Citation: Walcott vs. Aviva General Insurance, 2021 ONLAT 19-007910/AABS

Released Date: 01/15/2021

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:

Charisse Walcott

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Milad Haghani, Counsel

For the Respondent:

Sarah Fasih, Counsel

HEARD:

Combination: Written Submissions and Teleconference

OVERVIEW

1The applicant was involved in an automobile accident on October 29, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').

ISSUES

2The issues in dispute to be decided in this hearing are:

a. Is the applicant entitled to $2,061.44 for chiropractic services recommended by Dr. Mahendranathan in a treatment plan dated August 22, 2017 and denied on August 28, 2017?

b. Is the applicant entitled to $1,832.72 for chiropractic services recommended by Dr. Mahendranathan in a treatment plan dated January 10, 2018 and denied on January 17, 2018?

c. Is the applicant entitled to $1,663.64 for chiropractic services recommended by Dr. Mahendranathan in a treatment plan dated November 23, 2018 and denied on December 6, 2018?

d. Is the applicant entitled to $2,369.32 for psychological services recommended by Jothi Ramesh in a treatment plan dated March 19, 2019 and denied on April 3, 2019?

e. Is the applicant entitled to $16,272.00 for a catastrophic impairment assessment recommended by Dr. Harold Becker in a treatment plan dated August 22, 2019?

f. Is the applicant entitled to interest on any overdue payment of benefits?

g. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant is not entitled to the chiropractic services in dispute.

4The applicant is entitled to the psychological services, with interest payable in accordance with the Schedule.

5The treatment plan for catastrophic assessments are partially reasonable and necessary, up to $8,400.00 plus HST, with interest payable in accordance with the Schedule.

6The applicant is not entitled to an award pursuant to Regulation 664.

ANALYSIS

a. Treatment Plans for Chiropractic Services

7The onus is on the applicant to establish that the claimed medical benefits are reasonable and necessary. I find that the applicant has not met the onus of proof.

8The applicant was diagnosed with whiplash associated disorder (WAD II), sprain and strain of the lumbar and thoracic spine, shoulder, temporomandibular joint, mild depressive episode, unspecified mood [affective] disorder, irritability, anger, nervousness, tension-type headaches, and elbow contusion.¹

9There are no objective findings to support the applicant’s ongoing physical complaints. X-rays of the applicant’s cervical and thoracic spine on July 11, 2017 were unremarkable.² An ultrasound of the bilateral shoulders dated May 3, 2017 revealed minimal osteoarthritis in both AC joints, but no tears.³

10The applicant had treatment with Dr. Mahendranathan since 2012, prior to the subject MVA. She had two prior accidents in 2012 and 2014. She received chiropractic adjustments and massage therapy prior to the subject accident, to treat pain in her neck and back and headaches.⁴ She stopped attending treatment in June 2015. The next visit occurred in July 2016, some 8 months after the subject accident. In May 2017 the provider noted that the applicant was not improving as expected. The applicant attended treatment regularly until August 2017 when she stopped attending (except one final visit in December 2019.)

11The clinical notes and records of the family physician indicate that the first post-accident visit was on March 2, 2016, when the applicant requested to discuss the MVA, and the doctor noted that they had no record of this accident. She didn’t see her family doctor again until November 30, 2016, over a year post-MVA at which time she reported low back pain for the last two days. Starting in 2017, the applicant started seeing her family physician frequently, almost twice a month. She obtained sick notes for time off work on 22 occasions between November 2016 and August 2018 – yet only twice were notes provided for the applicant’s physical issues related to the MVA. The disputed treatment plans for chiropractic services were submitted in August 2017, January 2018 and November 2018 however the last entry in the family doctor records regarding MVA-related complaints was in July 2017.

12The applicant submits that she is suffering from migraines as a result of the accident, however the first mention of headaches to the family physician post-accident was in February 2017, and the doctor noted that she had a history of migraines. She was prescribed medication and referred to a neurologist. The MRI of her head in April 2017 was normal. The neurologist, Dr. Gupta, prepared a report dated August 19, 2017 indicates that the applicant had been experiencing recurrent headaches for 3 to 4 years. Dr. Gupta noted that the neurological examination was normal and increased the dosage of her migraine medication. A follow up report by Dr. Gupta in April 2018 noted that the applicant was not taking her medication regularly. The examination was normal again, and the applicant was advised to take her medication. Given that the applicant reported a history of headaches that pre-dated the accident by two years, and given that there were no post-accident complaints of headaches to the family physician until 16 months post-accident, I am unable to accept that her migraines were caused by the accident.

