Citation: M.I.A. vs. Aviva General Insurance, 2020 ONLAT 19-000993/AABS

Released Date: 11/18/2020

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:

M.I.A.

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Paul Deluca, Counsel

For the Respondent:

Andrea Bandow, Counsel

HEARD:

By way of written submissions

1The applicant, MIA, was injured in an automobile accident (“the accident”) on April 28, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”)¹, some of which were denied by the respondent (“Aviva”).

2MIA submits that, as a result of injuries he sustained in the accident, the treatment he seeks is reasonable and necessary.

3Aviva argues that MIA has not established that the treatment plans are reasonable and necessary.

ISSUES

4The issues in dispute l am asked to determine are as follows:

a. Is the medical benefit in the amount of $720.00 for assistive devices, denied on December 13, 2018, reasonable and necessary?

b. Is the medical benefit in the amount of $744.15 for the balance owing for psychological services, denied March 21, 2018, reasonable and necessary?

c. Is the medical benefit in the amount of $2,918.50 for hydrotherapy services, denied March 21, 2018, reasonable and necessary?

d. Is the medical benefit in the amount of $1,100.00 for assistive devices, denied May 15, 2018, reasonable and necessary?

e. Is the medical benefit in the amount of $5,385.05 for the balance owing for chiropractic services, denied August 2, 2017, reasonable and necessary?

f. Is the amount of $2,881.50 for the cost of an orthopaedic examination, denied November 14, 2018, reasonable and necessary?

g. Is the amount of $2,386.00 for the cost of an in-home assessment, denied April 25, 2018, reasonable and necessary?

h. Is the amount of $21,969.50 for the costs of remaining catastrophic assessments, denied May 17, 2019, reasonable and necessary?

i. Is the medical benefit in the amount of $4,712.50 for chiropractic and physiotherapy, denied July 16, 2019, reasonable and necessary?

j. Is the cost of $2,881.50 for a chronic pain assessment, denied July 16, 2019, reasonable and necessary?

k. Is the medical benefit in the amount of $4,549.00 for chiropractic and massage therapy, denied July 16, 2019, reasonable and necessary?

l. Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to MIA?

m. Is MIA entitled to interest on any overdue payment of benefits?

FINDING

5Based on a review of the evidence, I find that:

a. MIA is not entitled to the treatment plans (“OCF-18s”), therefore interest is not payable, and no award is granted.

BACKGROUND

6MIA has a significant pre-accident history of chronic pain from low back pain with failed surgery, pain radiating through his lower extremities and left arm, as well as migraines. His condition has resulted in dependence on opioid medication, the use of a cane, and this condition was progressively worsening prior to the accident. As early as June 2005, MIA had to stop working due to ongoing severe pain.²

7Diagnostic imaging revealed significant degenerative issues. A CT scan of his lumbar spine, dated July 10, 2005, showed spondylolisthesis (anterior slippage of one vertebra over another in the front of the spine) and spondylolysis (separation of a small bony arch in the back of the spine between the facet joints) at L5, degenerative disc changes at L3-S1, and degenerative lower lumbar facet joint changes.³

8An MRI in April 2006 revealed “significant epidural lipomatosis under the L5 and S1 laminae that is significantly compressing his medial thecal sac”.⁴ In his notes, Dr. Bednar opined, “This nicely explains why this fellow is sore enough to be limping around on a cane. Lumbar epidural lipomatosis when symptomatic would be expected to have a slowly progressive natural history”.⁵

9On June 13, 2006, MIA saw Dr. Bednar and underwent posterolateral lumbar decompression and fusion surgery at levels L5-S1, and the vertebrae were transfixed with bilateral rods and pedicle screws.⁶

10July 28, 2006, MIA saw Dr. Bednar and presented with significant pain at the lower back for which he is presscribed OxyContin as well as Percocet.⁷ On October 11, 2006, Family Physician, Dr. Bedessee noted that MIA was in a great deal of pain and taking a lot of medication despite his surgery. Dr. Bedessee opined that MIA continued to suffer from, and was disabled by, his degenerative condition that caused constant pain.⁸ Dr. Bedessee concluded that MIA’s prognosis was poor, and his pain would continue to worsen with age and activity.

