R.F. v. Aviva General Insurance Company, 2020 CanLII 94790

19-002608/AABS

Released Date: 11/16/2020

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:

R.F.

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Ramy Akladios

For the Respondent:

Pamela Quesnel

HEARD:

Via written submissions

OVERVIEW

1The applicant was injured in an accident on July 2, 2016 and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). While the applicant is no longer subject to treatment within the Minor Injury Guideline (“MIG”), Aviva denied the treatment and assessment plans in dispute on the basis that they are not reasonable and necessary. The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

(i) Is the applicant entitled to receive a medical benefit in the amount of $8,323.77 for medical services recommended by Downsview Healthcare Inc. in a treatment plan submitted November 17, 2017 and denied by the respondent on November 30, 2017?

(ii) Is the applicant entitled to receive a medical benefit in the amount of $1,406.80 for physiotherapy services recommended by Prime Health Care in a treatment plan submitted April 26, 2017 and denied by the respondent on May 4, 2017?

(iii) Is the applicant entitled to receive a medical benefit in the amount of $1,105.10 for physiotherapy services recommended by Prime Health Care in a treatment plan submitted June 9, 2017 and denied by the respondent on June 9, 2017?

(iv) Is the applicant entitled to payment for the cost of examinations in the amount of $2,000.00 for a psychological assessment recommended by Prime Health Care in a treatment plan submitted October 26, 2016 and denied by the respondent on April 3, 2017?

(v) Is the applicant entitled to payment for the cost of examinations in the amount of $2,000.00 for a chronic pain assessment recommended by Prime Health Care in a treatment plan submitted May 8, 2017 and denied by the respondent on May 18, 2017?

(vi) Is the applicant entitled to payment for the cost of examinations in the amount of $2,000.00 for an orthopedic assessment recommended by Downsview Healthcare Inc. in a treatment plan submitted August 28, 2017 and denied by the respondent on October 16, 2017?

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

(viii) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

3The applicant is not entitled to payment for any of the treatment and assessment plans in dispute as he has not demonstrated that they are reasonable and necessary. An award and interest are not payable.

ANALYSIS

Preliminary issues

4In submissions, the applicant raised a preliminary issue, arguing that Aviva has not provided him with the clinical notes of three s. 44 assessors, as ordered by the Tribunal. In response, Aviva provided evidence of its efforts to obtain the notes from the three assessors, two of which did not have any notes. The notes from the third assessor, Dr. Syed, were provided to the applicant on receipt by Aviva. In reply, the applicant submits that Aviva should not be able to rely on these clinical notes and records and the Tribunal may not take them into consideration, as they pertain to treatment plans not in dispute here. The production issue is now moot, and the Tribunal afforded appropriate weight to the evidence before it.

5In addition, in submissions, Aviva advised that at the case conference it agreed to fund incurred amounts from the $1,406.80 treatment plan for physiotherapy services recommended by Prime Health Care, originally denied on May 4, 2017, and identified as issue (ii), above. It submitted evidence of payment via an OCF-21, which the applicant did not take issue with on reply. Accordingly, the treatment plan is no longer in dispute.

Are the treatment and assessment plans reasonable and necessary?

6The remaining issues all concern treatment plans submitted by the applicant to Aviva in 2016 and 2017. As the applicant is outside of the MIG, the test under s. 15 of the Schedule for all of the benefits in dispute is whether the treatment and assessment plans are reasonable and necessary. It is the applicant’s burden to prove that the benefits he seeks are reasonable and necessary on a balance of probabilities.

7The applicant’s medical history is notable for a previous accident that occurred on March 2, 2015, as a result of which he suffered neck, back and shoulder pain, impairments he submits were treated by prescription medication and physiotherapy and were nearly healed by the time the current accident occurred.

