Licence Appeal Tribunal File Number: 19-009266/AABS
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:
Janette Blas
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Derek Grant
APPEARANCES:
For the Applicant: Rajwant Bamel, Counsel
For the Respondent: Brendan Sheehan, Counsel
HEARD: By way of written submissions
BACKGROUND
1J.B. was injured in an automobile accident on August 24, 2017, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101. Aviva denied the benefits in dispute on the basis that it determined that the benefits were not reasonable and necessary. J.B. disagreed and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are in dispute:
a. Is J.B. entitled to medical benefit for physiotherapy for $1,225.00 provided by the Toronto Health Care Clinic Inc. submitted December 5, 2018 and denied December 27, 2018?
b. Is J.B. entitled to the cost of an examination for a psychological assessment for $2,000.00 provided by the Toronto Health Care Clinic Inc. submitted January 10, 2018 and denied January 14, 2018?
c. Is J.B. entitled to the cost of an examination for a Functional Abilities Evaluation for $1,340.20 provided by the Toronto Health Care Clinic Inc. submitted July 13, 2018 and denied July 20, 2018?
d. Is J.B. entitled to medical benefit for physiotherapy for $1,465.10 provided by the Toronto Health Care Clinic Inc. submitted July 13, 2018 and denied July 20, 2018?
e. Is J.B. entitled to medical benefit for chiropractic treatment for $1,515.98 provided by the Toronto Health Care Clinic Inc. submitted November 1, 2018 and denied November 9, 2018?
f. Is J.B. entitled to medical benefit for psychological services for $3,335.98 provided by the Toronto Health Care Clinic Inc. submitted November 13, 2018 and denied November 20, 2018?
g. Is J.B. entitled to the cost of an examination for a chronic pain evaluation for $2,000.00 provided by the Toronto Health Care Clinic Inc. submitted November 14, 2018 and denied November 22, 2018?
h. Is J.B. entitled to medical benefit for psychological services for $627.92 provided by the Toronto Health Care Clinic Inc. submitted December 11, 2018 and denied January 11, 2019?
i. Is J.B. entitled to the cost of an examination for a driver re-integration assessment for $1,981.70 provided by the Toronto Health Care Clinic Inc. submitted November 13, 2018 and denied April 23, 2019?
j. Is J.B. entitled to medical benefit for chronic pain rehabilitation services for $12,644.38 provided by the Toronto Health Care Clinic Inc. submitted May 29, 2019 and denied June 4, 2019?
k. Is J.B. entitled to payment for unreasonably withheld or delayed payments under section 10 of Ontario Regulation 664? The applicant agreed to provide particulars of the award by no later than September 16, 2019.
l. Is J.B. entitled to interest on any overdue payment of benefits?
3In their submissions, the parties agree that issue [2] i. is resolved. The decision will therefore focus on the remaining issues in dispute.
FINDINGS
4J.B. is entitled to the following:
a. The cost of an examination for a psychological assessment for $2,000.00;
b. The medical benefit for psychological services for $3,335.98;
c. An award in the amount of 5 per cent of the amount of the OCF-18 for a driver integration assessment;
d. Costs in the amount of $200.00; and
e. Interest on all outstanding payment of benefits.
5J.B. is not entitled to the following:
a. The medical benefit for physiotherapy for $1,225.00;
b. The medical benefit for physiotherapy for $1,465.10;
c. The medical benefit for chiropractic treatment for $1,515.98;
d. The cost of an examination for a Functional Abilities Evaluation for $1,340.20;
e. The medical benefit for psychological services for $627.92;
f. The cost of an examination for a chronic pain evaluation for $2,000.00; and
g. The medical benefit for chronic pain rehabilitation services for $12,644.38.
