Citation: F.J. vs. Aviva Insurance Canada, 2020 ONLAT 18-010144/AABS

Released Date: 12/02/2020

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:

F.J.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Jeffrey Shapiro, Vice Chair

APPEARANCES:

For the Applicant:

Fawad Siddiqui, Counsel

For the Respondent:

Michael Silver, Counsel

Court Reporter:

Kamil Kartel¹

HEARD:

By a combination of hearing formats: Written submission from December 9, 2019 to January 2, 2020 and in person on January 7, 2020.

OVERVIEW

1F.J. was injured in an automobile accident on July 6, 2016 and sought a Non-Earner Benefit (“NEB”) and medical benefits from Aviva Insurance Canada (“Aviva”) under the Statutory Accident Benefits Schedule - Effective September 1, 2010 (O. Reg. 34/10, the ''Schedule''). Aviva paid for some of F.J.’s requested treatment but denied her entitlement to the NEB and other treatment plans.

2F.J. appealed to this Tribunal. The matter was heard by written submissions followed by F.J.’s testimony. I find that F.J.’s life was affected but not to the degree to be entitled to an NEB. F.J. is entitled to several of the treatment plans.

ISSUES

3The issues I must decide are:

1. Is F.J. entitled to a Non-Earner Benefit of $185 per week from January 6, 2017 to April 10, 2017?

2. Is F.J. entitled to physiotherapy proposed by Healthmax Physiotherapy Clinics in treatment plans/OCF-18s (“plans”), as follows: (i) $2,768.54 per a plan submitted on December 21, 2016; (ii) $2,099.46 per a plan submitted May 12, 2017, and/or (iii) $2,304.93 per a plan submitted November 14, 2017?

3. Is F.J. entitled to $2,200.00 for an Orthopaedic Assessment proposed by HAL Disability Management in a plan submitted August 14, 2017?

4. Is F.J. entitled to $1,244,89 ($2,205.97 less $961.08 approved) for psychotherapy proposed by Injury Management & Medical Assessments in a plan submitted May 29, 2018?

5. Is F.J. entitled to interest on any overdue payment of benefits?

6. Is Aviva liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4With reference to the above issues, F.J. is entitled to the first two physiotherapy plans (Issues 2(i) & 2(ii)) and the orthopaedic assessment, with interest on amounts incurred. F.J. is not entitled to the NEB, psychotherapy, the third physiotherapy plan (Issue 2(iii)), or an award under O. Reg. 664.

Analysis

Issue 1: Is F.J. entitled to a NEB?

5No. The Schedule provides that an insurer shall pay an NEB to an insured that suffers “a complete inability to carry on a normal life” as a result of the accident, that “continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”² Based on the version of the Schedule that governs this accident, the NEB is not payable for the first 26 weeks after the onset of the complete inability. The insured bears the onus to show her entitlement on a balance of probabilities.

6Accident-related impairments or life changes are not enough. The “complete inability” analysis requires a comparison of pre- and post-accident functionality, with consideration to the following factors: ³

a. The applicant’s activities and life circumstances before the accident must be assessed over a reasonable case-specific period prior to the accident;

b. Consideration of "substantially all" means all of the applicant’s pre-accident activities must be considered, but greater weight may be placed on activities that were more important to the applicant’s pre-accident life;

c. Accident-related injuries must “continuously prevent” engaging in substantially all pre-accident activities, on an uninterrupted basis;

d. “Engaging in" an activity is a qualitative perspective, requiring more than isolated attempts or “going through the motions”, and with consideration to significant restrictions and quality of an activity; and

e. If pain is a primary factor, the focus should not be if the applicant can perform those activities, but if the pain “practically prevents” the activities.

7Applying this to F.J.’s situation, the parties agree that prior to the July 6, 2016 accident, F.J.’s primary and most important role was being a stay-at-home “hands-on” mother and primary caregiver of four children, together with being a wife. F.J. provided detailed descriptions of the physical activities such as childcare, cooking, cleaning, laundry, grocery shopping, and social life (collectively “caregiving”).

