Licence Appeal Tribunal File Number: 20-014037/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:
Roudaina Bakri
Applicant
and
Aviva Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Amanda Marshall
APPEARANCES:
For the Applicant:
Doina Marinescu, Paralegal
For the Respondent:
Yan Grand-Clement, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant was involved in an automobile accident on March 14, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
ISSUES IN DISPUTE
2The following issues are in dispute:
- Is the applicant entitled to the following amounts for chiropractic services proposed in treatment plans/OCF-18s as follows:
i. $2,650.72 in a plan submitted April 29, 2019 and denied July 2, 2019;
ii. $2,901.44 in a plan submitted June 27, 2019 and denied July 4, 2019; and
iii. $2,312.00 in a plan submitted September 6, 2019 and denied September 9, 2019:
- Is the applicant entitled to the following amounts for psychological services, proposed in treatment plans/OCF-18s as follows:
i. $560.00 ($2,734.03 less $1,714.03 approved) in a plan submitted July 31, 2019 and denied August 8, 2019;
ii. $490.00 ($2,464.03 less $1,974.03 approved) in a plan submitted November 8, 2019 and denied November 12, 2019; and
iii. $2,194.03 in a plan submitted February 20, 2020 and denied February 26, 2020?
Is the applicant entitled to $1,415.00 for a Social Work Assessment, in a treatment plan submitted October 31, 2019 and denied November 7, 2019?
Is the applicant entitled to $2,401.25 for a Chronic Pain Assessment, in a treatment plan submitted September 17, 2019 and denied September 20, 2019?
Is the applicant entitled to interest on any overdue payments of benefits?
3The October 29, 2021 Case Conference Report and Order (CCO&R) confirmed the issues in dispute. The first was recorded as: “Is the applicant entitled to a non-earner benefit of $185.00 per week form January 3, 2019 to date and ongoing?” Neither the applicant nor the respondent addressed the non-earner benefit issue in their submissions. Therefore, the Tribunal assumes the issue was resolved and no analysis will be provided.
4The cost of the social work assessment was not captured in the CCR&O of October 29, 2021. Both the applicant and respondent’s submissions referred to the cost of the social work assessment being $2,464.03, however, the OCF-18 social work assessment completed by Bohdan Osoba and denied on November 7, 2019, shows a sum of $1,415.00. As the OCF-18 for $1,415.00 is the only denied social work assessment presented, the Tribunal will assume that is the amount that is in dispute.
RESULT
5The applicant is not entitled to the chiropractic treatments, psychological services in the amounts of $560.00 and $490.00, the social work assessment, or the chronic pain assessment as she has not demonstrated that they are reasonable and necessary. As these benefits are not overdue, interest under s. 51 does not apply.
6The applicant is entitled to the psychological treatment plan (issue 2 ii) up to $1,749.61. Interest applies on any overdue benefits incurred, pursuant to s. 51.
ANALYSIS
7To receive payment for a medical or rehabilitation benefit under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the treatment is reasonable and necessary. The analysis should identify the reasonableness of the treatment goals, how the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.
8The applicant submits she continues to require ongoing physical and psychological treatment as she has not reached Maximum Medical Recovery (MMR) and relies on the clinical notes and records (CNRs) from Mediwise Healthcare including CNRs from Kuldip Rakkar, Chiropractor; the list of medications prescribed by Dr. Joonseong Park, Family Physician; Dr. Michael Hanna’s General Practitioner’s Insurer’s Examination (“IE”) report; and the CNRs from Dr. Harinder Mrahar.
9The respondent contends the applicant has failed to meet her onus to establish that the treatment and assessment plans are reasonable and necessary. The respondent submits that the applicant was removed from the Minor Injury Guideline on psychological grounds, that does not mean the applicant is entitled to further physical treatment. The respondent relies on Dr. Hanna’s IE report, which found further in-facility treatment was not warranted and found the applicant did not meet the criteria for chronic pain syndrome.
10With regards to the psychological treatments and social work assessment, the respondent submits it is not the reasonableness of the psychological treatment that is at issue, but the added administrative costs as well as questions regarding who should be administering the treatment. The respondent relies on psychologist Dr. Jana Atkins’ IE report, which questions why a social worker would be considered a more appropriate service provider than a psychologist.
