Release date: 07/05/2021
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:
Mary Grace Rabino
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Karla Carranza, Counsel
For the Respondent:
Jeffrey Pasternak, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on September 20, 2017 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”).
2The parties participated in a case conference, however, were unable to resolve the issues in dispute. The matter proceeded to this written hearing.
ISSUES
3I have been asked to decide the following issues:
i) Is the applicant entitled to a medical benefit in the amount of $1,318.14 for massage therapy recommended by Physio In Motion in a treatment plan (OCF-18) submitted on June 3, 2019, and denied on October 22, 2019?
ii) Is the applicant entitled to payment for the cost of examination expense in the amount of $2,200.00 for an attendant care re-assessment, recommended by Personal Injury Occupational Therapy in a OCF-18 submitted October 11, 2019, and denied by the respondent on November 15, 2019?
iii) Is the applicant entitled to interest on any overdue payment of benefits?
iv) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
4After reviewing both parties’ submissions and all of the evidence, I find:
i) The OCF-18 for massage therapy is partially reasonable in the amount of $1,086.14, plus interest payable pursuant to s.51 of the Schedule.
ii) The applicant is not entitled to the OCF-18 for the attendant care re-assessment in the amount of $2,200.00.
iii) The respondent is not liable to pay an award.
BACKGROUND
5On September 20, 2017, the applicant was involved in an accident when her vehicle was rear-ended while stopped at a traffic light. She was diagnosed with a concussion, psychological impairment and soft-tissue injuries to her right shoulder and back resulting in chronic pain. She attended St. Catherine’s Physiotherapy Centre for treatment and was then referred to Physio In Motion for massage therapy.
6Before the accident, the applicant was employed as a Personal Support Worker (“PSW”). She was off work for two-years as a result of her accident-related impairments. The applicant returned to work part-time as a PSW in September 2019 and maintains that returning to work exacerbated her back pain and led to a deterioration in function. The applicant changed employment a few times since then (still working as a PSW). In February 2020 her back impairment was exacerbated while lifting a client which resulted in her being off work for an unspecified period of time. The applicant submits that she switched employers again in September 2020 and has continued to work as a PSW to date. The applicant’s employment files were not submitted as evidence to confirm these facts for this written hearing.
ANALYSIS
Is the applicant entitled to the OCF-18 in the amount of $1,318.14 for massage therapy recommended by Physio In Motion submitted on June 3, 2019?
7Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of an accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.
8The case law supports that treatment is reasonable and necessary if it results in the temporary relief of pain or restores an individual’s function. Other criteria which should be considered are whether the goals are reasonable, whether the goals of the treatment can be met to a reasonable degree, and whether the overall costs (both financial and time investment) of achieving the goals of treatment is reasonable.1
9The applicant argues that the OCF-18 for massage therapy is reasonable and necessary because to date, her accident-related impairments have not healed and her symptoms have worsened, resulting in significant functional impairments. Further, the treatment she has received has resulted in the temporary relief of her pain. Consequently, she requires further treatment. The applicant relies on the clinical notes and records (“CNRs”) of her family doctor, progress reports from Physio In Motion, and the reports of various assessors in which she reported relief from pain and improvement in function as a result of treatment.
10The respondent maintains that the OCF-18 is not reasonable and necessary because the applicant sustained soft tissue injuries as a result of the accident and has achieved maximum medical recovery from facility-based treatment. The respondent relies on the insurer examination (“IE”) of Dr. Robert, orthopedic surgeon, who opined that the treatment plan is not reasonable and necessary. For the following reasons, I agree with the applicant and find the treatment plan is partially reasonable and necessary.
11The goals of the OCF-18 recommended by Physio In Motion dated June 3, 2019 identified pain reduction, increase strength, and range of motion (“ROM”). It proposed 8 sessions of massage therapy and included the following fees: $70.00 for documentation; $696.00 for massage therapy; $232.00 for travel time; $99.75 for assessment and $99.75 for documentation for a total cost of $1,318.14.
12I find the applicant consistently reported to assessors that her symptoms were improving as a result of receiving physiotherapy and massage treatment. For example, in a chronic pain report completed by Dr. Ghouse, (the applicant’s assessor) dated November 19, 2018, the applicant reported attending physiotherapy and massage and that she had made a 60% improvement. The applicant also consistently reported the benefits she received from physical treatment to the IE assessors.
