Released Date: 09/20/2021
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:
Trudiann Jackson
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION AND ORDER
ADJUDICATOR:
Rupinder Hans
APPEARANCES:
For the Applicant:
Marina Korshunova, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
Heard by way of written submissions
OVERVIEW
1The applicant was injured in a motor vehicle accident on April 3, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).
2The applicant applied for medical benefits and an examination expense that were denied by the respondent. The applicant disagreed with this decision and appealed to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
3The applicant is not in the Minor Injury Guideline as defined in subsection 3(1) of the Schedule, and is thus, not subject to the $3,500.00 treatment limit.
ISSUES IN DISPUTE
4As agreed between the parties, the following issues are to be decided:
a. Is the applicant entitled to a medical benefit in the amount of $2,664.00 for physiotherapy services recommended in a treatment plan submitted on August 3, 2018 and denied by the respondent on November 18, 2018?
b. Is the applicant entitled to a medical benefit in the amount of $2,774.40 for physical rehabilitation services recommended in a treatment plan submitted on September 16, 2019 and denied by the respondent on November 7, 2019?
c. Is the applicant entitled to a medical benefit in the amount of $655.90 for assistive devices recommended in a treatment plan submitted on November 11, 2019 and denied by the respondent on November 11, 2019?
d. Is the applicant entitled to a medical benefit in the amount of $2,439.00 for physical rehabilitation services recommended in a treatment plan submitted on January 16, 2020 and denied by the respondent on January 18, 2020?
e. Is the applicant entitled to an examination expense in the amount of $2,195.32 for a psychological assessment recommended in a treatment plan submitted on November 26, 2019 and denied by the respondent on December 2, 2019?
f. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5Based upon the totality of the evidence before me, I find the applicant is:
a. Entitled to the medical benefit for physiotherapy services in the amount of $2,664.00;
b. Not entitled to physical rehabilitation services in the amount of $2,774.40;
c. Not entitled to assistive devices in the amount of $655.90;
d. Not entitled to physical rehabilitation services in the amount of $2,439.00;
e. Not entitled to a psychological assessment in the amount of $2,195.32;
f. Entitled to interest on the incurred amount for the approved treatment plan for physiotherapy services in accordance with the Schedule.
ANALYSIS
- Is the applicant entitled to the medical benefits for physiotherapy and physical rehabilitation services?
6The test for the payment of medical benefits as set forth in section 15 of the Schedule is whether the benefits claimed are reasonable and necessary expenses. In order to find that a medical benefit is payable, I must be satisfied that the applicant has proven on a balance of the probabilities that the treatment plans are reasonable and necessary.
7The applicant submits that she should be entitled to the physiotherapy and physical rehabilitation services in order to reduce her pain and improve her physical limitations.
8I note the first treatment plan submitted on August 3, 2018 for physiotherapy proposed 18 physical rehabilitation sessions, and 8 massage therapy sessions. In the OCF-18, her injuries are listed as whiplash associated disorder with complaint of neck pain with musculoskeletal signs, sprain and strain of lumber spine and ribs and sternum and thoracic spine, contusion of knee, contusion of other parts of wrist and hand and headache.
9The applicant submits that, at the time, she was experiencing constant upper back pain, which was worse with lifting, pushing and pulling; intermittent lower back pain aching in nature which occurs with bending, lifting and prolonged sitting; and daily right knee pain worse with treadmill exercise and classes at the gym. The goals of the treatment plan included pain reduction, increased range of motion, increased strength, return to activities of normal living, return to pre-accident work activities and help to tolerate her regular work. I note that prior to the submission of this particular treatment plan, the clinical notes and records of the applicant’s treating family physician, Dr. David Law, contain multiple and ample references to the pain that she was continuing to experience as a result of the accident. I find these clinical notes and records to be particularly convincing in establishing she was experiencing physical symptoms that required facility-based treatment. For instance:
i. May 23, 2018 – “persistent pain, especially in the morning, no pain after sitting, feels pins and needles”.
ii. June 7, 2018 – “back still hurting. Unable to sit in the car to drive for a long time. Has to wiggle back and forth. On showering her child, she cannot bend halfway. The chronic back sensations especially holding her back in certain positions has bothered her. There are times of complete relief of back pain. These however are rare and far in between. She has back dominant pain with no radicular symptoms. . . . Back dominant pain, in upper and lower back.”
iii. August 15, 2018 – “There is pain when she sleeps. . . chronic neck and back pain. Likely soft tissue strain. Now becoming depressed.”
iv. September 7, 2018 – “The patient began to cry in the clinic due to concerns about her neck and back. . . There is pain when she sleeps.” “A/P: chronic neck and back pain. Likely soft tissue strain.”
10The report from Dr. Lila Georgevich, neurologist, dated October 1, 2018, notes that while the applicant’s headaches have abated the location of pain was from occiput to the vertex and sometimes on the temporal and vertex. The vertex pain felt like pinching and in the other areas was a lightning like pain. Dr. Georgevich further notes that it is not uncommon when there has been a history of trauma and significant pain that sleep is disturbed, and this may lead to secondary migraine.
