Keung-Fatt v. Aviva General Insurance, 2021 CanLII 134546

Licence Appeal Tribunal

Citation: Keung-Fatt v. Aviva General Insurance, 2021 ONLAT 20-009465/AABS

Licence Appeal Tribunal File Number: 20-009465/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:

Ian Michael Keung-Fatt

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Nancy Aquilina

APPEARANCES:

For the Applicant: Yu Jiang, Paralegal

For the Respondent: Kathleen Mertes, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was injured in an accident on November 3, 2018 and sought medical benefits from the respondent, Aviva General Insurance (“Aviva”), pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule'').

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Is the applicant entitled to a medical benefit in the amount of $4,303.90 for chiropractic treatment, proposed by Total Recovery Rehab Centre in a treatment plan (OCF-18) dated September 16, 2019?
2. Is the applicant entitled to a medical benefit in the amount of $4,654.52 for physiotherapy treatment, proposed by Total Recovery Rehab Centre in a treatment plan (OCF-18) dated October 16, 2019?
3. Is the applicant entitled to a medical benefit in the amount of $280.00 for transportation expense, proposed by Somatic Assessments & Treatment Clinic in a treatment plan (OCF-18) dated August 5, 2019?
4. Is the applicant entitled to a medical benefit in the outstanding amount of $2,614.33 ($4,121.88 submitted less $1,507.55 approved) for psychological treatment, proposed by Somatic Assessments & Treatment Clinic in a treatment plan (OCF-18) dated January 28, 2020?
5. Is the applicant entitled to interest on any overdue payment of benefits?

3In the Case Conference Report and Order of Adjudicator Kowal dated April 6, 2021, it was noted that the transportation expense, issue 3 as listed above, had been resolved. In addition to this, the Case Conference Report and Order identified the issue of an award but I do not find it necessary to make a ruling on an award given the issue was not listed as one in dispute in the applicant’s submissions and, further to this, the applicant did not make submissions on it.

4In the applicant’s submissions dated June 18, 2021, the applicant withdrew treatment plans by Total Recovery Rehab Centre dated September 16, 2019 and October 16, 2019 noted above as issues 1 and 2. The issues remaining in dispute are a treatment plan by Total Recovery Rehab Centre in the outstanding amount of $2,614.33 for psychological treatment and interest.

RESULT

5Based on the totality of the evidence and submissions before me, I find that:

1. The applicant is not entitled to $2,614.33 ($4,121.88 submitted less $1,507.55 approved) for psychological treatment by Somatic Assessments & Treatment Clinic in a treatment plan (OCF-18) dated January 28, 2020.
2. As there is no benefit payable, no interest is payable.

ANALYSIS

Is the applicant entitled to $2,614.33, the balance of a treatment plan for psychological treatment?

6For the following reasons, I find that the balance of the Treatment and Assessment Plan/OCF-18 dated January 28, 2020 (“treatment plan”) is not reasonable and necessary and, therefore, the applicant is not entitled to the remaining $2,614.33 for psychological treatment.

7In order for the applicant to receive payment for a medical or rehabilitation benefit under the Schedule, the benefit in dispute must be reasonable and necessary, pursuant to s. 14 of the Schedule. In considering the reasonableness and necessity of the treatment plan, I must consider the totality of the evidence before me.

8The applicant submits that the treatment plan should be approved in its entirety. Specifically, he contends that the fourteen psychological treatment sessions each an hour and a half in length, the transportation fee of $420.00, the progress report of $360.00 and the cost of completing the treatment plan of $200.00 are all reasonable and necessary.

9The applicant relies on the clinical notes and records of Dr. Barry Strauss, family physician, and a psychological report of Dr. Sharleen McDowall, psychologist, dated July 20, 2019 and further submits the medical evidence of Dr. Georgia Palantzas, chiropractor and Mr. Afifi Ahmed, physiotherapist. In Dr. Palantzas’ reassessment report of August 3, 2019, the treatment plan of September 16, 2019 and Mr. Ahmed’s treatment plan of October 10, 2019, psychological related symptoms including phobic anxiety disorders, non-organic sleep disorders, nightmares, and emotional shock and stress are listed.

10In response, Aviva submits that the balance of the treatment plan is not reasonable and necessary and relies on the psychological report of Dr. Shayna Hannah Nussbaum, psychologist, dated December 17, 2020 that finds that ten one-hour psychological intervention sessions and six one-hour sessions of driver’s rehabilitation are reasonable.² They also approve the completion of the treatment plan in the amount of $200.00. Lastly, Aviva contends that the transportation fee of $420.00 as noted on the treatment plan is not payable as the applicant resides within 50 kilometres of the clinic listed on the treatment plan.

Although I am pointed to records of the family physician and the extended health carrier of the applicant, they do not appear to contain references to psychological complaints or treatment.

11I am not persuaded by the clinical notes and records of Dr. Barry Strauss, family physician. On November 14, 2018, he notes that the applicant had sustained physical injuries including myofascial pain in the neck, right shoulder, and lower back sciatica as a result of the accident but does not mention any psychological symptoms in this entry. The applicant attends the family physician again in May 2019, six months following the accident, and does not make any psychological complaints at that time or in subsequent visits. The applicant submits the extended health records of Manulife of 2020 and 2021 which do not document any psychological treatment.

12The applicant does not point me to competing medical evidence which challenges Dr. Nussbaum’s report and relies on Dr. McDowall’s psychological report that pre-dates Dr. Nussbaum’s report by approximately a year and five months.