8Before discussing the evidence and the parties’ arguments, an outline of events is helpful. Within a week of the July 6, 2016 accident, F.J.’s chiropractor signed an OCF-3 that F.J. suffered a “complete inability”. Around the end of the year, F.J. became pregnant and, also into the beginning of 2017, F.J. volunteered at an organization two to three days per week, three hours per day, in split shifts, providing interpretation services. She would drive or walk 20 minutes to get there.

9The period F.J. seeks the NEB then begins, running from January 6 to April 10, 2017. The end coincides with the last of Aviva’s three NEB-related insurer’s examinations (“IEs”) and F.J. starting work as a public-school lunch-hour supervisor. Her youngest child was born in August of 2017. F.J.’s expert reports occurred after this point.

10The essence of F.J.’s claim is that while she was able to perform some of her duties, her ability to perform those tasks was so limited that she could not really be said to have been performing them as she did prior to the accident.

11Aviva submits F.J.’s evidence shows “[a]t worst she was reduced in her ability to engage in her pre-accident activities, but continued to engage in all…activities to a meaningful extent” and thus does not meet the NEB test, and also her accident-related impairments were a little bit less than she currently describes.

12While I found F.J. to be credible and accept the evidence establishes that her normal life was disrupted, I generally agree with Aviva, for several reasons.

13First and most important, F.J.’s affidavit and testimony do not show that she was “continuously prevented from engaging in substantially all” of her daily activities. To the contrary, she continued virtually all activities, albeit with some restrictions. For example, she continued caregiving such as waking the kids, brushing their teeth, providing breakfast, doing homework, and preparing lunches, even though her sister would help with the meat part of the meals. In fact, her sister’s help was not on the core childcare duties but on specific heavier tasks, such as certain types of cleaning. F.J. resumed driving and/or walking the children to school before the NEB period but still avoided the highway. She took the children to the park and pool but was not as involved when there. Thus, F.J. was far beyond performing “isolated attempts” at her duties, and there was no point that she stopped being the primary caregiver during the time at issue.

14Second, F.J.’s own treatment records indicate F.J. was performing her roles and certainly do not support that she was “practically prevented” from her duties. For instance, Healthmax’s treatment records from December 6, 2016 to April 12, 2017 note “difficulties” in managing her household duties and right arm and lower back pain aggravated by lifting and household duties, yet the implication is that she was generally performing her caregiving roles. A few notes in the middle of that period related to stopping and restarting therapy due to her pregnancy.

15Third, F.J.’s own assessments similarly only support ongoing “difficulties” but not the required level of impairment – besides being less persuasive as they occur after the relevant period. For instance, Orthopaedic Surgeon Dr. T. Getahun’s November 17, 2017 assessment does not describe she is unable to perform all or even most of her duties, only referencing “difficulty” in caregiving and not returning “to her pre-accident level of cooking, cleaning, laundry, [etc.]”. Dr. C. Rosenblatt, a Chiropractor, in his May 25, 2018 Functionally Abilities Evaluation, notes 30% lower grip strength on her dominate right side but provided similar references to her overall function even noting she washes her baby. He opined F.J. has a “serious impairment of an important physical function,” which is a standard that relates to tort law, but not to the NEB test. Similarly, while Psychologist Dr. R. Harris’s April 11, 2018 assessment diagnosed “Post-Traumatic Stress Disorder, Chronic, with Moderate Anxiety,” and proposed psychological treatment within a Pain Management Program, he did not conclude F.J. was prevented from performing her roles.

16Fourth, I found Aviva’s three IEs persuasive. They occurred at relevant periods, appear balanced, and provided a thorough listing of pre- and post-accident duties and function. All IEs diagnosed some, but relatively minor, impairments. More importantly, they record F.J.’s own description that she is actively engaged in her duties – and at a level slightly more than she now describes.⁴ For instance, Occupational Therapist G. Hirano’s December 15, 2016 IE assessment recorded that F.J. is still the primary caregiver to her four children, still cleans, sees friends and family “frequently”, volunteers but “less”, while her sister helps with cooking, laundry, and cleaning the bathroom. He did notice some pain on movements and grip weakness but notes she returned to most of her pre-accident activities.

