Melissa Melfi v. Aviva General Insurance, 2020 CanLII 87977

Citation: Melfi vs. Aviva General Insurance, 2020 ONLAT 19-008197/AABS

Released Date: 10/14/2020

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:

Melissa Melfi

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Hermia Leung, Paralegal

For the Respondent:

Andrea L. Bandow, Counsel

HEARD

By way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1Melissa Melfi (“applicant”) was involved in a motor vehicle accident on January 10, 2018 (“accident”) and sought benefits from Aviva General Insurance (“respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ At the time of the accident, she was 30-years old. The applicant was denied benefits by the respondent and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues to be decided in this hearing are:

i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,905.61 for physiotherapy services recommended by Newmarket Health and Wellness, in a treatment plan (OCF-18) submitted on July 3, 2018 and denied on August 15, 2018?

ii. Is the applicant entitled to the cost of an examination, in the remainder amount of $673.25 [original amount of $2,199.28 – approved amount of $1,526.03] for a psychological assessment in a treatment plan (OCF-18) submitted on May 10, 2018 and denied on May 14, 2018?

iii. Is the applicant entitled to the cost of an examination, in the remainder amount of $673.26 [original amount of $2,200.26 – approved amount of $1,527.00] for a driving evaluation recommended by Imperial Medical Assessments Inc., in a treatment plan (OCF-18) submitted on November 5, 2018 and denied on November 15, 2018?

iv. Is the applicant entitled to the cost of an examination, in the amount of $2,200.00 for a chronic pain assessment recommended by Imperial Medical Assessments Inc., in a treatment plan (OCF-18) submitted on January 30, 2019 and denied on February 10, 2019?

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

vi. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $199.96 [original amount of $1,299.96 – approved amount of $1,100.00] for chiropractic services recommended by Newmarket Health and Wellness, in a treatment plan (OCF-18) submitted on May 1, 2018 and denied on May 7, 2018?

vii. Is the applicant entitled to the cost of an examination, in the amount of $200.00 for a psychological pre-screening, recommended by Imperial Medical Assessments Inc., in a treatment plan (OCF-18) submitted on May 11, 2018 and denied on May 11, 2018?

viii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $748.05 [original amount of $3,192.25 – approved amount of $2,444.20] for psychological services, recommended by Imperial Psychological Services, in a treatment plan (OCF-18) submitted on May 22, 2018 and denied on May 23, 2018?

PRELIMINARY ISSUES

3The respondent submits that the applicant should be precluded from adducing any new evidence in reply which could reasonably have been included with her initial submissions. Having reviewed the applicant’s reply submissions, I find that no new evidence has been introduced in reply.

4The respondent also submits that the applicant has made factual allegations in her submissions without providing supporting evidence and these allegations should be discounted. I accept this submission to the extent that the result of this hearing will be determined by the evidence.

5The respondent also submits that the applicant has not used pinpoint references to the evidence and law relied upon as required by the Tribunal’s case conference Order. While more specific references to the evidence would have been helpful, having reviewed the applicant’s submissions, I am of the view that the applicant has substantially complied with the case conference Order and all evidence submitted will be reviewed during the hearing.

6The respondent also submits that it is the applicant’s burden to prove that the disputed treatment is reasonable and necessary, which requires that she “provide sufficient detail explaining why the specific treatment requested is reasonable and necessary for the applicant’s specific impairment”. I agree with the respondent that it is the applicant’s burden and the evidence will be viewed in that light.

RESULT

7The applicant is not entitled to the $3,905.61 for physiotherapy services. The applicant is not entitled to the psychological pre-screening of $200.00. The applicant is not entitled to the chronic pain assessment of $2,200.00. The psychological assessment balance of $673.25, the driving evaluation balance of $673.26, the chiropractic services balance of $199.96 and psychological services balance of $748.05 have all been paid and are no longer in dispute with the result that they have not been determined by me.

LAW

8Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment plan he or she seeks is reasonable and necessary.²

ANALYSIS

9The applicant submits that all disputed treatment plans are reasonable and necessary because she experiences daily psychological and physical limitations which will not improve without further treatment. Physically, she submits that she is suffering from chronic pain as a result of the accident. The applicant filed the following: the disputed treatment plans; the May 8, 2018 report of Dr. Giaschi, her chiropractor at Newmarket Health & Wellness Center; the May 18, 2018 psychological assessment report of her psychologist Dr. Hewchuk at Imperial Medical Assessments Inc.; and the August 15, 2018 and May 21, 2019 reports of respondent’s assessor, Dr. Ming-Wai Tu, general practitioner.

