Wright v. Aviva General Insurance, 2021 CanLII 88015

Citation: Wright v. Aviva General Insurance, 2021 ONLAT 19-011083/AABS

Release date: 09/13/2021

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:

Rob Wright

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Monica Chakravarti

APPEARANCES:

For the Applicant:

Steven Arie Glowinsky, Counsel

For the Respondent:

Nabila Majidzadeh, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was involved in a motor vehicle accident on October 18, 2018 and sought medical and rehabilitation benefits from the respondent pursuant to the Statutory Accident Benefits Schedule-Effective September 1, 2010¹ (the "Schedule"). The respondent denied the applicant's medical and rehabilitation benefits on the basis that same was not reasonable and necessary. The applicant then applied to the Licence Appeal Tribunal (the "Tribunal") for the resolution of the dispute.

ISSUES IN DISPUTE

2The issues to be decided in this hearing are:

i. Is the applicant entitled to the cost of an examination in the amount of $113.00 for an orthopaedic assessment, recommended by Dr. Getahun in a treatment plan ("OCF-18") submitted on March 28, 2019 in the amount?

ii. Is the applicant entitled to the cost of examination in the amount of $2,556.00 for a chronic pain assessment, recommended by Dr. Stephan Brown in an OCF-18 submitted on May 13, 2019 and denied by the respondent on May 27, 2019?

iii. Is the applicant entitled to the cost of examinations in the amount of $2,324.30 for a Functional Ability Evaluation ("FAE"), recommended by Ashok Kumar Jain in a treatment plan submitted on May 13, 2019 and denied by the respondent on May 27, 2019?

iv. Is the applicant entitled to the cost of examinations in the amount of $2,601.25 for a neurological assessment, recommended by Dr. Vincenzo Basile in a treatment plan submitted on May 14, 2019 and denied by the respondent on May 27, 2019?

v. Is the applicant entitled to payment for a medical benefit in the amount of $3,566.29 for psychological treatment, recommended by Health Bound in a treatment plan submitted on August 19, 2019 and denied by the respondent on October 25, 2019?

vi. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is entitled to the cost of the neurological assessment. The costs of the neurological assessment are limited to the costs outlined in s.25 of the Schedule. The applicant is also entitled to interest payable in accordance with s.51 of the Schedule.

4The applicant is not entitled to the cost of the transportation that formed part of the orthopedic assessment. He is also not entitled to the FAE assessment and he is not entitled to the disputed psychological treatment plan. He is not entitled to interest on these benefits.

5Further, there is no award under Regulation 664.

ANALYSIS

6Sections 14, 15, and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he seeks are reasonable and necessary and are related to the accident. To do so, the applicant should demonstrate that the goals as identified are reasonable, that the goals are being met to a reasonable degree and the cost of achieving the goals of treatment and assessment are reasonable taking into consideration both the degree of success and the availability of other treatment or assessments.

The Assessments

7The applicant is seeking funding for a chronic pain assessment, a neurological assessment and a FAE assessment.

8The applicant submits that these assessments are reasonable and necessary to assess and treat his accident-related impairments. The applicant further submits that the respondent obtained assessments through insurer examinations ("IEs") provided for in s.44 of the Schedule and that he should be afforded the same opportunity.

9The respondent submits that the applicant has not shown that these assessments are reasonable and necessary as the evidence shows that the assessments are sought for impairments that pre-date the accident and for pre-existing impairments. Further, the respondent relies on the IEs and points to the applicant's evidence that any accident-related injuries have improved significantly and that the applicant does not have any functional limitations as a result of accident-related impairments.

Chronic Pain Assessment

10The applicant seeks the costs of a chronic pain assessment submitted on an OCF-18 dated May 13, 2019, recommended by Dr. Brown. The applicant submits that because of his accident-related injuries he has pain symptoms that need to be investigated and that a chronic pain assessment is reasonable and necessary. The applicant further submits that he has more than simple strains because the pain caused by his injuries continues to persist, because he uses medical cannabis to manage his pain and because his treating doctors have not provided him with chronic pain treatment or management. Lastly, the applicant submits that the treatment plan will investigate to what degree, if any, the applicant's pre-existing chronic pain, was exacerbated by the accident; to determine the most appropriate roadmap for relevant treatment; to reduce his ongoing pain; to increase his strength and range of motion; and to assist him in returning to his pre-accident activities of daily living.