ANALYSIS
OCF-18 for physiotherapy for $1,225.00 submitted December 5, 2018
OCF-18 for physiotherapy for $1,465.10 submitted July 13, 2018
OCF-18 for chiropractic treatment for $1,515.98 submitted November 1, 2018
6Section 15 of the Schedule provides that the insurer shall pay for all reasonable and necessary expenses incurred by the insured as a result of accident. The onus is on an applicant to prove, on a balance of probabilities, that the specific treatment sought, and the goals of that treatment, are reasonable and necessary for their accident-related impairments. The consideration of whether a treatment plan is reasonable and necessary should identify the reasonableness of the treatment goals, how the goals are being met to a reasonable degree and that the overall cost (financial and time) of achieving the goals is reasonable.
7J.B. has not established that the OCF-18s for physical treatment are reasonable and necessary. J.B. submits that Aviva failed to provide its notice of denial of the OCF-18 submitted on December 5, 2018 in accordance with s. 38(8). Upon review, I find that the denial was provided on the 10th business day, being December 19, 2018. As such, I will limit my analysis to whether the December 5, 2018 OCF-18 and the remaining OCF-18s for physical treatment are reasonable and necessary.
8As a result of the accident, J.B. was diagnosed with several injuries, including: chronic cervical spine strain/sprain, chronic thoracic spine sprain/strain, chronic shoulder sprain/strain, chronic lumbar spine sprain/strain, right hip/thigh contusion, post traumatic headache, chronic pain, pain – multiple sites, and behaviour – symptoms and signs involving emotional state. J.B. asserts that the OCF-18s are reasonable and necessary as a result of her accident-related injuries.
9In her submissions, J.B. relies solely on the OCF-18s as evidence in support of her claims. While the OCF-18s provide insight as to the reasonableness of the treatment goals, how the goals would be met, and that the overall costs of achieving the goals is reasonable, an OCF-18 is not enough to establish that the treatment is reasonable and necessary.
10J.B. does not direct me to any objective evidence in support of these disputed plans to justify that the recommended treatment is reasonable and necessary. While I appreciate that she may have ongoing pain complaints, there is no compelling medical evidence for any of the OCF-18’s that provides me with insight into the extent of her injuries, or limitations as a result of the accident. She did not direct me to any medical records supporting that the treatment she seeks is recommended, or any report from an objective medical professional that concluded she would benefit from further facility-based treatment.
11It is well-settled that a treatment plan without supportive medical evidence is not enough to establish that the recommended treatment is reasonable and necessary. In contrast, Aviva provided me with the uncontroverted opinion from general practitioner Dr. Jugnundan, who found in a s. 44 assessment that J.B. suffered soft tissue injuries to the neck, left rotator cuff syndrome, left medial and lateral epicondylitis, and left thumb tenosynovitis, and concluded that further facility-based therapy would not be of any significant benefit.
12Consequently, I find that J.B. has failed to demonstrate how the recommended treatments outlined in the disputed OCF-18s for physical treatment are reasonable and necessary.
OCF-18 for a psychological assessment for $2,000.00 submitted January 10, 2018
OCF-18 for psychological services for $3,335.98 submitted November 13, 2018
OCF-18 for psychological services for $627.92 submitted December 11, 2018
13On January 10, 2018, an OCF-18 for a psychological assessment was submitted. The OCF-18 was denied on January 14, 2018 on the grounds that it was not reasonable and necessary. I disagree.
14J.B. relies on the OCF-18 and a September 20, 2018 psychological screening report from Dr. Shaul and psychotherapist, Helen Ilios, who diagnosed J.B. with adjustment disorder with mixed anxiety and depressed mood and specific phobia (travelling in and around a vehicle). I find the OCF-18 is reasonable and necessary to address J.B.’s accident-related psychological impairments.
15Aviva asserts that Dr. Shaul did not conduct the psychological assessment, but rather that it was conducted by Ms. IIios. For this reason, it submits that it is not a psychological expert report, as it was conducted by a psychotherapist. It relies on its s. 44 report from Dr. Koepfler, who diagnosed J.B. with symptoms of driving anxiety but not a formal diagnosis. Dr. Koepfler opined that the OCF-18 is not reasonable and necessary as she does not experience significant psychological problems directly related to the accident.
