Released Date: 01/14/2021
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:
A.S.
Applicant
and
Aviva General Insurance
Respondent
Decision and Order
Vice-Chair:
D. Gregory Flude
APPEARANCES:
For the Applicant:
Dilenthi Warakaulle, Counsel
For the Respondent:
Maggie Morgan, Counsel
Heard:
By Written Submissions
OVERVIEW
1The car in which the applicant, [A.S.], was a passenger was involved in an rear-end collision on March 25, 2017 while it was stopped in traffic. The respondent, Aviva General Insurance (“Aviva”), paid him benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'')1, but it has stopped funding further treatment because it takes the position that he has recovered from his accident-related injuries and his current problems flow from pre-accident degenerative conditions. [A.S.] has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) disputing Aviva’s denial of further benefits.
2Aviva’s position has two elements: [A.S.] has recovered from injuries sustained in the accident, but even if he has not the treatment and assessment plans (“OCF-18”) are not reasonable and necessary. The issues necessarily flow into each other.
3I find that [A.S.] has failed to satisfy his onus to prove he requires further treatment for accident related impairments.
ISSUES IN DISPUTE
4The issues in dispute differ from the issues as set out in the case conference direction released on December 20, 2019. The issues addressed in [A.S.]’s submissions and apparently responded to by Aviva are:
Is the applicant entitled to a medical benefit in the amount of $2,339.34 for chiropractic treatment recommended by Healing Hands in a treatment plan (OCF-18) submitted on June 29, 2017 and denied on January 31, 2018?
Is the applicant entitled to a medical benefit in the amount of $2,053.72 for chiropractic treatment recommended by Healing Hands in a treatment plan (OCF-18) submitted on November 20, 2017 and denied on November 29, 2017?
Is the applicant entitled to a medical benefit in the amount of $599.92 for psychological treatment recommended by Healing Hands in a treatment plan (OCF-18) submitted on July 5, 2017 and denied on November 1, 2017?
Is the applicant entitled to interest on any overdue payment of benefits?
5In determining the merits of the case, I am hampered by the fact that [A.S.] has not provided me with any pre- or post-accident clinical notes and records of the treatment he has received from Healing Hands Healthcare Inc. (“Healing Hands”). In their absence, I am unable to discern what treatment is necessary to treat the degenerative conditions and what treatment is necessary to treat injuries sustained in the accident. [A.S.] carries the burden of proving he is entitled to the treatment in question on a balance of probabilities. By making it impossible for me to separate treatment of his pre-accident and post-accident condition, he has not satisfied his onus.
6The first two issues identified above are set out in the case conference direction. There is also an OCF-18 for psychological therapy dated July 5, 2017 in the amount of $2,296.02 but the claim in the Notice of Application for Dispute Resolution asks for $599.92. This is the amount remaining from a partially approved treatment plan and the case conference direction has set out the total amount, not the amount in dispute. The balance is in dispute because the treatment provider charged fees in excess of the rate set out in the Professional Services Guideline2 published by the Superintendent of Financial Services.
7There is one issue in the case conference direction that is not dealt with in [A.S.]’s submissions: a claim for a medical benefit in the amount of $2,743.32 for psychological treatment recommended by Healing Hands in a treatment plan (OCF-18) submitted on January 16, 2018 and denied on May 16, 2018. Aviva points out that it is not addressed in [A.S.]’s submissions but makes submissions on its reasonableness and necessity anyway. I have no submissions from [A.S.] to suggest the omission was an error so I conclude that it was deliberately omitted, and I will not address it further.
Outstanding Balance for Psychological Treatment
8Given the discrete nature of the issue in dispute for the balance of the psychological treatment, I will deal with it first. The OCF-18 in question seeks 12 hours of psychological treatment at a rate of $174.67 per hour. Aviva approved 10 hours of treatment at a rate of $149.61 per hour. Aviva concedes the service provider is entitled to $200 for completion of claims forms, an amount included in the OCF-18. There are two issues that flow from the positions of the parties: whether [A.S.] would benefit more from 12 hours of treatment rather than 10 hours and is his treatment provider entitled to be paid $149.61 or $174.67 per hour.