11On April 20, 2007, Dr. Bednar reported on a new lumbar spine MRI that confirmed arachnoiditis (a pain disorder caused by the inflammation of a membrane that surrounds and protects spinal cord nerves) at the old cauda equina compression site (site of nerves from L3-S1), as well as facet disease at multiple levels.⁹ Dr. Bednar opined that these results explained MIA’s advanced left-sided pain that was ongoing despite surgery, and commented that arachnoiditis is a “prognostically grim diagnosis because you cannot reverse it or treat it effectively”.¹⁰

12July 7, 2007, MIA presented to Pain Management Specialist, Dr. Park, complaining of left-sided pain and discomfort. Dr. Park noted that MIA scored 64% on the Oswestry Disability Index, which places him in the crippled category.¹¹

13As early as three years prior to the accident, MIA saw Family Physician, Dr. Qayyum, who noted that MIA continually relied on narcotics. Within the year prior to the accident, MIA made multiple requests for increased dosages, complaining that the narcotics were not alleviating his pain, that he had worsening pain despite using narcotics, and that he had no plan to lower the dose or stop using narcotics.¹²

14Aviva submits that although MIA has reported to Dr. Qayyum and other treating physicians of pain that he believes was caused or exacerbated by the accident, there is no evidence from Dr. Qayyum or other physicians that attributes the pain complaints to the accident. There is no medical evidence that MIA’s pre-existing condition was exacerbated by the accident. Significantly, only Dr. Qayyum has diagnosed whiplash in relation to the accident.¹³

15I now turn to the law and analysis of whether MIA has established on a balance of probabilities, that the treatment he seeks is reasonable and necessary.

LAW

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

ANALYSIS

17Aviva contends that MIA has failed to lead any medical evidence or argument to establish that the disputed OCF-18s are reasonable and necessary and therefore he “has deprived the Tribunal of its ability to fully and properly assess the reasonableness and necessity of the disputed plans in accordance with the criteria established by jurisprudence”.

18In addition, Aviva raises an evidentiary weakness argument, regarding MIA’s medical evidence, which it argues indicates that there is no evidence of ongoing physical impairment that would make further treatment necessary:

a. The applicant must adduce all evidence upon which he/she intends to rely in the first instance.¹⁵ Aviva submits that MIA has made factual allegations in his submissions without providing supporting evidence and as such, these allegations should be afforded little weight. Aviva relies on the decision Applicant and Certas Home and Auto Insurance Company which details the principle that the Tribunal should not take facts into consideration unless there is supporting evidence that establishes the veracity of those facts.¹⁶ MIA submits that his “treating physicians have consistently indicated that his pre-existing back injury was significantly exacerbated by the subject MVA”.¹⁷ However, contrary to the Tribunal Order, MIA did not direct the adjudicator to the relevant evidence in support of his case, requiring the adjudicator to make his case for him; and

b. MIA failed to submit the OCF-18s in dispute into evidence which means he has failed to provide sufficient detail as to why the treatment he seeks is reasonable and necessary for his impairment.

19Aviva argues that, a) MIA’s failure to include the disputed OCF-18s and, b) to direct me to the relevant evidence that supports the reasonableness and necessity of the treatment in his submissions, represents a failure to discharge his burden of proof.

20I will now discuss the disputed OCF-18s and my reasons for why MIA has failed to establish on a balance of probabilities that the treatment he seeks is reasonable and necessary.

Issue 4a.and d. – OCF-18s for assistive devices

21MIA submits that the OCF-18 author, chiropractor Dr. Paton recommends a heat pad, cervical pillow and lumbar support. There is no evidence before me of this recommendation. There is no evidence that any treating physician has recommended that the proposed assistive devices are required as a result of the accident.