16Aviva submits that the fees for the assessment were services to be provided by Ms. IIios, and as a registered psychometrist, the hourly rate should be lower than that of a psychologist. I agree that the assessment was conducted by Ms. IIios, therefore, the fees indicated in the OCF-18 should reflect the appropriate rate for a psychometrist. Further, I agree that the appropriate rate of a psychometrist is captured under the Professional Fee Guidelines, which is $58.19 per hour.
17On the evidence, I find the s. 44 report of Dr. Koepfler to be contradictory. Although Dr. Koepfler finds the OCF-18 is not reasonable and necessary, she opines that J.B.’s psychological impairments warrant removal from the MIG. Dr. Koepfler opines that J.B.’s accident-related impairments do not warrant a simple diagnosis; however, she does not provide an explanation for why J.B.’s psychological impairments justify removal from the MIG. That is why I place greater weight on Dr. Shaul/Ms. IIios’s report. Dr. Shaul/Ms. IIios’s report included testing similar to that performed by Dr. Koepfler, which provided me with a more compelling understanding of the effects on J.B.’s post-accident psychological well-being.
18Regarding the psychological treatment recommended in the OCF-18 dated November 13, 2018, Aviva submits that the fees should reflect that of a psychotherapist, as it is likely that Dr. Shaul would not be providing J.B. with treatment but would employ Ms. IIios or a similarly qualified psychotherapist to provide the treatment. Aviva does not take issue with Ms. IIios providing the treatment but does take issue with the associated fee if such is the case. I find there is no evidence that Ms. IIios would be the one providing the treatment, and I would be overstepping my jurisdiction to make such an assumption. Aviva makes no argument that the rate is not appropriate if Dr. Shaul is the one providing the service. As such, I find the rate for the recommended treatment in the OCF-18 is reasonable.
19Accordingly, I find that as a result of the diagnosis provided in the Dr. Shaul/Ms. IIios report, the OCF-18 in the amount of $3,335.98 recommending treatment for her accident-related psychological impairments is also reasonable.
20Regarding the OCF-18 submitted December 11, 2018, Aviva denied the benefit on January 10, 2019, stating that it was not reasonable and necessary, as a chiropractor submitted the OCF-18 on the recommendations of Dr. Shaul and that J.B. was found to be in the MIG. J.B. submits that Aviva failed to properly respond to the OCF-18 within the required 10 business days under s. 38(8). I agree.
21Aviva’s position is that it is only responsible to pay for what has been incurred, starting on the 11th business day. J.B. did not direct me to any evidence that the expense has been incurred between December 28, 2018 (the 10th business day) and January 10, 2019.
22The OCF-18 is for relaxation CDs. There is no compelling evidence that supports the request for the CDs. Outside of the OCF-18, there has been no recommendation for the CDs. Relying on the OCF-18 alone is insufficient as evidence to establish that the disputed OCF-18 is reasonable and necessary. Accordingly, J.B. has not established that the disputed OCF-18 is reasonable and necessary.
23As such, J.B. is not entitled to payment for the OCF-18 in the amount of $627.92.
OCF-18 for a Functional Abilities Evaluation for $1,340.20 submitted July 13, 2018
OCF-18 for a chronic pain evaluation for $2,000.00 submitted November 14, 2018
OCF-18 for chronic pain rehabilitation services for $12,644.38 submitted May 29, 2019
24J.B. relies on the OCF-18 submitted on July 13, 2018 by Dr. Minnella, who noted J.B. suffered from chronic strain and sprain of the cervical spine, chronic pain - thoracic spine, shoulder, and lumbar spine, and hips and thigh contusion, accompanied with post-traumatic headaches, emotional difficulties, with chronic pain at multiple sites.
25First, with regard to the Functional Abilities Evaluation, Aviva submits, and I agree, that there is no compelling evidence or persuasive analysis in support of this OCF-18. J.B. relies on the comments of the chiropractors who submitted treatment plans. A treatment plan unsupported by objective evidence, such as a medical opinion or report, does not satisfy the applicant’s burden. In addition, J.B. has returned to work on a full-time basis and there is no evidence her activities of daily living have been affected, which undermines the necessity for a functional abilities evaluation. Accordingly, I am not persuaded that the treatment plan is reasonable and necessary.
