Released Date: 07/13/2021
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:
Fina Klusko
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Watt
APPEARANCES:
For the Applicant:
Michelle Jorge, Counsel
For the Respondent:
Candace Mak, Counsel
HEARD: In Writing
OVERVIEW
1The applicant was involved in an automobile accident on May 12, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES
2The issues to be decided at the hearing are:
Preliminary Issues
i. Is the applicant’s claim for attendant care benefits barred by the limitation period prescribed by the Schedule?
ii. Is the applicant’s claim for chiropractic treatment in the amount of $3,959.00 barred by the limitation period prescribed by the Schedule?
Substantive issues
iii. Is the applicant entitled to a medial benefit in the amount of $4,903.00 for chiropractic treatment recommended by Dr. Glavan in a treatment Plan (OCF-18) submitted on March 16, 2018?
iv. Is the applicant entitled to payment for medication in the amount of $1,264.19 submitted via an expense claim (OCF-6) on March 21, 2017?
v. Is the applicant entitled to payment for medication in the amount of $290.00 submitted via an expense claim (OCF-6) on October 10, 2017?
vi. Is the applicant entitled to payment for visitor expenses in the amount of $412.50 submitted via an expense claim (OCF-6) on July 24, 2017?
vii. Is the applicant entitled to payment for the cost of an examination in the amount of $972.00 ($4,972.00 less the partially approved amount of $4,000.00) for an orthopaedic assessment recommended in a treatment Plan (OCF-18) submitted on January 9, 2020?
viii. Is the applicant entitled to payment for the cost of an examination in the amount of $4,972.00 for a neurological assessment recommended in a treatment Plan (OCF-18) submitted on December 17, 2019?
ix. Is the applicant entitled to payment for the cost of an examination in the amount of $2,746.00 ($4,746.00 less the partially approved amount of $2,000.00) for a psychiatry assessment recommended in a treatment Plan (OCF-18) submitted on January 9, 2020?
x. Is the applicant entitled to payment for the cost of an examination in the amount of $200.00 ($4,200.00 less the partially approved amount of $4,000.00) for an occupational therapy assessment recommended in a treatment Plan (OCF-18) denied on January 9, 2020?
xi. Is the applicant entitled to payment for the cost of an examination in the amount of $486.00 ($2,486.00.00 less the partially approved amount of $2,000.00) for a chiropractic assessment recommended in a treatment Plan (OCF-18) submitted on January 9, 2020?
xii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULTS
3The applicant’s claims for Attendant Care Benefits and Chiropractic Treatment are barred by the limitation period prescribed by the Schedule?
4The applicant is not entitled to any of the benefits set out in paragraph [2] under Substantive issues
5The applicant is not entitled to interest.
BACKGROUND
6The applicant was in a head-on motor vehicle accident on May 12, 2015. She was taken to Credit Valley Hospital experiencing left side facial pain, chest pain, left knee pain and left shin pain. The applicant was prescribed Toradol for her right deltoid pain.1 The applicant worked pre-accident as a full-time lab assistant at CML Life LABS.
7Dr. Glavan, chiropractor, completed an OCF-3 Disability Certificate dated July 15, 2015 indicating that the applicant was substantially unable to perform the essential tasks of her employment, her housekeeping and her home maintenance tasks.2
8On October 20, 2015, Mr. Jain, occupational therapist, opined that the applicant is limited with most of her attendant care and housekeeping tasks, and is unable to return to work.3
9Dr. Hoff, psychologist, saw the applicant from December 1, 2015 until June 13, 2017 over 40 times, and opined in her June 30, 2016 report that the applicant remains psychologically unable to work. The applicant was diagnosed with pain disorder associated with Psychological factors.4 On March 21, 2017, Dr. Hoff reports that the applicant is experiencing chronic pain and refers her to an orthopaedic surgeon. The applicant incurs the cost of psychological/psychotherapy treatment from June 13, 2017 to September 30, 2019, approximately 50 times.5
10Dr. Guirguis completed an OCF-3 on January 29, 2019 diagnosing the applicant as being substantially unable to perform the essential tasks of her employment, a substantial inability to perform the housekeeping and home maintenance program and with a complete inability to carry on a normal life.6
11Dr. Basile, neurologist, in his report dated February 28, 2020, opined that the applicant suffered post-concussive syndrome consistent with a traumatic brain injury and chronic pain syndrome. He opined that the applicant had reached her maximum medical improvement. He recommended a neuropsychiatry assessment and a psychiatry assessment.7
12Dr. Getahun, orthopaedic surgeon, in his report dated February 29, 2020, diagnosed the applicant with chronic myofascial strain of the cervical spine, and chronic myofascial strain of the lumbosacral spine. He recommended a neurological and psychiatric assessment.8
13Ms. Gugnani, occupational therapist, on April 11, 2020 opines that the applicant needs assistance with some attendant care activities and personal care activities. She opines that the “applicant is experiencing serious physical, emotional and has cognitive symptoms that are impacting all areas of her daily functioning.9
14Dr. Kiraly, psychiatrist, in his report dated April 29, 2020, diagnosed the applicant with major depressive disorder, and chronic pain associated disorder.10
15Dr. Sharma, psychiatrist, in an insurer’s examination (“IE”) on March 12, 2020, also diagnosed the applicant with a major depressive disorder, non-psychotic, single episode, currently in remission.11
16Dr. Michael Ko, physiatrist, in an IE report dated December 14, 2016, opined that the applicant suffered strain/sprain with soft-tissue issues. He opined that there was no evidence of ongoing impairments and disagreed with the report of Dr. Getahun.