22MIA relies on a report¹⁸ from chronic pain specialist, Dr. Wilderman. In his report on page 14, Dr. Wilderman notes that MIA’s medical history was obtained through discussion with MIA, and not based on a fulsome review of medical documents. Notably, Dr. Wilderman did not review Dr. Qayyum’s pre-accident clinical notes and records, including Dr. Qayyum’s report that MIA’s pre-existing condition was symptomatic and gradually worsening before the accident occurred.

23Aviva relies on the findings of its medical assessors, Dr. Fielden, orthopedic surgeon, and Dr. Mathoo, physiatrist. Dr. Fielden’s findings are set out in an in-person report dated April 3, 2018 and a paper review report dated April 3, 2018. Dr. Mathoo’s findings are detailed in an in-person report dated July 16, 2019. Dr. Fielden opined that MIA did not suffer any orthopaedic impairment as a result of the accident, and that the accident did not exacerbate his pre-existing injuries.¹⁹ Dr. Mathoo’s opinion was that MIA sustained only minor sprain/strain type of injuries to his neck and low back which have fully resolved.²⁰ Dr. Mathoo was unable to find any objective residual sign of any accident-related impairment and opined that any residual back pain relates to MIA’s pre-existing condition; and that MIA has reached maximum medical recovery.²¹

24Aviva submits that Dr. Wilderman’s report should be given little weight compared to those of Drs. Fielden and Mathoo. Aviva’s position is that its assessors reviewed pre-accident medical documentation to assist in making their diagnoses and conclusions. Further, Aviva submits that Dr. Wilderman commented that MIA’s family physician opined that the accident exacerbated the pre-existing low back pain. I agree with Aviva that there is no evidence of this claim and it is not clear what Dr. Wilderman based this conclusion on.

25I am persuaded by Aviva’s assessors reports because there was review of relevant medical documentation that assisted in the opinions generated in the insurer assessor’s reports. Further, I question some of the unsubstantiated claims made by Dr. Wilderman that MIA has not addressed by any evidence or in his submissions. For these reasons, I place more weight on the reports of Dr. Fielden and Dr. Mathoo.

26For these reasons, I do not find the OCF-18s for assistive devices to be reasonable or necessary.

Issue 4b. – OCF-18 for psychological services

27On March 15, 2018, MIA submitted an OCF-18 in the amount of $3,176.04 for psychotherapy with a social worker. Aviva partially approved the OCF-18 in the amount of $2,431.89, by way of an explanation of benefits on March 21, 2018. The remaining balance was the difference between the hourly rate of $149.61 proposed in the OCF-18 for the social worker and the hourly rate of $100.00 approved by Aviva.

28Aviva submits that MIA has not established that the proposed hourly rate of $149.61 is reasonable and necessary. I agree.

29The Professional Services Guideline (“the Guideline”) establishes the maximum hourly rate payable for the services of health care providers under the Schedule.²² The Guideline states that amount payable by an insurer related to services not covered by the Guideline are to be determined by the parties involved. Aviva submits that the $149.61 rate, established for psychologists and psychological associates is excessive for a social worker. Aviva further submits that its proposed $100.00 hourly rate is reasonable, recognising that the proposed social worker is a registered member of the Ontario College of Social Workers who is permitted to perform psychotherapy. MIA has not put forth any submissions or evidence of why the higher rate of $149.61 is reasonable and necessary. Based on the evidence and the amount of Aviva’s proposed rate, I find that the $100.00 hourly rate is reasonable.

30As such, MIA is not entitled to the balance of the March 15, 2018 OCF-18.

Issue 4c. – OCF-18 for hydrotherapy services

31MIA submits that Dr. Qayyum continued to recommend ongoing physiotherapy, in the form of hydrotherapy, to treat his exacerbation of the back injury by the subject MVA. MIA also submits that the treating chiropractor, Dr. Paton also opined that the treatment was reasonable and necessary. Unfortunately for MIA, I do not have the benefit of the OCF-18 or medical evidence that supports hydrotherapy services.

32MIA submits that the OCF-18 should be approved because his treating physicians are the “only physician’s able to comment on causation as they are the only physician’s who examined MIA pre-and post-accident”.

