Citation: Wereszczynska v. Aviva Insurance Canada, 2023 ONLAT 20-012090/AABS

Licence Appeal Tribunal File Number: 20-012090/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:

Eliza Wereszczynska

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Janet Rowsell

APPEARANCES:

For the Applicant:

Alexei Antonov, Counsel

For the Respondent:

Kathleen Mertes, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Eliza Wereszczynska, the applicant, was involved in an automobile accident on January 19, 2019, 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 Insurance Company, 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 $3,643.76 for chiropractic services from Alpha-Med Wellness Center Inc., proposed in a treatment plan/ OCF-18 dated January 22, 2019?

ii. Is the applicant entitled to $1,318.73, less $1,079.80 approved by the respondent, for chiropractic services from Alpha-Med Wellness Center Inc., proposed in a treatment plan/ OCF-18 dated April 30, 2019?

iii. Is the applicant entitled to $2,590.84, for chiropractic services from Alpha-Med Wellness Center Inc., proposed in a treatment plan/ OCF-18 dated May 23, 2019?

iv. Is the applicant entitled to $2,077.00, for a chronic pain assessment proposed in a treatment plan/ OCF-18 by Royal Health Evaluations Incorporated, dated November 21, 2019;

v. Is the applicant entitled to $2,486.00, for a psychological assessment proposed in a treatment plan/ OCF-18 by MediAssess Evaluations, dated September 1, 2020;

vi. Is the respondent liable to pay an award under Section 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

vii. Is the applicant entitled to interest on any overdue payment of benefits.

RESULT

3The applicant is not entitled to receive medical benefits in the amount of $3,643.76 for chiropractic services from Alpha-Med Wellness Center Inc., proposed in a treatment plan/ OCF-18 dated January 22, 2019;

4The applicant is not entitled to receive medical benefits of $1,318.73, less $1,079.80 approved by the respondent, for chiropractic services from Alpha-Med Wellness Center Inc., proposed in a treatment plan/ OCF-18 dated April 30, 2019;

5The applicant is not entitled to receive medical benefits of $2,590.84, for chiropractic services from Alpha-Med Wellness Center Inc., proposed in a treatment plan/ OCF-18 dated May 23, 2019;

6The applicant is not entitled to $2,077.00, for a chronic pain assessment proposed in a treatment plan/ OCF-18 by Royal Health Evaluations Incorporated, dated November 21, 2019;

7The applicant is entitled to $2,486.00, for a psychological assessment proposed in a treatment plan/ OCF-18 by MediAssess Evaluations, dated September 1, 2020, as a reasonable and necessary expense;

8The applicant is entitled to interest on overdue payment of benefits respecting the treatment plan/OCF-18 recommended by MediAssess Evaluations dated September 1, 2020, in the amount of $2,486.00;

9The applicant is not entitled to interest on any overdue payment of benefits respecting the Treatment Plans/ OCF-18’s described with the exception of the treatment plan recommended by MediAssess Evaluations dated September 1, 2020, in the amount of $2,486.00;

10The respondent is not liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld and delayed payment to the applicant of any of the treatment plans listed, with the exception of the treatment plan recommended by MediAssess Evaluations dated September 1, 2020, in the amount of $2,486.00. The respondent is liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld and delayed payment to the applicant of the treatment plan recommended by MediAssess Evaluations dated September 1, 2020, in the amount of $2,486.00. The applicant is not entitled to an award respecting the other Treatment Plans/ OCF-18’s described.

Analysis

11Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary: See Scarlett v. Belair, 2015 ONSC 3635.

12The Tribunal has held that treatment plans by themselves do not prove that proposed treatments are reasonable and necessary. There should be corroborating contemporaneous and objective medical evidence to substantiate the necessity and reasonableness of the proposed treatment: See SY and Aviva, 2017 CanLII 63263 (ON LAT), at para 19.

