Licence Appeal Tribunal
Released Date: 10/06/2021
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:
Gloria Oliveira-Guerrero
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Shahzad Ayub, Counsel
For the Respondent:
Danielle J. Ralph, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on February 19, 2017 and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Aviva denied the benefits in dispute on the basis that they are not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are as follows:
i. Is the applicant entitled to receive a medical benefit in the amount of $3,407.22 for chiropractic services, recommended by PhysioFix in a treatment plan submitted March 3, 2018, and denied by the respondent on April 23, 2018?
ii. Is the applicant entitled to receive a medical benefit in the amount of $3,699.44 for psychological services, recommended by PhysioFix in a treatment plan submitted January 2, 2018, and denied by the respondent on March 8, 2018?
iii. Is the applicant entitled to receive a medical benefit in the amount of $4,791.79 for chiropractic services, recommended by PhysioFix in a treatment plan submitted January 2, 2018 and denied by the respondent on January 8, 2018?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that the OCF-18s in dispute are reasonable and necessary and is therefore not entitled to payment for same. As no benefits are overdue, no interest is payable under s. 51.
ANALYSIS
Are the treatment plans reasonable and necessary?
4To receive payment for treatment in an OCF-18 under the Schedule, the applicant bears the burden of proving on a balance of probabilities that the plan is reasonable and necessary as a result of an accident. To meet this burden, the applicant should demonstrate that the impairments requiring intervention would not have occurred but for the accident. Then, the applicant should identify the goals of the plans, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.
Chiropractic Treatment in the amount of $3,407.22
Chiropractic Treatment in the amount of $4,791.79
5The applicant submits that the two treatment plans for physical therapy are reasonable and necessary to assist her in decreasing her muscle tension and to increase her strength, flexibility, power and co-ordination and that without treatment, she will continue to suffer.
6I find the applicant has not demonstrated that the OCF-18s in dispute are reasonable and necessary as a result of the accident. As Aviva points out, the applicant has provided limited medical evidence contemporaneous with the submission of these treatment plans that would demonstrate that she required the treatment as a result of the accident, which is the threshold burden she must meet for entitlement. Indeed, most of the evidence during this period relates to a workplace injury and effects from that injury that lingered for quite some time and which hindered her progress. While it also appears the applicant has severe age-related degenerative issues in her back, her accident-related injuries are all primarily soft-tissue injuries identified as whiplash, headaches and sprain and strain to her cervical and lumbar spine, shoulder and hip. The applicant’s submissions fail to demonstrate that she meets the but for test to establish causation, and her submissions on how ongoing treatment is reasonable and necessary are limited.
7Putting causation aside, perhaps more problematic is that the applicant relies heavily on the treatment plans themselves to prove entitlement. It is well-settled that OCF-18s are not the type of medical evidence required to prove that treatment is reasonable and necessary, and especially so where the recommendations are not supported by an objective referral from a family physician or specialist, and where the applicant reported to various practitioners that her previous treatment between March 2017 and April 2018 was not helpful in relieving her symptoms or providing extended relief from pain. The progress report from Dr. Winter dated March 3, 2018 states that the applicant reports minimal to moderate improvement, with many of her issues attributed to her workplace injury, and not to the subject accident. In this vein, it is difficult to find that additional treatment at the costs proposed would be a reasonable cost for the limited benefit derived over one-year post-accident.
8The OCF-18s primarily address the applicant’s foot issues and not her accident related impairments. The applicant’s submissions do not speak to the significant amount of treatment proposed, let alone the cost of same, in either of the OCF-18s or why such a comprehensive program was required for what appear to be soft-tissue impairments sustained in the accident. The applicant also did not specifically identify how any of the individual items in the OCF-18s—cervical pillow, aromatherapy neck and shoulder wrap, back supports, pain gel, personal massager, body pillow, exercise equipment, gel packs—are reasonable and necessary, or even if any of the items were incurred. The Tribunal would have benefitted from a more fulsome analysis.
9On this basis, I prefer the s. 44 reports and addendum of physician Dr. Alikhan and chiropractor Dr. Kopansky-Giles. The applicant reported to both practitioners that she was performing her personal care and household duties, that she was riding an exercise bike at home, completing stretches, and using therapy bands. These statements do not align with the volume of treatment proposed. Both practitioners found that the proposed treatment was not reasonable and necessary, as the applicant sustained soft-tissue injuries and that further facility-based treatment would be unlikely to provide substantive benefit. Accordingly, I find no reason to interfere with Aviva’s determination that was based on these reports and find that the applicant is not entitled to either of the OCF-18s in dispute as they are not reasonable and necessary as a result of the accident.
Psychological Treatment in the amount of $3,699.44
10The applicant submits that the psychological treatment plan proposing 12 sessions of treatment is reasonable and necessary due to her diagnosis of Adjustment disorder with mixed anxiety and depressed mood and specific phobia (travel anxiety) by Dr. Bodnar in December 2017, and her later recommendation for psychological treatment. The applicant submits that without psychological treatment she will continue to be trapped in a cycle of psychological impairments.
11In response, Aviva submits that it partially approved the treatment plan in the amount of $1,280 via explanation of benefits dated March 8, 2018. It advised that the applicant was approved to receive treatment from a psychometrist at the Guideline rate, but that to receive approval for the remaining amounts, Aviva requested she confirm which practitioner was providing treatment and how it was provided because any fees related to supervision would not be payable. Further, it advised that the fees proposed in the OCF-18 for preparing for treatment and the progress report were not necessary. Aviva submits that it notified the applicant that if the information requested was not provided, the amounts listed on the invoices would not be payable under s. 33(6) of the Schedule. Aviva submits that the applicant has not provided the information requested and has not provided a reasonable explanation for failing to do so, meaning it is not liable to pay. Further, and in any case, it submits that the applicant has not demonstrated that the outstanding amounts in the OCF-18 are reasonable and necessary.
12I agree with Aviva. Despite having the benefit of reply, the applicant did not provide a rebuttal to Aviva’s position or explain why she has not complied with its s. 33 requests for more information to support the recommendations in the OCF-18. On review of the letter dated March 8, 2020, $1,280 of treatment was approved at the psychometrist Guideline rate. Further, it clearly requests further information related to treatment and states that the additional amounts will not be paid until the requested information is received. The notice also sets out the services that Aviva did not agree to pay for.
13Aviva approved psychological treatment but denied costs for services that it did not have sufficient information to verify or that it deemed unreasonable and unnecessary, while offering the applicant the opportunity to demonstrate otherwise. The applicant has not demonstrated that she provided any of the information requested nor did she provide specific submissions to speak to whether the remaining unapproved services in the OCF-18—identified as supervision services, brokerage, preparation and a progress report—are reasonable and necessary. Where it is the applicant’s burden to demonstrate that the unapproved services proposed are reasonable and necessary, I find that she has not done so. Accordingly, Aviva is not required to fund the outstanding amounts in the OCF-18 as they are not reasonable and necessary.
14As no benefits are overdue, it follows that no interest is payable under s. 51.
ORDER
15The applicant has not demonstrated that the OCF-18s in dispute are reasonable and necessary and is therefore not entitled to payment. As no benefits are overdue, no interest is payable under s. 51.
Released: October 6, 2021
_______________________
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.