Rajendranauth Naraindranauth v. Aviva General Insurance, 2022 CanLII 106423

Citation: Naraindranauth v. Aviva General Insurance, 2022 ONLAT 19-010282/AABS

Licence Appeal Tribunal File Number: 19-010282/AABS

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:

Rajendranauth Naraindranauth

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Maurice Benzaquen, Counsel

For the Respondent: Pamela Quesnel, Counsel

HEARD: By way of written hearing

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant was involved in an automobile accident on September 9, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule -Effective September 1, 2010 (including amendments effective June 1, 2016)¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PROCEDURAL HISTORy

2The parties participated in a Case Conference, where Adjudicator Reilly ordered a combined hearing² to address the issues in dispute.

3The applicant filed a Notice of Motion on April 28, 2021, where the parties requested permission to delay the written component of the hearing and was granted via motion order³.

4This motion⁴ ordered that:

a. The respondent re-word and resubmit parts of its submissions.

b. The applicant was granted permission to file his reply submissions by June 25, 2021.

5On June 23, 2021, the applicant’s counsel emailed the Tribunal and the respondent’s counsel which enclosed a Notice to Withdraw the issue of the income replacement benefit (“IRB”). I accepted this Notice and will address the remaining issues in dispute.

ISSUES

6The following issues are in dispute for the Tribunal to decide:

1. Is the applicant entitled to the following medical benefits for physiotherapy recommended by the Toronto Health Care Clinic as follows;

a. $1,465.10 submitted November 29, 2018, and denied December 28, 2018?

b. $1,467.85 submitted January 2, 2019, and denied January 10, 2019?

c. $1,800.00 submitted January 2, 2019, and denied January 10, 2019?

d. $2,070.05 submitted February 20, 2019, and denied March 4, 2019?

e. $1,213.61 submitted June 20, 2019, and denied June 21, 2019?

2. Is the applicant entitled to a medical benefit of $ 2,887.14 for psychological services recommended by the Toronto Health Care Clinic submitted on March 14, 2019, and denied on May 24, 2019?
3. Is the applicant entitled to the cost of an examination for $10,986.56 for a chronic pain treatment plan recommended by the Toronto Health Care Clinic submitted on July 31, 2019, and denied on August 9, 2019?
4. Is the applicant entitled to the cost of an examination for $2,000.00 for a chronic pain assessment recommended by the Toronto Health Care Clinic submitted on April 10, 2019, and denied on April 24, 2019?
5. Is the applicant entitled to the cost of an examination for $1,521.26 for an attendant care needs assessment recommended by the Toronto Health Care Clinic in a treatment plan submitted on October 26, 2018, and denied on December 28, 2018?
6. Is the applicant entitled to the cost of an examination for $2000.00 for a psychological assessment recommended by the Toronto Health Care Clinic in a treatment plan submitted on November 24, 2018, and denied on December 28, 2018?
7. Is the applicant entitled to the cost of an examination for $1340.20 for a functional impairment evaluation recommended by the Toronto Health Care Clinic in a treatment plan submitted on November 29, 2018, and denied on December 28, 2018?
8. Is the applicant entitled to the cost of an examination for $1981.70 for a driver rehabilitation assessment recommended by the Toronto Health Care Clinic submitted on March 14, 2019, and denied on May 24, 2019?
9. Is the applicant entitled to the cost of an examination for $ 5200 for a vocational assessment recommended by the Toronto Health Care Clinic submitted on June 25, 2019, and on denied June 28, 2019?
10. Is the applicant entitled to an award for unreasonably held or delayed payments under section 10 of Ontario regulation 664?
11. Is the applicant entitled to interest on any overdue payment of benefits?

LAW

7Section 3(7)(e) of the Schedule states that an expense related to goods or services is not incurred unless: the insured person has received the goods/services to which the expense relates, the insured person has paid, has promised to pay or is legally obligated to pay the expense and the person who provided the goods/services did so in the course of his normal employment/occupation/profession or sustained an economic loss as a result of providing the goods or services to the insured person.

8Sections 14 and 15 of the Schedule states that an insurer shall pay medical benefits to, or on behalf of an insured person, so long the person sustains an impairment as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the insured person as a result of the accident.

9Section 25 of the Schedule states that insurers shall pay the reasonable costs of examinations/assessments on behalf of an insured person and that the maximum rate for said assessment shall be $2,000.00.

10Section 38(8) of the Schedule states that within 10 business days of an insurer receiving a treatment and assessment plan, it shall give the insured person notice that identifies the goods/services/assessment/examinations described in the treatment and assessment plan that it will pay for or refuses to pay for and provide the medical reasons and all other reasons why said goods/services/assessment/examinations or costs are not reasonable and necessary.

11Section 38(11) of the Schedule states that if an insurer fails to give a notice per section 38(8) of the Schedule related to a treatment and assessment plan, the insurer is prohibited from taking the position that the insured person has an impairment where the Minor Injury Guideline applies. The insurer shall pay for all goods/services/assessment/examinations described in the plan related to the period, starting on the 11th business day after the day the insurer received the plan, and ending on the day the insurer provides a notice that complies with section 38(8) of the Schedule.

12Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

analysis

Physiotherapy

13The applicant requested payments for five treatment plans (“OCF-18”s) related to physiotherapy with the same service provider and similar goals; I will address all five OCF-18s at once.

