Released Date: 11/04/2020
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:
H.C.
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce
APPEARANCES:
For the Applicant:
Neisha Moses
For the Respondent:
Emily M. Hill
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on June 5, 2015, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule'').1 Over time, Aviva has paid various medical and rehabilitation benefits, as well as attendant care benefits (ACBs). Aviva denied ACBs on the basis that the applicant is not entitled to continuing ACBs as she has not been deemed catastrophically impaired. It denied the chiropractic treatment and psychological assessment based on s. 44 examinations that determined they were not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
(i) Is the applicant entitled to ACBs in the amount of $1,115.28 per month for the period August 29, 2017 to date and ongoing?
(ii) Is the applicant entitled to receive a medical benefit in the amount of $2,554.66 for chiropractic services, recommended by Sigma Chiropractic and Rehab Clinic in a treatment plan submitted June 11, 2018, and denied by the respondent on September 4, 2018?
(iii) Is the applicant entitled to receive a medical benefit in the amount of $1,773.43 for chiropractic services, recommended by Sigma Chiropractic and Rehab Clinic in a treatment plan submitted June 20, 2017, and denied by the respondent on June 30, 2017?
(iv) Is the applicant entitled to payments for the cost of examinations in the amount of $2,768.50 for a Psychological Assessment, recommended by Access Rehab Inc in a treatment plan submitted November 17, 2017, and denied by the respondent on April 11, 2018?
(v) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to payment for any of the benefits in dispute.
ANALYSIS
Attendant Care Benefits
4As noted, Aviva has paid $8,422.86 in ACBs to the applicant post-accident. The applicant’s claim for ACBs in this dispute pertains to a period of time approximately 112 weeks post-accident, beginning August 29, 2017 to date and ongoing. I find the applicant is not entitled to ACBs for this period.
5Section 20(2) of the Schedule that was in force at the time of the accident states that no ACBs are payable for expenses incurred more than 104-weeks post-accident unless, under s. 20(3), the applicant has been deemed catastrophically impaired. While an OCF-19 has been submitted by the applicant and catastrophic assessments have been scheduled, there is no dispute between the parties that the applicant has not yet been deemed catastrophically impaired and, as Aviva submits, that issue is not before this Tribunal at this time.
6I find that Aviva’s denial notice clearly articulated this position and agree that the Schedule is clear and unambiguous that no ACBs are payable more than 104-weeks after the accident unless a catastrophic determination is made. Notably, the applicant did not dispute Aviva’s position in her reply submissions. Accordingly, as there is no dispute that the applicant has not yet been deemed catastrophically impaired to trigger the exception under s. 20(3), it follows that she is not entitled to continuing ACBs for the period in dispute, which falls outside of the two-year mark enumerated by s. 20(2) of the Schedule.
Are the chiropractic treatment plans reasonable and necessary?
7The applicant seeks payment for two incurred chiropractic treatment plans from June 2017 and June 2018 in the amounts of $1,773.43 and $2,554.66, respectively. Under s. 15 of the Schedule, the applicant bears the burden of proving on a balance of probabilties that the specific treatments they seek are reasonable and necessary for their accident-related impairments.
8The applicant submits that the chiropractic treatment is reasonable and necessary to treat her chronic pain syndrome based on the recommendations of her chronic pain specialist, Dr. Rod, an orthopedic referral from the South Korean clinic she attended in September 2017 and the recommendations of her treating clinic. She submits that her pain is continuous and affects her functionality at over four years post-accident.
9In response, Aviva submits that neither treatment plan is reasonable and necessary on the basis of two s. 44 reports. The most recent report and addendum from Dr. Moolla spoke to the latter treatment plan and determined that the treatment was not reasonable and necessary as the applicant had reached maximum medical improvement, that her condition appeared to be well-stabilized and unlikely to change and that further facility-based treatment was unlikely to yield significant or long-lasting improvements. The report from Dr. Kumbhare addressed the initial chiropractic treatment plan and reported that the applicant stated that she had not received significant functional benefit from attending such a program over the previous year and in fact had reported an increase in symptoms and a worsening of functional abilities after receiving such treatment. Aviva submits that the applicant has produced no contrasting opinions in support of ongoing chiropractic treatment and or massage therapy and has herself stated that she derives no significant benefit from it and that it sometimes worsens her accident-related symptoms, which are largely soft-tissue in nature.