13The factors that the Tribunal will consider when determining whether a proposed treatment is reasonable and necessary were described in Lamasan v. Certas Direct, FSCO A14-006115 January 23, 2017, which stated as follows:

1. The treatment goals must be identified; they must be reasonable; and they must be met to a reasonable degree;

2. The treatment should be appropriate to the goals and to the person;

3. The frequency, cost and duration of treatment itself must be reasonable; and

4. With respect to cost, arbitrators consider not just the financial expense, but whether the investment of time, effort and expertise required to achieve treatment goals are reasonable, taking into consideration both the degree of success and the availability of other treatment alternatives.

14I find based on the applicant’s failure to provide medical evidence in the form of her family physician Dr. Olurin’s clinical notes and records (“CNRs”) for the purpose of meeting her burden of proof, that the applicant has failed to demonstrate that the three treatment plans in dispute for chiropractic treatment, are reasonable and necessary.

15There are three treatment plans in dispute proposing chiropractic treatment with various forms of treatment, including electrotherapy, manual therapy, chiropractic treatment, active treatment, exercises, and massage therapy. The goals of treatment set out in the treatment plans are pain reduction, an increase in range of motion, an increase in strength, and a return to activities of normal living.

16In support of the reasonableness and necessity of the treatment plans, the applicant relies on the Disability Certificate (OCF-3) completed by George Charalambous, chiropractor, dated January 29, 2019, which states that the applicant sustained accident-related headaches, spinal instabilities in multiple sites of the spine, and strain and sprain of the lumbar spine. The applicant regularly attended Alpha Med Wellness Centre for physical therapy treatment commencing on January 22, 2019, until June 20, 2019, then she returned on November 21, 2019, January 20, 2019, and March 5, 2020.

17The applicant is precluded from being determined eligible for the chiropractic services benefits pursuant to section 33(6) of the Schedule. The respondent argues that the applicant has failed to show that the proposed treatments are reasonable and necessary. The respondent submits that the treatment plans are unsupported by other contemporaneous records and are insufficient in themselves to entitle the applicant to benefits.

18Under s. 33(1) of the Schedule, the applicant must provide on request any information reasonably required to assist the insurer in determining her entitlement to a benefit. The applicant is required to provide the insurer with the information within 10 business days after receiving the request.

19Pursuant to s. 33(6) of the Schedule, the insurer is not liable to pay a benefit during any period in which the applicant fails to provide the insurer with the requested information. Section 33(8) provides that, if the applicant later complies with the insurer’s request, with a reasonable explanation for the delay, the insurer must pay the withheld benefit.

20The respondent’s explanation of benefits dated February 7, 2019, and May 14, 2019, requested the clinical notes and records of the applicant’s family physician two years pre-accident and following the accident.

21Despite being ordered by the Tribunal at a case conference on March 25, 2021, to produce all pre-accident CNRs from her family physician, treating psychiatrists or other specialists, as well as her prescription summaries, for three years before the accident to the present, the applicant failed to do so. Therefore, we have no information from those sources in order to determine whether the chiropractor’s recommendations are supported by other contemporaneous records.

22The decoded OHIP summary for the period of March 21, 2019, through December 23, 2019, which was submitted into evidence at the hearing, shows that the applicant did not attend any OHIP providers for accident-related injuries during that time period. The applicant has not produced any of the records for those attendances and so we have no information from those providers available to determine whether the chiropractor’s recommendations are supported.

23The CNRs of Dr. Shaista Amin, Physician at Winston Churchill Medical Centre, show that over the period of December 4, 2019, through September 1, 2022, the applicant had eighteen appointments with Dr. Amin. Dr. Amin’s CNRs do not reference the accident until November 9, 2021, which is approximately 22 months post-accident. This is the first and only reference to the accident in the CNRs of the treating physicians whose records have been submitted at the hearing. In addition, the CNRs submitted do not mention the pre-existing psychological condition being aggravated by the accident.

24There are no references in the CNRs presented at the hearing to accident-related physical injuries. I find the applicant’s failure to provide CNRs which describe objectively the physical effects of the accident as described in the treatment plans for chiropractic treatment, fail to support the applicant’s submission that the three treatment plans for chiropractic services, are reasonable and necessary. The applicant has the onus to provide corroborating contemporaneous and objective medical evidence to substantiate the reasonableness and necessity of the proposed treatment.

