Citation: Kandiah v. Aviva General Insurance, 2021 CanLII 37841

Released Date: 05/06/2021

Tribunal File Number: 19-010975/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:

Delany Kandiah Applicant

and

Aviva General Insurance Respondent

DECISION

ADJUDICATOR Asad Ali Moten

APPEARANCES:

For the Applicant: Davide Cortinovis, Counsel Massoum Massoumi, Paralegal

For the Respondent: Nisaa Khan, Counsel Christopher Viveiros, Claims Representative

HEARD: Via Written Submissions

OVERVIEW

1The applicant (the “Applicant”) was involved in an automobile accident on April 29, 2018. She seeks benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2At issue between the parties are the Applicant’s claims for various medical benefits and costs assessments. The Applicant’s claims to the insurer were denied, and she now appeals to the Licence Appeal Tribunal – Automobile Accidents Benefits Service (the “Tribunal”) for resolution of these claims.

3The parties agree that the Applicant’s injuries are not predominantly minor injuries as defined by the Minor Injury Guideline (“MIG“) under the Schedule. The Applicant argues that she is entitled to the proposed treatment and assessment plans because they are reasonable and necessary.

4The respondent insurer, Aviva General Insurance (the “Respondent”), disagrees. It argues, for various reasons, that the Applicant has not met her onus of demonstrating that the benefits are reasonable and necessary.

ISSUES

5The issues to be decided are:

(i) Is the Applicant entitled to receive a medical benefit in the amount of $2,415.73 for chiropractic services recommended by someone of Toronto Medical Center in a treatment plan dated January 10, 2019, denied by the respondent on March 12, 2019?

(ii) Is the Applicant entitled to receive a medical benefit in the amount of $2,415.73 for assistive devices recommended by Dr. Ailin Oishi-Stamatiou, chiropractor of Toronto Medical Center, in a treatment plan dated January 10, 2019, submitted January 14, 2019, denied by the respondent on January 23, 2019?

(iii) Is the Applicant entitled to receive payment for cost of examinations in the amount of $1,798.00 for biopsychosocial social worker assessment recommended by Remik Zakrzewski, occupational therapist, of Toronto Medical Center in a treatment plan dated October 11, 2018, denied by the respondent on October 16, 2018?

(iv) Is the Applicant entitled to receive payment for cost of examinations in the amount of $1,800.00 for a chiropractic concussion assessment recommended by Dr. Ailin Oishi-Stamatiou of Toronto Medical Center in a treatment plan dated January 24, 2019, denied by the respondent on March 11, 2019?

(v) Is the Applicant entitled to receive payment for cost of examinations in the amount of $1,640.91 for a workplace assessment recommended by Dr. Ailin Oishi-Stamatiou of Toronto Medical Center in a treatment plan dated February 14, 2019, denied by the respondent on March 11, 2019?

(vi) Is the Applicant entitled to receive payment for cost of examinations in the amount of $1,131.44 for an attendant care assessment recommended by Dr. Ailin Oishi-Stamatiou of Toronto Medical Center in a treatment plan dated July 25, 2019, denied by the respondent on August 2, 2019?

(vii) Is the Applicant entitled to receive payment for cost of examinations in the amount of $1,610.13 for an in-home assessment recommended by Dr. Ailin Oishi-Stamatiou of Toronto Medical Center in a treatment plan dated August 22, 2019, denied by the respondent on September 6, 2019?

(viii) Is the Applicant entitled to receive payment for cost of examinations in the amount of $551.97 ($2,000.00 less $1,325.03 approved) for a chronic pain assessment recommended by Dr. Wilderman, physician, dated January 10, 2019, invoice denied January 2, 2020?

(ix) Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

6I find that, for the reasons below, the Applicant has not met her onus on issues (i) through (vi), and (viii), above, to prove that those items claimed are reasonable and necessary. She is, therefore, not entitled to payment for those treatment plans and costs of examination.

7The Applicant has satisfied her onus with respect to issue (vii), above, being the cost of the proposed in-home assessment. She is entitled to payment of up to the claimed amount, plus interest pursuant to section 51 of the Schedule.

BACKGROUND

8The Applicant was involved in a car accident on April 29, 2018. She was 24 years old at the time. On the day of the accident, the Applicant was a front-seat, belted passenger in the car. The car was first impacted from behind, causing it to swerve and leading to a second impact in which another vehicle collided head-on with the car containing the Applicant.

9The Applicant was taken to hospital from the accident complaining of head injuries and pain to multiple areas of her body. She reported hitting her head on the window of the car. The Applicant was diagnosed with whiplash, a mild concussion, and back strain.