11The respondent relies upon the section 44 physician assessment report of Dr. Riaz Moolla, physician, dated November 7, 2018, who diagnosed the applicant with myofascial strain injuries to her cervical and thoracolumbar spine and a strain injury to her right knee. Essentially soft tissue injuries. While noting the applicant’s complaints of back pain and right knee pain and her twice a week attendance at a physiotherapy clinic for treatment, he found that the treatment plan was not medically reasonable and necessary.
12I note that at the time of the first treatment plan there is convincing medical evidence, particularly from her treating family physician, to establish the applicant was experiencing pain, and the pain associated with her impairment inhibits and impacts her daily activities. One of the goals of treatment was to reduce pain so that she is able to engage in daily activities and regular work activities. I find the first treatment plan to be reasonable and necessary to address the applicant’s ongoing pain symptoms at the time.
13However, with regards to the remaining two treatment plans for rehabilitative services submitted on September 16, 2019 and January 16, 2020, I do not believe the applicant has met her burden. The applicant asserts that the treatment plans are reasonable and necessary to address her ongoing pain and chronic pain and her physical limitations. Again, I turn to the clinical notes and records, at the time, of her treating family physician and I do not believe they assist her in meeting her burden. For instance, Dr. Law, notes:
i. April 25, 2019 - “there is no physical limitations but psychological factors have made an impact on her.”
ii. October 1, 2019 – “still having pain in the R knee . . . . she was advised that there was no physical finding that we have the say that she has sustained permanent damage physically. As such there may be some soft tissue injuries that are still not detected by x-rays or her MRI. However these are minor things that she needs to put aside.”
14Thereafter, while there are limited references in Dr. Law’s clinical notes and records to headaches and pain, the focus appears to be on her ongoing psychological symptoms and psychological limitations.
15I note that even Dr. Georgevich in her November 20, 2019 report notes that the applicant is feeling better and gets pain tweaks here and there and her legs go numb in the pre-tibial surface bilaterally. But her general health is noted as good. Dr. Georgevich notes that an MRI of the brain, cervical spine and thoracic spin are normal, and the applicant’s headaches have diminished. She opines that the applicant’s “occasional back pain is mechanical and have suggested some gentle core strengthening.”
16I also found persuasive the section 44 general physician report of Dr. Maria Nesterenko, physician, dated November 7, 2019, who notes the applicant reports an improvement of about 50 percent with respect to her post-accident pain symptoms and she does exercises at home which she was taught at the rehabilitation facility that provided her with facility-based therapy. She also takes Tylenol on an as needed basis for her pain symptoms.
17I found convincing Dr. Nesterenko assertion that the applicant did not demonstrate any ongoing objective musculoskeletal impairment attributable to the accident related injuries and she had functional ranges of motion in her cervical and thoracolumbar spine as well as both upper and lower extremities. Dr. Nesterenko noted that the soft tissue injuries that the applicant sustained have a customary healing time of 8 to 12 weeks and that her prognosis is good. Dr. Nesterenko opined that the applicant had achieved maximum therapeutic benefit from formal facility based physical rehabilitation and that further formal facility-based treatment was not reasonable or necessary.
18While I understand that the applicant has continued facility-based treatment at her own expense since the time of the accident, I must base my decision upon the medical evidence before me. Having considered the evidence, I find on a balance of probabilities that the applicant has met her burden with regards to the earlier treatment plan. However, with regard to the later two treatment plans, she has failed to provide persuasive medical evidence establishing that she had ongoing pain symptoms that required facility-based treatment. I do not find the later two treatment plans to be reasonable and necessary.
19Given the above and based upon the totality of the evidence presented, I find the applicant is entitled to the treatment plan for $2,664.00 for physiotherapy services. I find that she is not entitled to the treatment plans in the amounts of $2,774.40 and $2,439.00 for physical rehabilitative services.
- Is the applicant entitled to the medical benefits for an assistive device?
20Based upon the totality of the evidence presented, I do not find the treatment plan to be reasonable and necessary.
21I note the assistive device is listed in the OCF-18, dated November 11, 2019, as a Thumper mini-pro (massager) for home usage. The OCF-18 states that the assistive device was provided to the applicant to assist with her ongoing pain and stiffness as the applicant reported ongoing neck and back pain, especially with more physically demanding tasks such as bending and pulling as well as more prolonged static posture such as sitting and driving. The goal of the treatment plan is pain reduction and a return to the activities of normal living.
22In denying the treatment plan, the respondent relied upon the opinion of Dr. Nesterenko that the applicant did not demonstrate any ongoing objective musculoskeletal impairment attributable to the accident-related injuries and that she had reached maximum medical improvement with respect to the initially sustained physical injuries in the accident. The respondent asserts there is no therapeutic value in the personal massager.
23I find the applicant has not adduced persuasive medical evidence from any of her medical doctors in order to assess whether or not the personal massager is reasonable and necessary to assist her at home. There was insufficient and non-persuasive evidence provided demonstrating the nature of the massager, the areas that would be targeted for treatment with the massager and how the massager would assist the applicant with any symptoms. The burden is on the applicant to establish that the personal massager is an assistive device that will assist her, and that the treatment plan is reasonable and necessary. She has not met that burden.
