Licence Appeal Tribunal File Number: 21-009954/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:
Kristan Osborne
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Adam Moftah, Counsel
For the Respondent:
Aimee Draper, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Kristan Osborne, the applicant, was involved in an automobile accident on April 22, 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 the respondent, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $1,723.41 for a FAE Assessment, proposed by Alliance Diagnostics in a treatment plan (“OCF-18”) submitted March 30, 2021?
ii. Is the applicant entitled to $1,899.74 for chiropractic services, proposed by Health Max in an OCF-18 dated February 10, 2021?
iii. Is the applicant entitled to $1,208.96 for chiropractic services, proposed by Health Max in an invoice (“OCF-21”) dated June 21, 2021?
iv. Is the applicant entitled to $1,062.81 for physiotherapy services, proposed by Health Max in an OCF-21 dated March 9, 2021?
v. Is the applicant entitled to $532.00 for massage therapy, submitted on a claim form (“OCF-6”) dated July 8, 2019?
vi. Is the applicant entitled to $939.06 for massage therapy, proposed by Health Max in an OCF-18 dated December 30, 2019?
vii. Is the applicant entitled to $1,464.29 ($3,310.21 less $1,845.92 approved) for occupational therapy, proposed by Alliance Diagnostics in an OCF-18 dated July 19, 2021?
viii. Is the applicant entitled to $1,086.57 ($2,934.09 less $1,847.52 approved) for chiropractic services, proposed by Health Max in an OCF-18 dated August 28, 2020?
ix. Is the applicant entitled to $551.76 ($2,556.72 less $2,004.96 approved) for chiropractic services, proposed by Health Max in an OCF-18 dated December 9, 2020?
x. Is the applicant entitled to $1,899.74 for chiropractic services, proposed by Health Max in an OCF-18 dated April 4, 2021?
xi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is not entitled to the treatment plans or invoices in dispute, or interest.
ANALYSIS
4Sections 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.
5The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.
The OCF-18 dated March 3, 2021 for a Functional Abilities Evaluation
6I find that the applicant has not established that the proposed functional abilities evaluation (“FAE”) is reasonable and necessary.
7The applicant submits that the proposed assessment is needed, as she continues to experience chronic pain from her accident-related physical injuries, three years post-accident. She argues that the clinical notes and records (“CNRs”) of her family physician, Dr. Peter Dobson, establish her ongoing chronic pain. The applicant further submits that Dr. Dobson has noted her inability to stand for long periods of time and need to sit frequently to mitigate her back pain. The applicant also point to her reports to her assessors that she was unable to perform caregiving, housekeeping and home maintenance tasks. As such she argues that a FAE assessment will provide an understanding of her physical limitations.
8I do not find that the applicant has established entitlement to the proposed FAE assessment. Although the CNRs of Dr. Dobson do indicate reports of chronic back and neck pain, they also note that the applicant returned to work full-time as a teacher post-accident. The CNRs also do not show that the applicant reported ongoing difficulties with her activities of daily living to Dr. Dobson. In terms of physical limitations, Dr. Dobson noted in a CNR entry dated August 26, 2019, that while the applicant reported ongoing pain, her range of motion was “ok”.
9Further, the respondent’s s. 44 assessors did not find that the applicant suffered from functional limitations. In his s. 44 orthopedic assessment report, Dr. Weisleder noted that the applicant returned to full-time work, was independent in her self-care and resumed housekeeping, cooking and laundry with pacing. Dr. Ko, physiatrist, found full range of motion in the affected areas, although with reports of pain, and diagnosed the applicant with sprain/strain of the cervical and lumbar spine, gluteal region and trapezii. The applicant also reported to Dr. Ko that she had returned to work, and was responsible for all household chores, with pacing. The applicant has provided no medical evidence to show that she could not function, even though she had ongoing pain.
10Accordingly, as the applicant appears to be functional in the aspects of her daily living, I am not persuaded that the treatment plan for an FAE is reasonable and necessary.