8The applicant’s impairments from the current accident are identified in a Disability Certificate (“OCF-3”) dated August 22, 2016 as: cervical, thoracic and lumbar spine strain and sprain; headaches; bilateral shoulder pain; and right forearm pain. The applicant submits that subsequent assessments revealed impairments such as dizziness, post-traumatic and post-concussive headaches and chronic pain syndrome. From a psychological perspective, the applicant submits that he developed anxiety and depression as a result of the accident and was diagnosed with mixed anxiety and depressed mood as well as vehicle-specific phobia. The applicant submits that he has consistently reported his symptoms and injuries and his lingering pain causes functional impairment, making all of the treatment and assessment plans reasonable and necessary.

9In response, Aviva submits that the applicant sustained primarily soft-tissue injuries as a result of the accident. It points to the applicant’s prescription summary to argue that his pain pre-dates the current accident and that his current impairments were not caused by it. Aviva submits that the applicant took two weeks off of work before returning to full-time duties and that the clinical notes and records reveal limited accident-related complaints. Aviva submits that comparing the subjective complaints of the applicant to the totality of the medical evidence on file reveals that Aviva properly denied the OCF-18s in dispute and same should not be awarded.

The treatment and assessment plans are not reasonable and necessary

10I find the applicant has not demonstrated that any of the OCF-18s in dispute for the chronic pain program, chronic pain assessment, orthopaedic assessment, psychological assessment and physiotherapy treatment are reasonable and necessary.

11First, I find the applicant has not met his onus to demonstrate that the treatment plan in the amount of $8,323.77 for a chronic pain program submitted November 17, 2017 and denied by Aviva on November 30, 2017 is reasonable and necessary. While I am alive to the applicant’s subjective reports of pain, I agree with Aviva that there is a dearth of evidence to support this program and certainly not enough evidence to justify the significant cost proposed. Indeed, while the applicant argues that he has consistently reported pain issues, the clinical notes from his family physician, Dr. Verughese, reveal limited accident-related visits and no recommendation that he participate in a comprehensive pain management program for injuries that are, in my view and on the medical evidence, primarily soft-tissue in nature. Post-accident, while the applicant has undergone some physiotherapy and treated his condition with pain medication and muscle relaxants, there is limited evidence of functional impairment as a result of this pain and it is unclear if the applicant has achieved any progress from any of the modalities identified in the OCF-18—listed as psychological, chiropractic, functional exercise, spinal decompression, laser therapy, massage therapy, mobilization and various devices—let alone analysis to explain why they all continue to be necessary or reasonable. The OHIP summary codes indicate visits for sprains and strains to the neck and back in July 2016, October 2017 and May 2018. Diagnostic imaging of the applicant’s neck and back revealed no fractures and otherwise normal findings.

12Putting aside the proposed cost, on the evidence, I find no specific submissions, a referral or a report speaking to the need for this comprehensive plan. Indeed, the applicant’s submissions do not even discuss the specific elements or items identified in this OCF-18, only stating that it is reasonable and necessary because of its stated goals. Contrary to the applicant’s position, this is not sufficient evidence to demonstrate that it is reasonable and necessary. Addressing the cost, in my view, it would have been prudent and, indeed, necessary for the applicant to provide specific submissions explaining how the total cost of $8,323.77 is reasonable under s. 15. I find the applicant has not demonstrated why it is payable as a whole or even partially so. Accordingly, I follow the opinion of Aviva’s s. 44 assessor, Dr. Mula, and find that the proposed plan is not reasonable and necessary.

13Second, and in a similar vein, I find the applicant has not demonstrated that he is entitled to payment for a chronic pain assessment in the amount of $2,000.00, as recommended by Prime Health Care in a treatment plan submitted May 8, 2017 and denied by Aviva on May 18, 2017. For support, the applicant seems to rely on documents prepared after the submission of the OCF-18: Dr. West’s chronic pain pre-screening report dated July 17, 2017, an “AB Orthopaedic/Chronic Pain Assessment” report from October 2017 and clinical notes and records spanning from July 2015 to March 2018. I do not find these documents assistive. The clinical notes are illegible, and I find the pre-screen “report” is a boilerplate document explaining chronic pain conditions that does not actually identify the applicant or any of the applicant’s symptoms in the body of the discussion or address how the applicant’s impairments have resulted in chronic pain syndrome, despite recommending a significant slate of modalities to treat same. While the assessment report did conduct physical range of motion testing and documented the applicant’s self-reporting, it also does not specifically address how the applicant’s specific impairments led Dr. West to conclude that he suffers from chronic pain syndrome, generally, or with reference to the AMA Guides criteria specifically. Given the lack of reporting to his family physician about his accident-related pain, the absence of a referral for same and the fact that it appears the applicant obtained this “AB Orthopaedic/Chronic Pain Assessment” from Dr. West that is different from the assessment proposed in the OCF-18, I cannot find that the specific chronic pain assessment plan in dispute from Prime Health Care is reasonable and necessary on the evidence before the Tribunal.