14The applicant sought funding for physiotherapy treatment in the amount of $1,465.10 (“first OCF-18”), $1,467.85 (“second OCF-18”), $1,800.00 (“third OCF-18”), $2,070.05 (“fourth OCF-18”) and $1,213.61 (“fifth OCF-18”).

15The applicant submitted that the first OCF-18 was denied outside the time prescribed by the Schedule and was deemed approved, as the OCF-18 was submitted on November 29, 2018, and denied on December 28, 2018⁵.

16The applicant submitted that he is entitled to payment for all of the OCF-18s for physiotherapy as they are reasonable and necessary.

17The applicant relied on the insurer’s examination⁶ (“IE) of Dr. David Mula, physician. Dr. Mula noted the applicant’s pre-existing conditions included martial and mental health issues and left shoulder pain. Dr. Mula found that the applicant had issues with transferring from sitting to standing, removing his jacket, performing a full squat, transferring from sitting to lying and vice versa. Dr. Mula opined that the applicant suffered from myofascial strain in his cervical paraspinal musculature, sternocleidomastoid muscles, bilateral shoulders, and thoracic paraspinal musculature, lumbosacral myofascial strain, and also suffered from cervicogenic headache. The doctor found that the applicant “but for” the applicant’s accident, the applicant would not be injured.

18Dr. Mula performed a second IE⁷ to address the first OCF-18 and found the same issues as he did in the first IE, except for the sternocleidomastoid muscles. The doctor also noted the applicant’s limitations with rotation and flexion. Dr. Mula also found that the applicant likely had reached maximum medical recovery from his soft-tissue injuries and that further facility-based treatment would not lead to significant, long-lasting improvements in the applicant. Instead, the doctor recommended that the applicant continue with a home-based exercise and follow up with his family doctor.

19The applicant submitted that Dr. Mula’s findings show that the applicant’s pain is chronic, as the doctor opined that the applicant’s pain will not improve. The applicant also argued that the doctor ignored the Tribunal’s finding that pain reduction is a reasonable and necessary purpose of therapy.

20The applicant also relied on his clinical notes and records from Dr. Risa Bordman, and Dr. Jacob Bukczynski, physicians, at his walk-in clinic, which noted that the applicant complained of neck⁸ and back pain⁹, headaches¹⁰, limited neck flexion/extension, back tenderness, spinal extension/flexion pain, chronic back¹¹ and neck pain¹², which radiated up the applicant’s knee. The applicant submitted that the doctors prescribed him medications¹³ to address his pain.

21The applicant relied on the four disability certificates (“OCF-3”) by Dr. Domenic Minella, chiropractor¹⁴. Within the OCF-3s, Dr. Minella indicated that the applicant suffered from headaches, dizziness, sprains/strains of the cervical, thoracic and lumbar spine, sprains and strains of the shoulder girdle, pain at various sites, emotional symptoms and signs, had limitations with his activities of daily living (“ADL”s), estimated a disability duration of more than 12 weeks, and recommended a functional abilities evaluation and a chronic pain assessment. Dr. Minella also recommended that the applicant attend passive and active rehabilitation therapy in an OCF-18¹⁵ which is not in dispute. Dr. Minella also recommended¹⁶ that the applicant continue in a multi-disciplinary rehabilitation program for his headaches, and neck, back and shoulder pain.

22The applicant also relied on the Chronic Pain Consultation Report¹⁷ of Dr. Dimitri Louvish, family medicine specialist, which found that the applicant’s functional limitation may be minimized by ongoing, physical rehabilitation therapy and structured, progressive exercise in a gym setting, long-term. The doctor opined that without this treatment, it was likely that the applicant’s physical and psychological conditions will deteriorate over time.

23The applicant also relied on the applicant’s Assessment of Attendant Care Needs¹⁸ (“Form 1”) completed by Pravin Kedar, occupational therapist, where Mr. Kedar recommended that the applicant continue to participate in active and passive rehabilitation.

24The respondent submitted that the five disputed OCF-18s are not reasonable and necessary.

25The respondent submitted that the first OCF-18 had a proper denial. The respondent relied on its Explanation of Benefit¹⁹ (“EOB”), which requested an IE, and was within the ten-business day response period required by s. 38(8). A subsequent EOB²⁰ denied the first OCF-18 based on Dr. Mula’s IE²¹, which found that the applicant reported only receiving 20-25% relief, which lasted 1-1.5 days with improvements to his range of motion and that his pain had improved 55%.

26The respondent also relied on Dr. Mula’s subsequent IE²², which found that the doctor’s findings had not changed.

27In terms of the second and third OCF-18s, the respondent submitted it denied the treatments via EOB²³ and it denied the OCF-18s based on Dr. Mula’s IE²⁴, where the doctor opined that further physical therapy would “not likely lead to future significant, long-lasting improvements in this claimant” and therefore, was not reasonable or necessary.

28The respondent submitted that it responded to the fourth OCF-18 by a letter²⁵, where the respondent requested an IE and subsequently denied the OCF-18 via an EOB²⁶; the respondent submitted the basis of this denial was a further, IE²⁷ of Dr. Mula, where the doctor found: “the proposed chiropractic and massage therapy would not likely lead to further significant, long-lasting improvement in this claimant as the claimant has likely reached maximum medical improvement.” The doctor again recommended that the applicant continue his home-based exercise program.

29Concerning the fifth OCF-18, the respondent submitted it replied to the OCF-18 by letter²⁸, where the respondent notified the applicant that similar treatment of this nature had already been addressed and found to be not reasonable and necessary and referred to the IE of Dr. Mula dated April 30, 2019.

