Nam v. Aviva Gen. Ins., 2022 CanLII 4642

Nam v. Aviva Gen. Ins., 2022 CanLII 4642

Licence Appeal Tribunal File Number: 20-006387/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:

Kibong Nam

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant: Julia Zhiyuan Hou, Counsel

For the Respondent: Jessica M. Bacopulos, Counsel

HEARD: In Writing

BACKGROUND

1The applicant was injured in an automobile accident while riding his bicycle on December 3, 2017, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 ("Schedule"). The applicant was denied the treatment in dispute on the basis that it was not reasonable and necessary, and he applied to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

i. Is the applicant entitled to receive a medical benefit for physiotherapy and massage therapy, recommended by Focus Physiotherapy in the amount of $3,743.00 that was submitted on May 28, 2018 and denied on July 3, 2018?

ii. Is the applicant entitled to receive a medical benefit for psychological treatment, recommended by Dr. Peter Waxer in the amount of $2,593.76 that was submitted on October 31, 2019 and denied on March 10, 2020?

iii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to the treatment plans or applicable interest as he has not demonstrated that they are reasonable and necessary.

ANALYSIS

Are the treatment and assessment plans reasonable and necessary?

4To receive payment for a treatment plan under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving same are reasonable.

5The applicant submits that both treatments are reasonable and necessary because he continues to experience ongoing back, head, neck and shoulder pain, experiences strong flashbacks, pedestrian anxiety and an inability to resume cycling, leading to a diagnosis of persistent somatic symptom disorder with predominant pain, specific phobia: cycling and chronic adjustment disorder. He points to his continued post-denial visits to walk-in clinics for depression and anxiety, his prescriptions for naproxen, sertraline and trazodone and regular attendance at physiotherapy, as well as a back x-ray that showed possible anterior wedging. He relies on the hospital records, the report of Dr. Waxer, and clinical notes and treatment records from Dr. Fung, Life Design, Danforth Walk-In and HF Connecting Health.

Physiotherapy and massage services in the amount of $3,743

6This OCF-18 was recommended by Focus Physiotherapy, however the clinical and treatment records were not provided. Aviva denied the OCF-18 on the basis of Dr. Silver's s. 44 report that concluded his accident-related injuries had resolved, that he had reached maximal medical improvement and there was no objective evidence that would make ongoing facility-based treatment reasonable and necessary.

7I agree with Aviva and find the applicant has not demonstrated that the OCF-18 is reasonable and necessary. As the applicant does not have a family physician, given the absence of the Focus treatment notes, it is unclear if the applicant derived benefit from his previous slate of treatment or if he demonstrated progress from same and, where he failed to submit into evidence any contemporaneous medical records (and the OCF-18 itself) that would support the need for ongoing treatment, it is difficult to find that more of the same is necessary.

8The applicant's submissions do outline the goals of the OCF-18 but do not identify why or how the goals were being met to a reasonable degree or why the cost of the treatment plan was reasonable, which in my view was necessary given the unremarkable findings in the s. 44 report and the lack of objective evidence of a physical impairment, beyond his reports of pain to his psychologist. The medical records reveal no issues with his wrist or knee and the x-ray report only states that there may be a minor degree of anterior wedging at L1, with otherwise normal findings. While the applicant may have pain, he has not demonstrated that the OCF-18 is a reasonable and necessary expense to treat his pain at over four years post-accident and he did not provide evidence that it was incurred. Accordingly, I find the OCF-18 is not reasonable and necessary.

Psychological treatment in the amount of $2,593.76

9This OCF-18 was recommended by Dr. Waxer following his psychological assessment and report diagnosing persistent somatic symptom disorder with predominant pain, specific phobia: cycling and chronic adjustment disorder. Aviva denied the claim on the basis of a s. 44 psychiatry report by Dr. Ballon who determined that because the applicant did not meet the criteria for post-traumatic stress disorder or a major depressive disorder and had already received two years of psychological treatment with no reported effect on his symptoms, that further treatment was not reasonable and necessary.

10I agree with Aviva and find that the applicant has not demonstrated that ongoing psychological treatment like that proposed in the OCF-18 is reasonable and necessary as a result of the 2017 accident. While the applicant failed to provide the OCF-18 in dispute, I note that all of the treatment records from the applicant's 48 sessions with Dr. Waxer/Ms. Cha are in evidence and I agree with Aviva that there is limited evidence of progress from this treatment.

11Concerningly, the applicant himself reported that treatment has had no effect on his symptoms and that he may have gotten worse from it, which is difficult to overlook where it is the applicant's burden to prove that treatment is reasonable and necessary. While I find it clear that the applicant continued or perhaps continues to experience depression and anxiety—even reporting same to the walk-in clinic and to Dr. Ballon in 2020—I agree with Dr. Ballon that it does not appear that the treatment he has received with Dr. Waxer/Ms. Cha has been beneficial and I agree that at nearly five years post-accident, that there may be other factors present that are not related to the accident and which call into question the reasonableness of more treatment from the same provider.

12With respect, while I am sensitive to the applicant's ongoing anxiety and depression, without evidence of progress from two years of psychological treatment with Dr. Waxer/Ms. Cha, with strong evidence of functionality (he completed his paralegal program without medication, modification or accommodations and is able to use public transit and work various jobs) and where the applicant has stated that the incurred treatment had no effect on his symptoms and may have made it worse, it is difficult to find that additional, ongoing treatment with Dr. Waxer/Ms. Cha is a reasonable and necessary expense, and especially so where the OCF-18 was not provided.

13This is not to say that the applicant would not benefit from ongoing counselling or community support if his psychological struggles have persisted since this application was filed; only that, on a balance of probabilities, I agree that it would be unlikely that the proposed OCF-18 would provide ongoing benefit as a result of the accident. I would echo the suggestions made by Dr. Ballon in his report.

14As no benefits are overdue, it follows that no interest is payable under s. 51.

CONCLUSION

15The applicant is not entitled to payment for either of the treatment plans in dispute as he has not demonstrated that they are reasonable and necessary.