Moran v. Aviva General Insurance, 2021 CanLII 21433

Citation: Moran v. Aviva General Insurance, 2021 ONLAT 19-008529/AABS - A

Released Date: 03/03/2021

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Miguel Moran

Applicant

and

Aviva General Insurance

Respondent

AMENDED DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: Kathryn McRae Hill, Paralegal

For the Respondent: Kathleen Mertes, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1On May 24, 2017, the applicant, Miguel Moran (“Mr. Moran”), was injured in an automobile accident (the “first accident”). Mr. Morgan had a slip and fall on or about January 19, 2018 and a second automobile accident in July 2018 (the “second accident”).

2As a result of the first accident, Mr. Moran sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Aviva General Insurance (“Aviva”), the respondent.

3Aviva denied Mr. Moran’s claims for various treatments, assessments and for an orthopaedic mattress. As a result, Mr. Moran submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

4A case conference was held on March 30, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

5The following issues are to be decided:

(i) Is Mr. Moran entitled to $2,393.73 ($3,641.09 less $1,247.36 approved) for psychological treatment recommended by Novo Medical Services in a treatment plan (“OCF-18”) dated September 14, 2018, and denied on September 25, 2018?

(ii) Is Mr. Moran entitled to $4,494.30 ($5,683.00 less $1,188.70 approved) for chiropractic treatment, physiotherapy treatment, shockwave treatment, massage therapy, laser treatment, an initial acupuncture assessment and acupuncture recommended by HealthMax in an OCF-18 dated November 9, 2018, and denied on February 12, 2019?

(iii) Is Mr. Moran entitled to the following assessments recommended by Novo Medical Services:

(a) $448.43 ($1,995.33 less $1,546.90 approved) for a psychological assessment in an OCF-18 dated July 12, 2018, and denied on July 16, 2018?

(b) $1,696.25 for an attendant care assessment in an OCF-18 dated July 19, 2018 and denied on December 3, 2018?

(c) $2,219.74 for a driving re-integration assessment in an OCF-18 dated October 29, 2018, and denied on November 12, 2018?

(d) $2,090.00 for a social work assessment in an OCF-18 dated May 7, 2019, and denied on May 21, 2019?

(iv) Is Mr. Moran entitled to $3,956.86 for an orthopaedic mattress submitted by way of an expenses claim form (“OCF-6”) dated March 23, 2018, and denied on April 18, 2018?

(v) Is Mr. Moran entitled to interest on any overdue payment of benefits?

RESULT

6I find that:

(i) Mr. Moran’s psychological impairments were caused by the first accident;

(ii) Mr. Moran failed to prove on a balance of probabilities that his physical impairments were caused by the first accident;

(iii) Mr. Moran is not entitled to the November 9, 2018 treatment plan for various physical treatment modalities and also the April 18, 2018 treatment plan for an orthopaedic mattress as his physical impairments were not caused by the first accident;

(iv) Mr. Moran is not entitled to the unapproved portions of the September 14, 2018 OCF-18 for psychological treatment and of the July 12, 2018 OCF-18 for a psychological assessment;

(v) Mr. Moran is not entitled to the OCF-18s for an attendant care assessment and a driving re-integration assessment as he has failed to prove on a balance of probabilities that these treatment plans are reasonable and necessary;

(vi) The May 7, 2019 OCF-18 proposing a social work assessment fails to comply with s. 38(3) of the Schedule and, as a result, Mr. Moran is not entitled to this treatment plan; and

(vii) As no benefits are owing, no interest is payable.

ANALYSIS

Causation

7Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

8In its submissions, Aviva raised the issue of causation of Mr. Moran’s impairments. Aviva submitted that it was not the first accident that caused Mr. Moran’s impairments but rather his slip and fall on or about January 19, 2018. Alternatively, Aviva submitted that the disputed OCF-18s were not for expenses due to the impairments that Mr. Moran sustained as a result of the first accident as all of the disputed OCF-18s were submitted after Mr. Moran’s second accident.

9Mr. Moran filed no reply submissions and, as a result, failed to address the issues of causation raised by Aviva.

