Licence Appeal Tribunal File Number: 21-008286/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:
Neva Porter
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Lawson Hennick, Counsel
For the Respondent:
Rozlien Brikha, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Neva Porter, the applicant, was involved in an automobile accident on December 9, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Aviva General Insurance, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to attendant care benefits of $2,071.03 per month from October 21, 2020 to date?
Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a physiatry assessment proposed by Verity Medical Assessment in a treatment plan/OCF-18 (“plan”) dated September 9, 2020?
Is the applicant entitled to a medical benefit in the amount of $1,122.15 ($4,215.13 less $3,092.98 approved) for psychological services, recommended by Deena Rogozinsky Therapy in a plan dated September 11, 2020?
Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a chronic pain assessment recommended by Verity Medical Assessment in a plan dated November 19, 2020?
Is the applicant entitled to a medical benefit in the amount of $600.00 for a nerve conduction study, recommended by Verity Medical Assessment in a plan dated June 29, 2020?
Is the applicant entitled to a medical benefit in the amount of $2,486.00 for a TMJ Assessment, recommended by Deena Rogozinsky Therapy in a plan dated January 11, 2021?
Is the applicant entitled to a medical benefit in the amount of $8,000.00 for catastrophic assessments, recommended by Verity Medical Assessment in a plan dated August 5, 2021?
Is the Respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?
Is the Applicant entitled to interest on overdue payment of benefits?
RESULT
3The applicant is entitled to the plans for the physiatry assessment and the chronic pain assessment, with interest.
4The applicant is not entitled to attendant care benefits, or the remaining treatment plans in dispute.
5The respondent is not liable to pay an award pursuant to Reg. 664.
PROCEDURAL ISSUES
Surveillance Evidence
6With its written submissions, the respondent included surveillance evidence in support of its position. In reply, the applicant objected to the introduction of the surveillance, and requested that it be ruled inadmissible. The applicant submits that it was first disclosed to her on September 7, 2022 despite the production deadline of July 18, 2022 in the Case Conference Report and Order.
7The applicant submits that she was prejudiced by the late disclosure, not having the opportunity for her assessors to review the evidence and respond to it.
8Rule 9.4 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended (“Rules”), provides a party may not rely on evidence without the consent of the Tribunal if it does not follow the rules, directions, or orders with respect to disclosure.
9I find that the respondent may rely on the disputed evidence. Although the respondent acknowledges that the evidence was disclosed late inadvertently, I am not persuaded that this was prejudicial to the applicant.
10The same day the surveillance was provided, the applicant responded by email pointing out that the documents were provided nearly two months after the disclosure deadline. Yet the applicant took no action, such as bringing a motion to exclude the evidence upon receipt, nor did she provide evidence of an adjournment request to consider this information. She only raised the issue in her reply submissions.
Submission of New Evidence in Reply
11With the reply submissions, the applicant also included additional evidence –treatment records from Studio Athletica. The applicant submits that the records were provided to the respondent in June 2022 but inadvertently left them out of her initial submissions. The respondent objected and submits they should be excluded. The applicant submits that there is no prejudice to the respondent, as they were in the respondent’s possession prior to the submission deadline.
12I find that there is no prejudice to the respondent in including these records, this is not “new evidence”, the documents were properly disclosed to the respondent, and it was clearly an oversight they were not included. I note that the applicant’s initial submissions do actually reference the documents at paragraph 25 and were intended to be included at footnote 29. Therefore, I have considered these documents in my analysis.
Incorrectly Identified Issue
13The Case Conference Report and Order also included a claim for a TMJ assessment in the amount of $2,569.01. It was referenced in the applicant’s submissions, but no treatment plan was provided. The Tribunal reached out to the parties and requested a copy of the treatment plan. The applicant provided a copy of a plan in the amount of $2,569.01, however it was for chiropractic services. It appears that the issue was misidentified as a TMJ assessment. The applicant made no submissions on the reasonableness or necessity of chiropractic services in her submissions.
