Licence Appeal Tribunal File Number: 21-015502/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:
Casey Vettese
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Doina Marinescu, Paralegal
For the Respondent:
Ankita Abraham, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Casey Vettese, the applicant, was involved in an automobile accident on September 29, 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.
PRELIMINARY ISSUES
2The respondent submits that the applicant failed to attend properly scheduled s. 44 insurer’s examinations (“IEs”). It seeks an order that the applicant be barred from proceeding with the treatment plans listed as issues 4(c), (d) and (g)-(k) below, pursuant to s. 55(1)2 of the Schedule.
3As such, I must consider the preliminary issue, before turning to the substantive issues in dispute.
SUBSTANTIVE ISSUES
4The substantive issues in dispute are:
a. Is the applicant entitled to $2,506.40 for chiropractic services, proposed by Mediwise Health Care Centre in a treatment plan (“OCF-18”) dated March 6, 2020?
b. Is the applicant entitled to $448.84 ($1,920.53 less $1,471.69 approved) for a psychological assessment, proposed by Mediwise Health Care Centre in an OCF-18 dated July 24, 2020?
c. Is the applicant entitled to $850.00 for a nutritional assessment, proposed by Mediwise Health Care Centre in an OCF-18 dated January 28, 2021?
d. Is the applicant entitled to $1,974.03 for psychological services, proposed by Mediwise Health Care Centre in an OCF-18 dated February 27, 2021?
e. Is the applicant entitled to $2,500.03 for a neurological assessment, proposed by Q Medical in an OCF-18 dated February 13, 2020?
f. Is the applicant entitled to $2,486.00 for an optometry assessment, proposed by Q Medical in an OCF-18 dated February 13, 2020?
g. Is the applicant entitled to $2,034.00 for a social work assessment, proposed by Q Medical in an OCF-18 dated February 2, 2021?
h. Is the applicant entitled to $2,486.00 for an attendant care assessment, proposed by Q Medical in an OCF-18 dated February 2, 2020?
i. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Q Medical in an OCF-18 dated February 22, 2021?
j. Is the applicant entitled to $2,486.00 for a cognitive assessment, proposed by Q Medical in an OCF-18 dated February 22, 2021?
k. Is the applicant entitled to $2,500.13 for a psychiatric assessment, proposed by Q Medical in an OCF-18 dated February 22, 2021?
l. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5With respect to the preliminary issue, I find the applicant is statute-barred from proceeding with the treatment plans listed as issues 4(c), (d) and (g)-(k) above, due to non-attendance at scheduled IEs, pursuant to s. 55(1)2 of the Schedule.
6With respect to the remaining treatment plans, listed as issues 4(a)(b)(e) and (f) above, I find that the applicant has not established that they are reasonable and necessary. As no benefits are payable, no interest is owing.
Preliminary Issue - Non-attendance at s. 44 Examinations
7Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more often than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
8Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied. The onus is on the insured person to put forth a reasonable explanation for non-attendance at an IE. The Tribunal may, under s. 55(2) of the Schedule permit an insured person to apply to the Tribunal despite a failure to comply with s. 44, subject to terms and conditions.
9In her submissions, the applicant does not dispute that the respondent’s notices of examination (“NOE”) were compliant with s. 44(5) of the Schedule, and concedes that she did not attend the relevant IEs. Rather, her argument centres on whether the proposed assessments were reasonably necessary. The applicant submits that she had already attended previously scheduled IEs, and that the proposed assessments were either duplicative or unnecessary. The applicant further requests that I exercise my discretion under s. 55(2) and allow all of the treatment plans in dispute to proceed to the substantive portion of the hearing.
The respondent’s request for a General Practitioner’s IE was reasonable
Issue 4(c) - OCF-18 for a nutritional assessment, and
Issue 4(i) - OCF-18 for a chronic pain assessment
10By way of NOE dated March 8, 2021, the respondent requested the applicant’s attendance at a general practitioner’s (“GP”) IE, to assess the applicant’s entitlement to a nutritional assessment and chronic pain assessment.
11The applicant did not attend the proposed assessment, and argues that it was not reasonable, as she had previously already attended a GP IE. The applicant further disagrees with the respondent’s choice of an assessor and argues that the assessments should have been conducted by specialists with an understanding in nutrition and chronic pain, rather than a GP.
12I do not agree with the applicant that the IE requested by the respondent was excessive. Firstly, I do not find the applicant’s argument that she had already previously attended an IE conducted by a GP, to be persuasive. The previous IE assessment was conducted to determine the applicant’s entitlement to physical therapy treatment and the applicability of the Minor Injury Guideline. The submission of OCF-18s for nutrition and chronic pain assessments raised new issues, which had not been addressed by the prior IE. The respondent’s request for the applicant to be assessed for this purpose was a reasonable request. I further note the respondent’s submissions that the applicant had not provided any updated clinical notes and records pursuant to its s. 33 request, and as such, an assessment was needed to determine the applicant’s entitlement.