30The respondent relied on the decisions of 16-000098 v Aviva Insurance Canada²⁹ and 17-001083 v Wawanesa Mutual Insurance Company³⁰, where the Tribunal found that ongoing, passive therapy with little reported improvements is not considered reasonable and necessary.

31The respondent argued that the applicant had previous pain complaints, and based on the totality of the evidence, has not shown that the disputed OCF-18s are reasonable and necessary.

32After considering the submissions of the parties, based on a balance of probabilities, I find that the disputed OCF-18s are not reasonable and necessary.

33The applicant has not presented persuasive evidence that the respondent failed to answer the first OCF-18 according to sections 38(8) and (11) of the Schedule; instead, I was presented with persuasive evidence from the respondent that it responded and denied all of the disputed OCF-18s for physiotherapy within the timelines provided by the Schedule.

34In terms of the first OCF-18 being reasonable and necessary, I agreed with the respondent that the applicant has failed to provide medical evidence that supports his position.

35Though Dr. Mula did note the applicant was experiencing pain during his first and second IE, the doctor never specifically supports the applicant’s requested OCF-18. Instead, Dr. Mula opined that the applicant would not benefit from the disputed treatment. Though I agree that pain reduction is a valid goal of an OCF-18, the applicant bears the onus of demonstrating that the disputed treatment will reduce his pain and did not provide evidence of such.

36Moreover, I would have expected the applicant’s walk-in clinic doctors to comment on one or all of the disputed OCF-18s for physiotherapy, however, the applicant did not submit any evidence of any such opinion.

37In terms of the OCF-3s of Dr. Minella, I found them to be of limited evidentiary value, as the doctor does not comment on the specific OCF-18s in dispute but, instead, provides an overview of the applicant’s complaints of back and shoulder pain, headaches, and dizziness. In terms of the applicant’s diagnosis of chronic pain, I find this to be outside of the doctor’s scope of practice as a chiropractor. Though Dr. Minella does recommend that the applicant attend active and passive therapy, the doctor does not comment on the frequency of such or the five OCF-18s in dispute.

38As for Dr. Louvish’s evidence, again, the doctor’s evidence does not comment on the specific OCF-18s and if they are reasonable and necessary, and therefore, I put limited weight on it. In terms of Mr. Kedar’s evidence, I echo my comments, as Mr. Kedar did not comment on the OCF-18s in dispute.

39Instead, I preferred the respondent’s multiple IEs with Dr. Mula, which addressed the reasonableness and necessity of all of the disputed OCF-18s and opined that the applicant would not benefit from further physical therapy.

40Moreover, I found that the matters of 16-000098 v Aviva Insurance Canada³¹ and 17-001083 v Wawanesa Mutual Insurance Company³² were persuasive, as they also addressed a situation where an applicant reported limited medical benefit from passive therapies.

41Therefore, the applicant is not entitled to any of the disputed OCF-18s for physiotherapy.

Psychological Services and Assessment

42Since the applicant sought payments for benefits to address his alleged psychological injuries as a result of the accident, I will address the issues related to psychological services and an assessment at once.

43The applicant submitted that the OCF-18 for psychological services was denied outside the time prescribed by the Schedule and was deemed approved, according to sections 38(8) and (11) of the Schedule, as the applicant stated the OCF-18 was submitted on March 14, 2019 but was denied on May 24, 2019.

44The applicant also submitted that both disputed OCF-18s were reasonable and necessary. The applicant relied on the IE³³ of Dr. Bruce Ballon, psychiatrist, where the doctor diagnosed the applicant with specific phobia towards driving – mild and was caused by the accident. Dr. Ballon also found³⁴ that the applicant’s impairment was directly related to the accident and that the applicant had not reached maximum medical recovery.

45The applicant also relied on Dr. Ballon’s two paper reviews³⁵, where the doctor reiterated that the applicant’s mood and anxiety issues were in part due to the applicant’s pre-existing conditions and personal circumstances, unrelated to the accident and reiterated the same recommendations from his previous IE.

46The applicant also relied on the report³⁶ of Dr. Andrew Shaul, psychologist, which found that as a result of the accident, the applicant suffered from adjustment disorder with mixed anxiety and depressed mood and specific phobia – travelling in and around a vehicle. Dr. Shaul recommended that the applicant participate in 12 counselling sessions, a psychotherapy progress report as needed, psycho-educational material as needed, a set of psychoeducational compact discs and a comprehensive driver rehabilitation evaluation.

47The applicant also relied on Dr. Minella’s OCF-3s³⁷, which noted that the applicant was experiencing symptoms involving his emotional state and recommended that the applicant attend a psychological assessment due to his emotional and sleep issues. Dr. Minella also found³⁸ that the applicant’s “depression was aggravated by the September 9, 2018 MVA”.

48The applicant also relied on the Chronic Pain Consultation Report³⁹ of Dr. Louvish, where the doctor diagnosed the applicant with psychological distress and post-traumatic sleep disturbance. The doctor noted that the applicant “appears to have developed chronic pain syndrome” and recommended that the applicant attend a psychological consultation and treatment sessions to address his applicant’s ongoing psychological driving distress and alleviate his pre-existing depression.

49The applicant also relied on the applicant’s Form 1⁴⁰, completed by Mr. Kedar, where he recommended that the applicant consider attending a psychological consultation due to his emotional and behavioural issues.