9The goals set out in the OCF-18 are: “return to pre-accident level of psychological functioning, return to activities of normal living and return to pre-accident work activities.” In determining whether 12 hours of treatment is likely to be more effective than the approved 10 hours, I have reviewed the report dated March 11, 2020 of psychologist, Dr. Rod Day, who examined [A.S.] on February 18, 2020. In his report, Dr. Day notes [A.S.] had benefitted from his earlier treatment to the extent that he no longer had a diagnosable psychological condition. Given this evidence, it appears that 10 hours of treatment were effective and a further two hours is neither reasonable nor necessary.
10With respect to the hourly rate, the Schedule addresses maximum rates that insurers are liable to pay for professional services. Section 15(2) states: “the insurer is not liable to pay medical benefits … for expenses related to goods and services described in subsection (1) rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines.” The definition of “Guideline” in s. 3 includes the Professional Services Guideline, which provides that the maximum amount payable for the services of a psychologist is $149.61 per hour where the insured person is not catastrophically impaired. Indeed, the law is so clear on this point I am surprised that the issue remained in dispute.
11As a result of the above analysis, I find that psychological treatment in excess of 10 hours is not reasonable and necessary and the hourly rate payable for that treatment is $149.61. There is nothing outstanding on this OCF-18.
Physical Treatments - Approach to the Analysis
12Entitlement to benefits under the Schedule is set out in ss. 14 and 15. Section 14 provides that the insurer is liable to pay for benefits “on or behalf of an insured person who sustains an impairment as a result of an accident.” Section 15 lists benefits that the insurer must pay for. The listed benefits are qualified, however, by the requirement that they be reasonable and necessary. [A.S.] urges me to adopt the approach to the interpretation of ss. 14 and 15 set out in 16-003997 v. Aviva Insurance Canada, 2017 CanLII 87152 (ON LAT) (“3997”).
13In 3997, the applicant had sustained injuries in a motor vehicle accident. The insurer had denied several treatment plans on the basis that they were not reasonable and necessary. It did not dispute that the injuries were sustained in the accident. In interpreting ss. 14 and 15, the Tribunal adopted a two-step approach. The first step is to enquire whether the applicant had sustained impairments as a result of the accident. Put another way, did the accident cause the impairments? If the answer is yes, the enquiry then moves to whether the proposed treatment for the sustained impairments is reasonable and necessary. Given that Aviva in 3997 did not make submissions on causation, the enquiry focussed on the second branch. The current dispute focusses on causation given [A.S.]’s extensive pre-accident medical history
Physical Treatments - Pre-Accident Medical History
14As stated above, [A.S.] has an extensive pre-accident medical history. His submissions describe this history as follows: “His pre-MVA health was remarkable for macular degeneration, diabetes (controlled through medication), a pinched nerve causing him neck pain and a brain tumour (managed with steroid medication).”
15Aviva draws a much more extensive and relevant medical history from the medical records that have been disclosed. Its description of [A.S.]’s pre-accident history is supported by the medical records. It is as follows:
Prior to the accident, the Applicant suffered from a number of medical conditions, including the following:
Lower back fusion surgery in 2008 and ongoing chronic low back pain with left-sided radicular symptoms shooting down the leg, with diagnostic imaging showing multilevel degenerative disc and facet disease and moderate neuroforaminal stenosis at the L4-5 and L5-S1 levels;
Macular degeneration on the right eye;
A pituitary adenoma;
Agitation and mood swings;
Sleep difficulties;
Numbness and pain in the right neck, temple, and face, with diagnostic imaging showing multilevel degenerative changes and C6-7 foraminal narrowing with impingement of the C7 nerve roots;
Bilateral carpal tunnel syndrome; and
Bilateral knee pain.
16Aviva goes on to point to other medical evidence to suggest that [A.S.] suffered predominantly minor injuries in the accident. Minor injury is a defined term in s. 3 of the Schedule that includes “sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Minor injuries are subject to a $3,500 cap for treatment unless there is a pre-existing condition that would prevent maximal recovery within the $3,500 limit.3 Aviva took into account [A.S.]’s pre-existing medical conditions detailed above and removed the $3,500 treatment limit. It has paid $7,731.52 for treatment so far.
17The history of musculoskeletal issues is extensive, and I will set out some examples to highlight salient points:
In 2008, [A.S.] had back surgery to address radiculopathy in his legs.
On May 21, 2015, [A.S.] was diagnosed with chronic back pain and was prescribed a back brace.