14Given that the issue was not properly identified, and the applicant made no submissions on the reasonableness and necessity of such treatment, I am unable to consider the issue and have excluded it from my analysis.
BACKGROUND
15Prior to the accident, the applicant was employed as a personal support worker (“PSW”). According to the notes of Dr. Cha, the family doctor, the applicant was diagnosed with back pain in January 2018 and an x-ray was requested. The applicant reportedly injured her back at work while lifting a client. Dr. Cha recommended that she take Baclofen and Diclofenac. An MRI of the spine dated March 26, 2018 identified loss of disc height with disc desiccation and mild diffuse disc bulge at L4-5 and L5/S1, as well as bilateral facet degenerative changes. In May 2018 the applicant was diagnosed with radiculopathy, and Dr. Cha completed a form for her workplace in relation to her low back pain. In September 2018 he notes that she was on modified duties due to her low back pain and completed a WSIB form for modified work. She continued to see Dr. Cha for back pain in the fall of 2018.
16Following the accident, the applicant stopped working as a PSW. She continued to see her family doctor for complaints of pain in her neck, upper and lower back, shoulders, and headaches. She was referred to a neurologist and neurosurgeon. Dr. Tator, neurosurgeon, noted in his report dated April 10, 2019 that an MRI of her cervical spine showed multilevel significant degenerative disk disease with complete reversal of the cervical lordotic curve and bulging discs at multiple levels with some compression of the cord. He opined that she did not require surgery, but it was important to avoid heavy lifting and be cautious about her posture.
17An MRI of her lumbar spine dated August 28, 2019 revealed interval worsening since the previous MRI, with an increase in size of the disc protrusion at L5-S1 now with compression of the right S1 nerve root.
18An orthopaedic surgeon, Dr. Menna, evaluated the applicant with respect to her low back pain on September 18, 2019. He noted the irritation of her S1 nerve root was not the cause of her problems, but was rather due to the degenerative changes and paraspinal atrophy. Dr. Menna recommended an aggressive course of physiotherapy to strengthen her spine.
19The applicant was evaluated by another neurosurgeon, Dr. Massicotte, who assessed her cervical spine on January 9, 2020. He recommended she undergo a repeat MRI, but noted she would eventually be a candidate for surgical decompression.
20Dr. Tator re-evaluated the applicant on April 1, 2020. He noted that she had not responded to conservative management including physiotherapy. The doctor opined that she was gradually worsening and that she will require surgical management.
ANALYSIS
Attendant Care Benefits (“ACB”)
21Section 19 of the Schedule provides that an insurer is required to pay an ACB for all reasonable and necessary expenses incurred on behalf of an insured person as a result of an accident for services provided by an aid or attendant. A Form 1 prepared by an occupational therapist sets out the services and amount of care an individual requires as well as the monthly amount payable. If the Tribunal is satisfied that the benefits are reasonable and necessary, it must then consider whether the expenses are incurred in accordance with s. 3(7)(e). In addition, if the Tribunal determines that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit in respect of the expense, the Tribunal may deem the expenses incurred under s. 3(8) of the Schedule.
22The applicant is claiming attendant care benefits in the amount of $2,071.03 per month from October 21, 2020 to date, as recommended by occupational therapist Deena Rogozinsky in her April 6, 2020 report and Form 1. A subsequent in-home assessment dated April 4, 2022 was performed by Amanda Roberts, registered nurse, which recommended housekeeping assistance.
23The applicant’s submissions fail to establish the reasonableness and necessity of the attendant care services recommended by Ms. Rogozinsky but rather focus on the s. 3(8) argument, and her submission that the respondent was unreasonable in relying on the report of Ms. Tandon or ignoring other medical evidence in denying her benefits. The applicant must first establish that the benefits are reasonable and necessary before the Tribunal can determine whether to deem the expenses incurred. The applicant’s submissions do not address the recommendations of Ms. Rogozinsky, or why the applicant required the services Ms. Rogozinsky recommended in the Form 1. The applicant also discussed the recommendations of the subsequent in-home assessment report by Ms. Roberts, which recommended housekeeping assistance. Having failed to establish that the benefits were reasonable and necessary in the first place, there is no need for me to consider whether to deem the expenses incurred.