The applicant is not entitled to the OCF-18 and OCF-21s dated February 10, 2021, March 9, 2021 and June 21, 2021 for chiropractic and physiotherapy services
11The applicant submitted an OCF-18 dated February 10, 2021 in the amount of $1,899.74 for chiropractic services, an OCF-21 dated March 9, 2021 in the amount of $1,062.81 for physiotherapy treatment and an OCF-21 dated June 21, 2021 in the amount of $1,208.96 for chiropractic services. She submits that such ongoing treatment is reasonable and necessary for the physical injuries and chronic pain she sustained as a result of the accident.
12The respondent disputes that the applicant is entitled to the benefits in dispute. It argues that it has already paid the amounts owing under these invoices and treatment plan, and as such these issues should be withdrawn. Despite having the right of reply, the applicant did not provide any reply submissions to dispute the respondent’s position that the invoices and treatment plan have been previously paid.
13I agree with the respondent that the applicant has not established entitlement to the OCF-18 and OCF-21s. With respect to the OCF-18 dated February 10, 2021 and the OCF-21 dated March 9, 2021, the correspondence and evidence submitted by the respondent establishes that the chiropractic and physiotherapy treatment have been paid in full. With respect to the OCF-21 dated June 21, 2021, the evidence establishes that out of the $1,208.96 claimed, $414.46 was paid by the extended healthcare insurer. The evidence further establishes that the remaining $794.50 has already been paid by the respondent. The applicant has not led any evidence to rebut the respondent’s submissions and evidence.
14As such, I find that the applicant has not established that any amounts are owing pursuant to the OCF-18 and OCF-21s dated February 10, 2021, March 9, 2021 and June 21, 2021.
The applicant has not established entitlement to the OCF-6 dated July 8, 2019
15The applicant submitted an OCF-6 in the amount of $532.00 for massage therapy. The respondent disputes the applicant’s entitlement to the expense. It argues that the massage services were submitted on a claim form (OCF-6), rather than a treatment plan (OCF-18). As such, it argues that pursuant to s. 38(2) of the Schedule, medical benefits are not payable unless they are submitted on a treatment plan. It submits the OCF-6 and denial letter dated September 3, 2019, as evidence.
16The applicant did not provide any submissions or evidence to refute the respondent’s assertion that the submission of the OCF-6 was not compliant with s. 38(2). Nor did the applicant provide evidence that an OCF-18 for the massage therapy services had been submitted instead. Rather, the applicant provides the general assertion that due to a clerical oversight, the massage services had been incurred “prior to the submission of the treatment plan”. However, no such treatment plan has been submitted as evidence by the applicant. Without any submissions or evidence from the applicant on this point, I find that the applicant has not met her onus to prove entitlement to the OCF-6 in dispute.
The OCF-18s dated December 30, 2019, August 28, 2020, and December 9, 2020 are not reasonable and necessary
17The applicant submitted three OCF-18s from Health Max for ongoing physical treatment. The OCF-18 dated December 30, 2019 in the amount of $939.06 proposed 12 sessions of massage therapy. The respondent denied this treatment plan in full. The OCF-18 dated August 28, 2020 in the amount of $2,934.09 proposed a combination of chiropractic, massage and acupuncture treatment, along with therapeutic devices such as a sleep roll and ultra bio turmeric. The respondent partially approved the OCF-18 in the amount of $1,845.52, denying the portion of the OCF-18 for acupuncture and massage treatment. Finally, the OCF-18 dated December 9, 2020 in the amount of $2,556.72 also proposed a combination of physical treatment and ultra bio turmeric. The respondent partially approved the treatment plan in the amount of $2,004.96, denying the portion of the treatment plan relating to acupuncture and ultra bio turmeric.
18The respondent submits that it properly denied the applicable OCF-18s, as the denied physical therapy was passive treatment, which the applicant has not established is reasonable and necessary. It relies on the s. 44 assessment of Dr. Walters dated December 9, 2019, who diagnosed the applicant with WAD-II strain and lumbosacral strain and noted that the applicant had a residual minor impairment and that she had not yet achieved maximum medical impairment. Dr. Walters noted that the applicant would benefit from an active exercise program and not facility-based treatment. Both Dr. Weisleder and Dr. Ko also subsequently opined that further facility-based treatment was not reasonable and necessary. The respondent submits that it approved the portion of the OCF-18s that related to active physical treatment.