25The respondent submits that the section 44 IE Orthopaedic Examination report of Dr. Esmat Dessouki, Orthopaedic Surgeon, dated October 7, 2019, states that the applicant had a full range of motion in her hips and knees, with no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained in the accident. Dr. Dessouki diagnosed the applicant with right hip strain and right knee sprain. Dr Dessouki noted that the applicant had a functional range of motion in her hips and knees. Because Dr Dessouki found no objective evidence of any musculoskeletal impairment attributable to the injuries sustained in the accident, Dr Dessouki concluded that the applicant’s physical injuries were predominantly minor injuries, and that the proposed chiropractic treatment was not reasonable and necessary.

26Dr. Dessouki’s report states that the applicant described experiencing immediate pain post-accident, and that she attended with her family physician a few days later, with complaints of headaches, nightmares, as well as pain in her back, right knee, and right shoulder. As stated earlier, the applicant has failed to produce any of Dr. Olurin’s CNRs.

27Although the applicant told Dr. Dessouki, that after the accident she experienced right knee and right shoulder pain, Dr. Dessouki reports that the x-rays taken of the applicant’s left knee, were negative for fractures. The applicant reports undergoing an MRI of her head, however the OHIP summary does not reflect an MRI taking place contemporaneous with the visit to Dr. Olurin on January 29, 2019. I find the applicant’s unexplained and contradictory self-reporting to Dr. Esmat Dessouki, undermines her allegation that the three treatment plans for chiropractic services are reasonable and necessary expenses.

28Regardless of Dr. Dessouki’s findings respecting the reasonableness and necessity of the treatment plans, the onus is on the applicant to prove entitlement to the benefits. The applicant has failed to provide sufficient evidence to meet her onus. Dr. Dessouki finds no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained in the accident. Dr. Dessouki, finds there is an absence of evidence of impairment. Although the stated purpose of Dr. Dessouki’s assessment was to address two of the treatment plans for chiropractic treatment in dispute, his medical findings show that all three treatment plans recommending chiropractic treatment are neither reasonable nor necessary based on his examination of the applicant and the objective medical evidence.

29I find that the applicant has failed to meet her burden of proof demonstrating that the three treatment plans in dispute for chiropractic treatment, are reasonable and necessary.

30The respondent submits that the treatment plan recommended by MediAssess Evaluations Incorporated, dated September 1, 2020, in the amount of $2,486.00 is a duplication of a previous treatment plan approved by the respondent. The respondent approved by an explanation of benefits dated February 27, 2020, the treatment plan/ OCF-18 dated March 14, 2019, proposed by Dr. N. Belyakova recommending a psychological assessment in the amount of $2,200.00. The approval of the treatment plan followed the section 44 IE psychological examination of Dr. Monique Costa El-Hage, dated March 14, 2019. In an explanation of benefits dated October 6, 2020, the respondent denied the treatment plan/OCF-18 proposed by Dr Peter Waxer, Psychologist, dated September 1, 2020, as it represented a duplication of services since the respondent had already approved the treatment plan for a psychological assessment by Dr. N. Belyakova, although it had not been incurred.

31Dr Peter Waxer, Psychologist, on September 1, 2020, recommended a mental health and addictions assessment in an OCF-18 treatment plan. The goals of treatment are a psychological assessment to permit the applicant return to the activities of normal living. The estimated duration of the treatment plan is one week at a sub-total cost of $2,200.00 which together with applicable tax of $286.00 represents a cost of $2486.00.

32I find that the treatment plan for the psychological assessment is a reasonable and necessary expense payable by the respondent and that the respondent concedes in submissions that the treatment plan is reasonable and necessary. As stated, in the EOB dated February 27, 2020, the respondent approved the treatment plan dated March 14, 2019, proposed by Dr. N. Belyakova. Referencing the IE psychological assessment of Dr. Monique Costa El-Hage, completed on February 13, 2020, it is described that Dr. Monique Costa El-Hage opined the proposed psychological assessment is a reasonable and necessary expense responsive to the psychological injuries sustained by the applicant in the motor vehicle accident.

