Citation: Dorey v. Aviva Insurance Company, 2022 ONLAT 20-004203/AABS

Licence Appeal Tribunal File Number: 20-004203/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:

Ashley Dorey

Applicant

and

Aviva Insurance Company

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

For the Applicant: Eric Katzman, Counsel

For the Respondent: Nisaa Khan, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was injured in an automobile accident on April 12, 2018. Following the automobile accident, the applicant reported pain in her neck, back, shoulders, and anxiety which is exacerbated while driving.

2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”)¹ from Aviva Insurance Company, the respondent. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

3The applicant was involved in a separate automobile accident one month prior on March 13, 2018.

4The respondent removed the applicant from the Minor Injury Guideline (“MIG”) due to her specific phobia, (driving), which was exacerbated after the April 12, 2018, accident. Any psychological disorder is not considered to be a minor injury. The respondent denied the treatment plans on the basis that the requested treatment plans were not reasonable or necessary pursuant to the Schedule.

5A case conference was held on October 27, 2020, and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

6The following issues are to be decided:

(i) Is the applicant entitled to $1,649.50 for occupational therapy, recommended by Rehability Occupational Therapy Inc. in a treatment plan (“OCF-18”) submitted December 12, 2018?

(ii) Is the applicant entitled to $8,190.11 for psychological treatment, recommended by, Svec Rehabilitation Clinic in a treatment plan submitted September 18, 2019?

(iii) Is the applicant entitled to $915.52 for an Activity Rest Schedule Evaluation, recommended by, Svec Rehabilitation Clinic in a treatment plan submitted January 10, 2019?

(iv) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

7I find that the applicant is not entitled to:

(i) $1,649.50 for occupational therapy;

(ii) $8,190.11 for psychological treatment;

(iii) $915.52 for an Activity Rest Schedule Evaluation; and

(iv) Interest on any overdue payment of benefits.

ANALYSIS

Are the Treatment Plans Reasonable or Necessary?

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

9The applicant bears the onus of proving entitlement to the proposed treatment by proving both OCF-18s are reasonable and necessary on a balance of probabilities.²

$1,649.50 for Occupational Therapy, Submitted December 12, 2018

10I do not find that the applicant is entitled to the treatment plan in the amount of $1,649.50.

11The treatment plan is for an assessment of attendant care needs. The applicant provides that an assessment is reasonable and necessary to identify limitations and potential further treatment.

12Ms. Illievski, an occupational therapist recorded that the applicant experiences pain in her neck, upper and lower back, migraines, and anxiety restricting her engagement in basic self-care and daily activities such as housekeeping, leisure, employment, and quality time with her son.³

13The applicant provided that the respondent did not send her to an occupational therapist to determine if the plan was necessary and reasonable, prior to denying the claim. In response, the respondent stated there is no obligation to schedule an insurer’s examination to assess a treatment plan.

14The respondent submitted that the applicant failed to provide evidence or medical documentation that she required assistance with self-care tasks, which suggested that an assessment is not reasonable and necessary.

15The respondent relied on statements made by the applicant throughout 2019 to s. 44 multidisciplinary assessors, Dr. Out, Dr. Bradford and Dr. Mustafa. These statements included that the applicant could complete bathing, grooming, dressing and toileting without difficulty or restriction and that she was independent in all aspects of self-care.⁴

16The onus is on the applicant to prove entitlement and I have not been persuaded on a balance of probabilities that the applicant’s evidence demonstrated that this assessment is reasonable and necessary. Furthermore, the applicants’ self-reported statements confirmed that she was independent with her self-care tasks. Given these findings, I find that the occupational therapy treatment plan is not reasonable and necessary.

$8,190.11 for Psychological Treatment, Submitted September 18, 2019

17I do not find that the applicant is entitled to the treatment plan in the amount of $8,190.11.

18The applicant submitted that the treatment plan in dispute is reasonable and necessary as she continues to suffer from pain, migraines, and anxiety.