11The respondent submits that the chronic pain assessment is not reasonable and necessary as the pain complaints relate to pre-accident injuries, impairments and issues and are as a result of the applicant's post-accident, non-accident related diagnosis and symptoms of Raynaud's phenomenon. Further, the respondent relies on the findings of the IEs that do not agree that the applicant has chronic pain as a result of the accident.

12Under the section titled "Concurrent and prior conditions", the OCF-18 notes that it is "unknown" if there are concurrent or prior conditions. The OCF-18 notes that the applicant continued to complain of pain and discomfort in his neck, right, shoulder, right wrist, left knee, and numbness in his toes on the right foot. The goals listed in the OCF-18 are pain reduction, increased range of motion, increased strength, return to activities of normal living and further treatment recommendations.

13With respect to the goals, I find the evidence, as discussed below, shows that the goals are not reasonable and necessary for the applicant and his accident-related injuries.

14The clinical notes and records from one-year post-accident show diagnoses and treatment for pre-accident chronic pain, osteoarthritis and ongoing musculoskeletal injuries:

• September 19, 2017: f/u [follow up] CPx [chronic pain]
• November 7, 2017: 56 y.o. [male] CPx – Requests med[icinal] marijuana
• November 28, 2017: Hx[history of] chr[onic] pain, OA [osteoarthritis] bilateral shoulders
• December 12, 2017: regular use medicinal marijuana, chronic pain, multi msk [musculoskeletal] issues legs and shoulder
• March 27, 2018: Chr HX r 5th toe pain since # (chronic history of right 5th toe pain since a fracture)

15Prior to the accident, the applicant was using medical marijuana for his pre-existing chronic pain. The applicant also has pre-existing tendinosis in his right shoulder and was being followed by his treating orthopedic surgeon, Dr. Ogilivie-Harris.

16The applicant has pre-existing chronic pain that was diagnosed prior to the accident and for which the applicant was undergoing treatment at a rehabilitation center and using medical marijuana. As noted by the applicant, despite the pain continuing, the applicant's own treating physician has not indicated that there is pain that is chronic as a result of the injuries in the accident or that a chronic pain assessment or intervention is warranted for the accident related injuries and/or the pre-existing chronic pain.

17I find there is also limited evidence demonstrating range of motion issues or pain that is preventing a return to activities of daily living.

18The applicant relies on the report of Dr. Getahun, orthopaedic surgeon, who assessed the applicant on April 5, 2019. The applicant reported to Dr. Getahun that he has ongoing pain in his neck, right shoulder, right wrist and left knee. In his report, Dr. Getahun opined that the accident-related injuries are right shoulder strain and aggravation of tendinosis, right wrist strain and aggravation of pre-existing degenerative changes, left knee patellofemoral direct trauma. Dr. Getahun also noted that there was evidence of "what appears to be Raynaud's phenomenon."

19Dr. Getahun confirmed that the applicant reported that the pain to his neck, wrist and left knee was intermittent and that the physical examination indicated that the applicant had full range of motion in his neck, back, lower back and wrists. This was consistent with the IE report of Dr. Tu, general practitioner, from June 25, 2019. In her assessment, Dr. Tu also noted full range of motion and that the applicant reported that his right shoulder pain since the accident had improved by 50%.

20Although Dr. Getahun made recommendations in his report of April 5, 2019, he did not recommend any treatment for chronic pain, did not make a diagnosis of chronic pain and indicated that the expected healing time was one year.