17Psychologist M. Schwartz’s December 21, 2016 IE assessment revealed F.J. still performs her “personal care just fine,” and F.J. indicated that she still does many of her household activities but “leaves little parts off from what I did before,” noting – overall – F.J. reported “that she continues to engage in most activities of daily living, such as childcare and housekeeping, but not always to the same extent as she did before” with her sister now providing some help around the house. Her only significant psychological issue was with traveling by car.

18Chronic Pain Specialist Dr. R. Lam’s March 24, 2017 IE assessment noted F.J. stopped electrotherapy due to her pregnancy but continued with massage therapy and exercises as well as a home-based program. He found forward flexion of her lumbar spine was limited, which he attributed to “increased abdominal girth consistent with her 5-month pregnancy.” He diagnosed myofascial strain injuries to lumbar and cervical and right shoulder but opined nothing prevents her from doing her regular duties. He noted - and appears to accept - F.J.’s reports of residual pain symptoms and suggest she continue with a home-based stretching program. Dr. Lam authored an addendum report on November 12, 2019 that disagreed with Dr. Getahun’s report and restates his own prior conclusions.

19Fifth, F.J.’s volunteer and employment activities immediately before and after the claim period show functionality that is inconsistent with the NEB’s complete inability threshold. Specifically, months after the accident, and roughly in the month or two before the claim period, F.J. was volunteering at a community organization two to three times a week, for several hours at a time. She drove or walked 20 minutes to get there. Similarly, on April 10, 2017, she started her first paid employment in 10 years working as a school lunch hour supervisor, supervising students in the field and ensuring no fights, mostly while standing. While neither position involving heavy lifting, her ability to take on these extra positions, one of which involved overseeing groups of children, weakens her claim that she suffered a complete inability to care for her own children.

20Aviva mentioned F.J.’s pregnancy as another factor that impacted F.J.’s ability to carry on a normal life. I give this factor little weight as the parties did not emphasize it in their submissions and the evidence is inconclusive as to the interplay of her pregnancy and her inability to carry on a normal life as a result of the accident. Nevertheless, I consider it worth mentioning as some evidence suggests that her pregnancy was a more significant factor in her ongoing functional inabilities than her accident-related impairments. For instance, Dr. Rosenblatt records that F.J. left the lunchtime supervisor position due to the birth of a child, not the accident, which I understand means that, after the school year ended, she did not return the following year. Similarly, one of the few specific activities F.J. described that she could not do was cleaning the bathroom due to the bending, yet based on his March 24, 2017 IE assessment, Dr. Lam ascribed the lack of flexion to F.J.’s pregnancy.

21However, most of the other treatment and expert records mention her pregnancy but without addressing its effect on her functionality, or the interplay of her pregnancy and accident-related impairments or the NEB test. For example, Mr. Hirano reports F.J. stopped taking pain medication in early December 2016 as she was trying to get pregnant. Healthmax’s records show that, for several weeks in February 2017, F.J. stopped physiotherapy at her doctor’s recommendation due to pregnancy. Then, for 11 visits from May 2, 2017 to August 2, 2017, each note states “Pt. is 6 months pregnant”. The August 22, 2017 note mentions weakness post-delivery, and the November 14, 2017 note mentions neck pain is aggravated with breastfeeding, attending to her baby, etc. F.J.’s affidavit was also relatively silent on how the pregnancy affected her functioning, instead only mentioning her stopping therapy in February 2017 because of her pregnancy.

22Finally, F.J. submits that several decisions involving caregivers who received a NEB support her NEB claim, yet I find them distinguishable.⁵ For instance, in 16-003195 v State Farm, the applicant suffered a pelvic fracture, broken ribs and clavicle and lung trauma, and needed surgery to stabilize those injuries. Her limited caregiving was described as “so significantly restricted…that it cannot be said that [she] is able to “engage in” most of her pre-accident activities.” LM v. Gore involved a grandparent who returned to some of her childcare duties, but her inabilities and restrictions were more severe than what F.J. describes. 17-003841 v Aviva involved a caregiving grandmother whose pre-accident day started at 6:30 am, but now only starts at 10:00-11:00 am, and is “marked by dependence”. In Tchouguianova v. Trafalgar, the applicant described her post-accident caregiving as she “couldn’t really do anything.”

