Licence Appeal Tribunal File Number: 20-010964/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:
Angela Stephenson
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION AND ORDER
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Yanira Monterroza, Paralegal
For the Respondent:
Khalid Hatia, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant, A.S., was involved in an automobile accident on April 5, 2018, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). As a result of the accident, A.S. alleges she sustained injuries to her neck, shoulders, arms, legs, back, and a concussion as well as psychological impairments classified as anxiety and depression.
2A.S. applied for medical and rehabilitation benefits as well as a non-earner benefit (“NEB”) that were denied by Aviva because it determined the disputed treatment plans (“OCF-18s”) were not reasonable and necessary and she did not suffer a complete inability to carry on a normal life. A.S. disagreed and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute. The parties participated in a case conference; however, they were unable to resolve the disputed issues and, thus, the matter proceeded to this written hearing.
ISSUES
3Is A.S. entitled to a non-earner benefit of $185.00 per week from May 2, 2018 to April 5, 2020?
4Is the medical benefit in the amount of $3,696.50 for chiropractic treatment, recommended by Patricia Porco in an OCF-18 dated May 11, 2018, reasonable and necessary?
5Is the medical benefit in the amount of $1,977.05 for chiropractic treatment, recommended by Angel Russi in an OCF-18 dated September 26, 2018, reasonable and necessary?
6Is the medical benefit in the amount of $1,496.16 ($3,419.48, less $1,923.32 approved) for psychological treatment, recommended by Dr. Shaul in an OCF-18 dated September 3, 2019, reasonable and necessary?
7Is the medical benefit in the amount of $1,384.70 for physiotherapy services, recommended by Mackenzie Medical Rehabilitation Centre in an OCF-18 dated March 6, 2019, reasonable and necessary?
8Is the medical benefit in the amount of $2,569.40 for physiotherapy services, recommended by Mackenzie Medical Rehabilitation Centre in an OCF-18 dated June 6, 2019, reasonable and necessary?
9Is A.S. entitled to interest on any overdue payment of benefits?
DISCUSSION
Document Production
10A.S. submits that she did not receive the following productions:
a. A ‘C.V.’ from every assessor that Aviva is relying on; and
b. An updated payment summary.
11A.S. argues that the February 25, 2021 Tribunal Order required that Aviva provide those productions.
12In addition, A.S.’s counsel claims that Aviva failed to reimburse the cost of productions in the outstanding amount of $1,558.00.
13In response, Aviva submits that the February 2021 Tribunal Order contained no specificities regarding productions. In addition, it submits that it is in the process of issuing payment for the productions.
14On reply, A.S. referencing the February 2021 Tribunal Order, wherein it states that, “they shall complete the production exchange by June 11, 2021.” A.S. agrees that there is no order for the specific productions, the Tribunal Order did set out that productions would be exchanged by the parties.
15Also on reply, A.S. submits that Aviva has failed to provide Benefit Statements, in accordance with s. 50 (4) (2) of the Schedule, wherein it states that a benefit statement must be delivered at least once every two months, commencing not later than two months after the application for the benefit was first made. A.S. submits that the last Benefit Statement was dated December 5, 2018. Lastly, A.S. argues that Aviva’s submissions did not make specific references to the evidence and law by page number. A.S.’s position is that Aviva’s failure to provide page numbers has prejudiced her, as it makes it difficult to follow Aviva’s arguments.
16Having considered the parties’ arguments regarding the preliminary issue, I find it unnecessary to make a finding, given the outcome of the decision on the substantive issues.
FINDING
17A.S. is not entitled to a NEB in the amount of $185.00 per week from May 2, 2018 to April 5, 2020.
18A.S. is not entitled to the disputed OCF-18s as she has not established that they are reasonable and necessary.
19No interest is payable.
BACKGROUND
20A.S. had a previous slip and fall on November 15, 2016 where she fractured her left ankle and right foot. Prior to the subject accident, A.S. complained of anterior ankle pain, and right foot stiffness of the toes.
21A.S. was also prescribed medications prior to the accident, including Pro Clonazepram, which is used to treat anxiety and sleep issues.