10The respondent submits that the applicant’s evidence does not establish that the treatment plans in dispute are reasonable and necessary. Further, the respondent relies on the August 15, 2018 and May 21, 2019 reports of its assessor, Dr. Ming-Wai Tu.

Physiotherapy Treatment Plan for $3,905.61

11I find that this July 3, 2018 treatment plan for physiotherapy is not reasonable and necessary and the applicant is not entitled to this treatment plan because the weight of the applicant’s medical evidence is not sufficient to establish that this treatment plan is reasonable and necessary. The onus is on the applicant and she has not met it.

12In this treatment plan Dr. Giaschi recommends various physical therapies, including a combination of exercise, multidisciplinary rehabilitation, massage, acupuncture (collectively “physiotherapy”) and completion of reassessment, OCF-18 and progress report. The goals are pain reduction, increase in strength, increased range of motion, decrease intensity and frequency of headaches and intensity of neck pain, return to activities of normal living and task modification strategies and effective utilization of any recommended assistive devices.

13This treatment plan itself, without more, is not sufficiently persuasive evidence that it is reasonable and necessary.

14On May 8, 2018, Dr. Giaschi reports on her January 18 and May 1, 2018 examinations of the applicant. This report records the applicant’s self-reporting of interrupted sleep, difficulty falling asleep, nightly nightmares, intermittent dizziness, very anxious driving and very nervous/anxious as a passenger and flashbacks of the accident and other stresses and circumstances in the applicant’s life. However, in this report, Dr. Giaschi does not recommend physiotherapy or any other treatment. As a result, this report is unhelpful in determining whether or not this particular treatment plan is reasonable and necessary and would be effective.

15In this July 3, 2018 treatment plan, Dr. Giaschi describes the applicant’s injuries from the accident as muscle strain, sprain and strain of cervical spine, thoracic spine, headache syndromes, chest pain, pure sensory lacunar syndrome, nightmares, anxiety disorders, dizziness and giddiness. Dr. Giaschi, as a chiropractor, cannot medically diagnose these injuries.

16The applicant put forward no medical diagnosis of the physical injuries described by Dr. Giaschi from a treating physician.

17The applicant put forward no recommendation or prescription for the proposed facility-based physiotherapy from a treating physician or specialist.

18The August 15, 2018 and May 21, 2019 reports of respondent’s assessor, Dr. Tu, general practitioner, do not support the applicant’s position that this treatment plan is reasonable and necessary. Although in her August 15, 2018 report, Dr. Tu diagnoses cervical strain as well as tension headache and cervicogenic headache, Dr. Tu opines that this proposed treatment plan is not reasonable and necessary as the applicant has only noted 50% improvement in her neck pain over the past seven months and no improvement in her headaches subjectively despite regular therapy. Further, Dr. Tu opines that the applicant has no impairments on examination today and thus, there is no clinical indication for further facility-based treatment. The applicant told Dr. Tu that she has been doing home exercises for two months prior to the examination. Dr. Tu recommends that the applicant can continue with her home exercises on a self-directed basis. In her May 21, 2019 report, Dr. Tu opines that the applicant’s cervical strain is completely resolved. Neither of these reports establish that this treatment plan is reasonable and necessary.

19The applicant relies on the May 18, 2018 report of Dr. Hewchuk, psychologist, co-signed by Ms. Razumova (“Dr. Hewchuk’s report”). Dr. Hewchuk’s report diagnoses adjustment disorder with mixed anxiety and depressed mood and specific phobia, driving fear and recommends counselling and various psychotherapy treatments. Although Dr. Hewchuk notes the applicant is “also reporting symptoms characteristic of chronic pain”, counselling is recommended to deal with this. Although the applicant argues that on page 10 of the report Dr. Hewchuk states that the applicant will benefit from an immediate referral to physiotherapy, Dr. Hewchuk’s statement is actually that the applicant “…will benefit from an immediate referral for Psychotherapy”. Dr. Hewchuk’s report does not establish that this treatment plan for physiotherapy is reasonable and necessary.