10I agree with Aviva. While Aviva does not dispute that the applicant has functional limitations, I agree that the medical evidence suggests these limitations are likely the result of the progression of her considerable pre-accident condition (hypertension, osteoarthritis, disc degeneration, cord compression, lumbar surgery, four previous accidents, etc.) as opposed to injuries sustained in the accident. I am not persuaded by the applicant’s arguments that the specific chiropractic treatments at issue are actually providing a specific benefit to her, as her condition seems to have worsened over time. Indeed, where the applicant self-reported deriving limited benefit from the treatment, it is difficult to find that the chiropractic treatment has been effective in resolving her symptoms, let alone that it is reasonable and necessary in the face of two s. 44 reports finding that further facility-based treatment would not be beneficial.
11The applicant’s submissions argue for versatile treatment catered to her complex condition. I agree that this is ideal but disagree that the applicant has demonstrated how the treatment plans in dispute—for chiropractic treatment and massage—are so versatile and specific to her pain condition that they are necessary. The OCF-18s themselves are not particularly detailed in exactly how the breakdown of treatment will go or in how the assessment of her progress will be monitored. In my view, both OCF-18s are rather generic in scope and in the treatment provided, and the applicant’s submissions do not speak to how the items listed as “exercise, multiple body sites” or “therapy, multiple body sites” are indicative of the type of versatility necessary to treat a complex pain condition. I see no evidence that the treatment is “catered” to the applicant’s condition, as alleged. While pain relief is a legitimate goal for treatment, I note that the applicant has actually been receiving treatment for chronic pain with a specialist, which I agree is a more appropriate avenue for treatment in her recovery and, indeed, likely more catered and more versatile than either of the chiropractic treatment or massage modalities recommended in the OCF-18s here.
12Accordingly, on the medical evidence, I find no reason to depart from the s. 44 opinions of Dr. Kumbhare and Dr. Moolla and find that neither of the chiropractic treatments plans in dispute are reasonable and necessary or payable.
Is the psychological assessment reasonable and necessary?
13The applicant also seeks payment for a psychological assessment in the amount $2,768.50 as recommended by Access Rehab in a treatment plan and denied by Aviva on April 11, 2018. There is no dispute that the applicant has already received several psychological diagnoses (Major Depressive Disorder with Paranoid Ideation, Mixed Anxiety with Depressed Mood) both pre- and post-accident and has been receiving psychological treatment with Dr. Kim on an ongoing basis since 2015. In seeking this assessment, the applicant submits that further psychological assessment is reasonable and necessary for motor-vehicle-specific accident-related psychotherapy, which she submits Dr. Kim is not suitable for. The applicant submits that the assessment would not be a duplication as it would identify therapies for her driver and passenger anxieties.
14In response, Aviva maintains its denial that another psychological assessment is not reasonable and necessary as the applicant has been receiving psychiatric treatment through OHIP since July 2015 and continues to see Dr. Kim one to two times per month and that this assessment would essentially be duplicating services. Further, Aviva submits that the applicant was assessed by Dr. Kim initially in July 2015 and again on November 30, 2018, eight months after the submission of this OCF-18, so it is unclear why the applicant would require an assessment from someone other than her treating psychiatrist and why she would require a second assessment in the same calendar year. Further, Aviva’s s. 44 assessor, Dr. Goodfield, confirmed the applicant’s psychological diagnosis of Specific Phobia related to vehicular travel in her report from July 2016.
15I agree with Aviva. It is unclear why Dr. Kim is unable to provide therapy for driving or passenger anxiety or why Dr. Kim’s previous assessments were not able to identify same or make a referral for treatment to a practitioner who could assist the applicant. Further, the OCF-18 only identifies a generic assessment for mental health and addictions and does not specifically indicate that it is for a driving-related phobia assessment. In addition, I agree with Aviva that it is unclear why another full psychological assessment is reasonable and necessary in order to identify a treatment option for the applicant’s phobia where it has already been accepted by Dr. Goodfield and where the letter from Dr. Kim dated November 20, 2018 does not even list vehicle-specific phobias as one of the applicant’s complaints at three years post-accident.
16I find the applicant has not satisfied her burden to demonstrate why another psychological assessment is reasonable and necessary or why the OCF-18 in dispute would not amount to a duplication of assessments already conducted in the same year and to date. Accordingly, I find the psychological assessment is not reasonable and necessary and therefore not payable.
Interest
17As no benefits are overdue, it follows that no interest is payable under s. 51.
CONCLUSION
18The applicant is not entitled to payment for any of the benefits in dispute.
Released: November 4, 2020
___________________
Jesse A. Boyce
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.