Citation: Chobotaru vs. Aviva General Insurance Company, 2020 ONLAT 19-009689/AABS

Released Date: 11/26/2020

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:

Mina Chobotaru

Applicant

and

Aviva General Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Mina Chobotaru, Applicant

Michael Ferrante, Counsel

For the Respondent:

Aviva General Insurance Company, Representative

Margaret Louie, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, M.C. was involved in an automobile accident on December 5, 2016, (“the accident”) and sought medical benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”)¹. M.C. was denied medical benefits and cost of examinations by the respondent, Aviva General Insurance Company (“Aviva”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2M.C.’s position is that the recommended treatment plans (“OCF-18s”) for physiotherapy and psychological services therapy and the driver reintegration, orthopaedic and functional abilities assessments are reasonable and necessary. She relies on medical evidence that, she submits, supports her position that she requires continued facility-based treatment to achieve maximum recovery.

3Aviva’s denial is based on its position that M.C.’s physical injuries are minor and subject to the restrictions on recovery of $3,500 as specified in the Minor Injury Guideline (the “MIG”). Although Aviva removed M.C. from the MIG due to her psychological impairment, Aviva’s position is that M.C. has not proven the OCF-18s are reasonable and necessary.

4Aviva submits that M.C. is therefore not entitled to payment for the treatment plans, interest or an award under section 10 of Regulation 664, Automobile Insurance (“Regulation 664”).

ISSUES

5The issues I am asked to determine are as follows:

i. Is the medical benefit in the amount of $2,168.00 for physiotherapy services recommended by Vyvyen Le in a treatment plan (“OCF-18”) dated March 9, 2018, denied on March 22, 2018, reasonable and necessary?

ii. Is the medical benefit in the amount of $1,586.88 for psychological services, recommended by Dr. Kenneth Keeling in an OCF-18 dated October 23, 2017, submitted November 28, 2017, denied on December 13, 2017, reasonable and necessary?

Cost of examinations

i. Is the cost of examinations in the amount of $1,943.42 for a driver reintegration assessment, recommended by Dr. Kenneth Keeling in an OCF-18 dated July 21, 2017, submitted August 8, 2017, denied on August 18, 2017, reasonable and necessary?

ii. Is the cost of examinations in the amount of $2,194.00 for an orthopaedic assessment, recommended by Dr. Michael West in an OCF-18 dated December 8, 2017, submitted January 29, 2018, denied on February 6, 2018, reasonable and necessary?

iii. Is the cost of examinations in the amount of $1,600.00 for a functional abilities assessment, recommended by James Fung in an OCF-18 dated January 10, 2018, submitted February 13, 2018, denied on February 20, 2018, reasonable and necessary?

Other

i. Is M.C. entitled to an award under s.10 of Ontario Regulation 664 because Aviva unreasonably withheld or delayed payments to M.C.?

ii. Is M.C. entitled to interest on any overdue payment of benefits, in accordance with s. 51 of the Schedule?

FINDINGS

6M.C. is entitled to the OCF-18s for psychological services and a driver reintegration assessment, plus interest on the outstanding balance of payment, pursuant to s. 51 of the Schedule.

7M.C. is not entitled to the OCF-18s for physiotherapy treatment, orthopaedic assessment or functional abilities assessment, therefore, no interest is payable.

8I do not find that Aviva unreasonably withheld or delayed payments and M.C. is not entitled to an award under s. 10 of the Schedule.

Background

9M.C. was involved in a motor vehicle accident on December 5, 2016. She was driving her vehicle when she was rear-ended at a stoplight.

10As a result of the accident M.C. first attended a walk-in clinic and complained of having mid lumbar pain and tenderness as well as nausea. She visited her family doctor, Dr. Pankowski approximately nine days after the accident to discuss her accident-related symptoms. Dr. Pankowski’s initial visit notes confirmed that M.C. had decreased lumbar spine forward flexion due to pain, pain over sacrum and left paraspinal muscles. M.C. presented with pain complaints noted in Dr. Pankowski’s medical records from December 14, 2016 to September 26, 2018. Dr. Pankowski’s notes confirms back pain throughout this period. She prescribed acupuncture, physiotherapy and massage for the back pain.

