Licence Appeal Tribunal File Number: 20-012411/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:
Olena Bryzhan
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
VICE-CHAIR: Louise Logan
APPEARANCES:
For the Applicant: Volha Vinahradava, Paralegal
For the Respondent: Rozlien Youkhana Brikha, Counsel
HEARD: By Way of Written Submissions
BACKGROUND
1The applicant, Olena Bryzhan, was injured in an automobile accident on June 10, 2018 and sought benefits from the respondent, Aviva Insurance, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).1
2The applicant was a front passenger in an automobile driven by her husband that was rear-ended when stopped at a red light. The applicant sought medical treatment at the Medilife Care Clinic for accident-related soft tissue injuries to her cervical and lumbar spine beginning two weeks after the accident. She did not visit or seek treatment from her family physician for her accident-related injuries.
3The applicant was removed from the Minor Injury Guideline due to psychological injuries resulting from the accident. In January 2019 she began attending a series of psychological treatment sessions that were approved by the respondent.
4The respondent subsequently denied certain medical and rehabilitation benefits and the applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). A case conference was heard where the number of issues in dispute were narrowed between the parties, and the matter proceeded to a written hearing.
ISSUES
5I have been asked to decide the following issues:
Is the applicant entitled to medical benefits proposed by Medilife Care Inc. as follows: (i) $1,121.37 for an exercise program in a treatment plan (“OCF-18”) dated October 6, 2018; (ii) $2,974.56 for physiotherapy, in an OCF-18 dated October 13, 2018; (iii) $6,613.29 for a chronic pain treatment program, in an OCF-18 dated August 12, 2019;
Is the applicant entitled a medical benefit in the amount of $3,061.91 for psychological treatment, proposed by MediAssess Evaluations in an OCF-18 dated September 18, 2019?
Is the applicant entitled to a medical benefit in the amount of $2,765.00 for aqua therapy, proposed by Hydroactive Aqua Therapy and Rehabilitation in an OCF-18 dated February 20, 2019?
Is the applicant entitled to a rehabilitation benefit in the amount of $2,255.15 for a social work assessment, proposed by MediAssess Evaluations, in an OCF-18 dated January 23, 2019?
Is the applicant entitled to a medical benefit in the amount of $2,293.35 for a neurological assessment, proposed by MediAssess Evaluations, in an OCF-18 dated September 18, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6After reviewing the parties’ submissions and evidence, I find the applicant has not met her onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary pursuant to the Schedule. As a result, the applicant is not entitled to the medical and rehabilitation benefits in dispute.
7As there are no benefits owing, she is not entitled to interest. The application is dismissed.
ANALYSIS
Medical and Rehabilitation Benefits
8To receive payment for a treatment or assessment plan under s. 15 and 16 of 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. To do so, 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 them are reasonable.
Physiotherapy and Exercise Treatment Plans
9In her submissions, the applicant relies on the treatment plans as evidence that she requires the recommended physiotherapy and exercise treatments for injuries resulting from the accident.
10A treatment plan on its own is not compelling evidence in support of treatment and it is insufficient to meet the applicant’s burden. There must be compelling, contemporaneous evidence in support of the treatment plan. The presence of objective supporting evidence to justify treatment is key to determining whether the medical benefit is reasonable and necessary.2
11The applicant has not submitted any contemporaneous evidence in support of the treatment plans. The applicant did not meet with her family physician for accident-related injuries. Following the accident, she met with her family physician for non-accident related conditions, but the accident and her accident-related injuries are not referenced in the clinical notes and records from the date of the accident on June 10, 2018 to May 4, 2020, the date of the most recent clinical note provided.
12The respondent cites the December 5, 2018 Insurer’s Examination (“IE”) report of Dr. Martin, orthopaedic surgeon in support of its denial of the treatment plans. Dr. Martin concluded that the applicant sustained soft tissue strains to the cervical and lumbar spine as a result of the accident. Dr. Martin observed there had been a reasonable trial of similar physiotherapy and exercise treatment. He noted there were few objective signs of accident-related impairment. The applicant was experiencing an exacerbation of her pre-existing right knee osteoarthritis, which Dr. Martin noted the applicant did not feel arose from the accident.
13I find the IE report of Dr. Martin to be persuasive, particularly in light of the lack of medical evidence such as the clinical notes and records of the applicant’s family physician or other treatment providers.