10On May 3, 2018, the Applicant had a follow-up appointment at the hospital. A different doctor examined her and diagnosed her with whiplash, back strain, thoracolumbar strain, and bilateral shoulder strain.

11On October 25, 2018, the Applicant visited her family doctor complaining of head, shoulder, neck and back pain since the date of the accident. The Applicant had not engaged in physiotherapy, and reported that the pain had worsened.

12On January 22, 2019, the Applicant underwent a psychological assessment in which she reported a substantial reduction in recreational and social activities because of her accident-related injuries. She stopped socialising with friends, had a depressed mood, frustration, anxiety, difficulty sleeping and weight gain. Both her family doctor and the psychologist diagnosed the Applicant with moderate adjustment disorder and mixed anxiety and depressed mood as a result of the accident.

13On March 5, 2019, the Applicant underwent a neurological assessment, complaining of much of what has already been described above. The doctor performing the assessment noted impairments to the Applicant’s ability to do daily home-related tasks. The Applicant also experienced pain from prolonged sitting, standing or bending. She was diagnosed with post-traumatic migraines as a result of damage to the C1-C3 facet joints, periosteum, and ligaments, or trauma to the greater occipital nerves.

14On March 28, 2019 the Applicant underwent a chronic pain assessment. The doctor noted that the Applicant had an antalgic gait and tenderness above her thoracic spine. He diagnosed the Applicant with chronic pain disorder, mechanical lower back pain, lumbago, sacroiliac joint dysfunction on the right side, bilateral trochanteric bursitis, piriformis syndrome on the right side, post-traumatic chronic headaches, impingement syndrome of the right shoulder, bilateral rotator cuff syndrome, myofascial pain syndrome of the rhomboid region on the right, depression, and severe PTSD.

15The Applicant has an extensive medical history. She was treated for back, neck and knee pain in 2011, for psychological disorders in 2012, injuries to her neck and foot in 2015 (requiring a cast), and a prior motor vehicle accident in 2017.

16So far, in respect of the accident, the Respondent has paid approximately $25,000 for the Applicant’s medical and other benefits. While there is some discrepancy between the Applicant and the Respondent with respect to the amounts paid to date, the difference is a few hundred dollars and not relevant to this decision.

ANALYSIS

17Section 15(1) of the Schedule creates a liability on the part of insurers to pay for “all reasonable and necessary expenses” of an insured person for items including medical, chiropractic, and psychological services, assistive devices, and other goods and services of a medical nature that are essential for the treatment of the insured person.

18The onus is on the Applicant to demonstrate, on a balance of probabilities, that all the treatments in dispute are reasonable and necessary.¹ This requires the Applicant to demonstrate that the impairment for which the treatment is sought was sustained as a result of the accident. The causation test to be applied is the “but for” test.²

19Next, the Applicant must show ongoing impairment and adequate medical reasons to support the proposed treatment in the form of objective medical evidence.³

20Broadly speaking, the Applicant argues that she has met her burden of proof because:

a. Dr. Igor Wilderman recommended therapeutic devices for pain and depression control;

b. Mr. Srinivasan and Dr. Keeling recommended ongoing psychotherapy; and,

c. Dr. Majl indicated that the Applicant has not achieved maximal recovery and recommended ongoing physiotherapy and therapeutic treatments.

21The Respondent, in broad strokes, argues that the Applicant has not provided any evidence establishing the goal of any of the proposed treatment plans. The Respondent points to case law for the proposition that “objective supporting evidence…is key in determining whether the…benefit in dispute is reasonable and necessary” and “a treatment plan for a medical benefit, without more, is not enough to establish entitlement.⁴

Is the Applicant entitled to a medical benefit in the amount of $2,415.73 for chiropractic services?

22Simply put, the Applicant is not entitled to this benefit because it does not appear to be one that the Applicant claimed. The OCF-18 in question is for assistive devices. There is no evidence before me to indicate that the Applicant submitted, on the same day and for the same amount, another OCF-18 for chiropractic services.

23While the Applicant, in her written submissions, lists this claim as an issue to be considered, she makes no submissions with respect to it. The Respondent’s evidence, on the other hand, indicates that there was only ever one claim submitted in the amount of $2,415.73, namely, the one addressed in issue (ii). On this basis, I find that far from meeting her onus to demonstrate that the claimed benefit is reasonable and necessary, she has not proven even that the benefit was ever claimed.

Is the Applicant entitled to a medical benefit in the amount of $2,415.73 for assistive devices?