10In order to determine entitlement to the treatment plans in dispute, Mr. Moran is required to prove, on a balance of probabilities, that the first accident caused his impairments. The applicable test in making this determination is the “but for” test: whether Mr. Moran would have had the impairments but for the first accident.² The first accident is not required to have been “the cause” – that is, the first accident need not be the sole cause or have been sufficient in itself to have caused the impairments at issue. Rather, the first accident need only to have been a “necessary cause.”³

11For the reasons that follow, I find that Mr. Moran has proven on a balance of probabilities that his psychological impairments were caused by the first accident. I also find, however, that Mr. Moran failed to prove that his physical impairments were caused by the first accident on a balance of probabilities.

Psychological Impairments

12While Mr. Moran made no psychological complaints to his family physicians after the first accident and prior to any of the intervening events, the clinical notes and records (“CNRs”) from his treating clinic, Medwise Healthcare Clinic (“Medwise”), show that, prior to his slip and fall and the second accident, Mr. Moran exhibited anxiety and complained of stress and fatigue on June 17, 2017.

13Additionally, Dr. Harinder Mrahar, psychologist, provisionally diagnosed Mr. Moran with an adjustment disorder (with mixed anxiety and depressed mood) as a result of the first accident in Dr. Mrahar’s psychological status evaluation report dated July 29, 2017, which was prior to Mr. Moran’s slip and fall and the second accident.⁴ Dr. Mrahar’s provisional diagnosis is consistent with the April 12, 2018 Psychological IE Assessment report by Dr. Neil Weinberg, psychologist, in which Dr. Weinberg diagnoses Mr. Moran with an adjustment disorder with mixed anxiety and depressed mood (chronic) as a result of the first accident despite his assessment taking place after Mr. Moran’s slip and fall.⁵ Both Dr. Mrahar’s provisional diagnosis and Dr. Weinberg’s diagnosis are also consistent with the diagnosis of an adjustment disorder with anxiety and depression made by Dr. Romeo Vitelli, psychologist, that was given in the July 12, 2018 OCF-18 that sought funding for a psychological assessment.

14Given that all of the assessors’ diagnoses provide consistent evidence that Mr. Moran was suffering from psychological impairments after the first accident and both before and after his slip and fall, I find that, on all of the evidence, Mr. Moran’s psychological impairments were caused by the first accident.

Physical Impairments

15I find that Mr. Moran has failed to discharge his burden of proving on a balance of probabilities that, but for the first accident, his physical impairments would not have arisen. As a result, I find that Mr. Moran failed to prove that his physical impairments were caused by the first accident.

16After the first accident, Mr. Moran saw his former family doctor, Dr. Manny Solnik, on June 5, 2017. At this visit, Dr. Solnik referred Mr. Moran for physiotherapy for increased back pain but made no diagnosis. Dr. Solnik did refer Mr. Moran back to a neurosurgeon that Mr. Moran saw in 2012 for his pre-existing L5-S1 spondylolisthesis at this visit and noted that Mr. Moran was now prepared to have surgical intervention. The neurosurgeon referral note, however, did not mention the first accident and Mr. Moran ultimately failed to attend his neurosurgeon appointment on July 18, 2017.⁶

17Mr. Moran also relied upon the largely illegible CNRs from Medwise as evidence for the hearing. What I could discern from them was that Mr. Moran was assessed on June 17, 2017 despite receiving his first treatment on June 12, 2017. During his assessment, Mr. Moran reported hip pain, shoulder pain, left hand numbness, low back and neck pain, headaches, stress and fatigue. The Medwise CNRs show that Mr. Moran attended seven times between June 12, 2017 and August 19, 2017, which was his last visit for treatment prior to his slip and fall.

18The only other evidence before me prior to Mr. Moran’s slip and fall is one entry in Dr. Solnik’s CNRs dated December 20, 2017. At this visit, Mr. Moran complained of fatigue and low rectal pain. There is no mention of the first accident in this CNR entry.

19On February 6, 2018, Mr. Moran reported to Dr. Solnik that he fell “2 weeks ago Friday” when he came out of his car. As such, I accept that Mr. Moran’s slip and fall occurred on or about January 19, 2018. For the five months preceding his slip and fall, Mr. Moran failed to submit any evidence that shows that he was under any treatment or seeking care by his family doctor in relation to the first accident.