11M.C.’s psychological diagnosis of adjustment disorder with depressed mood was confirmed by the insurer examination (IE) of psychologist Dr. Mandel when he confirmed the approval for a psychological assessment and psychological treatment sessions.

12Aviva takes the position that its IE reports confirm that M.C. has only suffered minor physical injuries and as such is not entitled to the benefit requested in issue numbered 5 (i) above. Further, that in the event the MIG limits do not apply then the medical benefits requested are not reasonable and necessary.

13Aviva takes the position on issues 5 (ii) - (v), that other than what has been approved based on its psychological IE reports, the remaining psychological benefits requested are not reasonable and necessary.

LAW

Do M.C.’s physical injuries fall within the MIG?

14Aviva’s position is that M.C.’s entitlement to the medical benefits for physical treatment falls within the MIG even though Aviva has approved psychological services in excess of the MIG limits.

15Aviva accepts that the impairments sustained by M.C. do not fall within the definition of minor injury in s. 3 of the Schedule because she sustained psychological impairments. M.C. is now entitled to treatment for all of the impairments sustained in the accident, whether psychological or physical, up to the new coverage limit of $65,000. As a result, Aviva would responsible to fund all reasonable and necessary treatment plans up to the new coverage limit.

16Section 3 of the Schedule provides the following definition of a minor injury:

“minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”.

17I find that Aviva’s position that the MIG limits are applicable separately for psychological services and physical therapy benefits is not supported by sections 14, 15 and 18 of the Schedule.

18The Schedule prescribes:

i. Section 14 states that, except as otherwise provided in this regulation, an insurer is liable to pay the following benefits to or on behalf of an insured person who sustains an impairment as a result of an accident:

(a) Medical and rehabilitation benefits under sections 15 to 17.

ii. Section 15(1) states that, subject to section 18, medical benefits shall pay for all reasonable and necessary expenses incurred by or on the behalf of the insured person as a result of the accident for, among other things, chiropractic, psychological, occupational therapy and physiotherapy services.

iii. Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence documented by a health practitioner before the accident that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. In addition, certain accident related medical impairments (e.g. a diagnosis of chronic pain or a psychological impairment) can remove an individual from the MIG in certain circumstances.

19M.C. was diagnosed with a psychological impairment and as such would be removed from the MIG due to this impairment which is not predominately a minor injury under s. 18(1).

20Aviva acknowledges that M.C. was removed from the MIG on the extent of her psychological injuries given her diagnosis of adjustment disorder with depressed mood as confirmed in the IE. As such, the application of the MIG is not available as a ground for denying the medical benefits claimed or the position that they should be capped at the $3,500 MIG limit. Therefore, the appropriate test is whether the OCF-18s claimed are reasonable and necessary.

ANALYSIS

Issue [5] i – OCF-18 for physiotherapy

Issue [5] iv. – OCF-18 for an orthopaedic assessment

Issue [5] v. – OCF-18 for a functional abilities evaluation

21M.C. bears the onus to prove that the specific benefits she claims are reasonable and necessary for her accident-related impairments. I find M.C. has not satisfied her burden on a balance of probabilities that the OCF-18 for physiotherapy is reasonable and necessary.

22M.C. relies on several documents in support of her claim for further physiotherapy treatment, including:

a. A letter dated March 27, 2018 from her tort lawyer;

b. The records of Women’s College Hospital;

c. The clinical notes and records (“CNRs”) of Doctor Med Rehabilitation Centre; and

d. Various diagnostic imaging reports.

23In the March 27, 2018 letter, Dr. Pankowski provides her response to a series of questions. Dr. Pankowski responds that M.C. has daily neck, shoulder, back pain and anxiety related to driving. Dr. Pankowski also answers that M.C.’s impairments affect her ability to carry out her regular work-related tasks, housekeeping and home maintenance tasks. In addition, that her prognosis is unknown at the time of the letter. Dr. Pankowski recommended ongoing physiotherapy, chiropractic treatment and acupuncture.