20The only other significant evidence which might tend to indicate otherwise is the diagnosis contained in the disputed treatment plan dated January 30, 2019 for the chronic pain assessment, made by Dr. Wilderman, a physician at Imperial Medical Assessments Inc. who diagnoses substantially the same injuries as described in this treatment plan. The clinical basis for Dr. Wilderman’s diagnosis is not explained in the treatment plan for the chronic pain assessment, nor did the applicant file any notes and records of Dr. Wilderman to establish when, if or how many times Dr. Wilderman has examined the applicant. Further, Dr. Wilderman in the chronic pain assessment lists “return to pre-accident work activities” and “return to activities of normal living”, while other records including the OCF-1 show that the applicant was not working at the time of the accident, and had already reported to Dr. Tu in 2018 that she is independent with self-care tasks, able to complete her pre-accident household chores and to work following the accident. Even though Dr. Wilderman diagnoses physical injuries, he does not recommend any treatment, only a chronic pain assessment. Dr. Wilderman’s treatment plan for a a chronic pain assessment does not establish that this treatment plan is reasonable and necessary.

21Based on the totality of the evidence and on the applicant’s lack of sufficiently persuasive medical evidence, I find that the goals of this treatment plan and the proposed treatment is not reasonable and necessary.

Psychological Pre-Screening of $200.00

22The applicant claims $200.00 being the cost of a May 11, 2018 treatment plan for psychological pre-screening. The applicant submits this should be paid by the respondent as the pre-screening was necessary to compile the psychological assessment report prepared by Dr. Hewchuk, is a reasonable expense and there is no evidence that a prior psychological pre-screening was conducted on the applicant. The respondent submits that it is not liable for this expense because it has paid for this in respect of another treatment plan not in dispute in this hearing and a further $200.00 would exceed the maximum in the Professional Services Guideline³ (“Guideline”) and an insurer is not liable to pay for any expenses related to an OCF-18 that exceed the maximum fees which includes the maximum $200.00 fee for an OCF-18.

23I find that the applicant has not met her burden to establish that this fee is reasonable and necessary. Further, I accept the respondent’s submission that it has already paid $2,199.28, the maximum payable under the Guideline for a psychological assessment not in dispute in this hearing, and the claim for a further $200.00 exceeds the maximum fee set out in the Guideline. This claim is dismissed.

Psychological Assessment Balance of $673.25, Driving Evaluation Balance of $673.26, Chiropractic Services Balance of $199.96 and Psychological Services Balance of $748.05

24The respondent submitted evidence that it approved these costs June 16, 2020 and they are no longer disputed. The applicant did not argue otherwise in reply.

25As a result, I find that these treatment plans are not in dispute and do not require determination by me in this hearing.

Chronic Pain Assessment of $2,200.00

26The applicant submits that the chronic pain assessment is reasonable and necessary because both of Dr. Tu’s reports mention issues with headaches post-accident ongoing over a period of nine months, chronic pain is defined as pain that lasts three months or longer and therefore the applicant’s headaches meet the definition of chronic pain. In reply, the applicant also submits that she meets the test as set out in T.K. and Aviva Insurance Company,⁴ which leads to the conclusion that a chronic pain assessment is reasonable and necessary because she has consistently minimized her physical activity and has fear when performing physical activity due to pain after the accident. The applicant also submits that she has a substantial inability to perform housekeeping and home maintenance tasks after the accident as reported by Dr. Hewchuk in his psychological report and has had limitations when performing housekeeping tasks and must do so within the limits of her pain as reported by Dr. Tu. The applicant further submits that her eventual return to employment post-accident should not be taken as evidence that she is fit for physical activity given that she is employed in a customer service position which does not entail physical activity. The applicant submits that she meets at least three, if not all, the criteria for a chronic pain assessment set out in the T.K. case, particularly given the limitations on her daily activities and the opinion in Dr. Hewchuk’s report that the applicant has a substantial inability to carry on a normal life and Dr. El-Hage’s diagnosis that the applicant has specific phobia relating to driving.

27The respondent’s submission is that the applicant has not proved this treatment plan is reasonable and necessary.

28I find that the applicant is not entitled to the payment of the chronic pain assessment because she has not established, on a balance of probabilities and with sufficient medical evidence, that it is reasonable and necessary.