Mr. Moran’s Slip and Fall

20Mr. Moran first reported his slip and fall to Medwise on January 29, 2018 when he reinitiated his treatment at the clinic. On this date, the Medwise CNRs state that Mr. Moran, “fell and hurt [sic] back” and indicated that he was experiencing an increase in lower back pain. There is no mention of the first accident in this CNR entry. Instead, the January 29, 2018 entry noted that Mr. Moran had a history of “L5-S1,” in reference to his pre-existing spondylolisthesis. Mr. Moran attended for treatment after his slip and fall at Medwise four times in the following nine days after January 29, 2018 and continued treatment until February 24, 2018.

21When Mr. Moran reported his slip and fall to Dr. Solnik on February 6, 2018, Dr. Solnik noted that Mr. Moran was reporting “recurrent pain as with MVA May 2017” and that he had unspecified decreased range of motion. It was also only after his slip and fall, and not after the first accident, that Dr. Solnik referred Mr. Moran for an MRI of his back.

22Mr. Moran changed family doctors to Dr. Fady Akladios, who practiced in the same clinic as Dr. Solnik at some point between March 19, 2018 and June 6, 2018. Mr. Moran only saw Dr. Akladios twice before his second accident. The CNRs for Mr. Moran’s visits on June 6, 2018 and June 18, 2018 do not mention or refer to the first accident. Additionally, Dr. Akladios completed a medical report for Mr. Moran’s DZ driver’s licence on June 6, 2018 which did note the first accident but states that Mr. Moran’s chronic low back pain was from his spondylolisthesis.⁷

23The only other evidence before me dated after Mr. Moran’s slip and fall but before the second accident that addresses Mr. Moran’s physical impairments is an April 26, 2018 Orthopaedic IE Assessment Report by Dr. Gilbert Yu Ming Yee, orthopaedic surgeon.⁸ In this report, Dr. Yee opined that, from an orthopaedic perspective, Mr. Moran has residual symptomatology related to myofascial strains of the lumbar spine and temporary exacerbation of his pre-existing spondylolisthesis at L5-S1 as a result of the first accident.⁹

24I give little weight to Dr. Yee’s opinion regarding causation of Mr. Moran’s impairments because:

(i) Dr. Yee, for whatever reason, failed to address Mr. Moran’s slip and fall in his report and his report does not indicate if Mr. Moran disclosed his slip and fall to him; and

(ii) Dr. Yee was not aware of Mr. Moran’s five-month gap in physical treatment which resumed contemporaneously with Mr. Moran’s slip and fall as the CNRs from Medwise were not listed as documents that Dr. Yee reviewed as part of his assessment.

25Finally, Mr. Moran worked as a delivery driver delivering mattresses for Slumber Sleep before the first accident. Unfortunately, Mr. Moran lost his job on February 28, 2018.¹⁰ Although no employment file is before me from Slumber Sleep, Mr. Moran consistently reported to several assessors that he returned to work the day after the first accident and continued to work until February 28, 2018.¹¹ Mr. Moran reported to Dr. Weinberg that he felt he was laid off from his position due to the first accident. However, there is no evidence before me of any employment issues after the first accident. Further, given the proximity in time between Mr. Moran’s slip and fall on or about January 19, 2018 and being laid off on February 28, 2018, it is far more likely that the slip and fall was the reason Mr. Moran was laid off if he was in fact laid off for any health reasons.

26On the evidence before me, I find that any physical impairments or exacerbations of pre-existing conditions that Mr. Moran sustained as a result of the first accident were resolved by the summer of 2017 because Mr. Moran:

(i) did not see his family doctor after June 5, 2017 for any issues related to the first accident prior to his slip and fall;

(ii) failed to attend his neurosurgeon appointment on July 18, 2017, which indicates to me that he was no longer in need of further intervention; and

(iii) had a five-month hiatus in treatment at Medwise beginning on August 19, 2017 and ending after his slip and fall.

27Given the return and frequency of Mr. Moran’s treatment at Medwise on January 29, 2018, and the fact that Mr. Moran’s new family physician did not attribute any of Mr. Moran’s complaints to the first accident, I find on a balance of probabilities that any physical impairments or conditions that Mr. Moran complained of after his slip and fall were caused by his slip and fall rather than by the first accident.

