Joseph Chiarello v. Aviva Insurance Canada, 2020 CanLII 87990

Citation: Chiarello vs. Aviva Insurance Canada, 2020 ONLAT 19-005362/AABS

Released Date: 09/11/2020

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:

J.C.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Robert Watt

APPEARANCES:

For the Applicant: Joseph Chiarello, Applicant David Carranza, Counsel

For the Respondent: Michael Silver, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on August 2, 2017 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) which were denied by the respondent.

2The applicant submitted an application to the Licence Appeal Tribunal-Automobile Accident Benefits Service (AABS) (the “Tribunal’).

ISSUES IN DISPUTE

3The issues in dispute were identified and agreed to as follows:

(i) Is the applicant entitled to a medical benefit in the amount of $3,491.48 for psychological services recommended by Dr. Bodnar in a treatment plan (OCF-18) submitted on June 11, 2018, and denied on June 18, 2018?

(ii) Is the applicant entitled to a medical benefit in the amount of $2,631.00 for chiropractic services recommended by Dr. Dorken of Core Wellness Centre in a treatment plan (OCF-18) submitted on October 9, 2018, and denied on October 10, 2018?

(iii) Is the applicant entitled to a medical benefit in the amount of $2,265.00 for physiotherapy services recommended by Dr. Dorken of Core Wellness Centre in a treatment plan (OCF-18) submitted on February 14, 2018, and denied on February 27, 2018?

(iv) Is the applicant entitled to a medical benefit in the amount of $1,995.32 for psychological services recommended by Dr. Bodnar in a treatment plan (OCF-18) submitted on March 20, 2018, and denied on March 23, 2018?

(v) Is the applicant entitled to a cost of examination in the amount of $2,584.30 for a neurological assessment recommended by Dr. Basile in a treatment plan (OCF-18) submitted May 1, 2019, and denied on May 24, 2019?

(vi) Is the applicant entitled to interest on any overdue payment of benefits?

RESULTS

4The applicant is not entitled to any of the medical benefits claimed nor entitled to the cost of a neurological assessment.

5The applicant is not entitled to any interest.

BACKGROUND

6The applicant was involved in an accident on August 2, 2017 when he was rear ended. At the time of the accident, the applicant was working as a Line Service Technician for Sky Services at the airport. His duties included driving fuel trucks, towing aircraft and supplying aircraft with fuel when required. He worked an average 40 hour week, from 5:45 a.m. until 2:00 p.m. and every six weeks he was required to work an overnight shift starting at 9:30 a.m. The applicant continued to work full time after the accident but took longer to do his activities.

7The applicant saw his family doctor, Dr. Shupak on October 3, 2017 who diagnosed him with cervical strain, thoracic strain, post-concussion symptoms and recommended physiotherapy treatment.¹

8The applicant saw Dr. A. Bodnar, psychologist, on April 15, 2018. Dr. Bonar diagnosed the applicant with adjustment disorder with mixed anxiety, depressed mood and with travelling anxiety. Dr. Bodnar recommended 12 counselling sessions of 90 minutes each. The goals of the treatment plan (OCF-18) dated April 23, 2018 were to reduce pain, address and treat symptoms of anxiety and depression, return the applicant to normal living and to pre-accident activities.²

9The applicant attended an Insurer’s Psychology Examination with Dr. Marino on June 26, 2018. Dr. Marino diagnosed the applicant with the same medical issues as Dr. Shupak. Dr. Marino recommended 12 hours of psychological treatment at $149.61 per hour and two hours at $149.61 for brief assessment and progress report as well as $200.00 for the completion of the OCF-18 for a total cost of $2,294.54.³

10Dr. Dorken, chiropractor, of Core Wellness Centre, in a treatment plan submitted on October 9, 2018, identified the treatment goals as pain reduction, increased range of motion and return to activities of normal living. Active and passive intervention was recommended. The Core Wellness initial assessment report⁴ recommended 16 sessions for the management of the applicant’s soft tissue injuries. The respondent approved a total of 44 sessions of chiropractic/physiotherapy therapy.

11Dr. J. A. Desai, neurologist, in his Neurology Assessment Report dated January 2, 2020 indicated that the headaches incurred by the applicant 6-7 times per week started 5 or 6 weeks after the accident and are associated with neck pain and tightness caused by stressful driving.⁵

ANALYSIS

12Section 15 of the Schedule requires an insurer to pay for all medical benefits that are reasonable and necessary. The proper standard for reasonableness requires that the treatment goals as identified are reasonable, the treatment goals are being met to a reasonable degree and the overall costs of achieving these goals are reasonable.⁶

Is the applicant entitled to a medical benefit in the amount of $3,491.48 for psychological services recommended by Dr. Bodnar in a treatment plan (OCF-18) submitted on June 11, 2018, and denied on June 18, 2018?

13For the reasons set out below, the applicant is not entitled to a medical benefit in the amount of $3,491.48 (less $2,294.54 already paid) for psychological services recommended by Dr. Bodnar in a treatment plan (OCF-18) submitted on June 11, 2018.

14Both Dr. Bodnar and Dr. Marino indicated that the applicant suffered from adjustment disorder with mixed anxiety and depressed mood. Both doctors recommended treatment plans for psychological services. The respondent has paid towards the treatment recommended on July 13, 2018, the sum of $2,294.54.

15The respondent’s position is that the required services normally can be provided by a psychotherapist, social worker or counsellor at a lower rate at $58.19 per hour pursuant to the FSCO Professional Services Guideline, instead of the higher rate of $149.61 for services, provided by psychologists. The respondent discounted the rate to the lower hourly rate of $58.19 per hour because the applicant did not confirm which treatment provider was to provide the services when asked to do so.