14Third, I find the applicant has not demonstrated why the $2,000.00 orthopedic assessment recommended by Downsview Healthcare Inc. in a treatment plan submitted August 28, 2017 and denied by Aviva on October 16, 2017 is reasonable and necessary. This is seemingly the actual “AB Orthopaedic/Chronic Pain Assessment” from Dr. West on which the applicant relies. To this end, the applicant’s sole submissions on this assessment plan are that Aviva “had knowledge of the medical injuries and sequelae discussed by Dr. West” based on the clinical notes of Dr. Verughese “as well as all other evidence relied upon” by the applicant. In reply, the applicant also refers to the “numerous diagnoses of orthopaedic complications” by Dr. West as evidence that the orthopedic assessment is reasonable and necessary.

15I disagree and find the applicant has not met his burden of proof. Again, the notes of Dr. Verughese make limited reference to the accident, do not refer the applicant for an orthopaedic assessment and do not diagnose any orthopaedic complications. There are no diagnostic imaging reports that would suggest orthopaedic investigation is required as a result of the accident. With the exception of chronic pain syndrome, it is unclear what the “numerous diagnoses of orthopaedic complications” the applicant is referring to are, as the alleged “complications” referred to by Dr. West in his report are range of motion limitations and sprain and strain diagnoses, all of which are identical to those listed in the original OCF-3.

16In this vein, I agree with Aviva that there is no suggestion that the applicant sustained orthopaedic injuries as a result of the accident that would justify a specific assessment for same, especially so in light of the fact that the OCF-18 does not provide any explanation specific to the applicant’s impairments and refers to “joint dysfunction” that is not addressed or diagnosed in Dr. West’s report at all. Further, the report itself seems to have been commissioned to address a number of benefits not in dispute here, including the applicability of the MIG, which is no longer in dispute. For these reasons, I find the applicant has not demonstrated why the orthopaedic assessment is reasonable and necessary.

17Fourth, I find that the applicant has not demonstrated that the OCF-18 for physiotherapy treatment (comprised of massage, exercise and acupuncture as well as a follow-up assessment) in the amount of $1,105.10 is reasonable and necessary. Indeed, I find this OCF-18 mirrors and directly followed the OCF-18 approved by Aviva in issue (ii). In his report, Dr. West found the continued treatment to be reasonable and necessary, while Aviva relies on the s. 44 findings of Dr. Chaudhry, who concluded that the applicant sustained soft-tissue injuries with no evidence of neurological or radicular pathology related to the accident. Dr. Chaudhry determined that further supervised rehabilitation was unlikely to provide any therapeutic benefit and was not clinically indicated.

18On review of the evidence, I find the applicant has undergone quite a bit of physiotherapy post-accident and I agree with Aviva that there is little to suggest that he is improving or benefiting from the treatment received or that this block of treatment was incurred. The treatment notes are not a particularly helpful gauge of the applicant’s progress either, as the phrase “After tx. pt. feels gen. relax” is simply repeated on nearly every visit record. I agree with Aviva that for ongoing passive treatment to be considered reasonable and necessary, more evidence is required than the applicant’s subjective complaints and belief that he may receive benefit from treatment. Where the applicant relies entirely on self-reporting and an opinion from Dr. West that does not elaborate beyond the phrase “In my medical opinion, this was both reasonable and necessary,” I find there is not enough support for continuing treatment and prefer the s. 44 report of Dr. Chaudhry that found the ongoing passive treatment identified in the OCF-18 is not reasonable and necessary or incurred.