The Second Accident

28Even if I am incorrect in finding that Mr. Moran’s physical impairments from the first accident were resolved prior to his slip and fall and that his slip and fall was the cause of Mr. Moran’s physical impairments after January 19, 2018, I find in the alternative that the physical impairments for which Mr. Moran seeks treatment for and assessments of were caused or worsened by the second accident rather than the first accident.

29The exact date of Mr. Moran’s second accident is unclear as he had reported that it occurred on various dates throughout July of 2018 to various health professionals. Nonetheless, his first visit to Dr. Akladios regarding the second accident was on September 10, 2018. At this visit, Dr. Akladios noted in his CNRs that Mr. Moran complained of “worsening back pain” since the second accident that was persistent and starting to exhaust Mr. Moran.

30Mr. Moran then underwent an Independent Chronic Pain Assessment with Dr. Tajedun Y. Getahun, orthopaedic surgeon, which resulted in Dr. Getahun’s report dated September 19, 2018.¹² Dr. Getahun diagnosed Mr. Moran with the following conditions as a result of the first accident:

(i) Chronic myofascial strain of the cervical spine and aggravation of pre-existing degenerative changes; and

(ii) Chronic myofascial strain of the lumbosacral spine and aggravation of significant spondylolisthesis and degenerative changes.¹³

31I give little weight to Dr. Getahun’s diagnoses as being caused by the first accident because Dr. Getahun fails to explain his diagnoses in relation to the first accident given that Mr. Moran reported to Dr. Getahun that he was involved in the second accident in July 2018 which reinjured his back and increased his back pain by 95%.¹⁴

32Ms. Dawn Rodie, physiotherapist, also diagnosed Mr. Moran with a cervical strain on top of underlying cervical chronic degenerative disease as well as lumbar strain on top of chronic, lumbar degenerative disease and graded 2/3 L5-S1 spondylolisthesis as a result of the first accident in her January 31, 2019 Physiotherapy IE Assessment report.¹⁵ As with Dr. Getahun’s report, I give little weight to Ms. Rodie’s diagnoses in relation to the first accident as Ms. Rodie noted that Mr. Moran reported a worsening in his condition since the second accident in July 2018¹⁶ but failed to comment or explain how her diagnoses were attributable to the first accident.

33I also give little weight to Dr. Aimal Sediq’s letter to Dr. Akladios dated January 28, 2020¹⁷ in determining causation of Mr. Moran’s physical impairments as between the first and second accident. In his letter, Dr. Sediq diagnoses Mr. Moran with cervical and lumbar spine degenerative disc disease, bilateral lower limb radiculopathy, SI joint dysfunction and myofascial pain. While Dr. Sediq does not directly opine on the issue of causation of Mr. Moran’s physical impairments, he notes that Mr. Moran had two motor vehicle accidents “two years ago”¹⁸ but then states, “the motor vehicle accident exacerbated his low back pain and he has been having constant pain since that time (my emphasis added)”¹⁹ without any indication of which accident Dr. Sediq is referring to.

34The remainder of Dr. Akladios’s CNRs also do not support a finding that Mr. Moran’s ongoing physical impairments were caused by the first accident and not the second. For example, the first accident is not mentioned at all in Dr. Akladios’ CNRs after the second accident. Further, Dr. Akladios’s CNR entry dated February 18, 2020 noted that Mr. Moran’s back issues were ongoing since 2006 but “worsened after a motor vehicle accident in July 2018” with no mention of the first accident. Also, in a treatment referral form to In-Motion Rehabilitation & Wellness Centre dated February 18, 2020, Dr. Akladios again stated that Mr. Moran’s pain worsened after the “MVA in 2018.”

35For the reasons set out above, I find in the alternative that Mr. Moran has failed to prove on a balance of probabilities that his ongoing physical impairments were caused by the first accident as it is more likely than not that they were caused by or worsened by the second accident.

Sections 38(8) and 38(11) of the Schedule

36Mr. Moran generally submitted that Aviva filed to provide “an appropriate notice”²⁰ under s. 38(8) of the Schedule in denying the treatment plans in dispute.

37Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within 10-business days after it receives the OCF-18 of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under s. 38(8), it must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day that the insurer received the treatment plan until such time that it gives notice that complies with s. 38(8) of the Schedule.

38Mr. Moran does not provide any submissions beyond a bald assertion that Aviva’s denial notices failed to comply with s. 38(8) and, as a result, s. 38(11) of the Schedule applies. Given that Mr. Moran failed to identify what portions of each of Aviva’s notices were allegedly not in compliance with s. 38(8), I find that he has failed to prove that Aviva breached its obligations under s. 38(8) of the Schedule and, as a result, s. 38(11) does not apply to the disputed treatment plans.

The Treatment Plans

39Given my findings on causation, I further find that Mr. Moran is not entitled to the unapproved portion of the November 9, 2018 OCF-18 for various physical treatment modalities or to the orthopaedic mattress as these benefits pertain to Mr. Moran’s physical impairments which I have found were not caused by the first accident.

40For the remainder of the treatment plans in dispute, I find that:

(i) Mr. Moran is not entitled to the unapproved portions of the September 14, 2018 OCF-18 for psychological treatment and of the July 12, 2018 OCF-18 for a psychological assessment;

(ii) Mr. Moran is not entitled to the OCF-18s for an attendant care assessment and a driving re-integration assessment as he has failed to prove on a balance of probabilities that these treatment plans are reasonable and necessary; and

(iii) The May 7, 2019 OCF-18 proposing a social work assessment fails to comply with s. 38(3) of the Schedule and, as a result, Mr. Moran is not entitled to this treatment plan.

Psychological Treatment

41The September 14, 2018 OCF-18 was completed by Dr. Vitelli and sought funding in the total amount of $3,641.09 for the following: 12 90-minute psychotherapy sessions ($2,293.04); 1-hour of brokerage service ($149.61); preparation service ($149.61); 3 units of documentation, support activity ($448.83); and completion of the treatment plan ($200.00). Dr. Vitelli was listed as the service provider for all of the components of the OCF-18 but the treatment plan noted in the additional comments section that a psychotherapist would be assigned to conduct the psychotherapy sessions.

42Aviva did not take the position that this treatment plan was not reasonable and necessary. Rather, Aviva partially approved the OCF-18 by way of an explanation of benefits (“EOB”) dated September 25, 2018. The September 25, 2018 EOB explained:

(i) $1,047.42 was approved of the $2,693.04 for the 12 sessions of psychotherapy based on an hourly rate of $58.19 as opposed to the $224.42 claimed in the OCF-18 as Mr. Moran would be receiving psychotherapy from a psychotherapist and not from Dr. Vitelli, a psychologist. Aviva explained that the approved hourly rate was in keeping with the Financial Services Commission of Ontario (“FSCO”) Professional Services Guideline (the “Guideline”) and the maximum hourly rate for unregulated providers given that psychotherapists are not deemed to be regulated healthcare professionals for the purpose of claims arising under the Schedule;

(ii) The amounts for brokerage service and preparation were denied as Aviva’s position was that these services should have been included in the $200 OCF-18 completion fee and/or during the previous psychological assessment conducted by Dr. Vitelli; and

(iii) The amount sought for documentation, support activity was also denied as there was little to no evidence of what the proposed hourly rate was or the means of calculating the hourly rate for this service given that the amount was provided in a per unit measurement. As a result, Aviva stated that it was unable to determine whether the rate exceeded the Guideline.

43Mr. Moran made no reply submissions and, therefore, failed to directly address these issues raised by Aviva in response to this OCF-18. Mr. Moran did, however, list J.V. v. Intact Insurance Company²¹ in his submissions with no discussion or analysis as to how to apply that decision to this matter. In J.V. v. Intact, the Tribunal determined that the appropriate hourly payment to a psychotherapist was $149.61 which was based upon the credentials, specialized training and experience of the psychotherapist in that matter.²²