33Aviva relies on its assessors’ reports, from Drs. Fielden and Mathoo, to support that the OCF-18 is not reasonable and necessary. As discussed above in paragraph 22, the s. 44 assessors determined that MIA’s pre-existing condition was not exacerbated by the accident, therefore the OCF-18 was not reasonable and necessary.

34While I agree on the statements of MIA’s treating physicians, the lack of supportive medical evidence creates difficulty in being able to properly assess whether the proposed treatment is reasonable and necessary. While having a detailed medical history is helpful for an insured in support of their claim, that medical history also has to support that the recommended treatment is recommended and reasonable and necessary. Even in the absence of an OCF-18, if an insured fails to produce persuasive evidence, the Tribunal may not be satisfied that the insured has satisfied their burden of proof. Alternatively, an OCF-18, without supportive medical evidence also may not be sufficient enough to satisfy the Tribunal that the burden of proof has been met.

Issues 4e to g, i to k. – OCF-18s for chiropractic services, orthopaedic assessment, in-home assessment, chiropractic and physiotherapy services, chronic pain assessment, and chiropractic and massage therapy

35MIA submits that if causation is met, even by way of exacerbation, these disputed issues are all reasonable and necessary. MIA’s position is that causation has been established by the weight of the medical evidence. For the reasons to follow, I disagree with MIA’s position.

36Regarding chiropractic treatment and massage therapy, Aviva submits that despite MIA receiving regular treatment for over two years, he has failed to produce “specific, compelling evidence to show the effectiveness of the same ongoing treatment or the reasonableness of receiving further physical treatment”. Aviva relies on the principle set out in the FSCO decision, Lamasan and Certas, that prolonged treatment or treatment of an indefinite duration must be assessed by a decision maker to determine if it promotes dependency or interferes with other aspects of rehabilitation”.²³

37Although I am not bound by FSCO case law, I am persuaded by the principle set out in Lamasan. MIA has received similar treatment to that proposed in the disputed OCF-18s for almost a year and a half. There is no evidence that the treatment he has received has enabled him to be able to independently manage his symptoms or make him less dependent on treatment over time. In fact, the evidence shows that MIA has become more reliant on treatment remedies, specifically Dr. Wilderman’s opinion that MIA has become a “chronic opioid user”. Dr. Fielden also opined that MIA must be weaned from his opioid addiction before hands-on physical modalities are implemented for relief of chronic pain; that no physical or orthopaedic management will be effective, as such treatment only reinforces pain perception in an individual dependent on narcotics and is thus unreasonable and contraindicated. Additionally, Dr. Qayyum opined that MIA needs to reduce his use of narcotics.

38Regarding the in-home assessment, MIA’s position is summarized above in paragraph 34. Aviva submits that MIA has not provided compelling evidence that his accident-related injuries have impacted his daily life. On the contrary, the evidence shows that MIA has reported he can perform his daily activities.²⁴ In addition, MIA reported to Dr. Mathoo that he is independent with all aspects of self-care, including dressing, toileting, bathing, hygiene, and feeding. Lastly, MIA denied safety concerns around the house and any impairment in his ability to operate household appliances during a neurological assessment on January 15, 2018.²⁵

39MIA did not provide submissions specifically addressing the chronic pain assessment.

40Aviva submits that MIA participated in a chronic pain assessment on April 26, 2018 with Dr. Pirzada. In his report, Dr. Pirzada diagnosed MIA with failed back surgery syndrome and chronic pain syndrome, which were not confirmed to be as a result of the accident. I note that these diagnoses are similar to those given by Dr. Bednar and Dr. Bedessee almost 10 years prior to the accident (as noted in the above ‘Background’ section of the decision).

41Aviva’s position is that the proposed OCF-18 is duplicative in that it is proposed approximately one year after Dr. Pirzada’s; therefore, it is not reasonable and necessary. I agree. There is no evidence that in the year between Dr. Pirzada’s report and the disputed OCF-18, MIA experienced any significant deterioration as a result of any accident-related injuries that would warrant a second chronic pain assessment.