21The only evidence of chronic pain and the need for treatment following the accident is in the subsequent report of Dr. Getahun dated July 9, 2020. However, this report is not persuasive in showing that the OCF-18 for a chronic pain assessment is reasonable and necessary as it is not contemporaneous to the OCF-18 itself and there is no discussion as to how Dr. Getahun determined that the applicant's ongoing post-accident issue is chronic pain (caused by the subject accident) in light of the applicant's pre-accident diagnosis and treatment of chronic pain. Further, there is no mention in this report of Dr. Getahun reviewing or having access to the pre-accident clinical notes and records or acknowledging the pre-accident chronic pain.

22Based on the evidence, the applicant has not met his onus to show that a chronic pain assessment is reasonable and necessary as a result of his accident-related impairments.

Neurological Assessment

23The applicant has met his onus to show that the neurological assessment is reasonable and necessary, and it is therefore payable with interest.

24Since the day of the accident the applicant has had consistent and unwavering complaints of left knee pain. He reported left knee pain at the hospital on the day of the accident, he reported it to this family doctor, and he has consistently done so to his own assessors and the IE assessors. Further, there are indications that prior to the accident the applicant had complaints regarding his right knee, however, there is no evidence that he had any ongoing pre-accident injuries, impairments or issues with his left knee.

25The OCF-18 for a neurological assessment is to explore treatment options as a result of possible neurological injuries as a result of the accident. The evidence of the applicant's treating physicians is most persuasive in that they diagnosis a neurological injury to the applicant's left knee and the applicant himself has consistently reported ongoing complaints with respect to his left knee following the accident.

26Specifically, the applicant saw Dr. Shammaa following a referral from his family doctor. In his report to the family doctor dated February 26, 2019, Dr. Shammaa, general practitioner, concludes that the applicant did in fact have an injury to his nerve as a result of the accident. Dr. Shammaa specifically states: "[the applicant] seems to have injured his infrapatellar nerve during the accident which causes a hyperalgesia and neuropathic type pain illicited by even a light touch" [sic]. Dr. Shammaa does note that the applicant reports that his left knee pain is intermittent.

27The IE assessors concluded that the applicant sustained no neurological impairments and therefore the neurological assessment is not reasonable and necessary. The IE assessors, however, were not provided with the reports or clinical notes and records of Dr. Shammaa nor were they provided with the clinical notes and records from the family doctor. Without the IE assessors considering this information, I am not persuaded that their opinions of no neurological impairments from the accident should attract more weight than the opinion of a treating doctor.

28I find that the applicant has met his onus to show that the neurological assessment is reasonable and necessary as he was diagnosed with a nerve injury as a result of the accident and an assessment from a neurological perspective is reasonable in the circumstances. Further the cost of the assessment and the documentation support activity for claim form is reasonable and in keeping with the industry standard. As well the costs of the transportation are payable in accordance with the Schedule.

Functional Abilities Evaluation

29Again, the onus is on the applicant to show that a FAE is reasonable and necessary. This includes showing that the goals of the treatment plan itself are reasonable and necessary. The applicant has failed to do so as the treatment plan itself has a goal that I find is unreasonable.

30Specifically, the FAE treatment plan lists one of the goals as: "to identify the client's current physical ability to manage job [sic]".

31The treatment plan then states that, "this information from this assessment will be useful in preparing an appropriate rehab plan as the client's physical and medical condition improves and developing any future return to work plan."

32I find that this goal is not reasonable and not necessary as the applicant continued working the day after the accident. There is no evidence that he took any time off work, had any modified duties or that his injuries have impacted his ability to work at all thereby requiring an assessment to assist in a return to work.

33Further, the applicant points to no specific evidence that is contemporaneous to the FAE plan of April 4, 2019. The applicant submits that, prior to the accident and despite the chronic pain in his knees, shoulders, and feet, that he was fully functional and independent in his activities of daily living. Following the accident, the applicant had functional impairments in his housekeeping and personal care. The applicant relies on the assessment report of Sharat Chawla, occupational therapist ("OT") ("the Chawla Report"), in support of his functional limitation.