13Given the time elapsed before the applicant reported any accident-related complaints, and that there are only three entries relating to the accident despite seeing her family physician very frequently, the lack of objective evidence of ongoing injuries, and no recommendation from Dr. Gupta for this treatment, I find that the applicant has not met her burden of proof to establish that the treatment plans proposed by Dr. Mahendranathan are reasonable or necessary.

b. Psychological Services

14The applicant seeks funding for further psychological treatment, submitted by Jothi Ramesh in a treatment plan dated March 19, 2019. I find this treatment plan is reasonable and necessary. The applicant stopped working in 2018 as a result of her increasing psychological issues. The family physician made referrals for psychotherapy, and the applicant has engaged in treatment, which has been helpful. The insurer’s assessors also continue to diagnose psychological conditions as a result of the accident, and as of January 2020 they continued to recommend further psychotherapy.

15The family physician noted in January 2017 that she had been experiencing anxiety and depression for more than six months. She was prescribed Cipralex and referred to a psychiatrist. The applicant participated in an insurer examination to determine entitlement to a treatment plan (not in dispute) and whether her injuries fell within the minor injury guideline. Dr. Ariel Zielinsky diagnosed the applicant with an adjustment disorder with depressed mood and anxiety in February 2017.⁵ Plans proposing psychological treatment were approved by the insurer.

16The applicant sought psychological treatment with Dr. Bhatia. He prepared a psychological assessment report dated March 25, 2017. The applicant reported poor sleep due to nightmares and panic attacks about the accident, depressed mood, tearful episodes, social isolation, and anxiety as driver and passenger in a vehicle. She participated in psychotherapy with Dr. Bhatia from March 2017 to August 2018. Progress reports in 2017 and 2018 continued to diagnose adjustment disorder with mixed anxiety and depressed mood and specific phobia related to driving.

17In August 2018 Dr. Bhatia noted that the applicant had been unable to attend therapy on a regular basis which exacerbated her psychological symptoms. Psychotherapy was noted to be helpful in managing her symptoms, and the applicant reported that it was keeping her motivated in her recovery. Dr. Bhatia recommended ongoing therapy to reduce her anxiety, improve sleep, provide education regarding pain, depression, anxiety, impact on function, and pain management techniques.

18The family physician’s records reflect increasing complaints of anxiety and panic attacks in June 2018. Her prescriptions were increased and in August 2018 the doctor made further psychiatric referrals and the applicant stopped working. She applied for EI sickness benefits. Her claim for short term disability was denied. In October 2018 the family physician submitted a request to children’s services that the applicant be provided with childcare assistance, as she was unable to care for her son due to her depression. In January 2019 the doctor also completed a referral to Lakeridge Health for psychiatry services due to anxiety and panic attacks.

19The applicant was referred to Ontario Shores, where she attended for treatment from May to October 2019. It consisted of 16 group sessions of cognitive behavioural therapy.⁶ In June 2019 Ontario Shores provided a referral to Durham Mental Health Services for case management services. After completing the program, the applicant was discharged. Ontario Shores recommend that she connect with community mental health support groups to pursue additional individual counseling related to her panic symptoms.

20In a psychosocial assessment prepared on behalf of the applicant dated January 15, 2020, Dr. Hutchinson concluded that the applicant was presenting with severe psycho-social sequelae, and she should be seeking intensive psychological intervention with appropriate pharmacotherapy. He suggested that she would benefit from an acute outpatient program with a mental health hospital or clinical intervention program.

21The applicant had a second psychiatry assessment with an insurer’s examiner, Dr. Cowman, in relation to a proposed psychological assessment (not in dispute). In her report dated January 21, 2020, Dr. Cowman noted that the applicant continued to take Prozac since June 2019, and Lorazepam as needed. The applicant remained off work. She continued to experience nightmares of the accident and panic attacks. Although she had some concerns regarding the applicant’s current condition and the time elapsed, Dr. Cowman concluded that the applicant still met the criteria for an adjustment disorder with depressed mood and anxiety as a result of the accident. Dr. Cowman recommended ten sessions of psychotherapy.

22However, the respondent denied the treatment plan because Jothi Ramesh who proposed the treatment plan was a social worker. At the teleconference portion of the hearing, it was explained that Ms. Ramesh is both a social worker and a psychotherapist. They indicated “social worker” on the form, because there was no option to check a box for “psychotherapist”.

23The recommendations from the applicant’s treatment providers and the insurer’s assessors are consistent that the applicant required further psychotherapy. The proposed treatment and associated cost are reasonable and necessary.

c. Catastrophic Assessments

24The onus is on the applicant to establish, on a balance of probabilities, that each assessment recommended in the treatment plan are reasonable and necessary, and if so, that the fees charged are reasonable.