A July 24, 2015 MRI of the cervical spine indicated severe foraminal narrowing and nerve impingement at C-7 and mild foraminal narrowing throughout the cervical spine.
On November 2, 2015, he reported pain and numbness in the right occipital region.
In February 2016, he was prescribed a wrist splint for his left wrist, stockings, orthotics and a back brace.
An MRI on March 4, 2016 states: Lower back pain and radicular symptoms. Previous lower back surgery. It notes degenerative changes of the facet joints at L4-L5 and L5-S1 and finds degenerative disc and facet joint disease.
For a month in and around the spring of 2016, [A.S.] complained of pain in his right neck and numbness. This was found to be referred pain, not neurological pain and he was recommended for physiotherapy by Dr, Kasravi, a neurologist.
In June 2016, in addition to the conditions noted in the March 4, 2016 MRI, Dr. Basile also noted bilateral carpal tunnel syndrome.
[A.S.] first complained of right knee pain on July 4, 2016 and left knee pain on February 14, 2017.
The accident occurred on March 25, 2017.
Physical Treatments - Post-Accident and the OCF-18s
18It appears that [A.S.] was on his way to a party at the time of the accident as his family doctor, Dr. Neil Mati, notes that [A.S.] continued to the party following the accident. He did not go to the hospital until the next night when he could not sleep due to pain in his neck and ribs. Imaging studies showed no broken bones and he was sent home with painkillers and told to follow up with his family doctor.
19On March 27, 2017, [A.S.] visited Healing Hands. In the Disability Certificate (“OCF-3”) prepared by Dr. Bita Soltan-Mohammadi, a chiropractor, one section asks Dr. Soltan-Mohammadi to list injuries and sequalae from the most to the least severe “that are a direct result of the accident.” Dr. Soltan-Mohammadi lists complaints that were not as a direct result of the accident as asked in the OCF-3 but were noted in the pre-accident medical record. She lists:
Other cervical disc degeneration
Hypoaesthesia of skin
Internal derangement of knee
Sprain, strain of other and unspecified parts of hand
Sprain and strain of thoracic spine
Other and unspecified abdominal pain
Headache
Nonorganic sleep disorders
Phobic anxiety disorders.
20Dr. Soltan-Mohammadi then relies on the same list of complaints to support each of the three treatment plans that are in dispute.
21Setting aside for the moment Dr. Soltan-Mohammadi’s qualifications to diagnose non-musculoskeletal conditions, it appears to me that she has become an advocate rather than an objective recorder of injuries sustained in the accident. She reports that she is aware [A.S.]’s neck issues and was, in fact, treating him for neck problems before the accident. She also reports the 2008 back surgery and other aspects of his medical history. Yet she fails to note the lengthy history of post-operative lower back issues, bilateral knee issues, carpal tunnel syndrome or occipital pain and numbness. As a result, I can place very little weight on the list of conditions she ascribes to the accident.
22On August 29, 2017, [A.S.] was examined on behalf of Aviva by Dr. Paul Tepperman, a physician with a practice focussed on occupational health. He released his report on September 17, 2017. The purpose of the examination was to determine the reasonableness and necessity of two OCF-18s for occupational therapy. Dr. Tepperman diagnosed [A.S.] with “myofascial strain of his cervical and lumbar paraspinal musculature, post-traumatic headaches, left knee and ankle sprain, and right lower chest muscular strain as a direct result of the motor vehicle accident of March 25, 2017. There is exacerbation of cervical neck issues noted above.” On the basis of the pre-existing degenerative neck condition, Dr. Tepperman was of the opinion that [A.S.]’s injuries should not be subject to the $3,500 limit for minor injuries. Despite his finding that the $3,500 coverage limit did not apply, Dr. Tepperman concluded that the two OCF-18s were not reasonable and necessary.
23Dr. Tepperman reviewed new medical information on two subsequent occasions but did not change his opinion. He based his addenda reports solely on the medical records and did not examine [A.S.] . In his January 24, 2018 addendum report, after considering new material, Dr. Tepperman concludes that [A.S.] “has reached maximum medical improvement since he suffered soft tissue injuries and there has been sufficient time for the exacerbation of the numbness in his right occipital region to have resolved.” In his various reports, Dr. Tepperman separates the injuries he finds [A.S.] sustained in the accident from his underlying medical problems.