ANALYSIS
Preliminary Issues
Is the applicant’s claim for attendant care benefits barred by the limitation period prescribed by the Schedule?
Is the applicant’s claim for chiropractic treatment in the amount of $3,959.00 barred by the limitation period prescribed by the Schedule?
17I find that the applicant’s claim for attendant care benefits and for chiropractic treatment are statute-barred for the reasons set out below.
18Section 56 of the Schedule requires all applications for a benefit to be commenced within two years after the insurer’s refusal to pay the amount claimed. Section 7 of the Licence Appeal Tribunal Act permits the Tribunal to extend the time limits if the Tribunal is satisfied that there are reasonable grounds for applying the extension and for granting relief.
19The applicant’s claim for attendant care benefits for the period May 5, 2015 and forward was submitted on July 29, 2019. The respondent denied the benefit on October 23, 2015, on the basis that the applicant was within the MIG. The applicant was removed from the MIG on December 16, 2015, and on February 10, 2016 was denied payment of attendant care benefits based on a section 44 report.
20The applicant made no written submissions on this preliminary issue relating to attendant care benefits but did make submissions in her reply. See paragraph [27]
21The respondent’s position is that the limitation period should apply, and that no reasonable explanation has been given to justify extending the time. The applicant did not make submissions on s. 7 and has therefore not met her burden to prove that there are reasonable grounds for an extension of time, being: evidence of a bona fide intention to appeal; the length of the delay; the prejudice to the parties and the merits of the claim.12
22The respondent also notes that the applicant has not provided any evidence to show that the benefits have been incurred, or that the applicant is legally obligated to pay the expense as required under section 3(7)(e) of the Schedule.
23I agree with the respondent’s position and find that applicant’s claim for attendant care benefits is statute-barred by the limitation period prescribed by s. 55 of the Schedule. This respondent’s denial of the attendant care benefit relates to the applicant’s current benefit claim and does not prevent the applicant from resubmitting a further claim, if the applicant is found to be catastrophic. The respondent’s denial was clear and unequivocal, and the applicant’s claim was not discovered later, as it was in the Tomec case.
24The applicant made no written submissions on the applicant’s claim for chiropractic treatment in the amount of $3,959.00 and whether the claim is also statute-barred by the limitation period prescribed by s. 55 of the Schedule.
25The respondent’s position is that the respondent denied the treatment plan two years and three months prior to the commencement of the application. The respondent relies on the same arguments as set out in paragraphs [21][22], above.
26I agree with the respondent’s position and find that applicant’s claim for chiropractic treatment in the amount of $3,959.00 is also statute-barred by the limitation period prescribed by s. 55 of the Schedule, and she did not meet her burden to demonstrate that an extension of time under s. 7 of the LAT Act is warranted .
Reply and Sur Reply
27The applicant raises new arguments in her reply relating to the preliminary issues which were not raised by the applicant in her written submissions. I therefore am not giving any weight to her reply submissions. A reply should only address the issues raise by the respondent and does not permit the applicant to put forth new arguments on the preliminary issues, that the applicant should have raised in her original submissions.
Substantive Issues
Is the applicant entitled to a medial benefit in the amount of $4,903.00 for chiropractic treatment recommended by Dr. Glavan in a treatment Plan (OCF-18) submitted on March 16, 2018?
28I find that the applicant is not entitled to a medial benefit in the amount of $4,903.00 for chiropractic treatment recommended by Dr. Glavan in a treatment Plan (OCF-18) submitted on March 16, 2018, for the reasons set out below.