19The applicant argues that ongoing physical treatment is reasonable and necessary. She contends that her family physician Dr. Dobson has recommended additional treatment and that she has reported that the physical interventions she has received have benefited her recovery. The applicant further submits that she still suffers from physical impairments, such as partially restricted range of motion and chronic pain, necessitating the additional treatment. As such, the proposed treatment would provide her with pain relief and improve her range of motion.
20I find that the applicant has not met her onus to prove that the denied portions of the treatment plans are reasonable and necessary. Although the applicant has provided general submissions on how ongoing physical treatment has been beneficial, she does not provide specific submissions on the particular denied passive treatment (massage and acupuncture).
21Moreover, to establish the reasonableness and necessity of proposed treatment, it is not sufficient to simply lead evidence of a physical impairment or ongoing pain. Rather, particularly in the case of ongoing, multiple treatment plans, there must be sufficient evidence that the goals of treatment are being met to a reasonable degree and that the overall costs of achieving them are reasonable. The applicant provides a general submission that the treatment to date has reduced her pain and improved her range of motion. However, the applicant has provided insufficient objective evidence to support this claim.
22Although the applicant reported attending for regular physical therapy, no detailed treatment records have been provided, to establish how the stated goals of pain reduction, increase in strength, increased range of motion, return to activities of daily living and return to pre-accident work activities, were being met by treatment. Further, no progress reports from the treating practitioner were submitted and the OCF-18s themselves do not provide specific detail or comments as to the applicant’s progress with treatment. The applicant relies in large part on her self-reports that she has found such treatment to be helpful. However, such self-reports alone are not compelling evidence, without additional objective evidence.
23Further, with respect to the denied ultra bio turmeric, the applicant has not provided any specific submissions on what this treatment is, or how it addresses her ongoing pain or physical impairments.
24For the foregoing reasons, I find that the applicant has not led sufficient evidence to establish that the denied treatment is reasonable and necessary.
The applicant has not established entitlement to the outstanding amount of the OCF-18 dated July 19, 2021
25The applicant submitted an OCF-18 in the amount of $3,310.21 for occupational therapy (“OT”) services. The respondent partially approved the treatment plan in the amount of $1,845.92 for the OT sessions, clinical notes and travel time. The denied portion of the plan included planning services, review of medical files, brokerage services, progress and discharge reports and gloves and masks. The respondent submits that these separate items are covered within the approved amount and are not separately compensable under the Schedule.
26I find that the applicant has not met her onus to prove that the outstanding amount of the OCF-18 is reasonable and necessary. The applicant has not provided specific submissions on why the various documentation, brokerage and support activities are reasonable and necessary. Rather, she provides the general submission that during the Covid-19 pandemic, additional safety measures were put in place and unforeseen expenses led to greater operation costs. However, this does not address the reasonableness and necessity of the documentation/support activities. Moreover, the applicant has not provided an argument as to why additional overhead costs should be borne by an insurer.
27As such, I do not find the applicant has established entitlement to the outstanding amount of the OCF-18.
OCF-18 dated April 4, 2021 in the amount of $1,899.74, for chiropractic services
28The respondent submits that this OCF-18 is a duplication of the OCF-18 dated February 10, 2021, in the same amount, which had been previously paid in full. The applicant has not provided specific submissions on this issue, other than to state that all of the treatment plans for physical therapy are reasonable and necessary. Nor has the applicant submitted into evidence an OCF-18 dated April 4, 2021.
29Without specific submissions on this point or evidence confirming an OCF-18 dated April 4, 2021, I find that the applicant has not refuted the respondent’s argument that this OCF-18 is a duplication of the issue listed as issue 2ii above.
Interest
30Section 51 of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.
31As no benefits are overdue, no interest is payable under s. 51.
ORDER
32For the foregoing reasons I find that the applicant is not entitled to the treatment plans or payment of the invoices in dispute, or interest. The application is dismissed.
Released: October 31, 2023
Ulana Pahuta
Adjudicator```