Singh v. Aviva Insurance Company, 2022 CanLII 53747

Citation: Singh v. Aviva Insurance Company, 2022 ONLAT 20-008014/AABS

Licence Appeal Tribunal File Number: 20-008014/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:

Vickash Singh

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Francesco Blasi, Paralegal

For the Respondent: Vicky Chan, Counsel Geoffrey Keating, Counsel

HEARD: By way of written submissions

BACKGROUND

1Vickash Singh (“the applicant”) was involved in an automobile accident on March 30, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016).¹ (“Schedule”) He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) after his claims for benefits were denied by the respondent.

2The applicant was an operator of a vehicle that was struck by another vehicle that made a U-turn. The airbags did not deploy, and he did not lose consciousness. The police and ambulance attended the scene of the accident.

3The applicant submits that all the disputed treatment plans are reasonable and necessary and that he is entitled to an award. The respondent disagrees with this.

4On December 4, 2019, the applicant was removed from the Minor Injury Guideline (“MIG”) based on s.44 assessor, Dr. P. Kanagaratnam, who diagnosed him with psychological impairments as a result of the accident.²

ISSUES

5The following are the issues to be determined, as per the Case Conference Order, dated November 26, 2020:

1. Is the applicant entitled to $4,650.89 for chiropractic treatment recommended by Alpha Physiotherapy and Rehabilitation in a treatment plan (“OCF-18”) submitted on July 25, 2019?
2. Is the applicant entitled to $3,909.07 for chiropractic treatment, recommended by Alpha Physiotherapy and Rehabilitation in an OCF-18 submitted on January 10, 2020?
3. Is the applicant entitled to $1,466.25 ($4,239.53 less $2,773.28 approved by the respondent) for psychological treatment recommended by HAL Disability Management in an OCF-18 submitted on September 13, 2019?
4. Is the applicant entitled to $1,075.00 ($2,775.00 less $1,700.00 approved by the respondent) for psychological treatment, recommended by David Ross in an OCF-18 submitted on March 9, 2020?
5. Is the applicant entitled to $925.00 ($2,775.00 less $1,850.00 approved by the respondent) for psychological treatment, recommended by David Ross in an OCF-18 dated May 19, 2020?
6. Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

6I find that the applicant has failed to demonstrate on a balance of probabilities that any of the disputed amounts for the OCF-18s are reasonable and necessary. Thus, he is not entitled to the benefits claimed, interest or an award.

ANALYSIS

Are the treatment plans Reasonable and Necessary?

7I find that the OCF-18s are not reasonable or necessary for the reasons that will be discussed later.

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 evidentiary onus to demonstrate that each OCF-18 in dispute is reasonable and necessary. The reasonableness and necessity of treatment must be held to an established standard which requires:

a. The treatment goals as identified must be reasonable; b. The treatment goals are being met to a reasonable degree; and c. The overall costs of achieving those goals are reasonable.³

Issue 1 - $4,650.89 for Chiropractic Treatment

10Overall, I find that the applicant has failed to prove on a balance of probabilities that this OCF-18 is reasonable and necessary.

11This OCF-18 was submitted by Dr. A. Gupta, physiotherapist and Dr. P. Virk, chiropractor. The goals were: pain reduction, increased strength, decrease recurrence, patient education, increased range of motion, return to his activities of normal living, return to his modified work activities, and return to his pre-accident work activities.⁴

12The applicant has failed to demonstrate on a balance of probabilities that he has accident-related physical impairments that would warrant treatment at the time of the submission of this OCF-18. The applicant relies on the OCF-18 and the records of Alpha Physiotherapy and Rehabilitation to support his position that the OCF-18 is reasonable and necessary, as it reduces pain and provides improvement in his physical condition. I am not persuaded by either, as it is well-settled that an OCF-18 alone is not compelling medical evidence. The records of Alpha Physiotherapy and Rehabilitation do note the progress that the applicant was making with treatment; however, I place greater weight on the records of Dr. L. Pede, who is a physician. Dr. Pede became the applicant’s family doctor after the accident, and I also note that the applicant has failed to provide me with any records from his previous family physician.