24By way of OCF-18 dated January 10, 2019, the Applicant claims this amount for twenty-one (21) assistive devices. Examples of these devices include a heating pad, stools, special pillows, orthopaedic devices, personal massagers, and exercise equipment. The Respondent rejected the proposed treatment plan on March 21, 2019.

25The OCF-18 states that the Applicant is unable to perform normal ranges of motion without aggravating symptoms. This leads to increased pain. The goal of the treatment plan is to reduce pain, increase strength, increase range of motion, and return to activities of normal living. Beyond this and some additional information about how to measure progress, the information contained about the process used to generate and assess the Applicant for the purpose of the OCF-18 is sparse. There is no information about the Applicant’s prior injuries or treatments the Applicant has undergone.

26The OCF-18 does not describe an itemized basis for each of the assistive devices. It relies, instead, on an assessment done on December 15, 2018 by a registered nurse. That assessment listed all of the items requested as part of the OCF-18. In other words, there is no evidence that the chiropractor who completed the OCF-18 recommending a treatment plan of assistive devices conducted any independent assessment of the need or reasonableness of the assistive devices. Further, the assessment by the registered nurse is not contained within the materials provided by the Applicant or the Respondent.

27As such, all the Tribunal has to consider whether the proposed treatment plan is reasonable and necessary is a parroted list of requested devices and no assessment justifying how each device, or even the devices in combination, are reasonable and necessary for the applicant’s medical treatment. Further, none of the assessments done of the Applicant by any of her health care providers post-accident suggest or recommend assistive devices, with the exception of a foam roller recommended by her family physician eight months after this OCF-18 was submitted.

28The Applicant has not satisfied her onus in proving that this treatment plan is reasonable and necessary. The Tribunal need not consider whether the Respondent’s section 44 reports sufficiently rebut the Applicant’s evidence. The Applicant is not entitled to payment of this treatment plan, except for the foam roller for which the Respondent has already agreed to pay.

Is the Applicant entitled to payment for the cost of examinations in the amount of $1,798.00 for biopsychosocial social worker assessment?

29On October 11, 2018, the Applicant submitted an OCF-18 recommending a biopsychosocial assessment by a social worker. The cost of this assessment is listed at $1,798.00. The goal of the assessment is to assist the Applicant with re-integration into her family, community and social networks.

30The Applicant has not provided any evidence or information as to why a biopsychosocial assessment by a social worker is recommended versus a psychological assessment by a psychologist.

31The evidence from the Applicant’s family physician and other health providers who have assessed her point to psychological disorders created by or exacerbated by the accident. In November 2018, the Applicant’s family physician noted that the Applicant has negative and frightening thoughts, re-experiences the accident, and feels on edge. Since then, subsequent visits note gradual improvement in the Applicant’s psychological condition, though at no point does her struggle with the psychological effects of the accident appear to be concluded. The family physician’s records do not recommend a biopsychosocial assessment.

32A section 44 examination in December 2018 in response to the OCF-18 found that the Applicant did, in fact, need some assessment and therapy for psychological disorders. The report, however, recommended psychological assessment rather than biopsychosocial assessment. The basis for the recommendation appears to be that the Applicant’s mood disorders are, in the clinician’s opinion, better addressed through traditional psychological assessments.

33A January 22, 2019 psychological assessment of the Applicant found that she suffered from severe depression and moderate anxiety, among other things. The report recommends a driving assessment, and psychotherapy. At no point does the report recommend a biopsychosocial assessment. Neither does a follow-up report completed a year later by the same psychologist.

34In sum, there appears to be little evidence to support the Applicant’s claim to an entitlement to this treatment plan. It is clear that she requires assistance for her psychological disorders, but it is not clear how a biopsychosocial assessment is reasonable and necessary towards that end. That is not to say such an assessment would not be helpful. It appears, on its face, to have some promise. The Tribunal cannot, however, on the evidence before it, conclude that it is reasonable and necessary to assist in the Applicant’s rehabilitation.

35The Applicant is not entitled to payment for the cost of examination for biopsychosocial assessment.

Is the Applicant entitled to payment for the cost of examination in the amount of $1,800.00 for chiropractic concussion assessment?

36On January 24, 2019, the Applicant submitted an OCF-18 in the amount of $1,800.00 recommending a chiropractic concussion assessment. On March 11, 2019, the Respondent denied this claim.

37The Tribunal has evidence before it about the underlying basis for the proposed assessment, or what it would entail. It raises questions in the Tribunal’s mind: is the proposed assessment meant to examine whether the Applicant has a concussion, or, assuming she has a concussion is it intended to assess what a chiropractor can do about it?