13In addition, the progress reports of Samantha McCaffrey, physiotherapist, also support that the applicant received benefit from ongoing treatment. The progress report dated January 14, 2019, notes that the applicant reported improvement to her back pain and headaches which increased her tolerance for daily activities and functioning at home. Ms. McCaffrey’s second progress report dated June 3, 2019, also notes that the applicant reported improvements and that she has been able to do more at home. Ms. McCaffrey’s physical examination revealed that the applicant still experienced tightness in her neck and pain in her lumbar spine with flexion. The applicant also reported having less frequent headaches and there was significant improvement to her ROM in her thoracic and lumbar spine. In my view, the improvements noted by Ms. McCaffrey supports that the treatment received by the applicant was achieving its stated goals. As already highlighted above, the case law supports that medical treatment is reasonable and necessary if it results in the temporary relief of pain and improvement in function. I am satisfied that the OCF-18 for massage therapy would achieve this objective based on the evidence before me.
14The respondent relied on the IE of Dr. Robert in denying the OCF-18. Dr. Robert’s IE determined that there was no evidence of any ongoing accident-related impairment and that the applicant’s soft-tissue injuries had healed. I prefer the evidence of Ms. McCaffrey as it was more consistent with the other evidence before me. In addition, Dr. Robert did not consider the fact that the applicant had received temporary relief from pain and improved ROM and function as a result of receiving past massage therapy.
15The respondent also argues that the transportation expenses in the amount of $232.00 listed on the OCF-18 are not authorized transportation expenses pursuant to section 3(1) and (15)(2) (c) of the Schedule. Section 15(2)(c) states that an insurer is not liable for transportation expenses “other than authorized transportation expenses.” Section 3(1)(a) sets out that “authorized expenses” are calculated by applying the rates set out in the Transportation Expenses Guidelines published by the Financial Services Commission of Ontario (“FSCO Guideline”). Section 3(1)(b) further sets out that unless the insured is catastrophically impaired, transportation expenses are only payable after the first 50 kilometres of a trip.
16Neither party elaborated in their submissions for how the travel fees comply or failed to comply with the FSCO Guidelines. Further, it is unclear whether the fees are for the service provider to travel to the applicant’s home or vice versa, and neither party made submissions about the kilometres for travel. Ultimately, the onus is on the applicant to prove that all of the fees noted on the OCF-18 are reasonable and necessary. The applicant has failed to discharge her onus to prove that the $232.00 in travel expenses are covered by the FSCO Guideline.
17For all of the above reasons, I find the OCF-18 for massage therapy is partially reasonable and necessary in the amount of $1,086.14.
Is the applicant entitled to an OCF-18 in the amount of $2,200.00 for an attendant care re-assessment, recommended by Personal Injury Occupational Therapy in a treatment plan dated October 11, 2019?
18The applicant is not entitled to the OCF-18 for the attendant care re-assessment for the following reasons.
19The OCF-18 dated October 11, 2019, was authored by James Moorthy, occupational therapist and recommended an attendant care re-assessment in the amount of $2,200.00. The additional notes section indicated that the applicant had returned to work as a PSW on a part-time basis and was having physical, emotional, and driving anxiety issues. The purpose of the assessment was to determine the applicant’s attendant care needs, ability to perform her activities of normal living, and need for occupational therapy or assistive devices.
20Overall, I find the evidence supports that the applicant was independent with her personal care and daily activities following the accident. The applicant maintains that the medical evidence supports that she was functionally limited, and she could not independently carry out her daily activities because she reported to assessors that she could not complete heavy chores and relied on assistance from her daughters with cooking. I disagree, as I do not find the medical evidence from the time period the OCF-18 was submitted supports that the applicant had any functional limitations that would require an attendant care assessment or occupational therapy. For example, the report of Ms. McCaffrey in June 2019 indicates that the applicant was back to her daily activities and was doing more around the home.
21The applicant maintains that the submission of the disputed OCF-18 coincided with her return to work in September 2019, which exacerbated her back pain and resulted in further functional limitations. What I found lacking from the applicant’s evidence was any employment records or medical records confirming that her back pain was exacerbated at this time. In fact, the applicant’s complaints about her back pain being exacerbated are not referenced in the CNRs until February 2020. To the contrary, I agree with the respondent that the evidence around the time the OCF-18 was submitted conflicts with the applicant’s position, as does two investigation reports conducted by the respondent which analyzed the applicant’s Facebook profile.
22I find the Facebook investigation report depicts an individual who was quite active. For example, in July and August 2019 (less than two months prior to the submission of the disputed OCF-18), the applicant had traveled to Singapore and the Philippines for two months. Facebook posts made during this vacation show her having reunions with friends and visiting an amusement park. In my view, the applicant’s ability to endure a flight that long, attend an amusement park, and socialize with friends conflicts with an individual with any functional limitations in completing her daily activities. Further, two months after the submission of the disputed OCF-18, the applicant went on a month-long trip to Banff, Alberta. In my view, the revelations of the applicant’s Facebook investigation before and after the submissions of the OCF-18 challenge her credibility about her functional limitations.