24The record from the Women’s College Hospital contains a single accident-related notation where it notes, “lower back…tension in both shoulder – MVA – December 5, 2016, receiving physiotherapy at present”. The CNRs of Doctor Med Rehabilitation Centre lists the areas of injury, limitations, areas for treatment, as well as frequency and duration of treatment sessions. M.C. also referred to a diagnostic report, specifically the results of an x-ray completed on December 6, 2016. The x-ray findings were noted to be degenerative disc disease, L5-S1.

25Aviva relies on the orthopedic assessments of its assessor, Dr. Alvi in support of its denial of the OCF-18. Dr. Alvi lists M.C.’s complaints as low back, neck and bilateral shoulder pain. In his addendum report dated May 27, 2020, M.C. reports a “20% improvement” of her physical symptoms at the time of the assessment. This is the same report of improvement from the initial orthopaedic assessment on April 10, 2017.

26Similar to the questions answered by Dr. Pankowski in the March 27, 2018 letter, M.C. reported to Dr. Alvi that she is unable to complete her heavy household chores and is still unable to resume recreational activities. M.C. further reported to Dr. Alvi that therapy is no longer very helpful, but she still wished to receive further facility-based treatment. Dr. Alvi diagnosed M.C. with mild myofascial strain to the cervical and lumbar spine, myofascial strain to the bilateral shoulders with no range of motion limitation. Dr. Alvi opined that participation in activities of daily living is a therapeutic means to improve and maintain functional tolerance, mobility, range of motion, and muscle strength. Dr. Alvi reviewed the x-ray report in his addendum, and his opinion remained unchanged on the OCF-18 not being reasonable or necessary.

27M.C. questions the reliability of Dr. Alvi’s initial report as he states, under the Investigations and X-rays section that, “no relevant radiographic or clinical notes were available to review at the time of this assessment”. Under Appendix A: Document List, the report states that Dr. Alvi reviewed an MRI dated December 12, 2016 from North York General Hospital.

28M.C. questions the validity of Dr. Alvi’s report based on his statement regarding the lack of availability of radiographic reports and the fact that the report contains a list of radiographic reports. Second, M.C. claims she has never had an MRI done on December 12, 2016. M.C. posits that only the x-ray referred to paragraph 25 was made available to Dr. Alvi.

29Aviva admits that Dr. Alvi’s initial report erroneously notes that no radiographic or clinical reports were available at the time of the assessment, and that an MRI was incorrectly listed. Aviva’s position is that in spite of these errors, this does not negate the physical examination findings that M.C. sustained myofascial strains to the cervical and lumbar spine, and bilateral shoulders.

30I agree with Aviva. Had Dr. Alvi not reviewed any medical records or diagnostic readings, an argument could be made about the validity of his reports. Further, as previously mentioned, Dr. Alvi’s addendum report correctly included radiographic records that were reviewed.

31Considering the conflicting reports from the treatment providers and assessors for M.C. and Aviva’s assessor, I must take M.C.’s self-reporting into consideration. Despite receiving physical therapy for almost 18 months since the accident, M.C. reports only a 20% improvement. She also reported to Dr. Alvi that physical therapy is no longer helpful.

32It is trite law that treatment must be reasonable, and that one of the goals of the treatment is that it is achieving a goal of pain reduction. There must be a clear or explicit objective goal that the treatment is benefitting the recipient. M.C.’s self-reporting of the lack of benefit and the low percentage of improvement, is not indicative of beneficial treatment nor that more of the same treatment is reasonable.

33I am not persuaded by the evidence that more physiotherapy treatment is meeting any of the goals of the treatment plan. As such, I find that M.C. has not met her onus on a balance of probabilities that the OCF-18 is reasonable and necessary. I now turn to the discussion of the orthopaedic assessment and functional abilities evaluation (“FAE”).

34M.C. submits that her complaints (regarding her impairments and the effect on her work, activities of daily living, social and recreational activities) made to family physician, Dr. Pankowski, Dr. Mandel, Dr. Alvi, and psychologist Dr. Keeling, all support her claim for the orthopaedic assessment and FAE. M.C. further submits that little consideration was given to the CNRs of Dr. Pankowski and the reports of Dr. Keeling and IE assessor, psychologist, Dr. Mandel, which detail how M.C.’s level of functioning had declined, despite working and driving, post-accident.