26Second, and in a similar vein, the OCF-18 for a chronic pain assessment and chronic pain treatment are also not reasonable and necessary.
27The Tribunal has determined that treatment may be reasonable and necessary if an applicant establishes that they have chronic pain that causes functional impairment or if they have been diagnosed with chronic pain syndrome.
28J.B. relies on a January 18, 2019 chronic pain report by Dr. Jacobs, chronic pain specialist, who diagnosed her with chronic pain, due to pain lasting longer than normal healing times, lumbar zygapophyseal joints, disc pathology and cervical zygapophyseal/discogenic pain. Aviva relies on the reports of its assessors, Dr. Fung and Dr. Koepfler, who opined that a chronic pain program was not reasonable and necessary.
29I do not find the report of Dr. Jacobs to be persuasive for several reasons. First, Dr. Jacobs provides no analysis of how J.B.’s pain symptomatology causes her any functional impairment. Second, Dr. Jacobs does not engage with any of the criteria set out in the AMA Guides, and there is no evidence that J.B. would meet the minimum requirement of at least three of the six criteria as required. Third, J.B. has returned to working six days a week on a full-time basis, albeit with pain. Accordingly, I do not find that her accident-related pain is of such a severity that she experiences functional impairment.
30Finally, I do not find the cost of the chronic pain treatment program to be reasonable and necessary. First, the medical evidence does not support that J.B. meets the test for chronic pain. Second, she has returned to work in her demanding position six days a week, full-time. At a minimum, an applicant must demonstrate that they suffer from functional limitations as a result of chronic pain. While J.B. reports she still has pain, I find that her ability to work in a similar capacity as she did pre-accident, is counter to her claim of suffering functional impairment as a result of the accident.
31Accordingly, I find that J.B. has not met her burden of demonstrating on a balance of probabilities that the OCF-18’s for a functional abilities evaluation, chronic pain assessment, or a chronic pain treatment program are reasonable and necessary.
AWARD
32J.B. claims entitlement to an award under s. 10 of O. Reg. 664 on the basis that Aviva waited approximately 16 months to remove her from the MIG after its s. 44 assessor, Dr. Koepfler, said her injuries fall outside the MIG.
33In determining the type of conduct for which an award may be appropriate, it is well-settled that the standard is set out in the FSCO case Plowright v. Wellington Insurance Co.2 The conduct in Plowright was found to be an “immoderate, imprudent, inflexible, and excessive” approach, as the arbitrator found the insurer’s decision-making to be “disturbing” and “puzzling.” The award was less than 10% of the total benefits.
34It is trite law that an award should not be ordered for the simple reason an adjudicator determined that an insurer made an incorrect determination. Rather, in order to attract a s. 10 award, the insurer’s conduct must rise to the level described in Plowright—it must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate. I find that there is evidence that Aviva was inflexible and unyielding when it waited 16 months to remove J.B. from the MIG, despite Dr. Koepfler’s report.
35Under s. 10, the Tribunal may grant an award up to 50 per cent of the amount to which an applicant would be entitled to if the Tribunal finds that the respondent has unreasonably withheld, or delayed payments based on its conduct.
36On the evidence, I find that an award of 5 per cent is appropriate. While J.B. submits that she is entitled to a 50 per cent award, I do not find Aviva’s actions warrant the maximum award.
37Aviva’s own assessor clearly indicated in her August 19, 2019 report that J.B.’s injuries fall outside the MIG. Despite this, it was not until December 4, 2020 that Aviva notified J.B. that it was approving the treatment plan for a driver reintegration assessment. While Aviva did not provide an explanation for why it was approving the OCF-18, it would appear that it was likely connected to Dr. Koepfler’s opinion that J.B. suffered from driver’s anxiety. Regardless of the lack of explanation, I find Aviva’s actions amount to an unreasonable delay of approving and paying the benefit. Accordingly, I find that an award of $200.00, plus interest, is appropriate, representing approximately 10 percent of the cost of the OCF-18 submitted November 13, 2018.