44I agree with Aviva that J.V. v. Intact is not applicable in this matter. Here, the OCF-18 failed to identify who Mr. Moran’s treating psychotherapist would be and, as a result, there were no credentials, education details or experience of the psychotherapist put before me as evidence. As such, I agree with the approach taken in J.A. v. Aviva Insurance Company.²³ There, the Tribunal held that, while psychotherapists are not covered by the Guideline and, as a result, the amounts payable by an insurer related to such services are to be determined by the parties involved, this does not entitle a psychotherapist to be paid at the psychologist rate.²⁴ Here, Aviva approved the psychotherapy treatment at an hourly rate of $58.19, which is consistent with the hourly rate for unregulated providers, such as counsellors and psychometrists, and there is no evidence before me that Mr. Moran attempted to negotiate a different rate. As a result, I agree with Aviva’s position that the appropriate hourly rate for a psychotherapist in this matter is $58.19.

45I also find that Mr. Moran has failed to provide any evidence as to the reasonableness and necessity of the remainder of the denied portions of this treatment plan. As a result, and also based on my finding that the hourly rate payable in this matter for a psychotherapist is $58.19, I find that Mr. Moran is not entitled to the remainder of the unapproved portion of this treatment plan.

Psychological Assessment

46The July 12, 2018 OCF-18 in the amount of $1,995.33 was partially approved by Aviva for up to $1,546.90. Therefore, the remainder in dispute of the July 12, 2018 OCF-18 is $448.43, which is comprised of fees for brokerage service, preparation service and for one hour of counselling. Aviva denied these amounts on the basis that:

(i) The brokerage and preparation services ought to have been included in the fee for completion of the OCF-18 ($200.00) which was approved by Aviva; and

(ii) The counselling service was not considered to be reasonable and necessary as the proposed assessed was for the purpose of determining whether or not treatment was warranted.²⁵

47Mr. Moran has also not filed any evidence for the hearing or made any submissions as to why these denied portions of the July 12, 2018 treatment plan are reasonable and necessary. Further, there is no explanation in the OCF-18 itself as to what the brokerage or preparation services are for. I also agree with Aviva that the portion of the OCF-18 for counselling is not reasonable and necessary given that the proposed assessment was to determine if Mr. Moran required treatment or counselling. For all of these reasons, I find that Mr. Moran is not entitled to the unapproved portion of this treatment plan.

Attendant Care Assessment

48The July 19, 2018 OCF-18 that sought funding for an attendance care assessment was completed by Remik Zakrzewski, occupational therapist. The additional comments portion of this treatment plan stated that the purpose of the assessment was to determine the current, future and/or past needs of attendant care required by Mr. Moran as a result of the first accident.

49I find that Mr. Moran has failed to prove on a balance of probabilities that the attendant care assessment is reasonable and necessary because it is not likely that Mr. Moran would have been entitled to attendant care as a result of the first accident for the following reasons:

(i) As I have found that Mr. Moran failed to prove on a balance of probabilities that his physical impairments were caused by the first accident, I find that Mr. Moran would not be entitled to any attendant care under Part 1 of the Assessment of Attendant Care Needs form (“Form 1”) as care under this portion is for routine personal care and addresses needs from a physical perspective;

(ii) Even if I am incorrect in my finding on causation regarding Mr. Moran’s physical impairments, I find that the evidence before me supports a finding that Mr. Moran was independent with his personal care after the first accident such that he would not be entitled to any attendant care under Part 1 of Form 1. For example, Mr. Moran reported to Dr. Yee that he was independent with his personal care tasks such as dressing and bathing and only required assistance with heavier housekeeping duties.²⁶ Mr. Moran also reported to Dr. Weinberg that he was independent with self-care and could engage in meal preparation, dusting and laundry with additional time.²⁷ Mr. Moran also confirmed to Dr. Weinberg that he accompanied his wife grocery shopping and that he could perform all of his household duties but that he refrained from the activities that required heavy lifting;²⁸

(iii) I find that Mr. Moran would not be entitled to any attendant care under Part 2 of the Form 1, which addresses basic supervisory functions. There is no evidence before me that Mr. Moran required any supervision regarding his hygiene, that he was unable to respond in an emergency or that he required assistance in coordinating his care. Further evidence of Mr. Morgan’s lack of needing supervision and his level of functionality following the first accident is corroborated by Mr. Moran returning to work as a driver the day after the first accident at his regular hours and duties;²⁹

(iv) Finally, I find that Mr. Moran would not be entitled to attendant care under Part 3 of the Form 1 which is for complex healthcare and hygiene functions. While this part of the Form 1 addresses assistance with exercises, mobility and administration of medication in addition to assistance with catheters, colostomy bags, etc., there is no evidence before me that Mr. Moran required assistance as a result of his psychological impairments with his home exercise program or in the administration of his medication.