24Dr. Tepperman physically examined [A.S.] for a second time on February 7, 2020. His report from that examination is dated March 3, 2020. Dr. Tepperman’s examination of [A.S.] consists of a complete physical examination with ranges of motion noted. Dr. Tepperman repeats his earlier opinion that: “[A.S.] has reached maximum medical improvement since he suffered soft tissue injuries and there has been sufficient time for the exacerbation of the numbness in his right occipital region to have resolved. There was evidence of exacerbation of pre-existing spinal issues but this has resolved.”
25In response to Dr. Tepperman’s finding of maximum medical improvement in January 2018 and again in March 2020, [A.S.] has put into evidence two notes from Dr. Soltan-Mohammadi, one dated July 22, 2019 and the second dated January 8, 2020. Dr. Soltan-Mohammadi strongly disagrees with Dr. Tepperman’s findings and conclusions and attacks aspects of his reports that she finds wanting. What these notes fail to do is provide objective differentiation between pre-existing and post-accident symptoms. I appreciate that Dr. Soltan-Mohammadi recognizes that [A.S.] may benefit from further treatment for his current musculoskeletal condition, but the essential difference between Dr. Soltan-Mohammadi and Dr. Tepperman is that the former ascribes all of [A.S.]’s symptoms to aggravation resulting solely from the accident as witnessed by her list of conditions attributable to the accident in the OCF-3, whereas Dr. Tepperman, after detailing his reasons based on the medical record has distinguished accident-related causes from pre-existing symptoms. Dr. Tepperman concludes that [A.S.]’s soft tissue injuries from the accident have resolved. He cites the report of the neurosurgeon surgeon who had performed the 2008 back operation and was consulted on the possibility of future spinal surgery who reported as early as October 12, 2017 that accident-related symptoms had resolved. In light of the extensive medical history of pre-accident symptomology that Dr. Soltan-Mohammadi fails to account for, I accept Dr. Tepperman’s conclusions.
Physical Treatments - Torn Meniscus and Knee Problems
26[A.S.] suffered from pre-accident bilateral knee pain. He reported striking his right knee in the accident and he has been diagnosed with a torn meniscus in that knee. The difficulty he faces in establishing that the torn meniscus is accident-related is that, other than immediately post-accident when he complained to his GP of a sore left knee that was diagnosed as a bruise, he made no complaint of left knee problems for a further eight months and no complaint of right knee problems until 18 months post-accident. I find that the knee problems of which [A.S.] complains are unrelated to the accident.
27The notes of Dr. Mati, [A.S.]’s GP, indicate that he complained of “pain in Lt knee” on April 6, 2017, approximately two weeks post-accident. [A.S.] visited Dr. Mati a further six times over the summer and fall of 2017 with no complaint of knee pain. On theseventh visit, on November 6 he complained of “left knee pain, chronic and severe.” He was referred to an orthopaedic surgeon, Dr. Hamid Nourhosseini. Dr. Nourhosseini reports, following an April 4, 2018 consultation, that “his knee pain has improved after the Injury.” Dr. Nourhosseini notes a meniscal tear and degenerative changes. He does not relate his observations to injuries sustained in the accident.
28In his various reports, Dr. Tepperman addresses the meniscal tear and other knee problems. Given the length of time between the accident and the subsequent report of knee pain resulting in a finding of the meniscal tear, Dr. Tepperman concludes:
At the time of my examination, which was approximately seven months before the MRI, there was no evidence of any internal derangement of his knee. It is difficult to attribute the findings to the index accident since, in the seven months post-accident, there is no information on what may have transpired to cause the medial meniscus tear which could have occurred because of degeneration or some other event.
29Degenerative changes have also been noted in the right knee. Overall, I can find no evidence that links the current state of [A.S.]’s knees to damage sustained in the accident.
Conclusion
30I find that [A.S.] has failed the first branch of the 3997 tests. He has not established on a balance of probabilities that the impairments he currently suffers are “as a result of the accident” as required by s. 14 of the Schedule. I do not doubt that his degenerative condition would benefit from further treatment at the capable hands of Dr. Soltan-Mohammadi, but his current condition is not as a result of the accident and Aviva is not liable to pay for it. His claim is dismissed.
Released: January 14, 2021
D. Gregory Flude
Vice-Chair
Footnotes
- O.Reg. 34/10.
- Professional Services Guideline, Superintendent’s Guideline No. 03/14, September 2014.
- O.Reg. 34/10, s.18.