29As discussed above, the clinical basis for Dr. Wilderman’s diagnosis is not explained in this treatment plan for the chronic pain assessment, nor did the applicant file any notes and records of Dr. Wilderman to establish when, if or how many times Dr. Wilderman has examined the applicant. Dr. Wilderman does not appear to be very familiar with the applicant’s medical condition and life as it relates to her circumstances. For example, Dr. Wilderman lists as goals of the chronic pain assessment “return to pre-accident work activities” and “return to activities of normal living”, while other records including the OCF-1 show that the applicant was not working at the time of the accident, and had already reported to Dr. Tu in 2018 that she is independent with self-care tasks, able to complete her pre-accident household chores and to work following the accident. These are not reasonable and necessary goals given that there is insufficient medical evidence to indicate that the applicant is likely to have chronic pain as a result of the accident.

30This proposed treatment plan is one year post-accident. In the year between the accident and proposed treatment plan, there is no evidence that the applicant sought treatment from a hospital, sought treatment from her family doctor or any other treating physician for on-going pain. There is no evidence that the applicant was referred by her family doctor to any specialist for pain. There are no physician’s records before me of medication being prescribed to the applicant for pain.

31Dr. Tu’s reports do not establish that this treatment plan is reasonable and necessary. Although in her August 15, 2018 report, Dr. Tu diagnoses cervical strain as well as tension headache and cervicogenic headache, in the end Dr. Tu opines that that the applicant has no impairments as a direct result of the accident. In her May 21, 2019 report, Dr. Tu opines that the applicant’s cervical strain is completely resolved that the applicant has likely reached maximum medical improvement. Dr. Tu does not diagnosis chronic pain or recommend any chronic pain assessment, investigation or treatment.

32The reports of Dr. Hewchuk and respondent’s psychologist, Dr. El-Hage, contain references to pain but, as psychologists, they are concerned with psychological issues and make no medical diagnoses as to the applicant’s physical condition. As a result, these reports do not establish that a chronic pain assessment is reasonable and necessary.

33The applicant’s submission that she has consistently minimized her physical activity because of pain is not supported by any persuasive medical evidence. Even if it were, this would be inconsistent with pain so severe as to warrant a chronic pain assessment.

34The applicant does not cite any authority for the proposition that “chronic pain is defined as pain that lasts three months or longer”. While the length of time that pain lasts post-accident can be a factor to be considered, whether or not a chronic pain assessment is reasonable should be determined in accordance with all the evidence and is not fairly reflected in the definition put forward by the applicant.

35The applicant’s submission that she meets at least three of the criteria in the T.K. case is not supported by the evidence. Having reviewed the criteria set out in the T.K. case based on the American Medical Association Guides to the Evaluation of Permanent Impairment 6th edition, I find that the applicant does not meet any of the criteria. The applicant has continued to work at some employment, and to be responsible for household chores, activities of daily living and some socializing post-accident and has not been significantly debilitated as a result of the accident. The applicant’s ability to carry on her activities, even if limited in some respects, are not consistent with the severe, debilitating pain associated with chronic pain. There is no evidence of the applicant being prescribed pain medication post-accident, has experienced secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain. No evidence has been put forward by the applicant that she would receive any meaningful medical benefit from this proposed treatment plan. There is no evidence of excessive dependence on health care providers, spouse or family. More importantly, the applicant told Dr. Tu that she does not feel that she needs a chronic pain assessment.

36The applicant’s claim for payment of the chronic pain assessment is denied.

Interest

37The applicant submits that under s. 51 (4) of the Schedule interest is payable.

38As I have found that no benefits are payable, no interest is payable.

ORDER

39For the reasons outlined above, I find that the applicant is not entitled to the $3,905.61 for physiotherapy services, the psychological pre-screening of $200.00 and the chronic pain assessment of $2,200.00. The psychological assessment balance of $673.25, the driving evaluation balance of $673.26, the chiropractic services balance of $199.96 and psychological services balance of $748.05 have all been paid and are no longer in dispute with the result that they have not been determined by me. No interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.)
3. 3Superintendent’s Guideline No. 03/14, Financial Services Commission of Ontario.
4. 4T.K. and Aviva Insurance Company, 18-004852/AABS, 2019 CanLII 94039 (ON LAT).