13Section 3(1) of the Schedule states that an “authorized transportation expense” is defined as an expense related to transportation. It further establishes that these expenses are authorized and calculated by applying the rates set out in the Transportation Expense Guideline (Superintendent’s Guideline No. 04/16). The Transportation Expense Guideline identifies a 50-kilometre deductible on travel to and from treatment unless the person is catastrophically impaired.

14In this case, the applicant has not provided submissions or evidence to establish that the applicant’s travel to and from treatment has surpassed the 50-kilometre deductible. Therefore, I cannot consider payment of the transportation expense. In addition to this, the applicant has not provided submissions that address the reasonableness of the progress report.

15Although the applicant’s treating practitioners, Dr. Palantzas and Mr. Ahmed, identify phobic anxiety disorders, sleep disorders, nightmares, and emotional shock and stress, I give little weight to these opinions and agree with Aviva that it is beyond the scope of practice of a physiotherapist and a chiropractor to opine on psychological impairments.

16Dr. McDowall’s treatment plan of January 28, 2020 sets out that the applicant’s treatment goal is to return to activities of normal living which the evidence suggests has nearly been achieved by the applicant.³ The applicant reports to Drs. Nussbaum and McDowall that he has been working since the accident. Despite not returning to the gym due to pandemic related shutdowns, he is actively engaging in stationary rowing, yoga and an hour long walk during the day as identified by Dr. Nussbaum. In addition to this, the applicant reports being independent with his personal care, doing cooking and light housekeeping, and driving locally taking his children to school and shopping.⁴

17Lastly, I consider the evidence of Drs. McDowall and Nussbaum who both diagnose the applicant with an Adjustment Disorder with Anxiety.⁵ Dr. McDowall adds a depressed mood to her findings. They both find that the applicant is exhibiting signs of vehicular anxiety with Dr. McDowall identifying it as a phobia of travel. The applicant consistently reports to Drs. McDowall and Nussbaum that he is unable to take long trips and travelling near the scene of the accident provokes his anxiety.⁶ Given this, I accept that the applicant is experiencing vehicular anxiety that increases when he is driving long distances as documented in these reports.

18However, I attribute more weight to Dr. Nussbaum’s report as it is completed over a year following Dr. McDowall’s report. It approves psychological treatment and driving rehabilitation sessions that specifically address the vehicular anxiety of the applicant and corroborates the applicant’s self reports of experiencing anxiety when he is near the accident site with hypervigilance but otherwise does not see much of a difference in his anxiety levels as compared to pre-accident.⁷

19Dr. Nussbaum notes marked improvements as self reported by the applicant. For example, he reports to Dr. Nussbaum that he is having “difficulty sleeping about 20% of nights mostly due to back pain” which results in “concentration, fatigue, and irritability difficulties the following day.” This demonstrates an improvement from the applicant’s self report to Dr. McDowall of sleeping four hours a night, waking multiple times in the night due to nightmares and being unable to fall back asleep.⁸

20I find that the psychological sessions recommended by Dr. Nussbaum are reasonable and consideration for the balance of the treatment plan is not necessary given the applicant‘s progress with his psychological treatment leading up to his assessment with Dr. Nussbaum yields the applicant’s report of achieving “80% to 85% improvement in his psychological symptoms” as noted by Dr. Nussbaum. This is consistent with Dr. Nussbaum’s medical opinion that the applicant will be capable of reaching maximum medical recovery through ten one-hour psychological intervention sessions and six one-hour sessions of driver’s rehabilitation rather than the treatment as recommended in the treatment plan.⁹ In conclusion, I agree with Aviva and find that the balance of the treatment plan is not reasonable and necessary.

CONCLUSION AND ORDER

21For the reasons outlined above, I find the following:

1. The applicant is not entitled to $2,614.33 ($4,121.88 submitted less $1,507.55 approved) for psychological treatment by Somatic Assessments & Treatment Clinic in a treatment plan (OCF-18) dated January 28, 2020.
2. As there is no benefit payable, no interest is payable.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Written Submissions of the Applicant at Tab 12, Dr. Shayna Hannah Nussbaum, Psychological Report dated December 17, 2020
3. 3Written Submissions of the Applicant at Tab 9, Dr. Sharleen McDowall, OCF-18 dated January 28, 2020
4. 4Written Submissions of the Applicant at Tab 12, Dr. Shayna Hannah Nussbaum, Psychological Report dated December 17, 2020
5. 5Written Submission of the Applicant at Tab 9, Dr. Sharleen McDowall, Psychological Report dated July 20, 2019 and Tab 12, Dr. Shayna Hannah Nussbaum, Psychological Report dated December 17, 2020
6. 6Written Submissions of the Applicant at Tab 12, Dr. Shayna Hannah Nussbaum, Psychological Report dated December 17, 2020
7. 7Written Submissions of the Applicant at Tab 12, Dr. Shayna Hannah Nussbaum, Psychological Report dated December 17, 2020
8. 8Written Submission of the Applicant at Tab 9, Dr. Sharleen McDowall, Psychological Report dated July 20, 2019 and Tab 12, Dr. Shayna Hannah Nussbaum, Psychological Report dated December 17, 2020
9. 9Written Submissions of the Applicant at Tab 12, Dr. Shayna Hannah Nussbaum, Psychological Report dated December 17, 2020