Is F.J. entitled to a NEB, due to procedural issues?

23F.J. initial submission argues in the alternative that even if she does not meet the NEB test, she is nevertheless entitled to the NEB because Aviva’s April 10, 2017 final letter denying the NEB was insufficient under s. 36(4) of the Schedule and ineffective under the four-part test articulated in 18-004441 v Certas.⁶ Aviva submits that its April 10, 2017 notice was proper, but even if technically improper, the Tribunal found in 17-001125 v Aviva⁷, citing to Stranges v. Allstate, that a defective notice denying a NEB does not entitle an applicant to the NEB.

24Aviva’s April 10, 2017 notice of denial was issued after F.J. attended the last of three IEs on March 24, 2017. Having already forwarded the first two reports, Aviva enclosed the last report, and advised that, “The assessor has concluded you do not suffer a complete inability to carry on a normal life. Therefore, Aviva will not consider further non-earner benefits past January 20, 2017. As our letter dated February 16, 2017 [sic] your non earner benefits were suspended effective January 20, 2017 for non compliance.” The letter then refers to the IE report for opinions and findings.

25While better practice would have been for Aviva to summarize the medical findings, I find its inclusion of and referral to the medical report minimally satisfied the Schedule, and if it did not, Stranges settles that a defective notice would not automatically entitle F.J. to the benefit.⁸

26I do note that while several Tribunal decisions have not followed Stranges, the reason for the departure was based on it pre-dating s. 36(6). That section now specifies consequences if an insurer’s initial response to a NEB application is untimely or invalid, but I do not read it as applying after the initial response.⁹

27While F.J.’s initial submission only addressed the April 10, 2017 denial notice, Aviva’s Response discussed a few other issues relating to allegedly faulty notices which F.J. had alleged during the adjusting of the claim, but which F.J. did not raise in her initial submission. F.J. then addressed them to various degrees in her Reply.

28Most importantly, F.J. initially submitted her OCF-3/Disability Certificate dated July 12, 2016 around that time which completed her application for the NEB. Aviva, by a July 27, 2016 letter, advised it was not paying the benefit at that time. I find that this notice is Aviva’s initial response under s. 36(4) and to which s. 36(6) would apply. F.J. appears to argue for the first time in her Reply that it was invalid when combined with Aviva’s subsequent s. 44 notices. I disagree. It appears valid and compliant with s. 36 – correctly specifying that the NEB was not payable for the first 26 weeks, and that the decision would be later reviewed upon submission of an updated OCF-3.

29F.J. also alleges that Aviva’s November 22, 2016 letter scheduling s. 44 IEs was ambiguous when it referred to “specified benefits you are claiming” rather than stating an “NEB”. On December 1, 2016, F.J.’s counsel faxed Aviva stating she would not attend the IE because the precise benefit was not listed but would consider attending if a corrected notice was sent. Aviva never did so. Aviva argues that since F.J. had already formally elected that the “specified benefit” she was seeking was the NEB, the notice obviously meant the NEB. Considering this notice is to a consumer, I agree with F.J. that notice’s reference to “specified benefits” is unclear, yet I ultimately find this point moot as F.J. attended the IE.

30F.J. also submits Aviva’s notices scheduling s. 44 IEs were invalid as Aviva did not give a proper notice under s. 46 of the Schedule by failing to describe the potential conflict of interest. However, I agree with Aviva that s. 46(1) provides that the section applies only if the insurer has a “potential conflict of interest” as defined in s. 46(3) and there is nothing before me to indicate that such “potential conflict” existed.

Issue 2(i-iii): $2,768.54, $2,099.46, and $2,304.93 for Physiotherapy

31Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The parties agree I must find: (1) The treatment goals, as identified, are reasonable; (2) The treatment goals are being met to a reasonable degree; and (3) The overall costs of achieving these goals are reasonable.¹⁰

32The three plans for physiotherapy submitted on December 21, 2016; May 12, 2017; and November 14, 2017 are similar – and thus I, like the parties, will address them together.