16There is no information before me that Dr. Bodnar will be the treatment provider or be the supervisor of other treatment providers. I therefore believe that the position taken by the respondent is the correct position, since the services can be provided at a lower cost by treatment providers under the supervision of Dr. Bodnar. The applicant could easily have clarified this issue when he was asked to provide the information and didn’t.

17I therefore find that the remaining unpaid cost of the treatment plan is not reasonable and necessary.

18The applicant argued that the respondent failed to comply with section 38(8) of the Schedule, by not describing the part of the treatment plan that they agreed with or didn’t agree with. I don’t agree as the respondent clearly indicated that “the type of treatment does not appear to be consistent with the patient’s diagnosis”. Section 38 allows for reasons other than medical reasons to be given.

Is the applicant entitled to a medical benefit in the amount of $2,631.00 for chiropractic services recommended by Dr. Dorken of Core Wellness Centre in a treatment plan (OCF-18) submitted on October 9, 2018, and denied on October 10, 2018?

19I find that the applicant is not entitled to the benefit for the reasons set out below.

20At the time of the submission of this treatment plan and after receiving chiropractic services, the applicant’s physical condition had not changed. The OCF-3 dated February 4, 2018 indicated that the applicant’s only physical injuries were soft tissue in nature.⁷ The respondent had already approved 44 chiropractic sessions for the applicant.

21The report of Dr. Sabrina Ming-Wai Tu, GP, in her Physician Assessment Report dated January 2, 2019,⁸ indicated that the applicant had suffered soft tissue injuries and that the applicant had reached maximum medical recovery. The applicant reported attending chiropractic treatment on a weekly basis with constant pain and minimal improvement. Dr. Tu opined that no further treatment would be reasonable and necessary as the applicant was still reporting constant pain and very minimal improvement.

22I find that the treatment plan is not reasonable and necessary as the applicant had reached maximum medical recovery.

23The applicant argued that the respondent failed to comply with section 38(8) of the Schedule by not describing the part of the treatment plan that they agreed with or didn’t agree with. I don’t agree as the respondent clearly indicated that “The frequency of care does not generally diminish over time.” The respondent was basically stating that the applicant had reached maximum medical recovery.

Is the applicant entitled to a medical benefit in the amount of $2,265.00 for physiotherapy services recommended by Dr. Dorken of Core Wellness Centre in a treatment plan (OCF-18) submitted on February 14, 2018, and denied on February 27, 2018?

24I find that the applicant is not entitled to this benefit for the reasons set out below.

25Part 9 of this treatment plan identifies treatment goals as pain reduction, increased range of motion and return to activities. The applicant attended regularly at Core Wellness Centre between September 7, 2017 and September 26, 2019 and received chiropractic and physiotherapy treatment.

26Again, relying on Dr. Tu’s report, Dr. Tu opined that no further treatment would be reasonable and necessary, as the applicant was still reporting constant pain and very minimal improvement.

27I find that the treatment plan is not reasonable and necessary as the applicant had reached maximum medical recovery.

Is the applicant entitled to a medical benefit in the amount of $1,995.32 for psychological services recommended by Dr. Bodnar in a treatment plan (OCF-18) submitted on March 20, 2018, and denied on March 23, 2018?

28I find that the applicant is not entitled to this benefit for the reasons set out below.

29The respondent partially approved this treatment plan on July 13, 2018, in the amount of $1,396.88. The respondent did not pay the full costs for the same reasons set out in paragraphs [14-15] above.

30I take the same position as set out in paragraph [15] above.

31I therefore find that the remaining unpaid cost of the treatment plan is not reasonable and necessary.

32The applicant argued that the respondent failed to comply with section 38(8) of the Schedule by not describing the part of the treatment plan that they agreed with or didn’t agree with. I don’t agree as the respondent clearly indicated that “the type of treatment does not appear to be consistent with the patient’s diagnosis”. Section 38 allows for reasons other than medical reasons to be given.

Is the applicant entitled to a cost of examination in the amount of $2,584.30 for a neurological assessment recommended by Dr. Basile in a treatment plan (OCF-18) submitted May 1, 2019, and denied on May 24, 2019?

33For the reasons set out below, I find that the applicant is not entitled to the benefit.

34Dr. Desai, neurologist, concluded that the headaches were not a direct result of the accident and that the proposed assessment therefore was not reasonable and necessary. He recommended 25 pills of 20 mg each. of Amitriptyline be taken by the applicant orally.

35Dr. Basile, neurologist, in his Neurological Evaluation dated June 28, 2019 indicated that the applicant had post-concussive syndrome. He noted that the applicant’s musculoskeletal soft tissue injury was the source of his pain in the neck and back.

36The treatment plan identifies the treatment goals as: pain reduction, increased strength, increase range of motion, return to activities of daily living. The plan however, proposes a neurological assessment which wouldn’t meet the goals set out in the treatment plan.

37I find that the treatment plan is not reasonable or necessary.

INTEREST

38As no benefits are owing, there is no interest owing.

CONCLUSION

39For the reasons set out above, the applicant’s application is dismissed.

Released: September 11, 2020

______________________________

Robert Watt

Adjudicator

Footnotes

1. 1Tab 5 Applicant’s Schedule
2. 2Tab 9 Applicant’s Schedule
3. 3Tab 11 Applicant’s Schedule
4. 4Core Wellness Initial Assessment Report
5. 5Neurology Assessment Report of Dr. Jamsheed A. Desai Neurologist dated January 2, 2020 Tab T
6. 617-001007/AABS v Aviva Insurance Canada, 2018 CanLii 2309(ON LAT)
7. 7OCF-3 dated February 4, 2018
8. 8Physician Assessment report dated January 2, 2019 completed by Dr. Sabrina Ming-Wai Tu GP from Altum Health Tab Q