Is the applicant entitled to the chiropractic treatment plans in dispute in the amounts of $2,650.72, $2,901.44, and $2,312.00?
11I agree with the respondent that the applicant has not demonstrated that the chiropractic treatment plans are reasonable and necessary.
12An insured can be removed from the MIG on the basis of a psychological impairment while only having sustained minor injuries, as defined by the Schedule. The Disability Certificate lists the applicant’s physical injuries as cervical spine strain/sprain with radiculitis (bilateral), thoracic spine strain/sprain, chest contusion, and shoulder strain/sprain (bilateral). In his June 29, 2019 IE report, Dr. Hanna found the applicant sustained no more than sprain/strain type injuries to her cervical, thoracic, and lumbar regions as well as the chest wall. The physical injuries sustained fall within the definition of a “minor injury” under s. 3(1).
13While I note the applicant attended at her family doctor soon after the accident on January 8, 2019 and then once per month in February, March and April 2019, I assign little weight to Dr. Park’s records as the March and April visits lack detail with respect to what the appointments were for or why medications were prescribed after the February appointment. Other than Dr. Park’s signature on documents prepared by Mediwise Healthcare in January 2019 recommending physical treatment, there are no entries in Dr. Park’s CNRs recommending the need for continued physical treatment.
14The records of Mediwise Healthcare noted the applicant attended for treatment from January 2019 for approximately one year. All three treatment plans in dispute listed the following goals: pain reduction, increase strength, increased range of motion, and a return to activities of daily living. There is one entry in April which stated that the treatment provides the applicant with temporary relief. The OCF-18s arrived at a similar conclusion that the applicant’s prognosis is poor. The range of motion and pain complaint scores, even up to January 2020, documented limited improvement since the accident.
15While Dr. Hanna commented that the applicant has not reached MMR in his March 2020 IE report, he concluded that the applicant has had sufficient facility-based rehabilitation and further facility-based rehabilitation is unlikely to add any long-term benefits.1
16I find Dr. Hanna’s conclusions to be persuasive as the applicant has undergone the same treatment regimen for more than a year with limited improvement, as evidenced by the Mediwise Healthcare records. As the applicant’s physical injuries sustained fall within the definition of “minor injury” and as the applicant has failed to demonstrate how the treatment will reduce pain or will have a restorative or therapeutic effect, I find that the treatment plans are not reasonable and necessary.
Is the applicant entitled to psychological services in the amounts of $560.00 and $490.00?
17The OCF-18’s proposed in the amounts of $2,734.03 and $2,464.03 were partially approved by the respondent. The respondent submits it is the amount of the administrative costs and hourly rate within the treatment plans of July 31, 2019 and November 8, 2019 that are at issue and not whether the applicant should receive psychological services. The respondent contends the documentation support activity of $224.42 is not reasonable and necessary and even if it was, it should only be charged $149.61, which is the maximum hourly rate for a psychologist as specified in the Guideline. The respondent allowed for an hourly rate of $100.00, as the treatments were being provided by a social worker and not by a psychologist.
18The onus is on the applicant to prove that not only are the benefits reasonable and necessary but that the costs of the treatment plans are reasonable. While the applicant submitted that psychological treatments are necessary, she did not rebut the respondent’s submission with regards to the costs for the documentation support activity or for the hourly rate for a social worker. I find the applicant failed to demonstrate how the disputed costs are reasonable and necessary. Therefore, the outstanding amounts are not payable.
Is the applicant entitled to psychological services in the amount of $2,194.03?
19The applicant submits that the she requires further psychological treatment as she has not reached MMR. She referred to the process notes from Dr. Mrahar wherein he recommends an additional 14 sessions.
20The applicant was receiving treatment for her psychological impairments through Luminita Baia, Registered Social Worker, and overseen by Dr. Mrahar. The respondent approved two prior similar psychological treatment plans (see above) but denied the treatment plan of $2,194.03 based on Dr. Atkins’ November 27, 2019 IE report, as Dr. Atkins commented that the applicant should be receiving treatment by a member of the College of Psychologists.