Issue 4h. – OCF-18 for the balance of the catastrophic assessments

42Section 25 (1)(5) of the Schedule obligates an insurer to pay “reasonable fees charged for preparing an application under s. 45 for a determination of whether the insured person sustained a catastrophic impairment, including any assessment or examination necessary for that purpose”.

43MIA must establish, on a balance of probabilities, that the assessments themselves are reasonable and necessary for the purpose of applying for a determination of catastrophic impairment under s. 45 and further, that the fees charged in connection with the recommended assessments are reasonable.

44MIA submits that the interpretation of s. 25 makes his claim for funding for the OCF-18 necessary. Specifically, MIA’s position is that the “shall pay” provision of s. 25 makes the OCF-18 payable. MIA’s position is that no threshold test is required to be met for funding to be approved. In addition, MIA further submits that it is only in cases where no accident-related impairment can be found, should a request for catastrophic assessment not be fully funded.

45Aviva submits that MIA has failed to submit the OCF-18 for the catastrophic assessments to the Tribunal. As discussed in paragraph 17, Aviva’s position is that MIA’s claim should be dismissed on this basis. Despite Aviva’s claim, it has provided me with sufficient detailed information contained in the OCF-18, that I am able to consider whether the remaining balance is reasonable and necessary. For the reasons that follow, MIA has not proven on a balance of probabilities that the outstanding balance of the OCF-18 is reasonable and necessary.

46The OCF-18 proposes 12 assessments at a cost of $2,000.00 each: orthopaedic evaluation, biopsychosocial assessment, chiropractic assessment (functional abilities evaluation), three psychiatry evaluations, two neuropsychological assessments, two occupational therapy assessments and two neurological assessments. In addition, the OCF-18 proposes fees for the completion of an executive summary, medical file review, OCF-18 and OCF-19 form completion, as well as fees for a service provider’s travel time, MIA travel expenses and translation services.

47Aviva had the OCF-18 reviewed by its orthopaedic assessor, Dr. Paitich resulting in a report dated May 3, 2019. Dr. Paitich opined that the OCF-18 was partially reasonable and necessary, approving the following: an orthopaedic assessment, one psychiatric assessment, an occupational therapy in-home assessment, a Catastrophic Executive Summary, preparation fees for the OCF-18 and OCF-19. Based on Dr. Paitich’s opinion, Aviva partially approved the OCF-18 in the amount of $8,400.00.

48Although MIA submits that s. 25 makes the payment of the OCF-18 in full, Aviva contends that the necessity of each of the proposed assessments needs to be considered. To reiterate, s. 25 dictates that an insurer shall pay reasonable fees for a determination under s. 45 of whether the insured has sustained a catastrophic impairment, including any assessment or examination necessary for that purpose.

49I do not agree with MIA’s interpretation that s.25’s reference to reasonable fees automatically entitles him to funding of the assessments. The wording in s. 25 establishes that the test of reasonable and necessary applies to both the fees and “any assessment or examination necessary for that purpose”. In addition, s. 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered assessments and examinations not to be reasonable and necessary if it denies a treatment plan. That the word “necessary” is included in the wording in both s. 25 and 38(8) places emphasis that each assessment or examination must be considered for the necessity of same in the determination of catastrophic impairment. There is no separation of the reasonableness and necessity requirement for catastrophic assessment funding and the reasonableness and necessity of each assessment and examination.

50For the above reasons, I find that MIA has not established that the balance of the OCF-18 for catastrophic assessments is reasonable and necessary.

AWARD

51Section 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. MIA) 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.

52Since MIA is not entitled to the disputed OCF-18s, Aviva cannot be found to have unreasonably withheld payment of the benefit. As a result, MIA is not entitled to an award.

INTEREST

53Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

54The benefits claimed by MIA are denied and therefore, no interest on overdue payments is due.

CONCLUSION

55MIA has not met the onus on him to prove his entitlement to the disputed OCF-18s.

56There are no payments owing to MIA and therefore no interest due on overdue payments.

57MIA is not entitled to an award.

58MIA’s claim is dismissed.

Released: November 18, 2020