50The respondent disagreed that the OCF-18 for psychological treatment was denied outside the time prescribed by the Schedule. The respondent relied on its letter⁴¹, scheduling an IE with Dr. Ballon, which was within ten business days of the OCF-18. The respondent also relied on its EOB, dated May 24, 2019, which denied the disputed OCF-18 based on Dr. Ballon’s IE.

51The respondent submitted that it responded to the applicant’s OCF-18 for a psychological assessment according to the Schedule, and relied on its letter⁴², which requested a follow-up IE⁴³ with Dr. Ballon. The respondent denied the OCF-18 for an assessment based on Dr. Ballon’s IE via an EOB⁴⁴.

52The respondent submitted that the OCF-18s are not reasonable and necessary based on the IE of Dr. Ballon⁴⁵. The respondent noted that Dr. Ballon was critical of Dr. Shaul’s report, as Dr. Shaul did not consider the applicant’s clinical notes and records which addressed the applicant’s pre-existing and ongoing issues, nor was Dr. Shaul aware that the applicant was attending counselling with Janany Jayanthikumar, Master of Social Work.

53Dr. Ballon found that the applicant may have mild driving phobia because of the accident, but that his other mood issues were unrelated. Dr. Ballon also noted that the applicant reported that his mood symptoms were being managed and were not worse due to the accident; based on the above, the doctor found that the applicant’s accident did not aggravate his pre-existing conditions nor did the applicant suffer from any psychiatric conditions as a result of his accident.

54Dr. Ballon also was critical of the OCF-18 for psychological treatment and found that Dr. Shaul failed to explain why the treatment should be office based rather than an “on-road in-vivo driving desensitization program”. Dr. Ballon found that Dr. Shaul also failed to account for the time lapse between the doctor’s assessment and the fact that the applicant’s phobia may have resolved itself. The respondent submitted that Dr. Ballon’s findings should be preferred to those of Dr. Shaul based on Dr. Ballon’s concerns.

55The respondent also relied on the addendum report of Dr. Mula⁴⁶, which again found that the OCF-18 for an assessment was not reasonable and necessary.

56With respect to the psychological assessment, the respondent noted that Dr. Ballon took issue with Dr. Shaul’s pre-screen, as Dr. Shaul did not have all the required medical records to come to his findings and failed to consider the applicant’s pre-existing and concurrent psychological issues, unrelated to his accident.

57The respondent submitted that Dr. Ballon’s findings should be preferred over Dr. Shaul’s, as Dr. Ballon reviewed the applicant’s clinical notes and records before his assessment and considered all factors related to the applicant’s phycological injuries, unlike Dr. Shaul.

58After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant is not entitled to the disputed OCF-18s for a psychological assessment and treatment.

59In terms of the OCF-18s being denied outside of the limits of the Schedule, after reviewing the parties’ evidence and submissions, I find that the applicant has not provided persuasive evidence that the respondent did not comply with section 38(8) of the Schedule. Instead, I preferred the position of the respondent, which was supported via numerous communications with the applicant.

60In terms of the OCF-18 for psychological treatment, though I agreed with the applicant’s position that he was diagnosed with specific phobia towards driving – mild, and was caused by the accident, after reviewing Dr. Ballon’s IEs, it is clear that the doctor does not find that the disputed OCF-18 for psychological treatment was reasonable and necessary, mainly because the doctor opined that the applicant’s psychological issues requiring treatment were unrelated to his accident.

61Though Dr. Ballon does recommend the applicant participate in driving desensitization therapy, I also agreed with the respondent that the disputed OCF-18 failed to explain why said therapy with Dr. Shaul would not be taking place “on the road” and instead would occur in the doctor’s office, despite Dr. Ballon’s recommendation otherwise.

62With respect to Dr. Shaul’s evidence, I agreed with the respondent’s argument that it is concerning that the doctor failed to consider the applicant’s pre-existing psychological issues, concurrent psychological issues and his existing clinical notes and records. As such, I preferred the evidence of Dr. Ballon, which did take all of the above into consideration.

63In terms of Dr. Minella’s evidence, I found this to be less persuasive, as the doctor, who is a chiropractor, was addressing psychological issues that fall outside his scope of practice. Therefore, I gave this evidence little weight.

64I also considered Dr. Louvish and Mr. Kedar’s evidence, which supported that the applicant attend psychological treatment. However, I found that the evidence failed to comment on the specific OCF-18 in dispute or address the fact that Dr. Shaul wished to treat the applicant in office and therefore gave it little weight.

65As for the applicant’s OCF-18 for a psychological assessment, I also agreed with the respondent’s position that this was not reasonable and necessary for similar reasons as those provided with respect to the OCF-18 for psychological treatment.

66I agreed with the respondent’s submissions that Dr. Shaul’s evidence should be given little weight, as the doctor failed to consider all the applicant’s circumstances, namely his pre-existing conditions, concurrent circumstances and clinical notes and records. I also agreed that Dr. Ballon’s findings should be preferred, given that the doctor did.

67Therefore, the applicant is not entitled to the OCF-18s for a psychological assessment and treatment.

Chronic Pain Treatment Plan and Assessment

68The applicant submitted that the OCF-18s for a chronic pain assessment and treatment plan are reasonable and necessary.