13On May 14, 2019, Dr. Pede noted the applicant’s involvement in the accident. Dr. Pede noted that the applicant complained the day after the accident, of right posterior neck throbbing which radiated up over his head to cause pressure.⁵ Dr. Pede also noted that the applicant suffered from some photophobia and that he did not miss any time off from work.⁶ As a result, Dr. Pede, diagnosed him with WAD Grade 1 which appeared mostly resolved, muscle contraction, and headaches.⁷ Dr. Pede noted that the applicant should ensure that he completes daily stretching and exercises.⁸ Moreover, Dr. Pede opined that he did not expect any long term residual symptoms from this.⁹ I place significant weight on these records because Dr. Pede, an OHIP Physician, concluded that the applicant’s injuries would resolve fairly quickly, and he did not recommend any chiropractic treatment.

14Dr. Pede’s opinion is also consistent with s.44 assessor, Dr. S. Taylor who opined that the applicant’s injuries are fully healed, and additional treatment would not result in additional healing.¹⁰ Dr. Taylor met with the applicant on November 19, 2019, several months after Dr. Pede concluded that the applicant would not have long term residual symptoms from his accident-related impairments. Further, the applicant did not produce any further entries from Dr. Pede to contradict his previous opinion.

15I further note that the applicant was involved in a significant workplace injury following this accident. On February 21, 2020, and February 24, 2020, Dr. Pede noted that the applicant had cuts on his index and 3^rd finger in the right hand.¹¹ Also, Dr. Pede noted the applicant had difficulty with bending his fingers due to pain.¹² The applicant also sought medical attention from Etobicoke General Hospital for these injuries where he received stitches.¹³ As such, if the applicant has any current physical impairments, it is likely from this workplace injury rather than the accident.

16The applicant further submits that the following authorities, A.K. v. Aviva Insurance Canada ¹⁴ and 16-004616 v. Aviva Insurance Canada¹⁵, have the same fact pattern as this matter, and as such, the OCF-18 for chiropractic treatment is payable. The facts of the matters cited are distinguishable as both applicants were diagnosed with chronic pain syndrome and had consistent complaints to their family physician. In this matter, the applicant was never diagnosed with a chronic pain syndrome, and there are no consistent complaints of pain in Dr. Pede’s records. I further acknowledge that the applicant made physical complaints to Alpha Physiotherapy and Rehabilitation. However, he has failed to demonstrate that his physical complaints at the time of the submission of this OCF-18 are accident-related as he failed to mention the accident to Dr. Pede after May 2019, despite attending multiple times thereafter.

Issue 2 - $3,909.07 for Chiropractic Treatment

17Overall, I find that the applicant has failed to prove on a balance of probabilities that this OCF-18 is reasonable and necessary.

18The OCF-18 was submitted by Dr. Gupta and Dr. Virk. The goals were: pain reduction, increased strength, decrease recurrence, patient education, increased range of motion, to return to his activities of normal living, to return to his modified work activities, and to return to his pre-accident work activities.¹⁶

19As I have noted above, the applicant has once again failed to demonstrate that he had any accident-related impairments that would warrant treatment at the time of the submission of this OCF-18. This OCF-18 was submitted approximately 9 months after the subject accident and Dr. Pede concluded in May of 2019 that his accident-related impairments would not have long term residual symptoms.

Issue 3 - $1,466.25 for psychological treatment

20The applicant has failed to prove on a balance of probabilities that the remaining amounts in the OCF-18 are reasonable and necessary.

21The OCF-18 was submitted by Dr. F. Aghamohseni, psychologist and the goals were: pain reduction; to return to his activities of normal living; to understand the nature of his pain and provide tools to help manage pain experience; to bring him back to his previous level of driving functioning and comfort; to help maximize length and quality of sleep; to help reduce general anxiety and manage concentration, memory and intrusion issues; to elevate his mood and for him to return to his previous level of affective functioning; to restore a supportive family dynamic, and control emotions of anger and irritation.¹⁷ The OCF-18 consisted of the following treatment: 12 weekly-1.5 hours of cognitive behavioral therapy sessions at the hourly rate of $224.42; a progress report/discharge report in the amount of $598.44; completion of the OCF-18 for $200.00; and a psychological re-assessment for $748.05.¹⁸

22The applicant relies on the OCF-18 and Dr. Harris’s psychological report to demonstrate that the remaining balances for the OCF-18 are reasonable and necessary. Although, I acknowledge the applicant was diagnosed with significant psychological impairments as a result of the accident, he has failed to address why the specific items remaining in dispute are reasonable and necessary.