19The treatment plan was submitted by Dr. Svec, a licensed psychologist. It focused on psychological counselling, heart rate variability feedback, EMG biofeedback, psychoeducation, pharmacotherapy, pain management book, relaxation CD and q EEG with the goal of returning the applicant to pre-accident activities and managing symptoms of anxiety, emotional distress and chronic pain.

20The applicant submitted that the proposed treatment was likely to improve her condition as Dr. Svec’s testing revealed improvements for those with health anxiety, depression, interpersonal problems, alienation, and deviation. The tribunal was not provided with medical records or evidence that the applicant was diagnosed with anxiety or depression.

21The respondent submitted that there was no medical evidence provided by the applicant to support the need for the treatment plan. The records of Dr. Hanson, the applicant’s family doctor who she saw throughout 2018-2019 provided no evidence of a recommendation that the applicant required this treatment plan.

22Specifically, the respondent submitted that Dr. Hanson made “no recommendation for psychological counselling, heart rate variability feedback, EMG biofeedback, psychoeducation, pharmacotherapy, pain management book, relaxation CD and q EEG.”⁵

23The respondent submitted the findings of the s. 44 multidisciplinary assessment of Dr. Bradford, Dr. Out and Dr. Mustafa, all three concluded that the treatment plan was not reasonable and necessary.

24I find the medical opinion evidence of Dr. Out, a psychologist compelling. Dr. Out diagnosed the applicant with specific phobia (driving) but found that the applicant did not show symptoms which the treatment plan proposed to address, specifically Dr. Out reported that the applicant was coping emotionally, did not present any pain pattering behaviors, did not feel depressed or irritable.⁶

25I find that the applicant failed to submit medical evidence to support the need for the proposed treatment the OCF-18 submitted. A treatment plan without more, is not enough to establish treatment.⁷ The presence of objective supporting evidence to justify treatment is key to determining whether the medical benefit is reasonable and necessary. In the present case, the applicant does not provide the tribunal evidence in support of the treatment plan.

26As a result, I am not persuaded that the applicant has met her burden to prove on a balance of probabilities that this treatment plan is reasonable and necessary.

$915.52 for an Activity Rest Schedule Evaluation, Submitted January 10, 2019

27I do not find that the applicant is entitled to the treatment plan in the amount of $915.52.

28The treatment plan is for a prescriptive exercise assessment, not a program.

29The treatment plan was submitted by Dr. Wolfe, a kinesiologist. It is an active guided exercise program focusing on specific heartrates, the goal is to relieve pain levels and symptoms of emotional distress such as depression, stress, anxiety.⁸

30The tribunal was not provided with medical records or evidence that the applicant was diagnosed with anxiety or depression.

31The respondent submitted that there is no medical evidence provided by the applicant to support the need for the treatment plan. The applicant attended her family doctor, Dr. Hanson following the accident between April and August 2018. It was reported that Dr. Hanson consistently recommended physiotherapy and NSAID (non-steroidal anti-inflammatory drugs). At no point was there a recommendation for the treatment plan.

32The applicant submitted that the general physician for the respondent Dr. Bradford stated that the applicant would benefit from an active facility-based treatment at a frequency of 3 times per week for a 12-week total. While accurate, the applicant failed to highlight that Dr. Bradford’s recommendation was not for an assessment and was geared towards a home-based exercise program.

33The applicant has not directed me to any evidence regarding the need for an additional assessment. As a result, I am not persuaded that the applicant has met her burden to prove on a balance of probabilities that this treatment plan is reasonable and necessary.

Interest

34Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments. There being no overdue benefits payments, no interest is payable.

ORDER

35The application is dismissed, and I find the applicant is not entitled to:

(i) $1,649.50 for occupational therapy;

(ii) $8,190.11 for psychological treatment;

(iii) $915.52 for an activity rest schedule evaluation; and

(iv) Interest on any overdue payment of benefits.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
3. 3OCF- 18, Ms. Illievski additional comments, page 344 applicant submissions
4. 4Para. 17 respondent submissions
5. 5Para 43 respondent submissions
6. 6Para 47 respondent submissions
7. 7See: 17-002689 and Aviva Insurance, 2018 CanLII 2311 at para. 15.
8. 8Para. 23 applicant submissions