50For all of these reasons, I find that Mr. Moran has failed to prove on the balance of probabilities that he would be entitled to attendant care as a result of the first accident and, therefore, he is not entitled to the proposed attendant care assessment.

Driving Re-Integration Assessment

51The October 29, 2018 OCF-18 that sought funding for a driving re-integration assessment was completed by Ms. Ilya Gladshteyn, psychologist. This treatment plan noted in the additional comments portion that Mr. Moran endorsed the following symptoms during his psychological assessment dated September 4, 2018 with Dr. Vitelli: fear and avoidance of being on the road; physiological symptoms of anxiety while travelling in traffic such as increased heart palpation and shortness of breath; experiencing significant discomfort while travelling in heavy traffic; and fear of being involved in another accident.

52I find that Mr. Moran failed to prove the reasonableness and necessity of this treatment plan on a balance of probabilities. Ms. Gladshyeyn’s comments in the OCF-18 rely upon Dr. Vitelli’s September 4, 2018 Psychological Consultation Report.³⁰ Dr. Vitelli’s report, however, contains a glaring error in that he indicated that Mr. Moran was unable to continue work after the first accident.³¹ Given that Mr. Moran consistently reported that he returned to work the day after his first accident to his position as a driver at his regular hours and duties, I do not accept Dr. Vitelli’s recommendation for a driving re-integration assessment in his report as he failed to provide any analysis of his recommendation with Mr. Moran’s return to work as a driver. Dr. Vitelli also failed to mention the second accident in his report despite his assessment of Mr. Moran taking place only eight days after the second accident on July 28, 2018.

53Moreover, Mr. Moran reported to Ms. Rodie in her January 31, 2019 Physiotherapy IE Assessment report that after losing his job in February 2018, Mr. Moran obtained his DZ driver’s licence and returned to work full-time (10 hours a day) as a truck driver since July 2018.³² Ms. Rodie’s reporting of Mr. Moran obtaining his DZ licence was not challenged by Mr. Moran by way of any reply submissions. As such, I agree with Aviva that obtaining a class DZ driver’s licence after being laid off as a delivery driver, a position that Mr. Moran worked in for more than nine months after the first accident, does not support a finding that Mr. Moran requires a driver re-integration assessment in October 2018. For all of these reasons, Mr. Moran is not entitled to this treatment plan.

Social Work Assessment

54The May 7, 2019 treatment plan listed Mr. Julian Amchislavsky, occupational therapist, as the Health Practitioner and Nazila Isgandarova, social worker, as the Regulated Health Professional and appears to be seeking funding for a biopsychosocial assessment rather than a social work assessment given the statements in the additional comments portion of the OCF-18.

55Following receipt of this OCF-18, Aviva wrote to Mr. Moran on May 21, 2019 and requested further information from Mr. Moran, including a signed copy of the proposed OCF-18, to determine his entitlement to the assessment. Aviva submitted that, to date, Mr. Moran has not responded to its request. Without any reply submissions, Mr. Moran also failed to respond to Aviva’s position regarding this treatment plan.

56Aviva relied upon the decision in K.A.J. v. Aviva General Insurance³³ wherein the Tribunal concluded that s. 38(3) of the Schedule, which requires, among other things, treatment plans to be signed by the insured person and by a regulated health professional, is mandatory. In K.A.J. v. Aviva, the Tribunal found that, without compliance with s. 38(3), the disputed OCF-18 was deficient and, therefore, the applicant was not entitled to the proposed treatment contained therein.

57I agree with Aviva that the facts in K.A.J. v. Aviva are similar to the facts in this matter as Aviva requested a copy of the signed OCF-18 and, like in K.A.J. v. Aviva, one has not been provided that has been signed by both the regulated health professional and Mr. Moran. The copy submitted for the hearing by Mr. Moran does not have his signature on page 8 or his initials on page 9 as required.