23The respondent relies on the report of Dr. Kanagaratnam to support its position that the remaining balances are not reasonable and necessary. Dr. Kanagaratnam concluded that the following was payable: twelve one-hour sessions plus 10 minutes of documentation time at an hourly rate of $149.61, the total cost of which was $1,974.84; progress report in the amount of $598.44, and $200.00 for the completion of the OCF-18.¹⁹ As such, there is a dispute between the length of counselling sessions and the psychological re-assessment. Dr. Kanagaratnam found that there was no reason for the psychological re-assessment listed in the OCF-18, and as such, it did not appear reasonable or necessary.²⁰ I agree as the applicant already had a psychological assessment completed by Dr. Harris, dated September 3, 2019, and has provided no explanation on why a further assessment is required shortly thereafter.

24Further, Dr. Harris’s psychological assessment, dated September 3, 2019, was completely silent on the recommendations he has for the length of the counselling sessions. Dr. Harris opined that 12 weekly individual counselling sessions was reasonable and necessary, however he failed to outline the length of these sessions.²¹ This opinion is consistent with Dr. Kanagaratnam who concurred that 12 weekly sessions was reasonable and necessary but disputed their length. Moreover, Dr. Harris’s report stated that he would allow Dr. Aghamohensei to determine the treatment and to submit the OCF-18 for treatment based on his recommendations and without requesting a second assessment.²² This further demonstrates that the re-assessment is not reasonable and necessary as Dr. Harris clearly opined that no further assessments were required. Moreover, there is a lack of clarity with respect to how 12 weekly sessions for 1.5 hours are reasonable and necessary when Dr. Harris did not make a recommendation with respect to the length of the treatment. Moreover, I agree with the respondent with respect to the hourly rate at $149.61 as this is the maximum rate available under the FSCO Professional Services Guideline.²³ The applicant had an opportunity to address these concerns raised by the respondent in a reply, but he chose not to do so. As such, I find that the remaining balances of the OCF-18 are not reasonable and necessary.

Issue 4 - $1,075.00 for psychological treatment

25The applicant has failed to prove on a balance of probabilities that the remaining amounts in the OCF-18 are reasonable and necessary.

26The OCF-18 was submitted by Dr. B. Erdelyi, physician, and Ms. L. Abbaszadeh, social worker. The goals were: pain reduction; to control post-accident onset of psychosocial fear, anxiety, depression, vehicle anxiety, vocational concerns; and to return to his activities of normal living.²⁴ The remaining issues with respect to the OCF-18 that remain in dispute are: progress report in the amount of $300.00; documentation, support activity in the amount of $300.00; planning, service in the amount of $325.00, and $150.00 for educational material.

27The applicant submits that the documentation for a progress report in the amount of $300.00 is reasonable and necessary. The applicant states that this is required by the service provider to provide a progress review upon completion of the OCF-18 to determine whether or not further treatment is required. The applicant failed to address why the previously approved amount of $598.44 for a progress report could not be used. The applicant further failed to address why the administration costs for additional documentation for $300.00 and planning in the amount of $325.00 were reasonable and necessary. The applicant also failed to address why $150.00 for educational material was reasonable and necessary.

28The respondent submits that the progress report was not reasonable and necessary as they had already approved it previously. The respondent further submits that the administration costs for additional documentation and planning are not reasonable and necessary. The respondent relies on A.G. v. Aviva Insurance Canada²⁵ to support their position that these fees are excessive and the hourly rate for professional services included these administration costs. I find this authority persuasive and agree that the hourly rate for professional services include the documentation to support activity and planning. I acknowledge that the respondent did not address why they did not believe the educational material to be reasonable and necessary. However, the onus remains on the applicant to demonstrate that this material is reasonable and necessary, and he has failed to do so.

Issue 5 - $925.00 for psychological treatment

29The applicant has failed to prove on a balance of probabilities that the remaining amounts in the OCF-18 are reasonable and necessary.

30Dr. Erdelyi and Dr. Abbaszadeh, submitted this OCF-18. The goals were: pain reduction, to control his post-accident onset of psychosocial fear, anxiety, depression, vehicle anxiety, vocational concerns, and to return to his activities of normal living.²⁶

31The components of the OCF-18 that remain in dispute are psychosocial reassessment in the amount of $300.00; documentation, support activity in the amount of $300.00, and planning service in the amount of $325.00.

32The applicant failed to address why any of these components of the OCF-18 were reasonable and necessary.