23The applicant incurred the cost of the OCF-18 in dispute. In the report of James Moorthy, occupational therapist dated March 9, 2020, the applicant reported that she was limited in her ability to sit for longer than 30 minutes, could not stand for more than 15 to 20 minutes and has not attempted long distance walking for longer than 10 minutes. The Facebook investigation report demonstrates that as of June and July 2020, the applicant was participating in Zumba dance classes and she made several posts about going hiking at different trails throughout Ontario. In between these activities she visited Niagara Falls and Blue Mountain. While these posts were made three months after Mr. Moorthy’s assessment, I find the applicant’s reports about her functional limitations to her own assessor conflict with the activities noted on her social media profile.
24The applicant also argues that the OCF-18 is reasonable and necessary because the respondent had approved a prior attendant care assessment and funded some attendant care following a case conference at the Tribunal in 2018. In my view, the fact that the respondent approved an earlier assessment and funded some attendant care as part of the dispute resolution process does not support that the current OCF-18 is reasonable and necessary.
25The applicant relied on the Tribunal’s decision in NP v. Western2 in support of her position that the OCF-18 is reasonable and necessary because there was a change in her circumstance when the plan was submitted. In that case, the adjudicator determined that it was reasonable to have a catastrophically impaired insured’s attendant care needs reassessed because there was a change in circumstances. I agree with the respondent that the present case is distinguishable from NP v. Western as the insured in that case sustained a catastrophic impairment which would require additional attendant care assessments. Moreover, in N.P. v. Western, the insured did not appear to be inconsistent in reporting functional limitations and credibility was not an issue.
26The applicant also maintains that the respondent’s denial of the OCF-18 was unreasonable because it relied on a denial of a previous attendant care assessment, which was based on the application of the Minor Injury Guideline (MIG). The applicant has since been removed from the MIG; therefore, she is entitled to a higher tier of benefits. The respondent’s Explanation of Benefits dated November 18, 2019, states, “please refer to our letter dated September 5, 2018, wherein we addressed the attendant care form 1 dated October 11, 2017, by way of addendum reports. (It then refers to three IE assessors) Their position remained unchanged.” The applicant maintains that the denial was unreasonable as the respondent did not consider she was removed from the MIG, current medical information, or change of circumstances that would affect the amount of benefits.
27While the applicant argues that the respondent’s denial was unreasonable, she did not argue that it failed to comply with s.38(8) of the Schedule and should be paid in accordance with s. 38(11). In the absence of such an argument, the onus is on the applicant to show that the treatment plan is reasonable and necessary. Based on the evidence before me, the applicant has not met her onus and is not entitled to the treatment plan for the attendant care re-assessment.
Is the applicant entitled to interest on any overdue payment of benefits?
28Section 51(1) states that an amount payable in respect of a benefit is overdue if the insurer fails to pay a benefit within the time required under this regulation. The applicant is entitled to payment of interest on the portion of the OCF-18 for massage therapy, in the amount of $1,086.14, that I found to be reasonable and necessary at the time it was submitted. She is not entitled to payment of interest on the OCF-18 for the attendant care assessment as I do not find it to be reasonable and necessary.
Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
29I do not find that the applicant is entitled to an award, as I do not find that the respondent unreasonably withheld or delayed payment of any benefits in dispute.
30Regulation 664, R.R.O. 1990 (O. Reg. 664) states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.
31The applicant did not make any arguments or submit any evidence that support entitlement to an award. The onus is on the applicant to prove that the respondent unreasonably withheld or delayed payment of her entitlement to benefits. In the absence of any submissions or evidence on this issue, the applicant has not met her onus and is not entitled to an award.
ORDER
32For all of the above-noted reasons I find:
i) The OCF-18 for massage therapy is partially reasonable in the amount of $1,086.14, plus interest payable pursuant to s.51 of the Schedule.
ii) The applicant is not entitled to the OCF-18 for the attendant care re-assessment in the amount of $2,200.00.
iii) The respondent is not liable to pay an award.
Date of Issue: July 5, 2021
Rebecca Hines, Adjudicator
Footnotes
- 17-001007/AABS v Aviva Insurance Canada, 2018 CanLII 2309 (ON LAT), at para 12.
- N.P. vs. Western Assurance Company, 2020 (ONLAT)19-011629/AABS & 19-012841/AABS