33The first plan identifies the goals as pain reduction, increasing range of motion, increasing strength and functional restoration. It notes F.J. has “significant limitations with respect to activities involving lifting weighted objects, prolonged and repetitive tasks.” F.J.’s affidavit also provided that the goals were met to a reasonable degree as the treatment was helping her improve and providing some pain relief, and that after Aviva stopped approving treatment, she paid out of pocket for massage. During testimony, she testified that she incurred $3,955.15 worth of the treatment plans, plus some additionally massage treatment. The overall cost appears reasonable, and Aviva did not challenge the cost in its denial letters or during the hearing, nor did the IEs.

34Aviva submits that its May 24, 2017 paper review by Dr. Lam found that the best course would be for F.J. to resume pre-accident activities without accident-related limitations in conjunction with her independent stretching program, and that Dr. Getahum’s report should be given little to no weight.

35I find that the first two plans should be approved. They occurred at a relevant time, the goals were reasonable, and F.J. described they were helping and even incurred the treatment in an amount equal to the bulk of the first two plans without knowing they would be approved. Beyond that period, however, the third physiotherapy plan submitted on November 14, 2017 – months after F.J.’s delivery of her baby – appears repetitive of the first two plans involving routine facility-based therapy. Further, I am also mindful of Dr. Lam’s recommendation about returning to pre-accident activities, and F.J.’s own orthopaedic assessment on November 17, 2017 – three days after the last treatment plan – does not recommend continuation of such therapy, although he does recommend other more specialized physiotherapy. I also note that this last plan would coincide with F.J.’s comment to Dr. C. Rosenblatt about not returning to the supervisor position after the baby.¹¹

Issue 3: $2,200 for an Orthopedic Assessment

36This plan was submitted on August 14, 2017 by chiropractor Dr. D. Hashi for $2,200 for an Orthopedic Assessment. The plan’s goals include developing an adequate diagnosis to restore F.J. to her pre-accident activity. The plan notes the length of time elapsed and that such assessment is required to further investigate F.J.’s ongoing pain and symptoms particularly from a chronic musculoskeletal loss of function standpoint. Aviva’s August 15, 2017 denial provided that “there was no identified accident-related physical injury or impairment that would necessitate provision of the proposed formal physical interventions."

37Given that F.J. was still experiencing pain at the time of this request almost a year after the accident, and none of Aviva’s assessors appear to question the genuineness of F.J.’s complaints, I find the goals and plan reasonable.

38I do not agree with Aviva’s submission that when this plan was submitted, F.J. had been assessed by Dr. Lam who is an orthopaedist, and thus the plan is essentially a duplicative request for a second orthopaedic assessment and thus not reasonable. First, Dr. Lam is not orthopaedist, but a G.P. with a chronic pain specialty. Second and more importantly, Dr. Lam’s involvement was as a s. 44 IE assessor for Aviva’s benefit. Section 44 states such examinations are “for the purpose of assisting an insurer…” and Dr. Lam explicitly states, “…I was not seeing her as her treating doctor and the traditional doctor-patient relationship does not exist.” Thus, while Dr. Lam opined as an IE assessor that F.J. would be best served by F.J. returning to her regular activities and doing home based stretching, F.J. was entitled to receive a recommendation from a treating physician of her choice, with whom she would have a doctor-patient relationship.

39I do, however, give some weight to Dr. Lam’s assessment casting doubt on whether F.J. symptoms were such that a referral was reasonable and necessary, but given the lingering pain, albeit modest, I find the referral for an orthopaedic assessment was reasonable and necessary on a balance of probabilities.¹²

Issue 4: $1,244.89 for Psychotherapy

40This plan was submitted on May 29, 2018 for $2,205.97 for psychotherapy and associated services. Aviva agreed with the basic treatment and approved it in the amount of $961.01 but denied portions “relating to planning/preparation/ brokerate [sic] as these services are included in the fee for the completion of the OCF-18, which the Respondent agreed to pay.” As F.J. has not provided submissions why these denied portions are appropriate, she has not established her entitlement.

Issues 5 (Interest), 6 (Award) and Request for Costs

41Section 51 of the Schedule governs interest on overdue payments. In this case, F.J. is entitled to interest on incurred amounts of the three plans approved above.

