Ali v. Aviva General Insurance Company, 2021 CanLII 19414

Citation: Ali v. Aviva General Insurance Company, 2021 ONLAT 19-013414/AABS

Released Date: 02/11/2021

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:

Irshad Ali

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Rajiv Kapoor, Paralegal

For the Respondent:

Mark Vella, Counsel

HEARD:

Via written submissions

OVERVIEW

1The applicant was injured in an accident on January 31, 2018, and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Aviva denied the benefits in dispute on the basis of its determination that the treatment was not reasonable and necessary. The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

i. Is the applicant entitled to medical benefits recommended by Liruma Rehabilitation Centre, as follows?

a. $2,660.90 for chiropractic treatment in a treatment plan (OCF-18) dated June 5, 2018;

b. $1,986.96 for chiropractic treatment in a treatment plan (OCF-18) dated March 4, 2019; and

ii. Is the applicant entitled to payment for the cost of examinations in the amount of $2,200.00 for a psychological assessment, recommended by Dr. Ricardo Harris in a treatment plan submitted April 26, 2018?

iii. Is the applicant entitled to payment for the cost of examinations in the amount of $2,200.00 for a chronic pain assessment, recommended by Novo Medical Services in a treatment plan submitted July 5, 2019?

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

RESULT

3The applicant is not entitled to payment or interest for any of the treatment plans in dispute, as he has not demonstrated that they are reasonable and necessary.

ANALYSIS

4The applicant’s pre-accident medical history is notable for diabetes, obesity and a psychological diagnosis of obsessive-compulsive disorder, chronic, for which he receives counselling and medication. According to the Disability Certificate (“OCF-3”) in evidence, the applicant’s accident-related impairments are a right pinky finger fracture, confirmed via x-ray, and sprain and strain-type injuries to his back, neck, pelvis and knee. According to the notes of his family physician, Dr. Sayed, the pinky finger fracture was completely healed by January 2019.

Are the treatment and assessment plans reasonable and necessary?

$2,660.90 for chiropractic treatment

$1,986.96 for chiropractic treatment

5In order for the applicant to receive payment for a medical or rehabilitation benefit under the Schedule, he bears the burden of demonstrating on a balance of probabilities that the benefit in dispute is reasonable and necessary. I find on the evidence that the applicant is not entitled to payment for either chiropractic treatment plan in dispute.

6Both treatment plans are similar in scope, as they recommend a slate of facility-based treatment—physiotherapy, exercise, massage, chiropractic treatment—meant to relieve the applicant’s pain and restore his range of motion and functionality. The OCF-18 dated June 5, 2018 was denied by Aviva on the basis of a s. 44 report of Dr. Dessouki, who found it was not reasonable and necessary because the applicant had achieved maximal medical recovery, had functional range of motion of his right little finger, thoracolumbar spine, and both knees and that, overall, there was no objective evidence of musculoskeletal impairment related to the motor vehicle accident of January 31, 2018. The OCF-18 dated March 4, 2019 was denied by Aviva again on the basis of Dr. Dessouki’s second s. 44 report that revealed similar results.

7The applicant submits that, “given the widely accepted connection between preoccupation with physical pain symptoms and psychological impairment, it is highly likely any relief experienced by the applicant with respect to his physical pains will have a positive impact on his psychological/mental health state as well.” The applicant submits that alleviation of pain will not only help with functional restoration, but it will also avoid “the complication and deterioration of the applicant’s physiological condition.”

8I disagree. There is limited objective medical evidence to support the applicant’s claims that he continues to suffer from accident-related pain or any physical functional impairment that requires ongoing facility-based treatment. His submissions do not indicate why facility-based treatment would be considered a reasonable and necessary expense to address a pinky finger fracture. While the applicant reported knee pain several months post-accident, Dr. Sayed’s notes indicate that the pain in his knees is degenerative, which was confirmed by diagnostic imaging reports as evidence of early arthritis. There are no reports of accident-related pain or functional limitations in any of Dr. Sayed’s records, which I find is notable considering how often the applicant attends at his office due to his psychological impairments and struggle with diabetes.