69The applicant relied on the report Chronic Pain Consultation Report⁴⁷ of Dr. Louvish, which found that the applicant “appears to have developed chronic pain syndrome” and that he sustained a “permanent and serious impairment of important physical and psychological function” that were “serious and permanent”. Dr. Louvish also recommended that the applicant attend a multidisciplinary chronic pain program.

70The applicant also relied on the OCF-3s⁴⁸ Dr. Minella, which diagnosed the applicant with “pain-chronic pain”. Dr. Minella also recommended⁴⁹ that the applicant obtain a chronic pain assessment. The applicant also relied on Dr. Minella’s Functional Impairment Evaluation⁵⁰, where the doctor recommended that the applicant obtain a chronic pain assessment.

71The respondent submitted that it denied the OCF-18 for the chronic pain treatment plan program via letter⁵¹ within the timeframes of the Schedule, which requested a paper review with Dr. Ballon and Dr. Mula and denied it on such basis.

72The respondent also argued that the OCF-18 for the chronic pain treatment plan was not reasonable and necessary. The respondent submitted that it denied the OCF-18 via an EOB⁵².

73The respondent relied on the Paper Review⁵³ of Dr. Mula, where the doctor found that the OCF-18 for the physical aspect of the chronic pain treatment was not reasonable and necessary, as the OCF-18 would not likely lead to further, significant or long-lasting changes in the applicant’s health.

74The respondent also relied on the Paper Review⁵⁴ of Dr. Ballon, where the doctor opined that the psychological component of the OCF-18 was not reasonable and necessary because Dr. Louvish, the recommending doctor, was not aware that the applicant was already receiving counselling from Mr. Jayanthikumar. The doctor opined that the disputed OCF-18 would be a duplication of services and that the applicant’s accident-related psychological issue consisted solely of subclinical, specific phobia.

75The respondent argued that since Dr. Louvish did not have all available medical information when he completed his report and recommended the chronic pain treatment, said evidence should be afforded little to no weight.

76The respondent submitted that it contacted the applicant regarding the chronic pain assessment by letter dated April 24, 2019⁵⁵, and requested an IE. The respondent submitted that the OCF-18 was denied by EOB⁵⁶ dated May 13, 2019, based on the IE⁵⁷ of Dr. Mula.

77The respondent argued that the OCF-18 for a chronic pain assessment was not reasonable and necessary and relied on the findings of Dr. Mula, where the doctor opined that the applicant’s impairments and deterioration of function necessitated the disputed OCF-18.

78After considering the submissions of the parties, based on a balance of probabilities, I find that the applicant is not entitled to the chronic pain assessment or treatment program.

79In terms of the respondent’s denials of the OCF-18, after reviewing the evidence and submissions of the parties, the applicant has not shown that the respondent failed to comply with sections 38(8) and (11) of the Schedule.

80With respect to Dr. Minella’s evidence, as the doctor is a chiropractor, diagnosing the applicant with chronic pain goes beyond the doctor’s scope of practice, and therefore I found the doctor’s findings and recommendations to be less persuasive.

81In terms of Dr. Louvish’s evidence, after reviewing the doctor’s report, I noted that the doctor did not review all of the applicant’s clinical notes and records, which I found concerning since he was not aware that the applicant was already participating in psychological treatment.

82I also found it strange that Dr. Louvish recommended that the applicant attend a multidisciplinary chronic pain program despite providing what I would describe as an ambiguous diagnosis of chronic pain by stating that the applicant “appears to have developed chronic pain syndrome” and that he sustained a “permanent and serious impairment of important physical and psychological function” that were “serious and permanent”, the doctor did not list chronic pain under the diagnoses of the applicant. Therefore, I found the doctor’s finding to be unpersuasive.

83Instead, I preferred the findings of Dr. Mula, which did review all of the applicant’s medical records, and those of Dr. Ballon, which specifically noted that Dr. Louvish was not aware of the applicant’s counselling with Mr. Jayanthikumar. I also noted that Dr. Louvish’s report failed to address the issue of duplication of services.

84Therefore, the applicant is not entitled to the chronic pain assessment and treatment program.

Attendant Care Needs Assessment

85The applicant submitted that the OCF-18 for the attendant care needs assessment was submitted on October 26, 2018, but only denied on December 28, 2018, outside the limits prescribed by the Schedule and therefore “deemed approved”.

86The applicant also submitted that the OCF-18 for the attendant care needs assessment was reasonable and necessary and relied on the assessment of attendant care needs⁵⁸ (“Form 1”) of Mr. Kedar, which found that the applicant required attendant care services to help the applicant with the following: feeding, hygiene, and exercise and that the applicant had reduced tolerance and endurance to hold postures, had decreased standing and walking endurance, headaches, sleep issues due to pain fatigue and pain.

87Mr. Kedar opined that the applicant had difficulties and impairments with respect to his ADLs and housekeeping chores and opined that the applicant’s multiple injuries, pre-existing issues, high pain levels, sleep issues and nervousness were found to be barriers to the applicant’s recovery. Mr. Kedar recommended that the applicant receive attendant care services, 10-12 hours of weekly housekeeping, passive and active rehabilitation, a psychological consultation and occupational therapy treatment.

88The applicant also relied on the OCF-18 of Dr. Minella⁵⁹, which recommended that the applicant obtain an attendant care assessment.

89The respondent submitted that the OCF-18 for an attendant care needs assessment was responded to via letter⁶⁰ and that the OCF-18 was denied via EOB⁶¹ based on the findings of its IE with Dr. Mula.