42F.J. seeks an “award” under s. 10 of O. Reg. 664. That section permits me to “award” a lump sum of up to 50% of the amount that a person is entitled (plus interest on all amounts then owing) if I find the insurer “has unreasonably withheld or delayed payments.” While I approved several of the plans, the evidence does not support an award. Aviva’s denials were reasonable based on IEs and records presented by F.J.

43Aviva seeks its costs in this matter under Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017). While F.J. did not establish portions of her claim, Aviva has not explained how F.J. acted “unreasonably, frivolously, vexatiously, or in bad faith” as required by the Rule, nor do I find reasons in the record. I decline to order costs.

CONCLUSION

44I find F.J. suffered soft-tissue and some psychological injuries resulting in some degree of impairments from the accident and which produced some limited degree of ongoing pain and impairments necessitating a limited amount of treatment and investigation. Certainly, F.J.’s “normal life” was affected during the relevant period but not to the extent that she meets the standard required for entitlement to a NEB.

Order

45With reference to the issues as listed in paragraph [3], F.J. is entitled to the first two physiotherapy plans (Issues 2(i) & 2(ii)) and the orthopaedic assessment (Issue 3), with interest under s. 51 on the amounts incurred. F.J. is not entitled to the NEB, the third physiotherapy plan (Issue 2(iii)), the denied portion of psychotherapy (Issue 4) or an award under O. Reg. 664. Neither party is entitled to costs. The application is allowed, in part.

Released: December 2, 2020

___________________________

Jeffrey Shapiro

Vice Chaffir

Footnotes

1. 1An interpreter was also present, but at the request of the applicant, released as unnecessary.
2. 2Schedule, sections 12 and 3(7)(a). The latter section further defines section 12.
3. 3Heath v. Economical Mutual Ins. Co., 2009 ONCA 391 at 50
4. 4I saw that slight variation as related to memory fading overtime, but not an intention to mislead.
5. 516-003195 v State Farm Ins. Co., 2017 CanLII 99136 (ON LAT), paras. 59 and 66; 16-003772 v Gore Mutual Ins. Co., 2017 CanLII 69448 (ON LAT); 17-003841 v Aviva Ins., 2019 CanLII 34613 (ON LAT); Tchouguianova v. Trafalgar Insurance Co. of Canada (FSCO, A12-000883, February 23, 2015).
6. 6F.J.’s Submissions, para. 26-29 citing 18-004441 v Certas Home and Auto, 2019 CanLII 72198 (ON LAT), which deals with whether a notice was clear and unequivocal for purposes to starting the two-year limitation period in which to appeal a denial.
7. 717-001125 v Aviva Ins., 2018 CanLII 13191 (ON LAT) citing Stranges v. Allstate, 2010 ONCA 457
8. 8I note that the notice erroneously denies the benefit after “January 20, 2017” – two weeks after the January 6, 2017 start of the claim period. Perhaps if this was the initial denial that went uncorrected, there was some reliance on the error, or other factor, Aviva might be bound by this denial, but it appears in the context of this case to be a simple typo and/or covered by the Stranges decision.
9. 9Section 36(6) reads, in part: “(6) If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in subsection (4) (b), on the day the insurer gives the notice.”
10. 10Violi v. General Accident Assurance Co. of Canada, (FSCO, P99-00047, September 27, 2000); and 17-001007/AABS v Aviva Ins. Ca., 2018 CanLII 2309 (ON LAT), para. 11. Violi has been followed by this Tribunal on many occasions and holds that pain relief can be a legitimate goal of treatment.
11. 11My ruling renders moot F.J.’s argument that the first two plans be deemed approved due to improper denials. I agree with Aviva that if the denial was improper, F.J. would only be entitled to amounts incurred from 11th day after the plan’s submission until a compliant denial is provided.
12. 12Following Aviva’s denial of F.J.’s request for the orthopaedic assessment, F.J. had the assessment conducted by Dr. Getahum. While I do find that the treatment plan requesting the assessment to be reasonable and necessary largely because of F.J.’s ongoing pain, such finding does not mean that I accept Dr. Getahum’s findings or recommendations as he recommended treatment that is not before me.