9In any case, the applicant’s submissions fall well-short of meeting his burden of proof. There is no discussion or analysis to explain why a comprehensive program is required for largely soft-tissue injuries—or a pinky finger fracture that healed without issue—or why the cost or duration of same would be considered reasonable and necessary where Dr. Sayed offered no recommendations for same and where two s. 44 reports found no musculoskeletal impairments to justify the treatments recommended in the OCF-18s.

10Putting aside the applicant’s submissions, I find the OCF-18 and the treatment notes in evidence to be largely unhelpful. There are no additional comments appended to the OCF-18s that would speak to the applicant’s progress, or that would give any indication that treatment is being tailored to the applicant’s specific rehabilitative needs or goals. A majority of the treatment notes check off the box labeled “same”, meaning that the applicant never improved or progressed between sessions. Many of the treatment notes also indicate that the applicant spent 15 minutes of certain sessions in a massage chair, which calls into question the reasonableness of the cost of the eight hours of proposed massage therapy in the June 5, 2018 OCF-18. Indeed, on the objective medical evidence—where there are no complaints of accident-related pain, where there is no evidence of musculoskeletal impairment, where there is no chronic pain diagnosis, where there is no indication that any pre-existing impairment would prevent maximal medical recovery—I find no evidence to suggest that a multidisciplinary treatment plan, let alone two of them, are reasonably and necessarily required for the applicant’s accident-related injuries.

11Accordingly, I see no reason to interfere with Aviva’s determinations, which were based on s. 44 reports that I find persuasive and in line with the rest of the medical evidence. I find the applicant has not met his burden to demonstrate that the OCF-18s in dispute are reasonable and necessary to treat his accident-related impairments.

$2,200.00 for a psychological assessment

12I find the applicant has not demonstrated that payment for the psychological assessment is reasonable and necessary. As above, in order for the applicant to receive payment, he must demonstrate that the assessment is reasonable and necessary. The OCF-18 in dispute was completed by Dr. Harris, psychologist, on April 26, 2018. It indicates the $2,200 assessment is “warranted to explore the presence of emotional symptoms and, if necessary, to prepare a suitable treatment plan.”

13Aviva denied the OCF-18 on the basis of the s. 44 psychological report of Dr. Mackenzie, who found that the applicant had a mental health diagnosis prior to the accident, including obsessive compulsive disorder and some symptoms of depression, and was of the opinion that at most, his symptoms were exacerbated slightly following the motor vehicle accident, ultimately finding that the assessment was not reasonable and necessary.

14I do not find the assessment reasonable and necessary. The applicant’s pre-existing psychological diagnosis and ongoing treatment for same is well-documented in the medical evidence. Indeed, the applicant’s psychological diagnosis is the reason why he has been on long-term disability for quite some time, why he continues to receive psychological counselling and why he continues to be prescribed medication. Dr. Sayed’s clinical notes reveal the pre-accident diagnosis as far back as August 2015, and then contemporaneously reflect the applicant’s ongoing treatment for symptoms with his provider since, which have been made available to him through OHIP. Notably, Dr. Sayed’s notes do not link the applicant’s psychological impairments to the accident and, as Aviva submits, reflect some hesitancy from Dr. Sayed to continue to trust the applicant’s self-reporting regarding his treatment.

15Against these facts, and with respect, I find it is unclear and somewhat disingenuous for Dr. Harris to suggest that a $2,000 assessment in 2018 is reasonable and necessary in order to “explore the presence of emotional symptoms” where these symptoms have been rather consistently documented by the applicant’s family physician and for which the applicant already has a diagnosis that has landed him on long-term disability. Further, where the applicant has been prescribed several different medications and has already been receiving treatment under the care of a psychologist, Dr. Rehman, for the better part of the last decade, it is unclear why or what kind of a treatment plan would even be “suitable” as a result of this proposed assessment that has not already been investigated before. The comments section indicates that a pre-screening was completed wherein the applicant explained that he had a pre-existing diagnosis of obsessive-compulsive disorder and was on long-term disability for same. As a result, the veracity of the OCF-18 and its recommendation is severely undermined by the fact that in Part 7 it is indicated that the applicant did not have any pre-accident conditions.