90The respondent submitted that the OCF-18 for an attendant care needs assessment was not reasonable and necessary.

91The respondent relied on the IE⁶² of Dr. Mula, where the doctor found that the disputed OCF-18 was not reasonable and necessary because the applicant reported that he was independent with his personal care and able to participate in all of his activities of daily living (“ADL”s).

92After considering the submission and evidence of the parties, based on a balance of probabilities, I find that the applicant is not entitled to the attendant care needs assessment.

93In terms of the applicant’s arguments with respect to sections 38(8) and (11) of the Schedule, again, I was not persuaded that the respondent did not comply with the delay required, as it was able to present evidence that it communicated its request for an IE within 10 business days.

94With respect to the competing medical evidence of Mr. Kedar and Dr. Minella and that of Dr. Mula, I found it strange that the applicant reported being independent with his ADLs to one doctor, and not another. I also found it strange that these alleged functional impairments were not reported to the applicant’s walk-in doctor, Dr. Bordman, nor corroborated by contemporaneous medical evidence. Though I did accept that the applicant reported his ongoing pain, he failed to state that he was having issues with his hygiene, feeding and exercise. Instead, I preferred the evidence of Dr. Mula, which was consistent with this reporting. Moreover, the applicant has not provided evidence as to why someone who reports being independent with their ADLs would require the disputed assessment. Therefore, the applicant is not entitled to the attendant care needs assessment.

Functional Impairment Evaluation

95The applicant submitted that this OCF-18 is deemed approved, as the applicant submitted the OCF-18 on November 29, 2018, and was only denied on December 28, 2018, outside of the limits of the Schedule

96The applicant also submitted that the functional impairment evaluation was reasonable and necessary and relied on Dr. Minella’s recommendation⁶³ for the applicant that: “FAE is recommended to assess patients [sic] functional status.”

97Dr. Minella also found⁶⁴ that the applicant showed an ability for “sedentary-light functional ability” and recommended the applicant attend a multi-disciplinary rehabilitation program to assist with the applicant’s headaches, neck, back and shoulder pain, as well as spinal decompression and shock wave therapy with a chronic pain assessment.

98The applicant also relied on the Form 1 of Mr. Kedar, which noted that the applicant suffered from reduced strength, endurance and emotional issues due to his ongoing pain and functional challenges.

99The applicant also relied on the evidence⁶⁵ of Dr. Louvish, which noted that the applicant had ongoing, functional limitations.

100The respondent submitted that this OCF-18 was responded to within the limits of the Schedule and submitted that it responded via letter⁶⁶ where it requested an IE. The respondent further submitted it denied the OCF-18 via EOB⁶⁷, based on Dr. Mula’s IE⁶⁸.

101The respondent submitted that the OCF-18 was not reasonable and necessary, and relied on Dr. Mula’s addendum report⁶⁹, where the doctor opined that this OCF-18 was not reasonable and necessary because it was unclear if the recommended service, a “Functional Impairment Evaluation” was parallel to a Functional Abilities Evaluation (“FAE”). The doctor submitted that normally an FAE was performed within a multidisciplinary assessment where a medical doctor assesses disability and doing so outside of this context would not be reasonable and necessary.

102After considering the submission and evidence of the parties, based on a balance of probabilities, I find that the applicant is not entitled to the functional impairment evaluation.

103With respect to the applicant’s arguments about sections 38(8) and (11) of the Schedule, after reviewing the evidence of the parties, I find that the respondent has provided persuasive evidence that it did respond to the applicant’s OCF-18 within the time prescribed.

104In terms of the reasonableness and necessity of the disputed OCF-18, the applicant did not address the issues and concerns of Dr. Mula as to why the applicant was then assessed by Dr. Minella in a Functional Impairment Evaluation rather than a Functional Abilities Evaluation, and why this was being done outside a multidisciplinary context. Further, the applicant provides no evidence or submissions to explain the difference, if any, between a functional impairment evaluation and a functional abilities evaluation.

105Without this information, I am left at a loss why the OCF-18 is reasonable and necessary, given that a different OCF-18 was specifically recommended. Therefore, the OCF-18 for a Functional Impairment Evaluation is found not the be reasonable and necessary.

Driver Rehabilitation Assessment

106The applicant submitted that the respondent failed to deny the OCF-18 within the prescribed limitations of the Schedule, as the applicant submitted the OCF-18 in question on March 14, 2019, and it was only denied on May 24, 2019.

107The applicant submitted that the OCF-18 for a driver rehabilitation assessment is reasonable and necessary and relied on the report⁷⁰ of Dr. Shaul, where the doctor recommended that the applicant attend a comprehensive driver rehabilitation evaluation based on the doctor’s diagnosis of adjustment disorder with mixed anxiety and depressed mood and specific phobia – travelling in and around a vehicle. Dr. Shaul recommended 12 Counselling Sessions; Psychotherapy Progress Report (as needed); Psycho-educational Material (as needed); a set of psychoeducational CDs, and a comprehensive driver rehabilitation evaluation.

108The respondent submitted it denied the OCF-18 pursuant to the limits of the Schedule and relied on its letter⁷¹ where it requested an IE and denied the OCF-18 via EOB⁷² based on the IE⁷³ of Dr. Ballon.

109The respondent relied on the IE of Dr. Ballon, where the doctor opined that the applicant’s driving anxiety had ameliorated and was now at “subclinical levels”. The doctor found that the applicant did not suffer from any psychiatric impairments as a result of his accident.