13Finally, I agree with the respondent that a general practitioner is an appropriate examiner to determine whether the proposed assessments are reasonable and necessary. The applicant argues that the IE should be conducted by a specialist in nutrition and chronic pain. However, the Schedule and case law do not afford an applicant the option to pick the designation of their assessor. I agree with the respondent that as a medical doctor, a GP is an appropriate examiner to assess issues such as nutrition and chronic pain.
14I find that none of the arguments put forward by the applicant constitute a reasonable explanation for the applicant’s non-attendance. This is the applicant’s burden to prove and I find that she has not done so.
The respondent’s request for a Psychology IE was reasonable
Issue 4(d) - OCF-18 for psychological services,
Issue 4(g) - OCF-18 for social work assessment, and
Issue 4(k) – OCF-18 for psychiatric assessment
15The respondent requested the applicant’s attendance at a psychology IE by way of NOE dated March 8, 2021. The proposed IE was scheduled to assess the applicant’s entitlement to OCF-18s for psychological treatment, a social work assessment and a psychiatric assessment.
16The applicant concedes that she did not attend the psychological assessment. However, she argues that she had previously attended a psychological IE and that this prior assessment could be used to determine her entitlement to the OCF-18s in dispute. The previous psychological IE was scheduled to determine the applicant’s entitlement to a psychological assessment, which had been partially approved by the respondent.
17The respondent argues that the additional psychological IE was reasonably necessary. It submits that the prior IE assessment considered, and partially approved, the applicant’s entitlement to a psychological assessment, but that additional investigation was required as to whether a social work assessment and psychiatry assessment were reasonable and necessary as well. Further, with respect to the OCF-18 for psychological services, the respondent’s NOE explained that the IE was being scheduled to determine whether additional treatment was reasonable and necessary, given that a previous, similar treatment plan had been approved, with no reported progress.
18I am persuaded by the respondent’s argument that the proposed psychological IE was needed to address the new issue of the social work assessment and to investigate whether additional psychological treatment or a psychiatry assessment was reasonable and necessary. I further note the respondent’s argument that no updated clinical notes and records or progress notes had been provided by the applicant to justify further assessments or treatment. As such, I agree with the respondent that the applicant failed to attend the reasonably scheduled IE without a reasonable explanation.
The respondent’s request for an Occupational Therapy IE was reasonable
Issue 4(h) - OCF-18 for attendant care assessment, and
Issue 4(j) - OCF-18 for cognitive assessment
19By way of an NOE dated March 8, 2021, the respondent requested the applicant’s attendance at an occupational therapy (“OT”) in-home assessment, to assess her entitlement to the proposed attendant care assessment and cognitive assessment. The applicant does not dispute that she failed to attend this assessment or that the notice was compliant with s. 44(5) of the Schedule.
20The applicant has provided limited submissions on the reason for her non-attendance. Her sole argument relates to whether the scheduled assessment was reasonably necessary for the OCF-18 for the cognitive assessment. The applicant submits that an OT IE assessment was not the appropriate examination for a proposed cognitive assessment. However, no submissions were provided as to why the proposed OT assessment was not reasonably necessary for the additional OCF-18 proposing an attendant care assessment.
21I agree with the respondent that the applicant has failed to provide a reasonable explanation for her non-attendance. It does not appear from the evidence that an OT assessment had been previously conducted by the respondent. As such, an OT IE would be reasonably necessary to assess the applicant’s entitlement to an attendant care assessment, particularly as the applicant had reported that she was independent in almost all of her activities of daily living. Further, with respect to the OCF-18 relating to the cognitive assessment, the respondent submits that the OT IE is needed to assess the applicant’s entitlement, as the assessment proposed in the OCF-18 was an occupational therapy cognitive assessment. The applicant has not provided any reply submissions to rebut the respondent’s argument.
22As such, I agree with the respondent that the nature of the IE requested is clearly related to the OCF-18s in dispute and therefore, reasonably necessary.
The applicant is statute-barred pursuant to s. 55(1)2
23Given that the applicant failed to attend properly scheduled IEs and did not provide a reasonable explanation for her non-attendance, the applicant is statute-barred from proceeding with the corresponding treatment plans pursuant to s. 55(1)2 of the Schedule.
24The applicant requests that I exercise my discretion under s. 55(2) to permit the treatment plans to proceed despite the non-compliance. She submits that significant weight should be given to the fact that she had previously attended four other IEs during the COVID-19 pandemic. I do not find the applicant’s argument to be persuasive. The fact that the applicant had previously attended unrelated IEs, even during the pandemic, does not justify subsequent non-attendance at the three reasonably scheduled IEs.
25As such, I decline to exercise my discretion under s. 55(2) of the Schedule, as the applicant has not put forward a reasonable explanation for her non-attendance. The applicant is statute-barred from proceeding with the treatment plans listed as issues 4(c), (d) and (g)-(k) above.