38The evidence that does exist indicates that the Applicant:

a. was diagnosed with a mild concussion soon after the accident;

b. reported to her family physician, on occasion, migraines, nausea, and other traditional concussive symptoms, though the family physician did not diagnose concussion or recommend concussion assessment; and,

c. was assessed by a neurologist in February 2019 who reported that the Applicant was experiencing headaches and other symptoms, but did not diagnose her with a concussion.

39On the evidence before the Tribunal I cannot conclude that the proposed assessment is reasonable and necessary for the following reasons:

a. The only diagnosis of a concussion occurred nine months before the OCF-18 was submitted;

b. Under sections 3 and 4 of the Chiropractic Act, 1991,⁵ and as found by this Tribunal previously,⁶ it is not within a chiropractor’s scope of practice to diagnose concussions; and,

c. The report by the neurologist, in a better position to diagnose concussion and done only a month after the proposed OCF-18, did not identify concussion as an area for concern.

40The Applicant argues that the purpose of the concussion assessment is not to diagnose concussion but rather to “treat concussion related pain/injuries on a chiropractic level” because the Applicant has complained of headaches and pain since the accident. While I accept this may be the goal, I cannot make the leap in logic to conclude that the proposed assessment is reasonable and necessary for the following reasons.

41First, it is not clear that a chiropractor’s scope of practice includes treatment of concussion related pain/injuries. The Chiropractic Act, 1991 describes the scope of practice as;

…the assessment of conditions related to the spine, nervous system and joints and the diagnosis, prevention and treatment, primarily by adjustment, of,

(a) dysfunctions or disorders arising from the structures or functions of the spine and effects of those dysfunctions or disorders on the nervous system;

42Concussions are primarily a disorder of the brain, which though part of the nervous system, is not included among the authorized acts in section 4 of the relevant Act. This section permits a chiropractor to communicate a diagnosis related to the spine and its effects on the nervous system, and to manipulate the spine. A concussion is not caused by a disorder arising from the structures of the spine.

43Second, even if I am wrong about the scope of a chiropractor’s practice, there is no recent or descriptive concussion diagnosis on which the chiropractor can assess the Applicant for how to treat her. In other words, without a report from someone who can diagnose concussions, how can the chiropractor know how extensive or mild the concussion is and therefore what his practice can do about it?

44The Applicant has not satisfied her onus to prove that the proposed chiropractic concussion assessment is reasonable and necessary. The Applicant is, therefore, not entitled to payment for the cost of examination.

Is the Applicant entitled to payment for the cost of examinations in the amount of $1,640.91 for workplace assessment?

45On February 14, 2019, the Applicant submitted an OCF-18 in the amount of $1,640.91 proposing an updated workplace assessment. The Respondent denied this claim on March 11, 2019 in the same letter as the claim above. The Respondent denied on the basis that the Applicant’s employer had already modified her duties to accommodate her injuries.

46The Applicant argues that significant time had passed and that new diagnoses had been made, which required an updated workplace assessment. I agree that a renewed assessment, in light of further diagnoses, would be reasonable.

47I cannot, however, on the evidence before the Tribunal, find that it is necessary. While there is ample evidence to conclude that the Applicant still suffers from significant pain and limitations in her daily activities, the evidence with respect to her ability to carry out her employment duties is different. The evidence overwhelmingly supports the finding that the accommodations at the Applicant’s workplace have enabled her to continue in meaningful employment, and that there is no indication that she needs further or different accommodation in order to continue.

48This evidence includes assessments by health care providers, none of which indicate a need for further workplace assessments, and an examination under oath, which indicates that the Applicant’s ability to do her job has improved and she requires fewer accommodations now than she did initially.

49The Applicant has not met her onus to prove that the proposed assessment is reasonable and necessary. The Applicant is, therefore, not entitled to payment for the cost of examination.

Is the Applicant entitled to payment for the cost of examinations in the amount of $1,131.33 for attendant care assessment?

50On July 25, 2019, the Applicant submitted an OCF-18 in the amount of $1,131.44 for payment of the cost of an attendant care assessment. The Respondent denied the claim on August 2, 2019.

51I find that the proposed assessment is not reasonable and necessary. The Respondent approved an attendant care assessment in the same amount by the same health care provider just 7 months earlier, in December 2018. Since then the Applicant was assessed by several health care practitioners. While the evidence does indicate some limitations in her daily activities, there is nothing in these reports that indicates that anything changed between December 2018 and July 2019 that would necessitate a new attendant care assessment.

52The Applicant has not met her onus to demonstrate that the proposed assessment is reasonable and necessary. The Applicant is, therefore, not entitled to payment for the cost of examination.

Is the Applicant entitled to payment for the cost of examinations in the amount of $1,610.13 for in-home assessment?