14Based on the evidence and submissions before me, I find that the applicant has not met her burden of proving on a balance of probabilities that the exercise and physiotherapy treatment plans dated October 6, 2018 and October 13, 2018 are reasonable and necessary as a result of the accident.
Chronic Pain Program
15In order to determine whether the chronic pain program recommended by Dr. Wilderman, MD, is reasonable and necessary, I must determine whether the applicant has provided evidence that she has a chronic pain condition which requires a multi-disciplinary approach to treatment.
16In its submissions, the respondent refers to the Tribunal’s decision in 17-007825 v. Aviva Insurance Canada where the Tribunal accepted the American Medical Association Guides’ (“AMA Guides”) 3 definition of chronic pain.
17I am not bound by past Tribunal decisions, nor am I bound by the AMA Guides in the chronic pain context. That being said, I note that the Tribunal has repeatedly adopted the approach of assessing an applicant’s claim of chronic pain against the six criteria described in the AMA Guides, which state that at least three of the following criteria must be met for a diagnosis:
(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 contacts; (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 behaviors.
18The applicant relies on the July 2, 2019 report of Dr. Wilderman in support of the recommended treatment plan for chronic pain. Dr. Wilderman conducted a chronic pain assessment on June 14, 2019 and concluded the applicant met the AMA Guides criteria (ii), (iii), (iv), (v) and (vi) above.
19I note that in reaching his conclusion, Dr. Wilderman took into account both the applicant’s accident and non-accident-related injuries and medical conditions. These conditions included neck pain and back pain which are accident-related based on Dr. Martin’s IE report, bilateral wrist pain, left knee pain which pre-date the accident, and dizziness which has not been shown to be a result of the accident. As a result, the chronic pain program assessment and the chronic pain program recommended by Dr. Wilderman are not specific to the accident-related medical conditions. In addition, the applicant has not reported accident-related pain to her family physician, but did report pain related to her non-accident-related knee osteoarthritis and carpal tunnel syndrome.
20The IE Multidisciplinary Report of Dr. Gilbert Yee, orthopaedic surgeon, Dr. Jamsheed Desai, neurologist, and Dr. Mohammad Nikkhou, psychologist dated December 14, 2019, and their addendum reports dated June 18, 2020 concluded that the chronic pain program is not reasonable and necessary. In addition, the respondent submits the applicant has failed to provide evidence to substantiate that she meets at least three of the six criteria under the AMA Guides.
21Based on the submissions and evidence before me, and in consideration of the AMA Guides, I find the applicant has not provided medical evidence to satisfy the need for the recommended chronic pain treatment plan.
22As Dr. Wilderman’s report isn’t specific to the MVA, I do not have anything before me demonstrating excessive dependence on health care providers, family, or spouse as a result of the MVA. While the applicant was unemployed at the time of the accident, as of February 2019 she was working as a daycare teacher. On October 25, 2019 the applicant reported to Dr. Nikkhou that on a typical day she wakes up around 7:00 am, prepares breakfast for her husband and packs his lunch, prepares food for her grandchildren with the help of her daughter, does the dishes and then after breakfast, goes to work. She walks to work or is driven by her son-in-law. She works from nine to five, rests for 30 minutes, cooks supper, and accompanies her daughter while she takes her grandchildren to sporting activities.
23The applicant has not withdrawn from her social milieu. She works at a daycare. She actively participates in family life including shopping, cooking and recreational activities.
24The applicant has not provided evidence of secondary physical deconditioning due to disuse and/or fear avoidance of physical activity due to pain resulting from the accident. Nor has she provided evidence that she is otherwise reliant on prescription medication.
25I find that the applicant has failed to provide evidence that she requires a multidisciplinary chronic pain treatment plan. As a result, I find that the applicant has not met her burden of demonstrating on a balance of probabilities that the treatment plan for a chronic pain program is reasonable and necessary pursuant to the Schedule.
Psychological Counselling
26The applicant began receiving psychological counselling approximately six months following the accident. The goal set out in the initial treatment plan submitted by Dr. Waxer, psychologist, on January 3, 2019, was to return the applicant to her pre-accident level of psychological functioning. He recommended 14 psychological treatment sessions. The treatment plans for psychological services were approved by the respondent and although Dr. Waxer had submitted the plans, the services were carried out by Ms. Kogut, therapist, with Dr. Waxer acting as the supervising psychologist.