33The respondent submits that the remaining components of the OCF-18 are for administration fees such as planning, and more documentation support are not payable as per the FSCO Professional Services Guideline. ²⁷ I agree with the respondent that these administration costs are not reasonable and necessary and without any further explanation from the applicant, are excessive. Given the applicant has failed to address why a further reassessment is required, I do not find this reasonable and necessary either.

The Respondent was Compliant with s.38(8) of the Schedule

34The respondent was compliant with s. 38(8) of the Schedule for the reasons outlined below.

35Sections 38(8), and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not. An insurer must also provide notice regarding the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary. Section 38(11)1 sets out that if the insurer fails to comply with subsection (8), it is prohibited from taking the position that the MIG applies. Section 38(11)2 states the insurer must pay for any incurred treatment expenses starting on the 11th business day after the day the insurer received the treatment plan and ending on the day the insurer gives a proper notice.

36The applicant did not address s.38(8) or (11) in his submissions, however he referred to the authority of, T.F. v. Peel Mutual Insurance Company²⁸, and as such, I have considered these sections in my decision.

37The applicant submits that the respondent was non-compliant with respect to denying the OCF-18s for issues 1, 3, 4 and 5 as the denial letters were ambiguous, confusing, left him in the dark and provided no medical reasons for the denials.

38I disagree as the denial letters dated, December 4, 2019, March 20, 2020, and June 4, 2020, advised the applicant what components of the OCF-18 were being approved and the rationale for this basis. The denials were clear, and I disagree that he was left in the dark as the correspondence advised him the amounts of treatment approved and what treatment was denied. Further, the denial letter of July 29, 2019, was clear that the applicant was in the MIG based on the medical documentation that was available at that time for the respondent. Moreover, I disagree with the applicant that the respondent failed to provide a medical reason when it denied the educational materials, on the basis that they were unaware how this was reasonable and necessary. As I found in my decision, the applicant has not presented any evidence to demonstrate why this is reasonable and necessary and the OCF-18 did not even address it.

Interest

39Pursuant to section 51 of the Schedule, interest is payable on the overdue payment of benefits. As there are no benefits owing, no interest is payable.

The Applicant is Not Entitled to an Award Pursuant to Regulation 664

40The applicant submits that the respondent relied on incomplete information when deciding he should be in the MIG and that once he was out of the MIG, they continued to deny reasonable treatment recommended by Alpha Physiotherapy and Rehabilitation.

41Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 percent of the amount in which the person was entitled.

42As I have found that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

ORDER

43For the reasons set above, I find that the applicant is not entitled to the benefits claimed, interest, or an award. The application shall be dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Respondent’s Submissions, Tab 13, Correspondence dated December 4, 2019.
3. 317-001007 v. Aviva Insurance Canada 2018 CanLII 2309 (ON LAT).
4. 4Applicant’s Submissions, Tab 2, OCF-18, dated July 19, 2019.
5. 5Applicant’s Submissions, Tab 11, Clinical Notes and Records from Dr. Pede dated July 22, 2019.
6. 6Ibid.
7. 7Ibid.
8. 8Ibid.
9. 9Ibid.
10. 10Applicant’s Submissions, Tab 4, IE Report by Dr. Steven Taylor, dated December 2, 2019.
11. 11Respondent’s Submissions, Tab 10, Dr. Pede’s records July 2019 to August 2020.
12. 12Ibid.
13. 13Ibid.
14. 142018 CanLII 39477 (ON LAT).
15. 152018 CanLII 76696 (ON LAT).
16. 16Applicant’s Submissions, Tab 5, OCF-18, dated December 18, 2019.
17. 17Applicant’s Submissions, Tab 6, OCF-18 dated September 6, 2019.
18. 18Ibid.
19. 19Applicant’s Submissions, Tab 4, IE Psychological Report by Dr. Kanagaratnam, dated November 9, 2019.
20. 20Ibid.
21. 21Applicant’s Submissions, Tab 14, Psychological Assessment by Dr. Harris, dated September 3, 2019.
22. 22Ibid.
23. 23Respondent’s Submissions, Tab 24, FSCO Professional Services Guideline.
24. 24Respondent’s Submissions, Tab 7, OCF-18 dated March 9, 2020.
25. 252020 CanLII 42648 (ON LAT).
26. 26Applicant’s Submission, Tab 9, OCF-18, dated May 19, 2020.
27. 27Respondent’s Submissions, Tab 24, FSCO Professional Services Guideline.
28. 282018 CanLII 39373 (ON LAT).