29Section 15 of the Schedule requires all medical benefits to be reasonable and necessary, before the insurer has to pay for them. Section 16 of the Schedule requires all rehabilitation benefits to be reasonable and necessary such that they reduce or eliminate the effects of any disability resulting from an accident.
30The applicant’s position is that she suffers continuous pain and needs more chiropractic treatment. She has been going for chiropractic and physiotherapy treatments at least 2-3 times a week. In his Neurological Assessment Report dated February 28, 2020, Dr. Basile recommended that the applicant continue with her chiropractic and physiotherapy treatments. Dr. Getahun (Report dated February 29, 2020) and Ms. Gugnani (Report dated April 11, 2020) also recommend further physical therapy in their reports.
31The respondent’s position is that Dr. Feliou, physiatrist, (Report dated August 9, 2018) opined that the applicant has had appropriate facility-based interventions for the musculoskeletal injuries and has reached maximum medical improvement.
32Dr. Basile, neurologist (Report dated February 28,2020), opined that the applicant had reached her maximum medical improvement.
33The applicant has received an extensive amount of chiropractic treatments and is seeking more of the same. However, there is no updated medical evidence before me indicating that more chiropractic treatments are reasonable and necessary such that they reduce or eliminate the effects of any disability resulting from the accident. I accept the reports of Dr. Felice and Dr. Basile over any other medical reports because the applicant has had extensive chiropractic treatment that has not resolved the issues.
34I find that the applicant has not met her onus of proving that more chiropractic treatments would reduce or eliminate the effects of any disability resulting from the accident and therefore this plan is not necessary or reasonable. On balance, I accept that I is likely that the applicant has achieved maximum medical recovery and that further facility- based treatment would not lead to further recovery.
Medical Expenses
Is the applicant entitled to payment for medication in the amount of $1,264.19 submitted via an expense claim (OCF-6) on March 21, 2017?
35I find that the applicant is not entitled to payment for medication for the reasons set out below.
36The applicant’s position is that she still requires medication for her physical and psychological injuries.
37The respondent’s position is that the amounts listed in the OCF-6 dated March 21, 2017 are listed as $518.57 for medication, transportation/parking in the amount of $223.50 and visitor expenses of $300.00, totalling $1,041.77. The respondent asserts that the expenses listed do not add up to the $1,264.19 amount claimed. The applicant claims that there are no supporting documents indicating that they were incurred as a result of accident-related injuries. There is no documentation to explain the visitor’s expenses and, therefore, without the documentation there is no evidence that these expenses are necessary and reasonable. Further, the Superintendent’s Guidelines do not allow charges for the first 50km of transportation and the applicant has not demonstrated that the transportation expense claim exceeds 50km.
38I agree with the respondent’s position that unless the documentation is produced to support the expense claims, the benefit plan is not reasonable and necessary. There is also the issue of the transportation guidelines and no explanation from the applicant as to the breakdown of the $223.50 for transportation/parking and whether those expenses meet the guidelines. Accordingly, I find the expense claims are not payable as the applicant has not met her burden of proof .
Is the applicant entitled to payment for medication in the amount of $290.00 submitted via an expense claim (OCF-6) on October 10, 2017?
39I find that the applicant is not entitled to payment for medication for the reasons set out below.
40These benefit claims relate to $120.00 for medication and $170.00 for transportation expenses. The applicant’s position is that the applicant needs these medications for Fluvoxamine and for Risperidone, for the applicant’s depression and moods swings, and that these were prescribed by Dr. Guirguis.
41The respondent’s position is similar to the above where the respondent claims that the applicant has not provided any supporting documentation that she spent the $120.00 claimed on medication. Their position is that there is no proof that the collateral benefits insurer, Manulife, did not pay for all or a portion of these expenses. The respondent also raises the fact that no supporting documentation has been provided to explain what the traveling expenses were for or has not proven that the 50km directive does not apply. Therefore, the proposed benefit plan is not reasonable or necessary.
42I agree with the respondent’s position that unless the documentation is produced and supports the expense claims, the applicant has not met her burden of demonstrating that the expense is reasonable and necessary as required under section 38(2) (c)(i) of the Schedule. It is also unclear whether Manulife paid all, or part of the expenses and the applicant did not address the issue of whether the applicant is within the allowable distance for transportation expenses under the Superintendent Guidelines. I therefore find this benefit plan is not necessary and reasonable.
Is the applicant entitled to payment for visitor expenses in the amount of $412.50 submitted via an expense claim (OCF-6) on July 24, 2017?