53On August 22, 2019, the Applicant submitted an OCF-18 in the amount of $1,610.13 for the cost of an in-home assessment. The Respondent denied the claim on September 6, 2019.

54The denial letter indicates that the assessment was proposed in order to compare the Applicant’s pre- and post-accident ability to carry out caregiver and housekeeping tasks. The Respondent denied the claim because (a) the Applicant indicated she is not a caregiver; and (b) the Applicant did not purchase the optional housekeeper benefit.

55I agree there is nothing to indicate that the Applicant is a caregiver. However, as stated earlier, the evidence indicates some limitations on the part of the Applicant when it comes to housekeeping.

56The proposed assessment would compare how the Applicant functions on everyday home-related tasks, in comparison to her function before. It is not, as the Respondent contends, provision of a housekeeping benefit. It is an assessment. What the Applicant chooses to do with that assessment afterwards, in light of her prima facie ineligibility for housekeeping benefits, is up to her.

57The Respondent also contends that other assessments have been done which address similar questions. I disagree. The assessments done address different questions, and apply a different lens. For example, an attendant care assessment would consider how a person could assist the Applicant in her daily living, while an in-home assessment would consider how changes in the Applicant’s daily life or adaptations to her home could assist the Applicant. There is certainly some overlap, but they are not stand-ins for each other. Otherwise, it would make no sense to have different kinds of assessments.

58I find that the Applicant has satisfied her onus to demonstrate that this assessment is reasonable and necessary. The Applicant is entitled to payment of this claim up to the amount of $1,160.13.

Is the Applicant entitled to payment for the cost of examinations in the amount of $551.97 for chronic pain assessment?

59On January 10, 2019, the Applicant submitted an OCF-18 in the amount of $2,000.00 for the cost of chronic pain assessment. The Respondent approved the chronic pain assessment for up to $2,000.00. Upon receiving the assessor’s invoice, the Respondent requested that he complete a statutory declaration with respect to the assessment.

60The statutory declaration indicated that the assessing physician spent two hours and 20 minutes conducting the assessment, and a staff person in his office spent 30 minutes as part of the assessment. The Respondent applied hourly rates to the times described in the statutory declaration and calculated the amount payable to be $1,325.03. Correspondingly, the Respondent denied the rest of the claim. The Applicant now claims the difference.

61The Applicant argues that the Applicant should be entitled to the full cost of the assessment because the Respondent recognized the need for an assessment and paid for part of it. I disagree. Under the Schedule, the Respondent need only pay the reasonable expenses incurred by or on behalf of the Applicant. It is not a fixed amount, but rather subject to how much was actually spent on a given expense and to mandatory Guideline rates. To quote from a previous decision of this Tribunal:⁷

Simply because the Schedule allows these amounts does not mean that a claimant is automatically entitled to those amounts. The claimant still needs to justify why those specific amounts are being claimed.

62The Respondent paid the amount that was supported by the invoices and statutory declarations it was given. Absent any evidence of further expenses incurred by, or on behalf of the Applicant, I cannot conclude that it is reasonable and necessary for the Respondent to pay the balance of this claim. Therefore, the Applicant is not entitled to payment of the balance of the proposed cost of the assessment.

Is the applicant entitled to interest on the claimed benefits?

63As I find that the applicant is entitled to the August 22, 2019 OCF-18 for payment of the cost of in-home assessment, claimed in this application, the applicant is entitled to interest for the overdue payment pursuant to section 51 of the Schedule.

ORDER

64For the reasons above, I find that the Applicant has not met her onus to prove that the treatment plans and examinations proposed in issues (i) through (vi) and (viii), above, are reasonable and necessary. She is, therefore, not entitled to the amounts claimed.

65With respect to issues (vii) and (ix), the Applicant has met her onus to prove that an in-home assessment is reasonable and necessary. She is entitled to payment of up to the amount claimed, along with interest pursuant to section 51 of the Schedule.

Footnotes

1. 1Scarlett v Belair Insurance, 2015 ONSC 3635
2. 2Sabadash v. State Farm et al., 2019 ONSC 1121.
3. 3See, for e.g., 17-002689 v. Aviva Canada Inc., 2018 CanLII 2311 (ON LAT).; 17-00208 v. The Personal Insurance Company, CarswellOnt, 1160, para 24.
4. 4Applicant v. Aviva Insurance Canada 2018 CanLII 2311, at para. 15.
5. 5S.O. 1991, c.21.
6. 6DKD v. Aviva Insurance Canada, 17-
7. 7Applicant v. Aviva General Insurance Company, 2018 CanLII 112117 (ON LAT), at para. 7.