19Last, I find that the applicant has not demonstrated that the psychological assessment in the amount of $2,000.00 denied by Aviva on May 4, 2017 is reasonable and necessary.

20On one hand, the applicant presents the psychological report from Dr. Shaul, dated May 27, 2019, that indicates severe levels of emotional distress, significant cognitive difficulties, sleep issues and fear and anxiety towards travelling in a vehicle or travelling as a pedestrian. The report ultimately diagnoses the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Vehicle Phobia. On the other hand, are several s. 44 reports from Aviva’s psychological assessor, Dr. Syed, dated April 3, 2017, February 6, 2018, August 7 and 13, 2019, respectively, none of which determined that the applicant met the psychological criteria for a DSM-V diagnosis as a result of the accident. Based on the psychometric testing, Dr. Syed was unable to make a diagnosis based on the belief that the applicant was feigning or that the results were unreliable, a finding echoed in the subsequent reports.

21While I do not accept that the applicant is feigning symptoms as alleged by Dr. Syed, I do find it difficult to accept that any psychological impairment is the result of the 2016 accident. While the applicant argues that his complaints have been consistent since the accident, there are no clinical notes from his family physicians indicating psychological or emotional struggles as a result of the accident. There are visits for a sore throat, for a workplace slip, for a toothache, for the flu, etc., but not a single notation for depression or anxiety or driving phobia. The OHIP summary reveals much of the same: visits for baby well care, gastrointestinal issues, the common cold, a wrist injury, etc., but nothing related to psychological or mental health. I struggle to understand how Dr. Shaul was able to definitively trace the applicant’s psychological symptoms in 2019 to an accident that occurred in 2016 where Dr. Syed was unable to form a DSM-V diagnosis over four separate assessments and where the applicant did not seek a referral for treatment or even mention that he was struggling to his own physician at any point after the accident. Similarly, by all accounts, the applicant has continued to drive a vehicle since the OCF-18 was submitted.

22I agree with Aviva that the applicant’s reliance on a report prepared three years after the OCF-18 in dispute was submitted is of limited value when assessing the validity of Aviva’s denial at the time it was received. Based on the pre-screen document available to Aviva when the denial was made, I agree that there was a dearth of evidence to suggest that the applicant sustained a psychological impairment as a result of the accident, despite his self-reporting to his own assessors. Indeed, while it appears that much has occurred in the applicant’s life since the submission of this OCF-18, I do not find evidence of the type of “severe” levels of emotional distress or “significant” cognitive difficulties prescribed by Dr. Shaul as a result of the accident that would make the OCF-18 reasonable and necessary, let alone continuous or contemporaneous records from a treating physician that would support payment of this claim.

Award under s. 10; Interest

23The applicant also claims an award under s. 10 of O. Reg. 664 due to Aviva’s unreasonable withholding of payment of benefits by denying his claims without consideration of the totality of the evidence. Under s. 10, the Tribunal may award a lump sum of up to 50% of the total benefits and interest to which an insured person is entitled under the Schedule if it determines that an insurer unreasonable withheld or delayed the payments.

24The applicant asserts that Aviva’s denials were not based on the requisite due diligence and were made in bad faith without proper consideration for all of the treatment, assessments and modalities proposed. In response, Aviva submits that it has taken a reasonable and principled approach to the issues in dispute. It submits that the applicant’s medical evidence in support of the OCF-18s in dispute lacks objective findings and while he may disagree with Aviva’s decisions, it is not sufficient evidence to support a claim for a s. 10 award.

25I find an award is not appropriate as I find no evidence of bad faith or the unreasonable withholding of benefits where every denial in evidence was based on a s. 44 report. As no benefits are overdue, it follows that the Tribunal cannot award 50% of zero or interest under s. 51.

CONCLUSION

26The applicant is not entitled to payment for any of the treatment and assessment plans in dispute as he has not demonstrated that they are reasonable and necessary. An award and interest are not payable.

Footnotes

1. 1O. Reg. 34/10, as amended.