43I find that the applicant is not entitled to payment for visitor expenses for the reasons set out below.
44The applicant’s position is that she has two small children and needs her family to assist her as she cannot perform the activities of daily living by herself. The applicant’s position is that she has to rely on car services for medical appointments, parking and visitor expenses, being family help. The OCF-6 expense form lists the following: visitor expenses in the amount of $200.00, parking totalling $62.50, and travel/transportation expenses of $150.00.
45The respondent’s position is that visitor expenses are not paid more than 104 weeks after the accident as set out in section 22 of the Schedule. The respondent’s position is that the applicant has failed to provide any supporting documentation as to what these expenses pertain to, whether they were incurred as a result of the accident and has therefore not demonstrated that they are reasonable and necessary. The respondent has also raised the issue that the Superintendent’s Guidelines state that transportation expenses include parking fees and that the respondent is not liable to pay for the first 50 km of transportation.
46I agree with the respondent’s position that unless the documentation is produced to support the expense claims, I cannot find the expense to be reasonable and necessary. The respondent has also raised the issue that the Superintendent’s Guidelines state that transportation expenses include parking fees and that the respondent is not liable to pay for the first 50 km of transportation. I agree that no supporting documentation has been provided to explain what the traveling expenses were for and the applicant has not proven that the 50km directive does not apply. I therefore find that is the expenses are not reasonable and necessary.
Is the applicant entitled to payment for the cost of an examination in the amount of $972.00 ($4,972.00 less the partially approved amount of $4,000.00) for an orthopaedic assessment recommended in a treatment Plan (OCF-18) submitted on January 9, 2020?
Is the applicant entitled to payment for the cost of an examination in the amount of $4,972.00 for a neurological assessment recommended in a treatment Plan (OCF-18) submitted on December 17, 2019?
Is the applicant entitled to payment for the cost of an examination in the amount of $2,746.00 ($4,746.00 less the partially approved amount of $2,000.00) for a psychiatry assessment recommended in a treatment Plan (OCF-18) submitted on January 9, 2020?
Is the applicant entitled to payment for the cost of an examination in the amount of $200.00 ($4,200.00 less the partially approved amount of $4,000.00) for an occupational therapy assessment recommended in a treatment Plan (OCF-18) denied on January 9, 2020?
Is the applicant entitled to payment for the cost of an examination in the amount of $486.00 ($2,486.00.00 less the partially approved amount of $2,000.00) for a chiropractic assessment recommended in a treatment Plan (OCF-18) submitted on January 9, 2020?
47I find that the applicant is not entitled to payment for the balance of the costs of examinations for the reasons set out below.
48The applicant’s position is that the assessments are in relation to catastrophic determination assessments and that they are pertinent to ensuring that the applicant is properly assessed. The assessments are recommended by Dr. Basile, Dr. Getahun and Ms. Gugnani to determine whether the applicant meets the threshold for a catastrophic impairment.
49The respondent’s position is that the applicant has not provided any evidence to prove that the remainder of the treatment plans are reasonable and necessary. The maximum payable under the Schedule is $2,000.00 as set out in section 25 of the Schedule.
50In relation to the neurological assessment, the respondent argues that Dr. Oshidari, neurologist, found the treatment plan to not be reasonable and necessary in his report dated January 8, 2020.
51The respondent also argues that Dr. McKenzie, the applicant’s treating neurologist, assessed the applicant three times in 2016 and 2017 and conducted three EMG/nerve conduction studies which were all unremarkable. Dr. McKenzie did not schedule any further appointments.13 The applicant’s family doctor, Dr. Guirguis, did not refer the applicant to see another neurologist. Meanwhile, Dr. Paul Ranalli, neurologist, as part of a catastrophic assessment on September 21, 2020, found no significant neurological injury or impairment.14
52I support the respondent’s arguments and accept that the applicant’s own treating doctor’s findings of Dr. McKenzie, who saw the applicant three times in 2016 and in 2017. Dr McKenzie’s evidence is also supported by Dr. Ranalli’s evidence finding no significant neurological injury or impairment, which is recent evidence. The applicant has also failed to show why the amount above the Schedule rate of $2,000.00 should be paid.
53I find that the applicant is not entitled to the balance of the assessment plan as she has not demonstrated that it is reasonable and necessary.
Is the applicant entitled to payment for the cost of an examination in the amount of $2,746.00 ($4,746.00 less the partially approved amount of $2,000.00) for a psychiatry assessment recommended in a treatment Plan (OCF-18) submitted on January 9, 2020?