24I find that the applicant has failed to establish that the attendant care services recommended in the Form 1 were reasonable or necessary, and the respondent made no error in its determination of entitlement.
25Upon receipt of the Form 1 on July 4, 2020, the respondent advised that the amount and type of care recommended by Ms. Rogozinsky was inconsistent with the nature of her injuries identified by Dr. Gelman, physician, in his insurer’s examination (“IE”) report dated November 22, 2019, and that during the assessment the applicant advised that she was independent with her self-care activities without the need for outside assistance. Also prior to the submission of the disputed Form 1, during an IE functional abilities evaluation with Dr. Kominek, chiropractor, on January 10, 2019, the applicant also reported independence with all personal care activities and did not receive or require assistance with any personal care tasks.
26The respondent arranged an IE with Vinita Tandon, occupational therapist.
27According to Ms. Tandon’s report dated October 21, 2020, the applicant reported that she was independent with her self-care, she completed more simple hairstyles, and continued to go to the salon for nail care. She continued to go shopping with her children, and had resumed driving. The applicant incorrectly states that Ms. Tandon did not mention that two neurologists had advised that she would be a surgical candidate for spinal decompression. Ms. Tandon notes that surgery was recommended at page 13 of her report. She submits that Ms. Tandon overlooks her poor functionality, such as balance issues and dizziness. However, the assessor’s opinion was based on her review of the file documentation, and her observations during the assessment. The applicant denied any history of falls when Ms. Tandon assessed her balance, and Ms. Tandon observed no balance impairment, or swaying during the assessment.
28I find that the applicant has not met her burden to prove that the attendant care benefits were reasonable and necessary. Further, by her own admission, the applicant has not incurred attendant care benefits. I decline to deem the benefits incurred pursuant to section 3(8), as the insurer did not unreasonably deny or withhold payment of the benefits.
Physiatry Assessment
29The applicant initially underwent an insurer’s examination (IE) with Dr. Greg Gelman, medical physician, on November 7, 2019 (report dated November 22, 2019). He noted that the applicant had pre-existing low back pain, as a result of work-related injury in the course of her employment as a PSW. He found that she was generally self-limiting, and there were no objective signs of musculoskeletal accident-related impairment. There were no objective signs of radiculopathy, neuropathy or myelopathy, and that the lumbar finding on the August 2019 MRI was not consistent with her examination. He concluded that she sustained sprain/strain injuries to her cervical and lumbar spine and shoulder girdle.
30Following that initial assessment, Dr. Gelman provided two addendum reports dated February 13, 2020 and April 22, 2020 after reviewing additional documentation, including the MRI of the cervical spine which outlined significant degenerative changes, the opinion of Dr. Tator, and Dr. Masicotte’s report wherein he noted that she would eventually be a candidate for surgical decompression. Dr. Gelman opined that the degenerative changes revealed on the MRI may account for some of her symptoms. He noted that she had a significant course of treatment, which she reported had not been helpful at all. He suggested that she be assessed by a neurosurgeon or neurologist as his examination findings were not consistent with Dr. Tator’s opinion.
31The applicant underwent a neurological assessment with Dr. Majl, report dated June 22, 2020. He evaluated the applicant and made various recommendations. He concluded that she had post-traumatic tension headaches and cervicogenic headaches. In terms of her neck and back pain, he diagnosed a moderate myofascial injury of the cervical and lumbar muscles and concluded that there were no objective signs of myelopathy, but she had symptoms of lumbar radiculopathy.
32Dr. Majl recommended that the applicant undergo a physiatry assessment and chronic pain assessment to assess her musculoskeletal system and provide guidance on various physical therapeutic options. He also recommended that she undergo an EMG/NCS testing to rule out nerve or nerve root damage, and a neurosurgery consultation.
33Given Dr. Majl’s recommendations, a treatment plan for a physiatry assessment was submitted, dated September 29, 2020. The goals of this plan referenced in part 9 include pain reduction, increase strength and range of motion, and return to activities of normal living.