21In my review, Dr. Atkins’ comments were in relation to the applicant’s request for a social work assessment and not for additional psychological treatment through Ms. Baia and Dr. Mrahar. I note the applicant was progressing with her treatment sessions as evidenced by Dr. Mrahar’s February 6, 2020 progress report, albeit she was still having difficulties with sleep, flashbacks, and anxiety. To assist the applicant in her continued progress, Dr. Mrahar proposed an additional 14 sessions. As the psychological treatment the applicant received thus far has assisted with improving her impairment, I find that the request for a further 14 sessions is reasonable and necessary. However, as the service is being preformed by a social worker who is being overseen by a psychologist, I find the hourly rate per session should be $100 instead of the $135 as outlined in the plan. Also, as the document support activity of $224.42 was found to be not reasonable and necessary in the previous two treatment plans (see above), this amount will not be payable. I find the applicant is entitled to payment for the treatment plan for $200 for the form completion, $1,400.00 (14 x $100) for treatment sessions and an assessment at $149.61, totalling $1,749.61.
Is the applicant entitled to a social work assessment in the amount of $1,415.00?
22The respondent denied the social work assessment based on Dr. Atkins’ IE report of November 2019 which found that the assessment was not reasonable and necessary as the applicant had already undergone a psychological assessment and was receiving approved treatment for her posttraumatic stress disorder and driving phobia.
23The applicant submits she should be entitled to all treatments and assessments as she has not reached MMR. I find the applicant’s submissions lacking with respects to the specifics of the social work assessment. The applicant must demonstrate that the assessment is reasonable and necessary on a balance of probabilities. I find the applicant has failed to speak to the reasonableness of the goals of the assessment, how they would be met as well as the cost of the assessment, which is required. Accordingly, I see no reason to interfere with the respondent’s denial.
Is the applicant entitled to a chronic pain assessment in the amount of $2,401.25?
24In support of the proposed chronic pain assessment, the applicant argues that the chronic pain assessment is reasonable and necessary as she suffers from chronic pain which is affecting multiple aspects of her life, as documented by multiple healthcare practitioners and therefore, a chronic pain assessment is required to determine whether she suffers from chronic pain syndrome. She submits it is not necessary for her to prove that she “probably” suffers from chronic pain syndrome in order to receive entitlement.
25The September 17, 2019 OCF-18 was completed by Dr. Doreen Payan, Chiropractor. I am unable to determine why Dr. Payan sought funding for the chronic pain assessment as a copy of the OCF-18 was not submitted to the Tribunal.
26The respondent relies on Dr. Hanna’s assessment report of October 2019, wherein he concluded the applicant does not meet the diagnostic criteria for chronic pain syndrome. The respondent also relies on 17-007825 v Aviva Insurance,2 in which Adjudicator Christopher Ferguson identified and accepted six criteria against which a claim of chronic pain should be assessed against as per the AMA Guides. The AMA Guides require at least three of the following criteria are met for a diagnosis of chronic pain:
(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
(ii) Excessive dependence on health care providers, spouse or family;
(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
(iv) Withdrawal from social milieu, including work, recreation, or other social contracts;
(v) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and
(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
27Although I am not bound by the AMA Guides in respect of chronic pain, I find the Guides to be a useful tool. The applicant did not contest the AMA Guides criteria and in fact, filed no reply submissions for the hearing.
28I am persuaded by Dr. Hanna’s conclusion as he utilized two methodologies, that being the AMA Guides, Fourth Edition, 1993, Chapter 11 as well as the Sixth Edition, 2008, to reach his conclusion that the applicant does not suffer from a chronic pain syndrome. I agree with the respondent and find there is limited evidence that the applicant meets three of the six criteria found in the AMA Guides, Sixth Edition. For example, where there is medical evidence that she was prescribed medications to deal with pain, inflammation, and anxiety, she was not prescribed anything beyond July 2019. There is no excessive dependence on healthcare providers as she did not visit her family doctor beyond April 2019. The applicant continues to drive and completes her daily chores around the house. I find the applicant has not demonstrated that the chronic pain assessment is reasonable and necessary.
CONCLUSION
29The applicant has failed to demonstrate that the disputed OCF-18s for chiropractic treatment, psychological treatment in the amounts of $560.00 and $490.00, the social work assessment, and the chronic pain assessment are reasonable and necessary. No interest is payable.
30The applicant is entitled to the psychological assessment up to $1,749.61. Interest is payable in accordance with s. 51.
Released: February 24, 2022
Amanda Marshall
Adjudicator