54I find that the applicant is not entitled to payment for the balance of the costs of examinations for the reasons set out below.
55The applicant’s position is that the applicant continues to have impairments and that the assessment is necessary to ensure that the applicant is properly assessed.
56The respondent’s position is that the applicant has to show why the remainder of this treatment plan of $2,746.00 is reasonable and necessary. The respondent’s position is that the applicant has not met the onus of leading any evidence and is therefore subject to the limit of $2,000.00 as set out in section 25 of the Schedule.
57I agree with the respondent’s position that the onus is on the applicant to show why the balance of the plan is reasonable and necessary. I find that the applicant has not led any evidence other than stating in general terms that the plan is needed to ensure that the applicant is properly assessed. I therefore find that the benefit plan is not reasonable and necessary.
Is the applicant entitled to payment for the cost of an examination in the amount of $200.00 ($4,200.00 less the partially approved amount of $4,000.00) for an occupational therapy assessment recommended in a treatment Plan (OCF-18) denied on January 9, 2020?
58I find that the applicant is not entitled to payment for the balance of the costs of examinations for the reasons set out below.
59The applicant’s position is that the applicant continues to have impairments and that the assessment is necessary to ensure that the applicant is properly assessed.
60The respondent’s position is that the applicant has to show why the remainder of this treatment plan of $200.00 is reasonable and necessary. The respondent’s position is that the applicant has not met the onus of leading any evidence and is therefore subject to the limit of $2,000.00 as set out in section 25 of the Schedule.
61I agree with the respondent’s position that the onus is on the applicant to show why the balance of the plan is reasonable and necessary. I find that the applicant has not led any evidence other than stating in general terms that the plan is needed to ensure that the applicant is properly assessed. I therefore find that the benefit plan is not reasonable and necessary.
Is the applicant entitled to payment for the cost of an examination in the amount of $486.00 ($2,486.00.00 less the partially approved amount of $2,000.00) for a chiropractic assessment recommended in a treatment Plan (OCF-18) submitted on January 9, 2020?
62I find that the applicant is not entitled to payment for the balance of the costs of examinations for the reasons set out below.
63The applicant’s position is that the applicant continues to have impairments and that the assessment is necessary to ensure that the applicant is properly assessed.
64The respondent’s position is that the applicant has to show why the remainder of this treatment plan of $486.00 is reasonable and necessary. The respondent’s position is that the applicant has not met the onus of leading any evidence and is therefore subject to the limit of $2,000.00 as set out in section 25 of the Schedule.
65I agree with the respondent’s position that the onus is on the applicant to show why the balance of the plan is reasonable and necessary. I find that the applicant has not led any evidence other than stating in general terms that the plan is needed to ensure that the applicant is properly assessed. I therefore find that the benefit plan is not reasonable and necessary.
INTEREST
66The applicant is not entitled to interest, as no benefits are owing.
CONCLUSION
67For the reasons set out above, the application is dismissed.
Released: July 13, 2021
Robert Watt
Adjudicator
Footnotes
- Clinical Notes and Records dated May 12, 201,5 Tab 8 Applicant’s Brief
- Disability Certificate (OCF-3) dated July 15, 2015, Tab 10 Applicant’s Brief
- Occupational Therapy Assessment of Attendant Care Needs by Mr. Jain dated October 20, 2015, Tab 11 Applicant’s brief
- Psychological Update Report by Dr. Hoff dated June 30, 2016, Tab 12 Applicant’s Brief
- Clinical Notes and Record of Mr. Whetstone Psychologist, dated June 13, 2017, Tab 14 Applicant’s Brief
- Disability certificate (OCF-3) dated January 29, 2019, Tab16 Applicant’s Brief
- Neurological Assessment of Dr. Basile dated February 28, 2020, at Tab 22 Applicant’s Brief
- Orthopaedic Assessment Report of Dr. Getahun dated February 29, 2020, Tab 23 Applicant’s Brief
- Occupational Therapy assessment Report of Ms. Gugnani dated April11, 2020 Tab 24 Applicant’s Brief
- Psychiatric Assessment Report of Dr. Kiraly dated April 29, 2020 and December 28, 2020 at Tab 25 Applicant’s Brief.
- Psychiatric Assessment Report of Dr. Sharma dated May 6, 2020 Tab 27 Applicant’s Brief
- M.N. v Aviva General Insurance Company, 2019 CanLii 119731 ON LAT), para 29, Tab 5
- Clinical nots and records of Dr. Mackenzie Tab 20
- Report of Dr. Ranalli Tab 7a p 23-26