ANALYSIS
Non-Earner Benefit
22Section 12 sets out that an insurer shall pay a NEB to an insured who sustains an impairment as a result of an accident and suffers a complete inability to carry on a normal life as a result of the accident within 104 weeks. Sections 12(3) (a) and (c) further state the insurer is not required to pay a NEB for the first four weeks after the onset of the disability or for any period more than 104 weeks after the accident.
23It is well-settled that Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, sets out the criteria for the NEB analysis into whether an insured suffers a complete inability to carry on a normal life. Heath provides that a comparison of pre-and post-accident activities and circumstances over a reasonable period of time is required. This allows for greater weight to be assigned to activities that an insured identifies as important. In order to meet the test, an insured must be continuously prevented from engaging in substantially all of their pre-accident activities of daily living (“ADLs”), and where pain persists, it should practically prevent them from engaging in those activities.
24A.S. submits that she is entitled to a NEB as a result of her pre-existing foot and ankle impairments being exacerbated by the accident, ongoing back, neck and leg pain. She submits that despite the foot and ankle fractures, she was able to function pre-accident and engage in her ADLs without issue.
25Post-accident, she submits that she is not able to stand, sit or walk for extended periods due to moderate and extreme pain, which prevents her from engaging in her ADLs. This is noted in the NEB questionnaire dated August 9, 2018. More specifically, A.S. noted that she can partially cook, if it is something light; light cleaning of the kitchen; she can only do partial laundry, as she is not able to carry baskets to the laundry; clothes shopping is significantly reduced on a weekly basis; banking is difficult and causes pain; she is unable to do laundry by hand, remove garbage, wash windows, iron clothes, sweep/mop, wash/dry hair, grocery shop/put groceries away. All of these activities, A.S. submits causes extreme pain.
26In support of her position, she relies on the earlier mentioned NEB questionnaire, the Disability Certificate (“OCF-3”) of chiropractor Sal Lam Rudi Chan, the clinical notes and records (“CNRs”) of family physician, Dr. Nourian and orthopaedic surgeon, Dr. Quinn; and the pre-screen report of psychologist, Dr. Shaul.
27The CNRs note various complaints and findings related to her pre-existing foot and ankle fractures. I note many of Dr. Nourian’s CNRs contain entries are related to diabetes and skin disorders issues. While the accident is mentioned at visits immediately following the accident, accident-related pain complaints are not readily noted with any frequency in later 2019/2020 visits. The letters from Dr. Quinn, similarly, note her foot/ankle issues. However, Dr. Quinn does not indicate that the pre-existing condition was exacerbated by the accident. I do not find the pre-screen report of Dr. Shaul to be persuasive, as I find his opinion regarding A.S.’s functional abilities to be contradicted by her own self-reporting and objective evidence.
28In the June 6, 2019 OCF-3, Dr. Chan notes that A.S suffers a complete inability to carry on a normal life as a result of activities such as bending, lifting, twisting, prolonged sitting and standing being affected by her accident-related injuries. Dr. Chan specifically noted difficulty cooking due to prolonged standing and housekeeping due to bending and twisting. Dr. Chan further indicates a duration of more than 12 weeks of disability.
29In response, Aviva submits that A.S. has failed to establish she suffers a complete disability to carry on a normal life. It relies on A.S.’s reports to the insurance examination (“IE”) assessor, Dr. Mohammed, occupational therapist, Ms. Goldlust, and IE assessor, psychologist Dr. Wiesenthal.
30Dr. Mohammed conducted a neurological and physical examination (reported dated November 8, 2018). Testing revealed slight reductions in range of motion and strength, with pain reported at the extreme ranges of all movements in the cervical and lumbar regions. Upon testing, Dr. Mohammed noted full range of motion. Dr. Mohammed noted that A.S.’s reported primary areas of concern include neck and back pain. Dr. Mohammed found no evidence of any neurological or radicular findings. He opined that from a musculoskeletal perspective, A.S. suffered soft tissues injuries.
31Dr. Mohammed conducted a second IE, resulting in a September 24, 2019 report. Similar testing was conducted, and Dr. Mohammed opined that A.S. did not suffer a complete inability to carry on a normal life. Dr. Mohammed concluded that A.S. suffered uncomplicated soft tissue injuries that would not result in a complete inability to carry on a normal life. Dr. Mohammed noted that A.S. is currently independent in completing her self-care and housekeeping tasks with occasional help from her son. Dr. Mohammed did note that soft tissue injuries typically heal in 6-12 weeks, however, under certain conditions, such as A.S.’s pre-existing diabetes and depression, healing may be delayed.