35M.C. claims that IE assessor, orthopaedic surgeon Dr. Yee’s February 15, 2018 paper review and May 27, 2020 orthopaedic addendum report are mainly reliant on the findings of Dr. Alvi’s April 10, 2017 report. M.C.’s position is that Dr. Yee’s reports re-state the opinions and findings of Dr. Alvi, and do not consider that M.C.’s condition “could have deteriorated over the past year”.

36In his initial report and addendum, Dr. Alvi diagnosed M.C. with mild myofascial strain to the cervical and lumbar spine with no overt traumatic-based compressive neurological deficit, mild myofascial strain to the bilateral shoulders with no limitation of range of motion, impingement or weakness. Dr. Alvi opined that he was not able to identify a disabling objective impairment as a result of the accident. Dr. Alvi recommended in both his initial and addendum reports that M.C. continue with home-based exercises and seek pharmacotherapy treatment through her family physician.

37Aviva also relies on the findings of kinesiologist, Mr. Monck’s FAE report from April 13, 2017. Mr. Monck opined that M.C. demonstrated acceptable coefficient of variation results for hand grip strength, pinch grip and did not demonstrate objective signs of biomechanical strain. Mr. Monck further opined that the results of the assessment were an accurate reflection of M.C.’s current functional abilities performed within her pain tolerance, as opposed to her maximum functional capabilities. I note that in Mr. Monck’s report, M.C. reported that she was unable to complete her heavy household such as cleaning and cooking, and that she suffered an inability to resume her social and recreational activities such as Zumba and walking.

38Aviva maintains that the IE reports of Mr. Monck, Dr. Alvi and Dr. Yee supports its denials of the orthopaedic assessment and FAE. Aviva’s position is, as noted above, in paragraph 22, that M.C.’s self-reporting regarding therapeutic benefit and overall improvement, supports that these assessments are not reasonable and necessary. Dr. Yee, in his paper review, referred to Dr. Alvi’s orthopaedic evaluation, and Mr. Monck’s assessment. Dr. Yee’s opinion remained unchanged, that there were no objective findings that made the FAE reasonable and necessary. Dr. Yee concluded that M.C. had already undergone an FAE with Mr. Monck. Aviva submits that the objective medical evidence from its assessors’ reports confirm that the OCF-18s are not reasonable and necessary.

39Besides the treatment plans, there is no other recommendation or referral for an orthopaedic assessment or FAE. Dr. Pankowski’s records note a referral to a pain clinic, however, there is no evidence that M.C. pursued that referral.

40Dr. Pankowski diagnosed M.C. with neck, shoulder and back pain. This is similar to the diagnoses provided by Drs. Alvi and Yee. I find that M.C.’s medical evidence is not of sufficient weight to persuade me that the orthopaedic assessment and FAE are reasonable and necessary. M.C. is still able to participate in most of her pre-accident activities, albeit with pain, however, I place more weight on the findings of Drs. Alvi and Yee and Kinesiologist Monck, in that there is little by way of objective evidence that establishes the orthopaedic assessment and FAE are reasonable and necessary.

Issue [5] ii – OCF-18 for psychological treatment

Issue [5] iii. – OCF – 18 for a driver reintegration assessment

41Although listed separately in the Issues section above, I will address these issues together as the evidence the parties rely on is similar for both. For the reasons to follow, I find that M.C. is entitled to the psychological treatment and driver reintegration assessment.

42On behalf of M.C., psychologist Dr. Keeling prepared a report in support of the two psychological-based OCF-18s. In his report, dated May 2, 2017, Dr. Keeling noted that M.C. continues to drive, is fearful when cars are in close proximity to her and when with her husband, she prefers that he drives. Based on testing, Dr. Keeling concluded that M.C. “presents with clinically significant symptoms that would meet the diagnostic criteria for Adjustment Disorder with Depressed Mood” as a result of the accident. Dr. Keeling recommended 8-10 one-hour sessions of psychotherapy. Aviva approved 12 sessions.