16While Dr. Mackenzie found slight exacerbation of the applicant’s symptoms, I agree with Aviva that the applicant reported no significant changes in his obsessive-compulsive disorder symptoms since the accident and stated to Dr. Mackenzie that he was not interested in having therapy but would prefer to remain with his treating psychiatrist. In my view, this would be most appropriate, considering the existing treatment relationship with Dr. Rehman and the clear lack of insight that Dr. Harris had when completing the OCF-18.

17I note this issue is further muddled by the existence of an apparently half-completed psychological assessment report from Dr. Harris that was referred to in the applicant’s evidence but was never provided to Aviva. While Aviva requests that the Tribunal draw an adverse inference from this omission, there is no such report before the Tribunal, and I find the weight of the evidence does not favour the applicant anyways. For these reasons, I find the applicant has not demonstrated that the psychological assessment is reasonable and necessary.

$2,200.00 for a chronic pain assessment

18While the OCF-18 in dispute was completed by Dr. Rivlin, in evidence is a chronic pain assessment report from Dr. Getahun from September 2019. This chronic pain assessment reviewed the medical evidence and offers two diagnoses: persistent pain and deformity in the pinky finger and bilateral knee strains with aggravation of his osteoarthritis, ultimately recommending physiotherapy to focus on range of motion and strengthening of the applicant’s right hand.

19The original OCF-18 was denied on the basis of a s. 44 report by Dr. Siddiqui, dated September 2019, who found that the applicant’s accident-related complaints appeared to be related to uncomplicated soft-tissue injuries. In his report, Dr. Siddiqui found no evidence of any neurological or radicular findings as a result of the accident and was of the opinion that, strictly from a musculoskeletal perspective, the applicant suffered injuries that had already been treated with a sufficient course of formal therapy.

20I agree with Aviva and follow the opinion of Dr. Siddiqui. First, with regard to the actual OCF-18 in dispute, the additional comments section is boilerplate, does not even refer to the applicant by name and does not specifically identify which areas of pain require investigation, despite the listed impairments being identical to those in the original OCF-3. Second, the treatment plan as a whole is so generic that it is difficult to assess how any of it could be determined as reasonable or necessary and especially so where the “evaluation” in Part 9 simply states “multiple injuries and psychological problems” without more explanation.

21In any case, it appears that the applicant went ahead and sought the opinion of Dr. Getahun instead of Dr. Rivlin to see if he suffers from chronic pain. Despite commissioning his own chronic pain report, the applicant was not diagnosed with chronic pain or with chronic pain syndrome. Dr. Getahun did not identify any psychological component to the applicant’s alleged pain and only recommended “physiotherapy focusing on range of motion and strengthening of his right hand,” which I find is a far cry from a diagnosis of chronic pain. The applicant’s knee pain is clearly attributable to his arthritis, which was also previously diagnosed. In a similar vein, in the absence of an actual diagnosis, consistent pain complaints or a referral to a specialist from Dr. Sayed, the applicant’s submissions do not address any of the six criteria for chronic pain under the AMA Guides that would invite a consideration of whether it was reasonable and necessary for him to incur the cost of a chronic pain assessment. Where the chronic pain report merely confirmed the applicant’s existing, well-documented diagnoses, I cannot find that the assessment was a necessary expense.

22Accordingly, I find the applicant has fallen well-short of meeting his burden to demonstrate that the chronic pain assessment is reasonable and necessary. As no benefits are overdue, it follows that no interest is payable under s. 51.

ORDER

23The applicant is not entitled to payment for any of the treatment plans in dispute, or interest, as he has not demonstrated that they are reasonable and necessary.

Footnotes

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