COSTS
38Costs are a discretionary remedy where the Tribunal finds that a party has acted unreasonably, frivolously, vexatiously, or in bad faith in accordance with Rule 19.1 of the Tribunal’s Common Rules. Rule 19.5 provides me the discretion to deny or grant the request for costs or award an amount I deem appropriate.
39In considering the test for costs, the Tribunal may look at the level of seriousness of the misconduct, whether the conduct was in breach of any Tribunal orders, or whether the alleged behaviour in some way interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process. In addition, the Tribunal may consider whether the alleged conduct resulted in prejudice to the other parties, and the potential impact a costs award may have on individuals relying on the Tribunal process.
40For the reasons to follow, I find that Aviva has acted unreasonably and is ordered to pay costs in the amount of $200.00.
41J.B. seeks her costs, submitting that Aviva’s conduct, specifically its limiting her to the MIG and its continual denial of assessments and treatments, amounts to conduct that satisfies the test for a costs award.
42Aviva submits that J.B.’s claim for costs appears to be grounded in the “usual conduct of having to proceed to a hearing before the Tribunal.” Aviva takes the position that it adjusted J.B.’s file in good faith and that J.B. has not established that further treatment is reasonable and necessary or that she is entitled to costs.
43While I agree that J.B. has not established that a number of the disputed OCF-18s are reasonable and necessary, I find that Aviva’s conduct in removing her from the MIG was unreasonable.
44I do not agree with Aviva’s position on removing J.B. from the MIG, as it occurred well after Dr. Koepfler’s opinion was provided. Regardless of whether Dr. Koepfler’s reasons were based on a psychological opinion, the delayed determination blocked J.B.’s access to an increased pool of funds for an unreasonable period of time. Further, Aviva ultimately approved an OCF-18 that likely would have been approved much sooner had J.B. been removed from the MIG in a more timely manner.
45Aviva appears to assert that because J.B. was removed from the MIG on psychological grounds, the OCF-18’s for physical assessments and/or treatment were not reasonable and necessary. I disagree. Removal from the MIG does not limit an applicant to treatment solely on the grounds they were removed from the MIG. Removal from the MIG allows an applicant to seek funding for treatment both within and outside of the grounds on which they were removed from the MIG.
46As noted above, Rule 19.5 permits me the discretion to deny or grant a request for costs or award an amount I deem appropriate. J.B. did not request a specific amount for costs, therefore, by the authority given to me under Rule 19.5, I award J.B. costs in the amount of $200.00.
47Aviva’s 16-month delay in removing J.B. from the MIG was unreasonable. Aviva should have known that as a sophisticated party its delay could result in a costs award against it.
48For these reasons, I find that an award of $200.00 is appropriate.
CONCLUSION
49J.B. is entitled to the following:
a. The cost of an examination for a psychological assessment for $2,000.00;
b. The medical benefit for psychological services for $3,335.98;
c. An award in the amount of 5 per cent of the amount of the OCF-18 for a driver integration assessment;
d. Costs in the amount of $200.00; and
e. Interest on all outstanding payment of benefits.
50J.B. is not entitled to the following:
f. The medical benefit for physiotherapy for $1,225.00;
g. The medical benefit for physiotherapy for $1,465.10;
h. The medical benefit for chiropractic treatment for $1,515.98;
i. The cost of an examination for a Functional Abilities Evaluation for $1,340.20;
j. The medical benefit for psychological services for $627.92;
k. The cost of an examination for a chronic pain evaluation for $2,000.00; and
l. The medical benefit for chronic pain rehabilitation services for $12,644.38.
Released: December 6, 2021
Derek Grant
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.
- 1993 OIC File No.: A-003985 (FSCO) [“Plowright”]