24Given the above, I find the applicant is not entitled to the medical benefits for an assistive device.
- Is the applicant entitled to an examination expense for a psychological assessment?
25Based upon a totality of the evidence presented, I find the applicant is not entitled to an examination expense for a psychological assessment. I find she has failed to establish, on a balance of probabilities, that the treatment plan is reasonable and necessary.
26The respondent denied the treatment plan based upon the fact that it was a duplicate of a previously approved treatment plan for a psychological assessment in the amount of $1,988.79 for an OCF-18 dated July 25, 2018. The psychological assessment was approved on January 8, 2019. The respondent asserts that the applicant failed to explain in her submissions why in less than a year another psychological assessment is necessary. The respondent further notes the applicant’s major depressive disorder and driving anxiety are in full remission and she has reached maximum medical improvement.
27The applicant submits that the treatment plan relates to a driving anxiety evaluation which was recommended by Dr. Fahimeh Aghamohseni, psychologist, and the pre-screening was completed by Dr. Andrew Shaul, Psychologist, on November 4, 2019. In the submitted OCF-18, Dr. Aghamohseni states that one of the goals of the treatment plan is to return to pre-accident level of driving and passenger comfort/confidence. The applicant submits that she requires a comprehensive assessment in order to overcome in-vehicle anxiety and to return to her pre-accident lifestyle.
28Dr. Shaul notes that a comprehensive psychological assessment is required to gain a better understanding of the adverse changes that have occurred in her life since the accident and her nervousness while travelling in a vehicle. I did not find that Dr. Shaul was convincing in establishing that the plan was reasonable or necessary. I note there does not appear to be any direct reference to a driving anxiety evaluation in Dr. Shaul’s pre-screening report. Instead, he opines, in part, that it is imperative to further assess and evaluate the applicant’s current psychological status to gain a better understanding of her background, history and past and current medical conditions.
29In the psychological progress report of Dr. Aghamohseni, dated May 7, 2019, she notes that the applicant continues to experience pedestrian anxiety and in-vehicle anxiety as a passenger and a driver. The applicant also has periods of unmanageable anxiety and depression and has not yet been able to learn how to manage racing thoughts and rumination.
30The applicant has undergone section 44 psychiatry examinations with Dr. Tatiana Melnyk. In a December 3, 2018 report, Dr. Melnyk diagnosed the applicant with major depressive disorder, single episode, moderate, and situational phobia (vehicular). In her addendum report dated December 13, 2018, Dr. Melnyk noted that the applicant presents with fears related to driving but should first be treated for her significant depressive symptoms and a driving assessment be reviewed if it is necessary as the applicant’s mood is stabilized.
31However, in her more recent report dated May 27, 2019, Dr. Melnyk notes the applicant has largely returned to her pre-accident functioning and levels of driving. The applicant is noted as driving 30-45 minutes in two directions per day and during one of the commutes she is on the highway. While she reports lowered confidence in terms of driving, she does not report any impairing anxiety while driving. Dr. Melnyk opines that the applicant’s major depressive disorder and her situational phobia (vehicular) appear to be in remission.
32I note the burden is on the applicant to establish on a balance of probabilities that a psychological assessment is reasonable and necessary. The medical evidence before me is not convincing in this regard and I further note that the previous psychological assessment was approved about a year earlier. In addition, I find Dr. Melnyk’s reports to be persuasive. While I note that in her earlier reports, Dr. Melnyk diagnosed the applicant with major depressive disorder and situational phobia of driving as a result of the accident, in her more recent report, she opines that both these conditions have resolved and have remained in remission. In particular, Dr. Melnyk notes that the applicant has resumed driving, largely at her pre-accident level, and she drives 30-45 minutes in two directions per day and during one of those commutes she is on the highway.
33I am not satisfied the applicant has proven on a balance of the probabilities that the treatment plan is reasonable and necessary.
34Given the above, I do not believe the applicant has met her burden and I find she is not entitled to an examination expense for a psychological assessment.
- Is the applicant entitled to interest?
35The applicant is entitled to interest, in accordance with the Schedule, on any incurred amounts for the approved treatment plan for physiotherapy services.
ORDER
36After considering the evidence, pursuant to the authority vested in it under the provisions of the Act, the Tribunal orders that the applicant is:
a. Entitled to the medical benefit for physiotherapy services in the amount of $2,664.00;
b. Not entitled to physical rehabilitation services in the amount of $2,774.40;
c. Not entitled to assistive devices in the amount of $655.90;
d. Not entitled to physical rehabilitation services in the amount of $2,439.00;
e. Not entitled to an examination expense for a psychological assessment in the amount of $2,195.32;
f. Entitled to interest on the incurred amounts for the approved treatment plan for physiotherapy services in accordance with the Schedule.
Released: September 20, 2021
Rupinder Hans
Adjudicator