33As submitted by the applicant, Dr. Monique Costa El-Hage noted that the applicant would benefit from a course of psychological intervention and opined that the psychological assessment for the purpose of treatment planning, is reasonable and necessary as a result of the accident. By reason of the treatment facility that originally requested the treatment plan permanently closing, the applicant was unable to attend and realize the treatment plan approved by the respondent as proposed by Dr. N. Belyakova. The applicant submits that she sought a psychological assessment at the treatment facility MediAssess Evaluations, which now represents the subject OCF-18 for a psychological assessment, dated September 1, 2020, since the applicant is no longer able to incur the psychological assessment originally approved by the respondent at the closed treatment provider.

34As stated, the respondent concedes that the treatment plan for a psychological assessment is reasonable and necessary. The respondent submits the issue of the OCF-18 treatment plan dated September 1, 2020, submitted by MediAssess Evaluations, is not an issue in dispute and was agreed to at the case conference on March 21, 2021. The respondent submits that it was agreed to allow the applicant to incur whichever one of the psychological assessments she wished, of Dr. N. Belyakova or that of Dr. Peter Waxer, and the respondent would issue payment for the incurred psychological assessment up to the statutory maximum of $2,200.00 (plus H.S.T.). However, respondent denied the treatment plan/ OCF-18 proposed by Dr Peter Waxer, Psychologist, dated September 1, 2020, in an explanation of benefits dated October 6, 2020. Nevertheless, the respondent now agrees that this benefit is payable and that it is reasonable and necessary. I, therefore, find that the treatment plan recommended by MediAssess Evaluations Incorporated dated September 1, 2020, in the amount of $2486.00, is a reasonable and necessary expense payable by the respondent.

35As stated, I note the estimated duration of the treatment plan is one week at a sub-total cost of $2,200.00 which together with applicable tax of $286.00 represents a cost of $2486.00, therefore, the estimated cost of the treatment plan of Dr. Waxer dated September 1, 2020, is that same as the treatment plan of Dr. N. Belyakova.

36The respondent submits that the treatment plan, recommending a psychological assessment dated March 14, 2019, proposed by Dr. N. Belyakova, was approved as reasonable and necessary following the IE psychological assessment of Dr. Monique Costa El-Hage. I accept the undisputed submission of the applicant that it was not possible to incur the approved treatment plan when the provider clinic closed.

37Considering the medical evidence and the submissions of the parties and taking into account the four criteria earlier described per Lamasan v. Certas Direct, FSCO A14-006115 January 23, 2017, I find for the noted reasons that the treatment plan recommended by MediAssess Evaluations Incorporated dated September 1, 2020, in the amount of $2486.00, is a reasonable and necessary expense payable by the respondent. As stated, the respondent concedes that the treatment plan dated September 1, 2020, is reasonable and necessary.

38I find that the applicant has not met the onus of demonstrating on a balance of probabilities, the reasonableness and necessity of the treatment plan for a chronic pain assessment.

39Dr. Igor Wilderman proposed a Chronic Pain Assessment in a Treatment Plan/ OCF-18, in the amount of $2,077.00, dated November 21, 2019, to address injury and sequelae identified in Part 6 of the treatment plan, including headache, spinal instabilities, multiple sites of spine, sprain/strain of lumbar spine. Dr Wilderman also identified in Part 6, psychological symptoms of sleep disorder, irritability, anger and nervousness, which I find he is not qualified to make a diagnosis in relation to, as he is not a psychologist. The goals of the treatment plan, as stated in the OCF-18, are to promote the applicant’s return to the activities of normal living and the provision of the applicant’s functional restoration to her pre-accident condition. In addition, the treatment plan proposes to address pain reduction, increase in strength, and increased range of motion. The assessment is proposed over a one-week period including preparation, testing, documentation, and support activities.