43In support of its denial of the OCF-18s, Aviva relies on various reports of its assessor, psychologist Dr. Mandel; an initial assessment report dated March 17, 2017, paper review report of August 31, 2017 and addendum report dated May 27, 2020.

44Aviva submits that Dr. Mandel recognized that the objective findings support that M.C. presents with clinically significant symptoms that “meet the diagnostic criteria for Adjustment Disorder with Depressed Mood”. Significantly, this is the same diagnosis of Dr. Keeling, which resulted in M.C.’s removal from the minor injury guideline, and approval of 12 sessions of psychotherapy.

45Aviva argues that although the diagnosis is similar, M.C. reported to Dr. Mandel that she continues to drive, is not avoidant of being in a vehicle, does not have difficulties discussing the accident, and that she does not experience any physiological reactivity associated with being in a vehicle as a passenger or as a driver. Aviva’s position is that on this basis, the psychological-based OCF-18s are not reasonable and necessary. I disagree.

46Regarding the OCF-18 for psychological treatment, Aviva relies on an additional report from Dr. Mandel dated February 13, 2018. Dr. Mandel notes that M.C. endorsed feelings of worthlessness and hopelessness in addition to impairments related to memory and concentration. Dr. Mandel performed objective testing with results similar to those found in the March 17, 2017 report. Again, the March 17, 2017 findings resulted in psychological treatment being approved.

47I find Dr. Mandel’s reports to be contradictory, and in fact, support the claimed OCF-18 for a driver reintegration assessment. First, Dr. Mandel makes the same diagnosis as Dr. Keeling. Despite this, Dr. Mandel concludes that the OCF-18 is not reasonable and necessary, yet, the objective findings in his initial report (of March 17, 2017) are not significantly different than the subsequent reports. Aviva approved the treatment sought on the strength of Dr. Keeling’s recommendation, which Dr. Mandel’s March 2017 report confirmed.

48Dr. Mandel’s subsequent August 31, 2017 paper review is of little assistance. The report essentially contains an entire copied section from his March 17, 2017 assessment. Further, I am not persuaded by Dr. Mandel’s May 27, 2020 addendum report, as there is little by way of objective evidence that supports that the OCF-18 for the driver reintegration assessment is not reasonable or necessary. Therefore, I place little weight on the August 31, 2017 and May 27, 2020 paper review and addendum reports.

49I agree with M.C. that at the time of Dr. Mandel’s February 13, 2018 report, Dr. Mandel’s reasoning supports that additional counselling is justifiable. I further agree with M.C. that the similarity of the February 2018 report and the March 17, 2017 report, also support the claimed psychological counselling. I am not persuaded by Dr. Mandel’s reports. I prefer and place more weight on the evidence of Dr. Keeling that supports that the recommended additional 6-8 psychotherapy sessions and driver reintegration assessment are reasonable and necessary.

AWARD

50Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. M.C.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Aviva) has “unreasonably” withheld or delayed payments.

51Although I have found the OCF-18s for psychological treatment and a driver reintegration assessment to be reasonable and necessary, I do not find that Aviva unreasonably withheld or delayed payments. Aviva relied on the reports of its assessors as the basis for denying the treatment plans.

52M.C. claims that Aviva should be liable to pay an award if I find in her favour, however, M.C. does not put forth particulars for the award. The threshold for an award is high; there needs to be evidence that the insurer was unreasonable in withholding or delaying payment for requested benefits. A differing of opinions regarding treatment does not establish the grounds for an award claim.

CONCLUSION

53M.C. is entitled to payment for the OCF-18s for psychological services, and driver reintegration assessment, including interest on the outstanding balance of payments, pursuant to s. 51 of the Schedule.

54M.C. is not entitled to the OCF-18s for physiotherapy treatment, orthopaedic assessment or FAE. As such, no interest is payable as there is no outstanding balance of payment.

55M.C.’s claim for an award pursuant to section 10 of Regulation 664 is dismissed.