34The respondent relies on a further paper review from Dr. Gelman. In his report dated October 13, 2020, Dr. Gelman noted that the neurological assessment he recommended had been completed by Dr. Majl who made various recommendations. In regards to her musculoskeletal injuries, there was no additional information that altered his opinion, or that an additional assessment by a physiatrist would be required. He suggested that a neurologist or neurosurgeon opine on the relationship between the findings of the treating specialists, the various investigations, and the subject accident.
35I place little weight on the conclusions of Dr. Gelman. He suggested that the applicant see a neurologist, which she did, and the neurologist made recommendations, including a physiatry assessment. It seems to me that he recommended getting the neurologist’s opinion and then ignores their recommendations. If the applicant reported that the treatment she had received to date was not helpful, it would be reasonable to require further evaluation for diagnosis and treatment recommendations.
36I find the physiatry assessment to be reasonable and necessary to further investigate the applicant’s impairments, identify any barriers to her recovery, and provide guidance for further treatment.
Psychological Services
37The treatment plan dated September 11, 2020 proposed $4,215.13 for twelve 1.5-hour psychotherapy sessions with a psychologist at the rate of $149.61 per hour. The respondent partially approved the plan up to $3,092.98 for twelve 1-hour sessions at the rate of $58.19 per hour if provided by a psychotherapist or counsellor, and $149.61 if the service was provided by a psychologist.
38The applicant made no submissions as to why she required 1.5 hour sessions rather than the standard 1-hour counselling sessions that were approved.
39The applicant submits that the respondent’s limitation of the rate to $58.19 per hour if the service is provided by a counsellor or psychotherapist has prevented her from affording psychological treatment. The applicant relies on the decision of A.S. v. Aviva Insurance Company, 2020 CanLII 12787 (ONLAT), and J.V. v. Intact, 2019 CanLII 130366 (ONLAT) and submits that treatment provided by a psychotherapist is the same as what was provided by a psychologist, and therefore the rate should be the same at $149.61 per hour.
40However, the applicant did not show how the denial has stopped her from receiving services from a psychologist at the approved rate. The treatment plan only proposed services with a psychologist, not a counsellor or psychotherapist. She did not provide any invoices for psychotherapy or counselling services for rates greater than the amounts specified in the May 9, 2019 letter. The applicant has failed to show why she required more than one-hour sessions, or that a request for an increased rate for psychotherapists was made and denied.
41The respondent approved the services at the hourly rate of $149.61 but for one-hour sessions with a psychologist, and there is no evidence that the applicant required more than the standard one-hour duration for sessions.
Chronic Pain Assessment
42The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
43The respondent relies on the IE report of Dr. Gelman dated February 26, 2021. Dr. Gelman diagnosed sprain/strain type injuries to the neck, low back, and shoulder, superimposed on pre-existing issues in her cervical and lumbar spine, and possible aggravation of the cervical nerve roots. He concluded that she had likely reached maximum medical improvement from her injuries.
44I find that the applicant has established that the chronic pain assessment is reasonable and necessary as a result of the accident. Her pain complaints persisted to the extent that her neurosurgeons opined that she would require spinal decompression. Her ongoing complaints of pain despite the treatment received to date, and the impact of her pain on her level of function, such as her inability to return to work, support that she has symptoms typically associated with a chronic pain condition that would warrant assessment. Further, Dr. Majl recommended a chronic pain assessment following his evaluation in June 2020, as did Dr. Michael West in his orthopaedic assessment report dated March 8, 2022.
45I find the consistency of the applicant’s pain complaints for several years post-accident support an investigation of whether she had chronic pain as a result of the accident.
Nerve Conduction Study
46The plan dated June 29, 2020 (and submitted on September 9, 2020) proposed a nerve conduction study in the amount of $1,200.00.
