend treatment at Pain Rehabilitation Clinic, the clinic which submitted the OCF-18 for transportation expenses was less than 50 kilometres round trip and therefore the 50 kilometre deductible applies.

21It is noted within the Schedule that an insurer does not have to pay for rehabilitation benefits for transportation expenses other than authorized transportation expenses.²¹ Further, the Schedule stipulates that unless the applicant sustains a catastrophic impairment as a result of the accident, authorized transportation expenses relate to expenses incurred after the first 50 kilometres of a trip.²² The Guideline notes that subject to the 50 kilometre deductible, an insurer is liable to pay for reasonable and necessary transportation expenses for each trip an insured person makes to and from treatment/counselling/training sessions, or assessments/examinations. The Guideline further notes the 50 kilometre deductible is applicable once in any round trip.

22The respondent submitted according to Google Maps,²³ the applicant lives 9.5 kilometres from Pain Rehabilitation Clinic and applying the 50 kilometre deductible, she is not entitled to funding for this transportation expense. The applicant did not refute this evidence.

Disability Certificate (OCF-3) in the amount of $200.00, dated October 12, 2017

23I find the OCF-3 in the amount of $200.00, dated October 12, 2017 is not reasonable. Therefore, the applicant is not entitled to this expense. This is because the respondent did not request the OCF-3 and as a result, the respondent is not required to pay for the expense pursuant to s. 25 of the Schedule as it was not required under s. 21, 36 or 37 of the Schedule.

24The applicant argues the OCF-3 expense is reasonable as it notified the respondent there was a change in her condition. Further, the applicant argues the OCF-3, prepared by Mohit Rastogi, physiotherapist was required to inform the respondent that the applicant suffers from a complete inability to carry on a normal life and has difficulty performing her housekeeping tasks. The applicant relies on the Tribunal decision 17-002589 v. Wawanesa Mutual Insurance Company²⁴ in which the adjudicator found the applicant was entitled to the cost of the OCF-3 as it was required to notify or update the insurer on the impairments or injuries of the applicant. I disagree with the adjudicator’s finding in that decision as I find the requirements set out within s. 25 (1) of the Schedule are clear in outlining when an insurer is obligated to pay for an OCF-3. I find the applicant has not satisfied the requirements set out within s. 25 (1) for the reasons I will address below.

25The respondent argues the OCF-3 is not reasonable. The respondent submitted the applicant could have advised the respondent of any updates or changes in her condition by providing the clinical notes and records of her treating practitioners, or doctors. The respondent submitted the purpose of the OCF-3 is to advise the respondent of the applicant’s condition such that she may qualify for the claimed benefits outlined in in s. 21, 36, or 37 of the Schedule. The claimed benefit is listed in the OCF-3, namely income replacement, non-earner, housekeeping, caregiving, and lost educational expenses. The respondent further argues the applicant is not entitled to the claimed housekeeping benefits on this disputed OCF-3 because the applicant does not qualify for the housekeeping benefit as no optional benefits were purchased on her policy. The respondent submitted the applicant does not qualify for the non-earner benefit as she already received income replacement benefits from the respondent.²⁵ There was no evidence submitted by the applicant to refute the respondent’s submission regarding there is no entitlement to the housekeeping, non-earner benefit, caregiving, or lost educational expenses.

26While the applicant chose to update the respondent on changes to her medical condition by submitting an OCF-3 to the respondent, I do not find this makes the respondent liable to pay for the OCF-3 expense. The OCF-3 was not requested by the respondent, nor was it required under s. 21, 36, or 37 of the Schedule. I accept the applicant does not qualify for the housekeeping benefit and because the applicant was already paid an income replacement benefit, she does not qualify for a non-earner benefit. Therefore, the applicant is not entitled to payment for the OCF-3.

In-home assessment in the amount of $2,350.00

27The applicant is not entitled to an in-home assessment in the amount of $2,350.00. I find the applicant has not proven on balance of probabilities that she suffers from any functional impairment which prevents her from performing tasks/activities in her home. In the absence of corroborating medical evidence to support the applicant suffers from a functional impairment, I do not accept the OCF-18 which recommends the in-home assessment is reasonable and necessary.

28The applicant submits the in-home assessment is reasonable and necessary to address the level of the applicant’s impairments, how these impairments negatively impact her activities of daily living, and how these activities could best be managed. The applicant further submitted she would be at risk of further injury without this assessment. However, the applicant has not produced any medical evidence to support the assessment proposed within this OCF-18.

29This OCF-18 was assessed by paper review by the IE assessor, Dr. Loritz²⁶ who found the OCF-18 was not reasonable and necessary as Dr. Loritz concluded there was no evidence of any functional impairment. I prefer this evidence over Dr. S. Bui’s Functional Abilities Evaluation Report which I found has little persuasive value and provided my reasons for this finding in paragraph 17. Therefore, I find this treatment plan is not reasonable and necessary.

CONCLUSION

30As I have found the applicant is not entitled to any of the claimed benefits in dispute, the applicant’s claim is dismissed.

Footnotes

1. 1Tab 6 of applicant’s submissions - Biopsychosocial Pre-Screen Report.
2. 2Tab 7 of applicant’s submissions - Initial Social Work Assessment Report of Amber Williams, dated November 3, 2019.
3. 316-002381 V. Royal & Sun Alliance Insurance Company of Canada, 2017 CanLII 39566 (ONLAT), at paras 8, 11.
4. 4Tab 8 of the applicant’s submissions – psychological assessment report of Dr. A. Syed, dated December 5, 2019
5. 5Tab 12 of the applicant’s submissions – physiatry IE report of Dr. Naaman, dated August 10, 2017.
6. 6Tab 8 of applicant’s submissions – general practitioner IE assessment report of Dr. F. Loritz, dated December 5, 2019
7. 7Ibid, at 4, 5, 28.
8. 8Tab 9 of applicant’s submissions – handwritten note from Dr. Minh D. Quan, dated January 7, 2020.
9. 9Tab A of respondent’s submissions – diagnostic imaging results of chest and cervical spine, dated February 23, 2017.
10. 10Tab B of respondent’s submissions – two decoded OHIP summaries from September 20, 2010 – November 8, 2018.
11. 11Tab J of respondent’s submissions – paper review IE assessment report of Dr. F. Loritz, dated January 24, 2020, at 4, 5.
12. 12Tab 1 of applicant’s submissions – orthopaedic assessment report of Dr. Luke Bui, dated January 13, 2020.
13. 13Ibid, at 4
14. 14Tab 32 of applicant’s submissions- functional abilities evaluation of Dr. S. Bui, dated January 15, 2020.
15. 15Ibid, at 6.
16. 16Ibid.
17. 17Ibid.
18. 18Tab 15 of applicant’s submissions – addendum report of Dr. Loritz, dated March 6, 2020.
19. 19Supra, note 1 at 2-3, and note 4 at 19.
20. 20Tab 20 of the applicant’s submissions - Superintendent’s Guideline No. 04/16: Transportation Expense Guideline
21. 21O.Reg. 34/10, s.16(4)(f).
22. 22Ibid, s. 3(1).
23. 23Tab U of respondent’s submissions - Google Map of route from applicant’s address to clinic’s address.
24. 2417-002589 v. Wawanesa Mutual Insurance Company, 2018 CanLII 83505 (ONLAT), para 37.
25. 25Tabs EE & FF of respondent’s submissions – Letter from respondent dated June 28, 2017 confirming income replacement benefit payment amount up to May 6, 2017. Letter from respondent dated August 10, 2017 notifying applicant of stoppage of the income replacement benefit effective August 18, 2017.
26. 26Supra, note 11, at 5