34The Chawla Report is dated February 6, 2019 and is based on an assessment that took place on November 23, 2018, i.e., four months prior to the FAE treatment plan. Mr. Chawla notes that the only functional limitation that the applicant has is that he requires assistance in rebuilding his deck, a project which he started building prior to the accident. Mr. Chawla recommended that the applicant receive housekeeping assistance to support his return to work and his recovery from the right wrist fracture.

35I am not persuaded by the Chawla Report. Firstly, it states that the applicant requires assistance due to the specific injury of a fracture. The parties acknowledge that at the time of the accident that there was a suspected fracture, which included the applicant being casted. However, the treating orthopedic surgeon, Dr. Ogilivie-Harris, confirmed on or about October 31, 2018 that there was no fracture. Secondly, Mr. Chawla is told by the applicant that he has returned to work and is independent with his housekeeping and home maintenance following the accident. Despite this, Mr. Chawla states that assistance is required even though by the time of the assessment on November 23, 2019 it was confirmed that there was no fracture. In addition, I find that the report is not contemporaneous to the FAE plan, as it deals with the functional abilities of the applicant on November 23, 2019, some four months prior to the recommended FAE assessment and is based on the premise that the applicant had a fracture.

36The applicant also relies on the report of Dena Rogozinsky, OT, dated July 9, 2020. Again, this report is not contemporaneous to the FAE treatment plan and does not show how a FAE is reasonable and necessary because it is based on the applicant's self-reporting, which is not supported by the medical records.

37Further, the applicant submits that his diagnosis of Raynaud's phenomenon is accident related. While I make no finding on this claim, the applicant has not provided evidence as to how the diagnosis of Raynaud's phenomenon requires the applicant to have a FAE. While I acknowledge the diagnosis and the symptoms, there is no evidence or rationale provided by the applicant as to the need for a FAE as a result of Raynaud's phenomenon.

38Therefore, the applicant has not met his onus to show that a FAE is reasonable and necessary as a result of the accident.

Psychological Treatment Plan

39The applicant in his submissions identified the treatment plan of August 19, 2019 as plan for a psychological assessment. The applicant did not provide the treatment plan and thus the Tribunal requested a copy of the treatment plan from the parties which the respondent provided. The treatment plan confirms that the plan is for psychological treatment and not an assessment. Further, the Order of the Tribunal of April 9, 2019 states that the "issues in dispute were identified and agreed to" and lists this dispute as a treatment plan for psychological treatment and not an assessment. Therefore, the issue in dispute, is the treatment plan for psychological treatment dated August 19, 2019.

40The applicant submits that as a result of the accident he sustained psychological injuries that require treatment. He relies on the report of Dr. Aghamohseni dated August 19, 2019 wherein Dr. Aghamohseni diagnosis the applicant with major depressive disorder, somatic symptom disorder and specific phobia - vehicular.

41The respondent submits that the applicant withdrew this treatment plan and relies on the email from the applicant's counsel's office confirming same.

42I find that the issue of the psychological treatment plan is properly before the Tribunal. The email withdrawing the treatment plan is dated November 9, 2019. Following receipt of the email, the respondent cancelled the IE request. However, the case conference that set this matter for a hearing was completed on April 9, 2020, wherein the issues in dispute were agreed to and included this treatment plan for psychological treatment. The applicant made submissions on the cost of this treatment plan and, therefore, I find that the respondent knew that this treatment plan is an issue in dispute and had an opportunity to respond and make submissions regarding this treatment plan.

43However, with respect to the treatment plan, I find it is not reasonable and necessary. The applicant relies on the report of Dr. Aghamohseni of August 19, 2019 and the treatment plan submitted as a result of this report. I am not persuaded by the report of Dr. Aghamohseni and the treatment recommendations therein. Dr. Agahmohseni diagnosed the applicant with depression, however, she does not explain how she came to that conclusion. The assessment is based on the self-reporting by the applicant and testing; however, no explanation is provided as to how the testing and the self-reporting led to the diagnosis of depression. Further, the self-reporting in the report and treatment plan is not corroborated by any other evidence.