25Dr. Harold Becker of Omega Medical submitted an OCF-18 date August 22, 2019 proposing catastrophic assessments totalling $16,272.00, as follows:⁷

1. Neurology/TBI Assessment $2,000

2. Physiatry Assessment $2,000

3. Psychology Assessment $2,000

4. OT ADL/Community Assessment $2,000

5. OT Driving Assessment $2,000

6. Clinic File Review $2,000

7. CAT Summary/Final Ratings Report $2,000

8. OCF-19 Certificate $200

9. OCF-18 Form $200

26The applicant relies on the report of Dr. Hutchinson, wherein he concludes that the applicant’s psychosocial sequelae were causing challenges and disruptions to her life and normal activities such as being an effective spouse, mother and preventing her from returning to work. As part of his proposed interventions, he suggested that the applicant undergo catastrophic assessments.

27The respondent relies on the Tribunal decision in C.A. v Intact Insurance Company. In which the Tribunal held that each constituent assessment that makes up the multidisciplinary catastrophic assessment must be reasonable and necessary.⁸ The applicant did not provide any case law for consideration regarding the catastrophic assessments.

28The respondent also relies on a physiatry paper review report prepared by Dr. Oshidari, dated September 18, 2019.⁹ He reviewed the February 2017 physiatry and psychiatry insurer assessments, multiple treatment plans submitted by Dr. Mahendranathan, and a disability certificate dated February 3, 2016. Dr. Oshidari concluded that it was unlikely that the applicant would reach catastrophic impairment from a physical perspective, and although there were reports of psychological difficulty, she was able to resume her vocational activities in 2017.

29The applicant submits that Dr. Oshidari’s report should be excluded on the basis that it was not fair, objective, and non-partisan, and outside of his area of expertise. While I decline to exclude the report, I do not find Dr. Oshidari’s report persuasive, given the limited and outdated information he reviewed in preparing his opinion. The respondent did not obtain an assessment from a psychological perspective.

30The applicant submits that there is a reasonable possibility that she is catastrophically impaired, because her serious psychiatric conditions have prevented her from returning to work or care for her children.

31I find that the catastrophic assessments are partially reasonable and necessary. While I agree that the applicant has sustained serious psychological issues as a result of the accident, she has not established why each component of the multidisciplinary assessment is reasonable and necessary, as outlined in C.A. v Intact. Dr. Becker did not provide any attachments, summary, or any further explanation as to why each assessment was reasonable or necessary. The OCF-18 requests funding for over $16,000 with little explanation as to what each item is, or why it is required.

32Given the applicant’s well-documented psychological diagnoses, and their impact on her activities and level of function, I accept that the psychological assessments and two occupational therapy assessments are reasonable and necessary. She continues to experience panic attacks, depression, anxiety and specific phobia related to driving. The applicant has not established that the physiatry or neurological assessments are reasonable. She has had two neurological assessments with Dr. Gupta which were normal. I do not believe it is reasonable for the clinic to charge for a file review. It is a duplication because each assessor will complete a file review as part of their assessment. The cost of preparing the report, and the form fees are reasonable if the assessments are incurred and the OCF 19 is provided.

33In light of the foregoing, I find that the following components of the proposed assessments are reasonable and necessary, totalling $8,400.00, plus HST:

1. Psychology Assessment $2,000

2. OT ADL/Community Assessment $2,000

3. OT Driving Assessment $2,000

4. CAT Summary/Final Ratings Report $2,000

5. OCF-19 Certificate $200

6. OCF-18 Form $200

d. Interest

34Given that I have found that the applicant is entitled to the treatment plan for psychological services, and partially entitled to the catastrophic assessments, the applicant is entitled to interest on those amounts, payable in accordance with the Schedule.

e. Special Award

35Although it was listed as an issue in dispute, the applicant made no submissions on the claim for a special award, and no evidence was provided to suggest that benefits were unreasonably withheld, or payments delayed. The claim for a special award is dismissed.

CONCLUSION

36For the reasons set out above, I find that the applicant has failed to prove her entitlement to the chiropractic services in dispute.

37The applicant is entitled to $2,369.32 for psychological services, with interest payable in accordance with the Schedule.

38The treatment plan for catastrophic assessments are partially reasonable and necessary, up to $8,400.00 plus HST, with interest payable in accordance with the Schedule.

39The applicant is not entitled to an award pursuant to Regulation 664.

Footnotes

1. 1Applicant’s submissions Tab 7, 8 and 12.
2. 2Respondent’s submissions Tab 10 p. 132
3. 3Respondent’s submissions Tab 10 p. 32.
4. 4Applicant’s submissions Tab 3.
5. 5Respondent’s submissions Tab 17.
6. 6Respondent’s submissions Tab 16 at page 48.
7. 7Applicant’s submissions Tab 11.
8. 818-000579/AABS, 2018 CanLII 130861 (ON LAT) (‘’C.A. v. Intact’’).
9. 9Respondent’s submissions Tab 21.