110The respondent also noted that it had previously responded to the applicant’s OCF-18, noting that Dr. Ballon found that an on-road, hands-on, driving desensitization program was recommended on a weekly basis for 8 sessions. The respondent further submitted that it would pay for said treatment and requested that the applicant organize such.

111Dr. Ballon found that driving desensitization rather than a driving assessment was recommended and therefore, the disputed OCF-18 is not reasonable and necessary.

112After considering the submission and evidence of the parties, based on a balance of probabilities, I find that the applicant is not entitled to the driver rehabilitation assessment.

113In terms of the applicant’s arguments with respect to sections 38(8) and (11) of the Schedule, again, after reviewing the evidence of the respondent, it is clear that it complied with the timeline requirements.

114When considering Dr. Shaul’s evidence, it is clear the doctor recommended that the applicant attend “a comprehensive driver rehabilitation evaluation”.

115The issue the Tribunal must consider is if Dr. Shaul’s recommendation is persuasive in comparison to Dr. Ballon’s. When considering this competing evidence, I found it strange that Dr. Shaul did not consider the applicant’s complete medical records, as discussed above.

116I also did not fully understand the basis of Dr. Shaul’s recommendation, given that he had already diagnosed the applicant with specific phobia and did not provide fulsome information as to why the applicant required a driver rehabilitation assessment rather than driving desensitization; without this missing information, I am unable to determine that the disputed OCF-18 is reasonable and necessary and therefore, find the applicant has not met his evidentiary onus. Therefore, I find this OCF-18 not to be reasonable and necessary.

Vocational Assessment

117The applicant submitted that the OCF-18 is reasonable and necessary. The applicant directed the Tribunal’s attention to the evidence of Dr. Minella, where the doctor specifically recommended a vocational assessment to help determine the applicant’s future employment and work options.

118The respondent submitted that the OCF-18 for a vocational assessment was responded to pursuant to the limits of the Schedule, which it submitted was denied via letter⁷⁴.

119The respondent submitted that the OCF-18 for a vocational assessment was not reasonable and necessary and relied on the IEs of Dr. Ballon⁷⁵ and Dr. Mula⁷⁶, where the doctors both found that the applicant was not substantially disabled from his pre-accident job.

120The respondent also noted that the applicant’s walk-in doctor, Dr. Bordman, was encouraging the applicant to return to his work. The respondent also relied on the Medical Certificate⁷⁷ authored by Dr. Bordman, which found that the applicant was not able to work until April 1, 2019. Based on this, the respondent submitted that the applicant was able to return to his pre-accident employment and did not require the disputed OCF-18.

121After considering the evidence and submissions of the parties, I find that the applicant has not shown that the disputed OCF-18 is reasonable and necessary.

122Though I did consider the evidence of Dr. Minella and related arguments, I noted that the applicant failed to address the respondent’s concerns with respect to this assessment, namely that both IE assessors found that the applicant was not substantially disabled, and that Dr. Bordman had encouraged the applicant to return to his work. I also noted that the applicant did not address the fact that the applicant was found to be able to return to work By Dr. Bordman in the doctor’s Medical Certificate.

123When considering the evidence of Dr. Minnella in contrast to that of Dr. Ballon, Dr. Mula and Dr. Bordman, I found it strange that the applicant did not provide contemporaneous medical evidence that supported his position that he required the vocational assessment. Without persuasive evidence that the applicant is unable to return to his employment, I do not find the OCF-18 for a vocational assessment reasonable and necessary.

Interest and Award

124Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

125Since I have found that the applicant is not entitled to any of the benefits in dispute, no interest or award is necessary.