44The report of Dr. Aghamohseni indicates that the applicant underwent three tests. The first was the Davidson Trauma Scale which measures post-traumatic stress disorder. The report indicates that the applicant reported difficulties from "A little bit" to "Extremely." However, the report does not indicate which of the indices in this test the applicant reported to feeling "extremely" or which of the indices the applicant reported feeling "a little bit". There is also no diagnosis of Post-Traumatic Stress Disorder or a range provided as to what the results of this test means.

45The second test completed was the Patient Profile test ("P-3"). According to the report, the P-3 is used to identify patients who are experiencing emotional distress associated with primary complaints of pain. The report indicates that the P-3 assessment has three clinical scales: depression, anxiety and somatization. The testing, as per the report, showed the applicant reported average or above average difficulties with some issues including sleep, pessimism, chores, pain, anger, fatigue, etc. Again, the report does not indicate which of the indices in this testing revealed average difficulties and which indices showed above average difficulties and how the testing was scored and led to the diagnosis of depression, somatic symptom disorder or specific phobia - vehicular.

46The last test completed was the SCL-90-R, which, as per the report, this is a test used to evaluate psychological problems and symptoms and used to monitor progress or treatment outcome. The testing, as per the report, revealed that the applicant reported mild through severe difficulties, and it is unknown which of the indices of the test were mild for the applicant and which were severe and how this led to the diagnoses made by Dr. Aghamohseni.

47The only information provided was that the testing was generally consistent with the interview information but, again, there is no further explanation of what parts of the testing and the interview informed or resulted in the diagnosis of depression, somatic symptom disorder or specific phobia - vehicular. The applicant submits that Dr. Aghamohseni notes that the applicant experiences chronic pain, however, this diagnosis is not made nor are the applicant's pre-accident medical records from the family doctor listed as a reviewed document.

48Dr. Aghamohseni notes that the applicant has somatic symptom disorder with predominant pain at severe levels, but again, there is no discussion or information as to how she reached this conclusion. I am not persuaded that the reporting by the applicant was forthright, especially when the applicant reported to Dr. Aghamohseni that pre-accident he had no issues with pain, which, as discussed in detail above, is not accurate because the applicant did suffer from chronic pain before the accident.

49With respect to the diagnosis of specific phobia – vehicular, again, there is no evidence other than the self-reporting to Dr. Aghamohseni. I also note that in previous reports by Dr. Getahun, and the IE assessors Dr. Tu and Dr. Kucher, the applicant does not report ongoing vehicular issues but anxiety when riding a bike, as he continues to do. Further, I am not persuaded that Dr. Aghamohseni connects the phobia as an accident-related injury when she was not provided with the applicant's pre-accident medical history, which included a previous biking accident in 2008 that he reported to the (OT) Deanna Rogozinsky in July of 2020.

50The applicant also relies on the above noted OT report of July 20, 2020 as evidence of psychological injuries sustained in the accident. The OT states that the applicant has clinical depressions and opines that a psychological assessment for treatment purposes followed by a structured psychological program involving cognitive behavioural therapy is warranted based on her assessment.

51The respondent submits that a psychological diagnosis is outside the area of expertise of an OT and should be afforded little weight and that the report of Dr. Aghamohseni is not in keeping with the medical evidence. The respondent also points to the fact that the applicant has not presented evidence of psychological injuries and has never reported any psychological issues to his treating doctors.

52I agree with the respondent that the OT report should be afforded little weight with respect to the psychological testing and the interpretation of the testing especially when the psychological testing purportedly leads to a finding of "borderline clinical depression". This finding would require the proper expertise to explain which side of the "border" the applicant's results of clinical depression would fall. Further, and in any event, I agree with the respondent that psychological testing interpretation is outside the scope of an OT.

53I also find the OT report of July 2020 not persuasive, as the report recommended a psychological assessment based on the self-reporting of the applicant's psychological and emotional issues but this self-reporting is not corroborated by the treating medical records as the applicant does not report any psychological or emotional issues to his family or treating doctors. The OT report is also not contemporaneous to the proposed psychological treatment and therefore I find that it is not persuasive in showing that the disputed treatment plan is reasonable and necessary.