SUBSTANTIVE ISSUES
Analysis
26With respect to the remaining issues in dispute, the onus rests with the applicant pursuant to s. 15 and 16 of the Schedule, to demonstrate 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.
The applicant has not established that the OCF-18 for chiropractic services is reasonable and necessary
27The applicant submitted an OCF-18 dated March 6, 2020 for chiropractic services in the amount of $2,506.40. She submits that although she had been removed from the Minor Injury Guidelines on the basis of psychological impairments, she has also sustained physical impairments to the neck and back, which warrant ongoing treatment.
28I agree with the respondent that the applicant has failed to adduce sufficient objective evidence of the reasonableness and necessity of the OCF-18 in dispute.
29The applicant has provided limited medical evidence of any accident-related impairments that warrant ongoing treatment. Although the applicant submits the clinical notes and records (“CNRs”) of her medical walk-in clinic as evidence, she does not direct me to any CNR entry identifying significant accident-related impairments, or recommendations for ongoing treatment. In her submissions, the applicant concedes that post-accident, she had been diagnosed only with sprains and strains. The applicant relies in large part on the treatment records from her chiropractic clinic. However, only two treatment entries have been provided, which I do not find to be sufficient evidence of the reasonableness of ongoing treatment.
30I further note the respondent’s submissions that the applicant has failed to provide any updated CNRs from her walk-in medical clinic, treatment clinic or OHIP records, post-January 2020. The respondent requests that I draw an adverse inference from the applicant’s failure to comply with the production order made in the Case Conference Report and Order. The applicant did not provide any reply submissions, or clarify why updated medical records were not provided. Although I am not prepared to make an adverse inference, the lack of updated productions goes to the weight of evidence presented. Moreover, as the applicant has not provided any updated medical records past January 2020, no medical evidence was provided that was contemporaneous with the submission of the OCF-18 in dispute.
31Finally, the respondent’s IE assessor Dr. Pravesh Jugnundan, GP, found that the applicant had sustained only soft tissue injuries as a result of the accident, and that the physical therapy proposed in the OCF-18 in dispute was not reasonable and necessary. The applicant has not provided sufficient evidence to rebut Dr. Jugnundan’s findings.
The applicant has not established that the outstanding balance of the OCF-18 for a psychological assessment is reasonable and necessary
32The applicant submitted an OCF-18 dated July 24, 2020, for a psychological assessment, in the amount of $1,920.53. The respondent partially approved the assessment in the amount of $1,471.69, denying the portion of the plan relating to a planning fee, preparation fee and brokerage fee, totalling $448.84. In its Explanation of Benefits, the respondent advised that it was denying the additional fees, as these costs would be included in the $200 form completion fee specified by the Professional Services Guideline.
33The applicant has not provided any submissions or evidence to address the reasonableness and necessity of the outstanding fees. In the absence of any such evidence, I find that the applicant has not established entitlement to the outstanding balance of the OCF-18 in dispute.
The applicant has not established that the OCF-18s for a neurological assessment and an optometry assessment are reasonable and necessary
34I find that the applicant has failed to adduce sufficient evidence that the proposed neurological and optometry assessments are reasonable and necessary. Although she submits that both assessments are needed as she suffered from ongoing headaches, vision changes, photosensitivity and cognitive changes post-accident, limited objective medical evidence was provided in support of this claim. The applicant does not direct me to any specific CNR entry from her walk in clinic supporting such ongoing impairments. Further, as the applicant has not provided updated medical records, no contemporaneous medical evidence was submitted to support her claims of ongoing accident-related neurological, cognitive or visual impairments.
35In denying the proposed assessments, the respondent relies on its neurology and neuro-ophthalmology IEs of Dr. Paul Ranalli, neurologist. In the neurology IE Dr. Ranalli found that the applicant had a normal neurological examination and did not sustain a significant neurological impairment. He further found in the neuro-ophthalmology IE that the applicant had 20/20 vision in each eye, both at distance and near, and that her neuro-ophthalmological examination was normal. Other than minor resolving photo-sensitivity, no accident-related neuro-ophthalmology impairment was found. As such Dr. Ranalli found that the proposed OCF-18s were not reasonable and necessary.
36The applicant has not led any objective medical evidence to refute Dr. Ranalli’s findings. As such, I find that the applicant has not met her onus to prove that the proposed assessments are reasonable and necessary.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable.
ORDER
38For the reasons outlined above, I find that:
i. The applicant is barred from proceeding with the OCF-18s for a nutritional assessment, psychological services, social work assessment, attendant care assessment, chronic pain assessment, cognitive assessment, and psychiatric assessment (listed as issues 4(c), (d) and (g)-(k) above), due to non-attendance at the scheduled IEs, pursuant to s. 55(1)2 of the Schedule;
ii. The applicant is not entitled to the remaining OCF-18s or interest;
iii. The application is dismissed
Released: November 23, 2023
Ulana Pahuta
Adjudicator