Katona v. Aviva Insurance Company, 2021 ONLAT 20-003898/AABS
Release date: 07/19/2021
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:
Beata Katona
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nancy Aquilina
APPEARANCES:
For the Applicant:
IIan Liebner, Counsel
For the Respondent:
Nisaa Khan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was injured in an accident on September 30, 2015 and sought medical benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (''Schedule'').
ISSUES IN DISPUTE
2The following issues are in dispute:
Is the applicant entitled to a medical benefit in the amount of $2960.26, less amounts paid, for psychological treatment, proposed by Elite Medicare Inc. in a treatment plan (OCF-18) dated February 12, 2018?
Is the applicant entitled to a medical benefit in the amount of $2960.26, less amounts paid, for psychological treatment, proposed by Elite Medicare Inc. in a treatment plan (OCF-18) dated October 26, 2018?
Is the applicant entitled to a medical benefit in the amount of $3919.41 for psychological treatment, proposed by Prime Healthcare Inc. in a treatment plan (OCF-18) dated October 25, 2019?
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
3In the applicant’s reply submissions dated March 19, 2021, the applicant withdrew treatment plans by Elite Medicare Inc. dated February 12, 2018 and October 26, 2018 noted above as issues 1 and 2. The issues remaining in dispute are a treatment plan by Prime Healthcare Inc. in the amount of $3,919.41 for psychological treatment, interest and an award.
RESULT
4Based on the totality of the evidence and submissions before me, I find that:
a. The applicant is not entitled to $3,919.41 for psychological treatment, proposed by Prime Healthcare Inc. in a treatment plan dated October 25, 2019.
b. As there is no benefit payable, no interest or an award are payable.
ANALYSIS
Is the applicant entitled to $3919.41 for psychological treatment?
5For the following reasons, I find that the Treatment and Assessment Plan/OCF-18 dated October 25, 2019 (“treatment plan”) is not reasonable and necessary and therefore, the applicant is not entitled to psychological treatment in the amount of $3,919.41.
6The applicant takes the position that the treatment plan is payable as it complies with the requirements of its completion, and that psychological treatment is reasonable and necessary based on the medical evidence of her treating and assessing practitioners. In her submissions, the applicant states that the respondent requested additional medical information regarding the treatment plan’s recommendations, and that this information was provided. The applicant relies on a letter by Dr. Andrew Shaul, psychologist, also dated October 25, 2019, that confirms that Part 4 of the treatment plan was signed by him, and that he was involved in its supervision and suggestions for proposed goods and services. In addition, it states that the treatment plan was prepared by Mr. Nikolay Zagrebailov, physiotherapist, and based on the recommendations following Dr. Shaul’s psychological assessment report.
7The applicant’s reply submissions also refer to an email to the respondent dated November 13, 2020 that attaches the above noted letter and a series of documents to further support the claim that the applicant did comply with the respondent’s request.
8In response, the respondent submits that the treatment plan is not reasonable and necessary as the applicant failed to provide clarification regarding Mr. Zagrebailov’s role in its completion. The respondent contends that although the additional comments section of the treatment plan states that Mr. Zagrebailov reviewed the treatment recommendations and treatment plan with the applicant prior to signing Part 5, it is unclear to the respondent how he was able to do so given it is beyond a physiotherapist’s scope of practice to treat or assess psychological impairments.
9Lastly, the respondent contends that it requested additional information regarding the nature of the examination by way of an explanation of benefits dated November 12, 2019 but that the applicant failed to provide this information, which was the basis for the treatment plan’s recommended psychological treatment.2 In its submissions, the respondent acknowledges receipt of the intake form of Mr. Zagrebailov that shows that he met with the applicant on July 18, 2019, but fails to show an examination before October 22, 2019 when the treatment plan was signed by the applicant.
10Section 38(3)(b) requires the treatment plan to be signed by the applicant, completed and signed by a regulated health professional, and include a statement by a health practitioner approving the treatment plan and stating that the goods and services described and their proposed costs, are reasonable and necessary.
11The Treatment and Assessment Plan/OCF-18 form itself sets out provisions for its completion stating that it should include all the goods and services contemplated by the regulated health professional referred to in Part 5 (Signature of Regulated Health Professional). In addition, it states that a health practitioner must sign Part 4 (Signature of Health Practitioner). Lastly, the regulated health professional must complete Part 6 (Injury and Sequelae Information) based on their most recent examination of the applicant named. An applicant must sign Part 10 (Signature of Applicant) of the treatment plan only after the regulated health professional has reviewed the plan with the applicant.
12Upon review of the treatment plan and in considering the provisions as set out above, I note that Dr. Shaul, health practitioner, signed Part 4 of the treatment plan and that Mr. Zagrebailov, regulated health professional, signed Part 5. As Mr. Zagrebailov is noted to be the regulated health professional, he must complete the injuries, Part 6, of the treatment plan based on his most recent examination of the applicant and review the treatment plan with the applicant before she signs Part 10.
13As raised by the respondent in its submissions, I note that the additional comments section of the treatment plan states that the treatment recommendations and the OCF-18 were reviewed with the patient and the OCF-18 was signed by the patient and I [the regulated health professional] subsequently signed Part 5 of the OCF-18.3 Although the applicant provides evidence that Mr. Zagrebailov met with the applicant on July 18, 2019, approximately 3 months prior to the completion of the treatment plan, I am not pointed to evidence of more recent examinations prior to the completion of the treatment plan, despite Mr. Zagrebailov’s statement that he reviewed the treatment recommendations with the applicant before she signed it.4
14The applicant’s submissions point to a letter dated October 25, 2019 that states that the goods and services proposed in the treatment plan are based on Dr. Shaul’s recommendations as set out in his psychological assessment.5 However, I agree with the respondent that the treatment plan does not clarify Mr. Zagrebailov’s role in contemplating the goods and services recommended as is required by the regulated health professional when completing a treatment plan.