47The plan was partially approved up to $600.00 following an IE report from Dr. Angel dated December 4, 2020, which noted that the standard OHIP fee for a complete neurological history and electrodiagnostic evaluation is $300.00. He opined that there was no need for such an expensive test, particularly since the applicant had already been assessed by a neurologist, and the interpretation of studies would make up the sole point of the study. He concluded that the maximum cost for the nerve conduction study should be $600.00.
48While the applicant submits the evaluation was reasonable and necessary, the applicant made no submissions as to why the higher fee was required for this service.
49I am persuaded by Dr. Angel’s conclusion and find that the applicant is not entitled to the balance of the treatment plan.
TMJ Assessment
50A treatment plan dated January 11, 2021 recommended a TMJ assessment with Dr. Madger.
51The applicant relies on a subsequent chronic pain report of Dr. Blitzer, dated May 18, 2022, which noted jaw pain and dysfunction, and he diagnosed the applicant with a jaw/TMJ disorder.
52I am not persuaded that a TMJ assessment was reasonable or necessary. Other than the report of Dr. Blitzer almost three and a half years post-accident, there is no evidence to support that the applicant sustained injuries that would require a TMJ assessment. Dr. Blitzer is not a dentist, he was performing a chronic pain assessment. The airbags did not deploy, nor is there evidence that she struck her face in the accident. There were no reports of jaw pain or dysfunction to any other assessor despite the numerous evaluations. Notably, the disability certificate does not identify any TMJ issues, nor were there any reports of temporomandibular complaints to the family physician.
53I place weight on the IE dentistry assessment by Dr. Arsalan, dated March 22, 2021, which revealed no impairment to the temporomandibular joints. The applicant reported that she never complained of jaw pain to any doctors, and that she did not know why the TMJ assessment was requested. Dr. Arsalan’s assessment is more consistent with the bulk of the evidence.
54I find that the applicant has not met her burden of proof to establish that a TMJ assessment was reasonable and necessary as a result of the accident.
Catastrophic Impairment Assessments
55An OCF-18 dated November 5, 2021 proposed a multidisciplinary catastrophic impairment assessment report, totalling $20,200.00, for a psychological assessment, neurological assessment, orthopaedic assessment, comprehensive physician assessment, an in home assessment, and an executive summary. The fee for each assessment was $2,000.00, plus an additional $2,000.00 fee for the preparation of the reports for each of the psychological, neurological, orthopaedic and comprehensive physician assessments.
56The respondent partially approved the plan up to $12,200.00, and agreed to pay $2,000 each for the psychological, neurological, orthopaedic, comprehensive physician and in-home assessments, and the executive summary, and the documentation fee of $200.00.
57The respondent submits that the addition costs for report preparations are not reasonable, the costs are duplicative, and that the maximum fee payable for any one assessment and report is $2,000.00.
58I agree with the respondent. The applicant’s submissions do not address why she is entitled to both the cost of the assessment and the cost of the report. Pursuant to s. 25 of the Schedule, the respondent is not required to pay more than $2,000.00 in respect of any one assessment and preparing the associated report.
59The applicant is not entitled to the balance of the plan for the catastrophic impairment assessments.
Interest
60Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is payable with respect to the plans for the physiatry assessment and the chronic pain assessment.
Award
61The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
62The applicant submits that the respondent failed to consider medical evidence over the course of her claim, which resulted in her deconditioning.
63Although I have found that the applicant is entitled to the plans for the chronic pain assessment and physiatry assessment, it does not automatically entitle the applicant to an award. To attract an award under Reg. 664, the insurer’s conduct must be excessive, imprudent, inflexible, unyielding, or immoderate. I am not persuaded that the threshold was met in this case. The respondent reviewed and considered the information as it became available and retained appropriate medical professionals to provide opinions on the reasonableness and necessity of the treatment plans.
CONCLUSION AND ORDER
64The applicant is entitled to the plans for the physiatry assessment and the chronic pain assessment, with interest.
65The applicant is not entitled to attendant care benefits, or the remaining treatment plans in dispute.
66The respondent is not liable to pay an award pursuant to Reg. 664.
Released: October 30, 2023
Kate Grieves
Adjudicator