Thanabalasingam v. Aviva General Insurance Company, 2021 CanLII 134537

Citation: Thanabalasingam v. Aviva General Insurance Company, 2021 CanLII 134537

Licence Appeal Tribunal File Number: 20-006569/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:

Mythily Thanabalasingam

Applicant

and

Aviva General Insurance Company

Respondent

DECISION [AND ORDER]

ADJUDICATOR: Tavlin Kaur

APPEARANCES:

For the Applicant: Mythily Thanabalasingam, Applicant Eric Katzman, Counsel

For the Respondent: Aviva General Insurance Company Sjawal Bhutta, Counsel Geoffrey Keating, Counsel

HEARD: In Writing

REASONS FOR DECISION AND ORDER

BACKGROUND

1This proceeding, under the Statutory Accident Benefits Schedule-Effective September 1, 2010 (the “Schedule”).¹ arises out of a motor vehicle accident on July 6, 2018. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

Issues in dispute

2I have been asked to decide the following issues:

1. Is the applicant entitled to the cost of an examination in the amount of $860.00 for a social work assessment recommended by FunctionAbility, as set out in a treatment and assessment plan dated March 14, 2020 and denied by the respondent on March 19, 2020?
2. Is the applicant entitled to a medical benefit in the amount of $2,841.96 for occupational therapy services recommended by FunctionAbility as set out in a treatment and assessment plan dated March 27, 2020 and denied by the respondent on April 3, 2020?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to the social work assessment.

4The applicant is not entitled to the unapproved portion of the treatment plan for occupational therapy services.

Issue 1: Social Work Assessment

5I find that the applicant is not entitled to the social work assessment for the following reasons.

6In support of her case, the applicant is relying on a physiatry report from Dr. Dinesh Kumbhare, physiatrist and an occupational therapy assessment from Serene Abraham, occupational therapist. In denying the social work assessment, the respondent is relying on a multidisciplinary report completed by Dr. Paul Derry, psychologist.

7With respect to Ms. Abraham’s occupational therapy assessment dated October 1, 2020, she noted the applicant’s self-report of her emotional symptoms. However, she did not provide any opinion regarding this particular treatment plan or the applicant’s need for psychological treatment.

8In his report dated August 24, 2020, Dr. Kumbhare stated:

I would strongly suggest that Ms. Thanabalasingam be allowed access to psychological support. She has difficulty with how her pain impacts on her function. I understand that she is now to be seen and treatment should include cognitive behavioral techniques to address her persistent difficulties. There is a strong correlation between psychological distress and the physical manifestation of pain, and these issues need to be addressed given her current presentation.

9In contrast, Dr. Derry stated the following in his report dated October 1, 2020:

From strictly a psychological point of view, she is doing reasonably well, and she does not present with a psychological impairment or diagnosable condition. She is understandably frustrated and discouraged about her ongoing pain. She observes that she is young, but yet feels that pain limits her ability to engage in various kinds of physical activity. This is understandably frustrating for her, but it does not represent a psychological disorder. She is not clinically depressed.

10He opined that the applicant did not require formal, long-term counselling as a result of her accident, and therefore, the request to undertake a social work assessment is not currently reasonable or necessary.

11I prefer Dr. Derry’s opinion over Dr. Kumbhare’s opinion for a couple of reasons. Firstly, Dr. Derry is a psychologist and has expertise with respect to psychological conditions. Dr. Kumbhare is not an expert in this area. Secondly, Dr. Derry had the applicant complete the Rey 15-Item Memory Test and Pain Patient Profile (P3). Dr. Kumbhare did not have the applicant do any testing and is relying on her self-reporting of her psychological issues. I’m not persuaded by Dr. Kumbhare’s opinion.

12The onus is on the applicant to prove that the treatment plan is reasonable and necessary. Aside from the report from Dr. Kumbhare, the applicant did not provide any evidence that shows that she was struggling psychologically. She did not submit any CNRs from her family physician or other doctors/specialists that she may have seen. Nor did she submit any cogent evidence that refutes Dr. Derry’s opinion.

13In absence of evidence in her support of her case, I find that the applicant is not entitled to the treatment plan.

Issue 2: Occupational therapy services

14In dispute is the difference between the duration that was suggested by Kelsey Willms, occupational therapist and Serene Abraham, who is the insurer’s examiner. The treatment plan was partially approved in the amount of $1,796.02 on October 14, 2020. The remaining amount in dispute is $1,045.94.

15The applicant submitted that the treatment plan that was submitted included eight sessions of telehealth or in-home sessions, 1.5 hours in duration as well as the completion of the report. Ms. Abraham stated “it is the therapist’s opinion that four occupational therapy treatment sessions of 1-hour duration with associated travel time, preparation or planning time and documentation are considered to be reasonably necessary to address the recommended goals. Mileage to treatment is not considered to be reasonable and necessary.”

16The applicant submitted that Ms. Abraham provided no reasons as to why only four sessions of one hour with associated travel time is reasonable and necessary, but not eight at 1.5 hours. The applicant submitted the following:

The Applicant has issues with her vocational activities and her activities of daily living, as well as significant findings as revealed in the MRI discussed by Dr. Bartol and Dr. Khumbare (sic) in their IMEs. Returning to the Violi Test, Ms. Williams (sic) established her goals for the delivery of 8 therapy sessions, including pain management, improved function with respect to activities of daily living, reducing driving anxiety, and reducing the frequency of headaches. The Respondent’s IME assessor Ms. Abrams (sic) appears to agree that the goals are reasonable. Ms. Williams (sic) identifies that the goals are likely to be met and the Respondent’s IME assessor agrees, as some sessions were recommended by Ms. Abrams (sic). Given the difficulties reported by the Applicant, both in a work setting and, in her home, the cost of $2,841.96 is reasonable. If the Respondent wanted to argue that the Applicant deserves only half of the plan that the Respondent’s own IME assessor admits will help her, the Respondent should have obtained medical support for that position.

17I am not persuaded by this submission because the insurance company does not need to prove that the applicant deserves only part of the treatment plan. The applicant must prove that the disputed expense is reasonable on a balance of probabilities.

18Aside from making vague submissions, the applicant has not established why she is entitled to the unapproved portions of the treatment plan. Other than Dr. Kumbhare’s report, the applicant did not submit any evidence that shows that the unapproved portion of the treatment plan is reasonable. Based on the evidence before me, I am unable to infer on a balance of probabilities that the unapproved portions of the Treatment plans are reasonable and necessary. The applicant did not provide me with submissions or direct me to specific references in the evidence which supports her entitlement to the unapproved portions of the treatment plan in dispute. The applicant must direct the adjudicator to the relevant evidence in support of her case and explicitly explain why she meets the test based on this evidence. She has failed to do so.

CONCLUSION

19Based on the above, I find that the applicant has not provided compelling evidence that the social work assessment and the unapproved portions of the occupational therapy treatment plan are reasonable and necessary. Therefore, the applicant is not entitled to these medical benefits.

INTEREST

20Having determined that no benefits are payable, I do not need to consider if interest is payable.

ORDER

21For the reasons provided above, I order that the application be dismissed.

Footnotes

1. 1O. Reg. 34/10, as amended.