15Mr. Zagrebailov’s note of July 18, 2019 is attached to an email to the respondent dated November 13, 2020. It states symptoms of long-term memory loss, frustration, driving anxiety, nervousness, anxiety disorder, and situational stress due to relationship issues, and recommends a psychologist.6 The injuries as set out in Part 6 are described to be psychological in nature, and Mr. Zagrebailov is a physiotherapist. I agree with the respondent that it is unclear how he arrived at these symptoms through an examination as, in my view, it would be beyond the scope of practice of a physiotherapist to opine on psychological impairments. As a result, I place little weight on the recommendation of psychological treatment. I will now turn to whether the treatment plan is reasonable and necessary.
16In order for the applicant to receive payment for a medical benefit under the Schedule, the benefit in dispute must be reasonable and necessary, pursuant to s. 14 of the Schedule. In considering the reasonableness and necessity of the treatment plan, I must consider the totality of the evidence before me.
Is the Treatment Plan Reasonable and Necessary?
17For the following reasons, I find that the treatment plan for psychological treatment is not reasonable and necessary.
18The applicant submits that the treatment plan is reasonable and necessary based on the medical evidence provided by her treating and assessing practitioners including Dr. Samy Faltas, family physician, Dr. Shawn Vasdev, psychiatrist, Dr. Chiranjib Talukdar, walk-in physician, Dr. Judith Pilowsky, psychologist, and Dr. Andrew Shaul, psychologist.
19I reviewed the clinical notes and records of Dr. Faltas, family physician, who on October 27, 2016 and in the first entry of the records, notes a pre-existing anxiety disorder but reports that the applicant has control of her anxiety symptoms with good sleep and adequate concentration. On November 14, 2016, Dr. Faltas states that the applicant had stopped her anti-anxiety medication a year ago, being a few months following the accident, and experienced a good year. In the same entry, Dr. Faltas notes that the applicant had recently been experiencing sleep disturbances and anxiety related to relationship issues and arranges for a psychiatric referral.7 He refers the applicant to Dr. Vasdev, psychiatrist, who references situational stress due to her relationship on September 7, 2017.8 The evidence shows a relationship issue to be the reason for her increase in anxiety and I am not directed to any evidence that the applicant reported accident-related psychological concerns to her psychiatrist or her family physician.
20Lastly, I consider the evidence of Dr. Pilowsky and Dr. Shaul and find that Dr. Pilowsky’s diagnosis of Major Depressive Disorder (Single Episode, Moderate), Post-Traumatic Stress Disorder with Panic Attacks and Phobic Avoidance to Driving/Passenger and Persistent, Moderate Somatic Symptom Disorder with Predominant Pain and Dr. Shaul’s diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood with Specific Phobia are inconsistent with the findings of the applicant’s own psychiatrist Dr. Vasdev.9
21The applicant’s psychiatrist, Dr. Vasdev diagnoses the applicant with Generalized Anxiety Disorder with mild Panic Attacks but attributes her anxiety-related symptoms to relationship issues. Dr. Pilowsky and Dr. Shaul’s express concern with the applicant’s mood, appetite and energy, whereas Dr. Vasdev describes an individual who works regularly with a stable mood and good energy and appetite. In May of 2017, Dr. Vasdev prescribes anti-anxiety medication to assist the applicant with her anxiety but on a subsequent visit in September the applicant advises him that she is not taking it although it is not noted why.10 The applicant reports psychological concerns relating to the accident to Dr. Shaul and Dr. Pilowsky that don’t appear to be raised in her visits with Dr. Vasdev that occur prior. Although I acknowledge that the applicant has anxiety-related symptoms, I am not directed to evidence that they are related to the accident, or evidence that her psychological issues have impacted on her functionality given that she continues to work as a nurse.
22The applicant submits that she visited with Dr. Talukdar, walk-in physician, on June 14, 2019, and that Dr. Talukdar referred the applicant to a psychiatrist to address her anxiety disorder.11 However, the outcome of this referral is unknown as I am not presented with medical evidence from a new psychiatrist. The note from Dr. Talukdar does not mention the accident and whether the accident contributed to the applicant’s anxiety-related symptoms.
CONCLUSION
23For the reasons outlined above, I find the following:
a. The applicant is not entitled to $3919.41 for psychological treatment, proposed by Prime Healthcare Inc. in a treatment plan dated October 25, 2019.
b. As there is no benefit payable, no interest or an award are payable.
Released: July 19, 2021
_________________________
Nancy Aquilina
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.
- Respondent Written Submissions at Tab 4, Explanation of Benefits dated November 12, 2019.
- Respondent Written Submissions at Tab 13, Treatment and Assessment Plan/OCF-18 dated October 25, 2019
- Applicant Reply Submissions at Tab 2, Email from Cariati Law to Aviva Insurance Company dated November 13, 2020
- Applicant Reply Submissions at Tab 1, Letter of Dr. Shaul dated October 25, 2019
- Applicant Reply Submissions at Tab 2, Email from Cariati Law to Aviva Insurance Company dated November 13, 2020
- Applicant Written Submissions at Tab 6, Clinical Notes and Records of Dr. Faltas
- Applicant Written Submissions at Tab 7, Clinical Notes and Records of Dr. Vasdev
- Applicant Written Submissions at Tab 8, Psychological Report of Dr. Pilowsky dated March 5, 2018 and Tab 10, Psychological Report of Dr. Shaul dated October 3, 2019
- Applicant Written Submissions at Tab 7, Clinical Notes and Records of Dr. Vasdev
- Applicant Written Submissions at Tab 9, Note of Dr. Talukdar dated June 14, 2019