54Based on the above, the applicant has not met his burden to show that the treatment plan is reasonable and necessary. The applicant relies on the report of Dr. Aghamohseni which is unpersuasive. Further, there is no corroborating evidence that following the accident the applicant reported any psychological issues to his treating doctors. Therefore, based on the evidence, the applicant has not discharged his burden of showing that the treatment plan for psychological treatment is reasonable and necessary.

Cost of Transportation – Orthopaedic Assessment

55With respect to the cost of the orthopedic assessment in dispute, the applicant is seeking the balance of the cost of transportation/travel to the orthopaedic assessment, wherein the cost of the orthopaedic assessment was approved however the cost of $113.00 for the travel (which was part of the treatment plan) was denied by the respondent.

56Section 25(4) of the Schedule provides that an insurer shall pay for reasonable authorized transportation expenses incurred in transporting the insured person to and from an assessment. Section 3(1) of the Schedule provides that transportation expenses, which are incurred after the first 50 km of a trip, are calculated by applying the rates set out in the most recent transportation expense guideline published by the Financial Services Regulatory Authority of Ontario.

57The applicant concedes that the cost of the transportation is not $113.00. The applicant submits, without any evidence, that the location of the orthopaedic assessment with Dr. Getahun amounts to 6 km worth of transportation expenses. The applicant submits the assessment center, Excel Diagnostics listed on the treatment plan is less than 50 kms from the applicant's home but that the assessment with Dr. Getahun took place at a different location which is 56 km away from the applicant's home. The applicant submitted a map but did not submit evidence that the location tendered on the map is Dr. Getahun's office and that this is the location where the applicant travelled to.

58Prior to the submissions for the hearing, the applicant never informed the respondent of the location of the assessment being different than Excel Diagnostics despite the respondent clearly stating in the letter denying the cost of the transportation that Excel Diagnostics and the applicant's home are less than 50 km away from each other. Further, the actual treatment plan and the assessment of Dr. Getahun do not state that the assessment would take place somewhere other than Excel Diagnostics. Therefore, based on the above, the applicant is not entitled to the costs of the transportation, as he has not provided any evidence that the assessment was conducted more than 50 km from his home.

Award

59It is well-settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract a s. 10 award, the insurer's conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The applicant bears the burden of proving on a balance of probabilities that he is entitled to an award. As explained below, the applicant has not met his burden.

60The only benefit the applicant is entitled to is the neurological assessment. The applicant points out that the adjuster is not a medical specialist and therefore cannot make medical findings. The respondent relied on the IE neurological assessment which I found should not take precedent over the treating doctor's findings. My finding that the respondent's assessment should not be preferred over the treating doctor's findings does not in and of itself amount to an unreasonable withholding or delay of payment of benefits.

61The applicant submits that the IE assessor, Dr. Kutcher, ignored the diagnosis of Raynaud's phenomenon, however, the applicant provides no evidence that this is something that should be considered by a neurologist as the applicant's family doctor, the applicant's treating orthopaedic surgeon (Dr. Ogilivie-Harris) and the expert orthopaedic surgeon (Dr. Getahun) all agree that Raynaud's phenomenon falls within the scope of rheumatology. The applicant has not provided any evidence that Dr. Kutcher's failure to acknowledge Raynaud's phenomenon and the respondent's reliance on the report of Dr. Kutcher constitutes behaviour that is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

62Further, I am not pointed to any letters, adjuster log notes or anything that would support that the respondent's actions should attract an award that is punitive in nature.

63Therefore, I find the applicant is not entitled to an award.

Interest

64The applicant is entitled to interest for the neurological assessment, payable in accordance with s.51 of the Schedule. As no further benefits are payable, there

ORDER

65The applicant is entitled to the cost of the neurological assessment, with interest payable in accordance with Schedule The applicant is not entitled to the remaining benefits in dispute. The applicant is also not entitled to further interest or an award under s. 10 of O. Reg. 664.

Footnotes

1. 1O. Reg. 34/10