CONCLUSION and order

126The applicant is not entitled to any of the benefits claimed in this application, nor to interest nor an award. I dismiss the application.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Based on the Case Conference Report and Order, dated September 11, 2020.
3. 3Authored by Adjudicator Samia Makhamra, dated April 29, 2021.
4. 4As noted in Vice Chair Maedel’s Motion Order dated June 11, 2021.
5. 5Based on page 10 of the applicant’s submissions.
6. 6Musculoskeletal Examination of Dr. Mula dated December 17, 2018.
7. 7Insurer Examination – Musculoskeletal Addendum of Dr. Mula dated April 3, 2019.
8. 8Clinical notes and records of Dr. Bordman dated July 8, 2019.
9. 9Clinical notes and records of Dr. Bordman dated June 5, 2019.
10. 10Clinical notes and records of Dr. Bordman dated January 13, 2020.
11. 11Clinical notes and records of Dr. Bukczynski dated August 12, 2019.
12. 12Clinical notes and records of Dr. Bukczynski dated November 26, 2019.
13. 13Which include Lyrica, Duloxetine, Cipralex, Cyclobenzaprine, Kenlog 10 injections, over the counter-Tylenol Extra Strength, Aleve, Voltaren and extra strength, Robaxacet
14. 14OCF-3s of Dr. Minella dated September 14, 2018, November 22, 2018, February 19, 2019, and September 13, 2019.
15. 15OCF-18 of Dr. Minella dated September 12, 2018.
16. 16Functional Impairment Evaluation Report of Dr. Minella dated March 7, 2019.
17. 17Chronic Pain Consultation Report of Dr. Louvish dated July 6, 2019.
18. 18Form 1 authored by Mr. Kedar dated November 16, 2018.
19. 19EOB dated December 8, 2018, from the respondent to the applicant.
20. 20EOB dated December 28, 2018, from the respondent to the applicant.
21. 21Musculoskeletal Examination of Dr. Mula dated December 17, 2018.
22. 22Insurer Examination – Musculoskeletal Addendum of Dr. Mula dated April 3, 2019.
23. 23EOB dated January 10, 2019, from the respondent to the applicant.
24. 24Musculoskeletal Examination of Dr. Mula dated December 17, 2018.
25. 25Letter from the respondent to the applicant dated March 4, 2019.
26. 26EOB dated May 2, 2019, from the respondent to the applicant.
27. 27Insurer Examination – Musculoskeletal Assessment of Dr. Mula dated April 30, 2019.
28. 28Letter from the respondent to the applicant, dated June 21, 2019.
29. 2916-000098 v Aviva Insurance Canada, 2016 CanLII 93136 (ON LAT) at paras. 9 and 36.
30. 3017-001083 v Wawanesa Mutual Insurance Company, 2017 CanLII 87545 (ON LAT) at para. 16.
31. 3116-000098 v Aviva Insurance Canada, 2016 CanLII 93136 (ON LAT) at paras. 9 and 36.
32. 3217-001083 v Wawanesa Mutual Insurance Company, 2017 CanLII 87545 (ON LAT) at para. 16.
33. 33Insurer Examination – Psychiatry Examination of Dr. Ballon dated December 17, 2018.
34. 34Ibid.
35. 35Insurer Examination – Psychiatry Examination – Paper Reviews of Dr. Ballon dated December 17, 2018 and April 3, 2019.
36. 36Psychological Report of Dr. Shaul dated January 16, 2019.
37. 37OCF-3s of Dr. Minella dated September 14, 2018, November 22, 2018, February 19, 2019, and September 13, 2019.
38. 38Functional Impairment Evaluation Report of Dr. Minella dated March 7, 2019.
39. 39Chronic Pain Consultation Report of Dr. Louvish dated July 6, 2019.
40. 40Form 1 authored by Mr. Kedar dated November 16, 2018.
41. 41Notice of examination from the respondent to the applicant, dated March 27, 2019.
42. 42Letter from the respondent to the applicant dated December 9, 2019.
43. 43Insurer Examination – Psychiatry Paper Review of Dr. Ballon dated December 17, 2018.
44. 44EOB from the respondent to the applicant dated April 16, 2019.
45. 45Insurer Examination – Psychiatry Examination of Dr. Ballon dated May 16, 2019.
46. 46Insurer Examination – Musculoskeletal Addendum of Dr. Mula dated April 3, 2019.
47. 47Chronic Pain Consultation Report of Dr. Louvish dated July 6, 2019.
48. 48OCF-3s of Dr. Minella dated September 14, November 22, 2018, and February 19, 2019.
49. 49OCF-3 of Dr. Minella dated February 19, 2019.
50. 50Functional Impairment Evaluation of Dr. Minella dated March 7, 2019.
51. 51Letter from the respondent to the applicant dated August 7, 2019.
52. 52Explanation of Benefits from the respondent to the applicant dated August 21, 2019.
53. 53Multidisciplinary Insurer Examination – Musculoskeletal Paper Review of Dr. Mula dated August 20, 2019.
54. 54Multidisciplinary Insurer Examination – Psychiatry Paper Review of Dr. Ballon dated August 20, 2019.
55. 55Letter from the respondent to the applicant dated April 24, 2019.
56. 56EOB from the respondent to the applicant dated May 13, 2019.
57. 57Insurer Examination Musculoskeletal Paper Review of Dr. Mula dated May 2, 2019.
58. 58Assessment of Attendant Care Needs (Form 1) of Mr. Kedar dated November 16, 2018.
59. 59OCF-18 for an attendant care assessment authored by Dr. Minella, dated October 25, 2018.
60. 60Letter from the respondent to the applicant dated November 5, 2018.
61. 61Explanation of Benefits from the respondent to the applicant dated December 28, 2018.
62. 62Musculoskeletal Examination of Dr. Mula dated December 17, 2018.
63. 63OCF-3 authored by Dr. Minella, dated November 22, 2018.
64. 64Functional Impairment Evaluation Report of Dr. Minella dated March 7, 2019
65. 65Chronic Pain Consultation Report of Dr. Louvish dated July 6, 2019.
66. 66Letter from the respondent to the applicant dated December 9, 2018.
67. 67Explanation of Benefits from the respondent to the applicant dated December 28, 2018.
68. 68Musculoskeletal Examination of Dr. Mula dated December 17, 2018
69. 69Insurer Examination – Musculoskeletal Addendum of Dr. Mula, dated April 3, 2019.
70. 70Psychological Report of Dr. Shaul dated January 16, 2019.
71. 71Letter from the respondent to the applicant dated March 27, 2019.
72. 72Explanation of Benefits May 24, 2019.
73. 73Insurer Examination – Psychiatry Examination of Dr. Ballon dated May 16, 2019.
74. 74Letter from the respondent to the applicant dated June 28, 2019.
75. 75Insurer Examination – Psychiatry Examination – Paper Reviews of Dr. Ballon dated December 17, 2018 and April 3, 2019.
76. 76Musculoskeletal Examination of Dr. Mula dated December 17, 2018, and Insurer Examination Musculoskeletal Addendum of Dr. Mula dated April 3, 2019.
77. 77Medicate Certificate completed by Dr. Bordman from Service Canada dated February 25, 2019.