40The respondent submits that the disputed OCF-18 treatment plan for a chronic pain assessment is not compliant with section 38(3) of the Schedule as it is not signed by the applicant (as the insured person), and the insurer did not waive the requirement that the OCF-18 be signed by the applicant. In addition, the OCF-18 treatment plan was not signed by the regulated health practitioner, Dr. Igor Wilderman. The respondent submits that until the applicant and a health practitioner have satisfied the mandatory requirements of section 38(3) of the Schedule, the OCF-18 in dispute is deficient and can not be considered, as it is not compliant with the Schedule.

41The respondent relies on the section 44 IE Orthopaedic Examination report of Dr. Esmat Dessouki, Orthopaedic Surgeon, dated October 7, 2019, which describes following examination that the applicant had a full range of motion in her hips and knees, with no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained in the accident. Because Dr. Dessouki found no objective evidence of any musculoskeletal impairment attributable to the injuries sustained in the accident, Dr. Dessouki concluded that the applicant’s physical injuries were considered predominantly minor injuries.

42As a result of the IE Orthopaedic Examination, dated October 7, 2019, Dr. Dessouki found no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained in the accident. Dr. Dessouki, found there is an absence of evidence of impairment. As submitted by the respondent, there are no CNRs provided from the applicant’s family physician regarding complaints of any motor vehicle accident-related physical injuries, nor is there any request for pain medication shown in prescription records, which the applicant did not provide, nor in CNRs to support a chronic pain assessment as being considered reasonable and necessary expense.

43In Z.K. v. Allstate Insurance Company Canada, 2020 CanLII 106429 (ON LAT), the Tribunal set forth in relation to the test of whether a chronic pain assessment was determined reasonable and necessary: “In order to find whether a cost of examination is reasonable and necessary, all that is required is some evidence of a need to investigate what the assessment is seeking. In the case of a chronic pain assessment, proof of a chronic pain diagnosis or chronic pain syndrome is not required but evidence that the condition may be prevalent would be sufficient to warrant an assessment.”

44However, in this case there is no evidence provided by the applicant to satisfy her burden of proof that a chronic pain assessment is reasonable and necessary, and, as stated, the IE Orthopaedic Examination, dated October 7, 2019, by Dr. Dessouki finds no objective evidence of residual musculoskeletal impairment attributable to the injuries sustained in the accident and no objective impairment. I find that the applicant has not met the onus of demonstrating on a balance of probabilities, the reasonableness and necessity of the treatment plan for a chronic pain assessment.

Interest

45The applicant is entitled to interest on overdue payment of benefits with respect to the treatment plan recommended by MediAssess Evaluations dated September 1, 2020, in the amount of $2,486.00. The applicant is not entitled to interest on any other overdue payment of benefits respecting the other Treatment Plans/ OCF-18’s described.

Award

46The 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. The respondent is liable to pay an award under section 10 of O. Reg. 664 because it unreasonably withheld and delayed payment to the applicant of the treatment plan recommended by MediAssess Evaluations dated September 1, 2020, in the amount of $2,486.00. The applicant is not entitled to an award respecting the other Treatment Plans/ OCF-18’s described.

Order

47I find that the applicant is not entitled to the treatment plans in dispute with the exception of the treatment plan for a psychological assessment in the amount of $2,486.00, as proposed in a treatment plan/ OCF-18 by MediAssess Evaluations, dated September 1, 2020, for a psychological assessment;

48The applicant is entitled to interest pursuant to s. 51 of the Schedule with respect to the treatment plan recommended by MediAssess Evaluations dated September 1, 2020, in the amount of $2,486.00. Given that there are no other benefits owed, the applicant is not entitled to interest on other benefits claimed.

49The applicant is entitled to an award relating to the treatment plan recommended by MediAssess Evaluations dated September 1, 2020, in the amount of $2,486.00. The applicant is not entitled to an award respecting the other Treatment Plans/ OCF-18’s described.