27In a progress report dated May 5, 2019, Ms. Kogut described the applicant’s prognosis for recovery as guarded, as her physical injuries continued to affect her activities of daily living. Ms. Kogut recommended 12 additional sessions to help the applicant’s overall adjustment to the accident and address further consequent injuries and pain. An additional ten sessions were recommended in August 2019 to achieve the same goals. The applicant received 26 psychotherapy sessions between January 2019 and September 2019, with little progress reported. The disputed September 18, 2019 treatment plan is for further psychological treatment.
28The respondent relies on the December 24, 2019 IE report and June 18, 2020 addendum report of Dr. Nikkhou, psychologist, who concluded the treatment plan for further psychological counselling is not reasonable or necessary. In arriving at his conclusion, Dr. Nikkhou cites a lack of a formal psychological diagnosis, the applicant’s appropriate level of functioning, and her relatively sound psychological coping.
29I prefer Dr. Nikkhou’s opinion over Ms. Kogut’s because it is in keeping with the applicant’s overall presentation and functionality. The applicant developed psychological symptoms following the accident and received appropriate treatment for those symptoms, which do not negatively impact her functioning. Since the accident, according to the applicant’s own account, she has found employment as a daycare teacher and participates in a busy home and family life caring for her husband and grandchildren.
30I find the applicant has not met her burden to establish on a balance of probabilities that the plan for psychological treatment is reasonable and necessary.
Aqua Therapy
31The applicant has not directed me to any medical evidence in support of the need for aqua therapy treatment or its efficacy in treating the patient’s accident-related injuries. As noted above, the treatment plan on its own is not compelling evidence in support of treatment. There must be compelling contemporaneous evidence in support of the treatment plan.
32As a result, I find that the applicant has not met her burden to prove on a balance of probabilities that the treatment plan is reasonable and necessary.
Social Work Assessment
33In determining whether an assessment is reasonable and necessary, it must be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, she must point to objective evidence that there are grounds for seeking the assessment.
34The applicant submits that the social work assessment recommended by Dr. Waxer is necessary to facilitate the applicant’s reintegration into the family, society, and the labour market.
35The respondent relies on the IE Psychology Paper Review conducted by Dr. Cindi Goodfield, psychologist, on February 8, 2019. Dr. Goodfield concluded the applicant was not in need of a social work assessment. She stated the previous psychological assessment undertaken by Dr. Waxer would have already included an inquiry into family, social and employment issues. Dr. Goodfield also noted that the applicant did not report any significant impairment in her familial or social relationships.
36The applicant has an active family and work life. She has not reported or provided evidence of any significant challenges in her family relationships or work life. Based on the evidence, I find that the applicant has failed to satisfy on a balance of probabilities that the recommended social work assessment is reasonable and necessary.
Neurological assessment
37The applicant relies on the July 2, 2019 report of Dr. Wilderman of MediAssess Evaluations in support of the need for a neurological assessment.
38The respondent cites the IE Assessment Report of Dr. Desai, who found that the applicant had no significant accident-related neurologic impairment, disabilities, or sequelae identified. He noted the applicant’s neurologic symptom of headache is largely infrequent and not bothersome, and the neurologic exam was normal.
39I note that Dr. Wilderman’s assessment, which is relied upon by the applicant, included a neurological exam and does not recommend a further neurological assessment. The applicant has not directed me to any other evidence in support of the need for such an assessment.
40On the evidence, I find that the applicant has not met her burden to prove on a balance of probabilities that the neurological assessment is reasonable and necessary.
INTEREST
41As there are no benefits payable, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
CONCLUSION AND ORDER
42For the reasons outlined above I find that the applicant is not entitled to the following:
(a) the exercise program in the October 6, 2018 OCF-18; (b) physiotherapy treatment in the October 13, 2018 OCF-18; (c) chronic pain treatment program in the August 12, 2019 OCF-18; (d) psychological treatment in the September 18, 2019 OCF-18; (e) aqua therapy in the February 20, 2019 OCF-18; and (f) the social work assessment in the January 23, 2019 OCF-18 and (g) the neurological assessment in the September 18, 2019 OCF-18.
43As there are no benefits payable, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
44This application is dismissed.
Released: August 18, 2022
Louise Logan Vice-Chair
Footnotes
- O. Reg. 34/10.
- See: 17-002689 and Aviva Insurance, 2018 CanLII 2311 at para. 15.
- American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 23-24.