32In her September 24, 2019 report, Ms. Goldlust noted that post-accident, A.S. drives on isolated occasions, no longer receives assistance with showering, continues to do some meal preparation, and housekeeping and continues to exercise for her lower extremities and general exercise. Pre-accident she received assistance with showering, drove regularly, prepared meals more frequently, and socialized with family and friends more frequently.
33A.S. reported to Ms. Goldlust that her subjective pain rating was as follows: headaches – intermittent (5/10); neck/left shoulder – 3-9.5/10 (anti-anxiety meds relieve the pain); left upper back – 3-9.5/10 (anti-anxiety meds relieve pain); low back – 2-3/10; sleep – uninterrupted since starting anti-depressants in June 2019; psychological/emotional well-being – improving with anti-depressants. Anxiety is triggered when discussing the accident and its impact on her. Ms. Goldlust conducted ADL testing and A.S. was able to perform and demonstrate substantially all of the required tasks.
34Lastly, the August 21, 2019 psychiatry report of Dr. Wiesenthal, notes that A.S. present with a chronic history of depression that pre-dated that accident, related to the unfortunate passing of her young daughter. In addition, Dr. Wiesenthal noted a previous 2016 accident. Dr. Wiesenthal noted that A.S. appears to benefit from the use of anti-depressants. Dr. Wiesenthal opined that A.S.’s presentation is more in line with her pre-accident psychiatric condition versus the subject accident. While Dr. Wiesenthal notes the subject accident may have caused some stress, it is not indicative of causing A.S. to suffer a complete inability to carry on a normal life.
35On the evidence, I agree with Aviva. While A.S. has presented with various pain complaints to her treating practitioners, she has not demonstrated that she continues to suffer a complete inability to carry on a normal life during the period in dispute. I find that A.S. has accurately reported her pain complaints with her pre-existing injuries, however, diagnostic imaging shows her pre-existing fractures as healing. I also agree with Aviva that where pain is the determining factor which prevents an insured from engaging in their pre-accident activities, Heath requires that the insured shows that the pain practically prevents them from engaging in those activities. On the evidence, and based on A.S.’s self-reporting, I find that she has not satisfied the elements of this strict test. Dr. Mohammed’s opinion remained unchanged from the November 2018 report.
36I find the report from Ms. Goldlust to be persuasive, as A.S. demonstrated an ability to perform essentially all of her ADLs. While I acknowledge that she may engage in some activities to a lesser extent, she does still engage in most, if not all, of her pre-accident social activities. I find that her pain does not practically prevent her from engaging in her pre-accident tasks and activities that she values most [examples … “such as cooking, driving, socializing…”]. I accept Aviva’s assessor’s determination that A.S. does not suffer a complete inability to carry on a normal life. I find that A.S. has not demonstrated that she is entitled to payment of the NEB in the amount of $185.00 per week for the period of May 2, 2018 to April 5, 2020.
OCF-18 dated May 11, 2018, in the amount of $3,696.50 (Chiro)
OCF-18 dated September 26, 2018, in the amount of $1,977.05 (Chiro)
OCF-18 dated March 6, 2019, in the amount of $1,384.70 (Physio)
OCF-18 dated June 6, 2019, in the amount of $2,569.40 (Physio)
37In order to establish entitlement to a medical and rehabilitation benefit under s. 15 of the Schedule, the onus is on A.S. to prove on a balance of probabilities that the recommended treatment is reasonable and necessary. The treatment goals should be reasonable, the goals of the treatment should be met to a reasonable degree and the overall costs of achieving the goals of treatment should be reasonable.
38The disputed OCF-18s recommend treatment sessions for chiropractic services and physiotherapy. The goals of the OCF-18s note pain reduction, increased range of motion, increase in strength, and a return to activities of normal living. A.S. submits that the goals of the OCF-18s are reasonable, and that the treatment has been recommended by various treating practitioners. Specifically, A.S. directs me to an April 9, 2021 medical report of psychiatrist Dr. Khan, to whom A.S. mentioned physiotherapy is helpful, and was subsequently recommended in his report. I am also directed to the March 28, 2019 report of Dr. Quinn, who noted that he provided A.S. with a prescription for physiotherapy.