58Further, I find that Aviva’s request for a signed copy of the OCF-18 was made in a timely fashion upon receipt of the treatment. As such, I find that there was no waiver of the signature requirement in s. 38(3) of the Schedule by Aviva.³⁴

59As Mr. Moran has failed to comply with s. 38(3) of the Schedule by submitting a signed copy of the proposed OCF-18 to Aviva as requested and also failing to submit a signed copy of the OCF-18 that bears his signature as required by s. 38(3)(a) of the Schedule as evidence for this hearing, I find that the May 7, 2019 OCF-18 does not comply with s. 38(3) and, as a result, Mr. Moran is not entitled to this treatment plan.

Interest

60As there are no benefits owing, no interest is payable.

CONCLUSION

61For the reasons outlined above, I find that:

(i) Mr. Moran’s psychological impairments were caused by the first accident;

(ii) Mr. Moran failed to prove on a balance of probabilities that his physical impairments were caused by the first accident;

(iii) Mr. Moran is not entitled to:

(a) the November 9, 2018 treatment plan for various physical treatment modalities;

(b) the April 18, 2018 treatment plan for an orthopaedic mattress;

(c) the unapproved portion of the September 14, 2018 OCF-18 for psychological treatment;

(d) the unapproved portion of the July 12, 2018 OCF-18 for a psychological assessment;

(e) the July 19, 2018 OCF-18 for an attendant care assessment;

(f) the October 29, 2018 for a driving re-integration assessment;

(iv) The May 7, 2019 OCF-18 proposing a social work assessment fails to comply with s. 38(3) of the Schedule and, as a result, Mr. Moran is not entitled to this treatment plan;

(v) No interest is payable; and

(vi) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Sabadash v. State Farm et al., 2019 ONSC 1121.
3. 3Ibid. at para. 39.
4. 4Dr. Mrahar’s July 29, 2017 Psychological Status Evaluation Report is included in Medwise’s CNRs, Hearing Submissions of the Applicant, pages 75-76.
5. 5Written Submissions of the Respondent, tab 22, pages 12-13.
6. 6Correspondence from Gracie G., surgical office administrator to Dr. Hui Li, neurosurgeon, dated July 18, 2017, Written Submissions of the Respondent, tab 3.
7. 7Medical Report for DZ Driver’s Licence dated June 6, 2018, Written Submissions of the Respondent, tab 6.
8. 8Written Submissions of the Respondent, tab 26.
9. 9Ibid. at page 7.
10. 10Supra note 5 at page 7 and supra note 8 at page 4.
11. 11Ibid.
12. 12Written Submissions of the Respondent, tab 7.
13. 13Ibid. at page 6.
14. 14Ibid. at page 4.
15. 15Written Submissions of the Respondent, tab 16, page 6.
16. 16Ibid. at page 5.
17. 17Dr. Sediq’s letter is contained in the CNRs of Dr. Akladios at page 46 of the Hearing Submissions of the Applicant.
18. 18Ibid. at page 1.
19. 19Ibid.
20. 20Hearing Submissions of the Applicant, page 6.
21. 212019 CanLII 76995 (ON LAT)(“J.V. v. Intact”).
22. 22Ibid. at paras. 6-7.
23. 232020 CanLII 12726 (ON LAT)(“J.A. v. Aviva”).
24. 24Ibid. at paras. 27-29.
25. 25EOB dated July 16, 2018, Written Submissions of the Respondent, tab 19.
26. 26Supra note 8 at page 4.
27. 27Supra note 5 at page 8.
28. 28Ibid.
29. 29Supra note 5 at page 7 and supra note 8 at page 4.
30. 30Hearing Submissions of the Applicant, pages 84-101.
31. 31Ibid. at page 4.
32. 32Supra note 15 at page 5.
33. 332020 CanLII 87986 (ON LAT)(“K.A.J. v. Aviva”).
34. 34See Mattina v. Federated Insurance Company of Canada, 2020 CanLII 101808 (ON LAT) at paras. 8-12.