39Aviva relies on the reports of Dr. Mohammed, discussed earlier. I reiterate here, that upon testing, Dr. Mohammed reported that A.S. demonstrated range of motion within normal limits, with pain at the extreme range of movement. Dr. Mohammed considered all of the OCF-18s for chiropractic treatment and physiotherapy and maintained his position, that there was no evidence of neurological or radicular findings, and that A.S. suffered soft tissue injuries that were predominantly minor in nature and that did not require further facility-based treatment.
40I accept Dr. Mohammed’s opinion. Despite the fact that A.S. incurred some of the treatment that she received, I do not find that A.S. has established that further physical treatment is reasonable and necessary. I am aware of her pre-existing foot pain, and other pain complaints, however, I am not persuaded by the reports or medical documentation that her foot pain was exacerbated by the accident. This conclusion is supported by the post-accident reports that her fractures are healing, and her ability to engage in her ADLs with little to no pain complaints and no significant ambulatory functional limitations. I note that Dr. Quinn mentioned she walks with a cane and has concerns about her gait, however, Dr. Quinn equates this to her pre-existing foot fractures, and not as a result of any accident-related impairments.
41I acknowledge that pain relief is a reasonable and legitimate goal of treatment, however, the onus remains on A.S. to establish that the disputed OCF-18s can reasonably meet the goal of pain relief. I do not find that there is sufficient objective evidence that establishes this goal is met or will be reasonably met. On their own, the OCF-18s are not enough to meet this threshold.
42To this end, I consider the recommendation from Dr. Khan, a psychiatrist, for physical treatment is beyond the scope of his area of expertise. Turning to the report of Dr. Quinn, while he makes a recommendation for physiotherapy, he does not indicate in his report, or confirm that the accident is a factor in considering the cause or exacerbation of her foot pain complaints. Neither report of Dr. Khan nor Dr. Quinn serve as contemporaneous evidence to support that the OCF-18s are reasonable and necessary.
43Accordingly, I find that A.S. has not met her burden, on a balance of probabilities, to show that the disputed OCF-18s are reasonable and necessary.
OCF-18 in the amount of $1,496.16 dated September 3, 2019 (Psych)
44A.S. has not met her burden to establish that the disputed OCF-18 is reasonable and necessary.
45The September 3, 2019 OCF-18 proposed 12-1.5 hour counselling sessions, 1 hour for preparation, 1 hour for documentation and 3 hours for planning. Of the $3,491.48 total cost of the proposed treatment, approximately $1,496.16 was for client related supervision services.
46Aviva partially approved the OCF-18 by way of a December 3, 2019 Explanation of Benefits. Aviva advised A.S. that insufficient evidence had been provided indicating why client supervision services are reasonable and necessary. On review of the evidence, I find no support for the client supervision charge.
47While A.S. indicates she has suffered from chronic pre-existing depression, she reported no suicidal ideation to Dr. Wiesenthal, and there are no existing reports noting any history of self-harm. Further, her own treating practitioners, including her family physician, Dr. Nourian, and psychiatrist, Dr. Khan, make no mention of any concerns regarding whether A.S. needs to be supervised due to concerns over her psychological well-being. Lastly, as discussed earlier, the loss of her young daughter has been an understandably significant factor regarding her pre-existing psychological well-being, noting that she spent a year in hospital after her daughter’s passing.
48At the very least, in order to consider whether recommended services are reasonable and necessary, there should at least be some indication of why such a service is reasonable. A.S. has not addressed the issue of the client supervision portion of the recommended treatment. As this was her onus by not addressing the issue, she has failed to meet her onus.
49Accordingly, on a balance of probabilities, A.S. has failed to establish that the balance of the OCF-18 is reasonable and necessary.
CONCLUSION
50A.S. has not demonstrated that the disputed OCF-18s are reasonable and necessary, and I find that they are not payable. She is not entitled to interest.
ORDER
51A.S.’s application to the Tribunal for dispute resolution is dismissed.
Released: October 26, 2022
Derek Grant
Adjudicator