Citation: Gao v. Aviva General Insurance, 2023 ONLAT 21-009293/AABS

Licence Appeal Tribunal File Number: 21-009293/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:

Elaine Gao

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

Courtney Madison, Counsel

For the Respondent:

Jessica Bacopulos, Counsel

HEARD:

By way of Written Submissions

OVERVIEW

1Elaine Gao, the applicant, was involved in an automobile accident on October 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 the respondent, Insurer, 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 $3,727.75 for physiotherapy and massage therapy, proposed by Health Bound Health Network in a treatment plan dated July 15, 2019 and denied on August 8, 2019?

ii. Is the applicant entitled to $1,890.00 ($4,250.00 less $2,360.00 approved) for social work services, proposed by Health Bound Health Network in a treatment plan dated August 7, 2020 and denied on August 10, 2020?

iii. Is the applicant entitled to $1,000.00 ($2,200.00 less $1,200.00 approved) for a social work assessment, proposed by Health Bound Health Network in a treatment plan dated May 21, 2020 and denied on June 5, 2020?

iv. Is the applicant entitled to $4,660.00 for physiotherapy, massage therapy and chiropractic services, proposed by Health Bound Health Network in a treatment plan dated August 3, 2020 and denied on August 18, 2020?

v. Is the applicant entitled to $4,587.63 for physiotherapy and massage therapy, proposed by Health Bound Health Network in a treatment plan dated April 12, 2021 and denied on May 6, 2021?

vi. Is the applicant entitled to $177.62 ($2,971.15 less $2,793.53 approved) for occupational therapy, proposed by Health Bound Health Network in a treatment plan dated March 22, 2021 and denied on April 23, 2021?

vii. Is the applicant entitled to $6,005.00 for a nutritional assessment, proposed by Hanna Pape in a treatment plan dated April 1, 2021 and denied on April 23, 2021?

viii. Is the applicant entitled to $205.23 ($690.62 less $485.39 approved), for medical devices proposed by Health Bound Health Network in a treatment plan dated March 25, 2021 and denied on July 13, 2021?

ix. 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?

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

3In submissions, the applicant withdrew issues 1, 7, and 8 as identified in the Case Conference Report and Order.

RESULT

4This application is dismissed.

ANALYSIS

5There are eight treatment plans in dispute. The applicant bears the burden of demonstrating, on a balance of probabilities, that these plans are reasonable and necessary as a result of the accident. To do so, she 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 is not entitled to $3,727.75 for physiotherapy and massage therapy.

6The applicant submits that she was involved in a motor vehicle accident (MVA I) in July, 2018. Her injuries were aggravated in the subject accident (MVA II) which took place on October 9, 2018. The clinical notes and records of Dr. Ruth-Anne Keane, family doctor, and Dr. Allison Rosen, general practitioner, show that she benefits from physiotherapy and massage. Dr. Rosen recommend regular massage and physiotherapy for back strain as recently as April 21, 2021. According to the applicant, this medical evidence establishes that this treatment plan is reasonable and necessary.

7The respondent relies on the insurer’s examination (IE) of Dr. Pravesh Jugnundan, general practitioner, that took place October 29, 2020. He found that MVA II aggravated pre-existing injuries from MVA I. However, he also opined that the injuries from MVA II are soft tissue injuries that were previously treated with therapy for eight months and that further facility based treatment would not yield any significant added benefit.

8I find that this treatment plan is not reasonable and necessary.

9The applicant relies on a clinical note from Dr. Rosen written April 21, 2021 to show that she continues to require physiotherapy and massage even after the IE found that further treatment was not reasonable and necessary. This clinical note consists of one line which states, “This patient has been assessed and requires regular massage therapy for back strain.”

10This clinical note provides no insight into the cause of her ongoing back strain. Moreover, this evidence does not contradict or challenge Dr. Jugnundan’s opinion that the soft tissue injuries from MVA II have likely resolved and that the applicant’s ongoing pain is attributable to MVA I. For this reason, I find that the applicant has not established, on a balance of probabilities, that this treatment plan is reasonable and necessary.

The applicant is not entitled to $1,890.00 ($4,250.00 less $2,360.00 approved) for social work services.

11This treatment plan was partially approved based on an IE by Dr. Arpita Biswas, psychologist, dated November 24, 2020. Dr. Biswas found that the accident caused the applicant to either sustain, or exacerbate a pre-existing Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific (in-vehicular) Phobia.

12According to Dr. Arpita, some of the items listed in the treatment plan are not reasonable and necessary. In particular, she opined that 12 one hour sessions are sufficient, instead of the one and a half hour sessions in the plan. The applicant has already been assessed by a social worker. Thus, a second assessment for four hours is not justified. Instead, she recommends a two hour post therapy assessment. Dr. Arpita also states that the proposed brokerage fee is not justified.

13The applicant submits that she reported benefiting from these sessions to Dr. Rosen. As such the one and a half hour sessions are reasonable.

14The respondent relies on the report of Dr. Arpita to justify the partial approval.

15I find that the applicant is not entitled to the outstanding amount of this treatment plan.

16The applicant has not pointed to any medical evidence that states the one hour sessions approved by Dr. Arpita are insufficient. The applicant makes no submissions on the proposed four hour assessment or the brokerage fee. As such, there is no basis to find that the outstanding portion of the treatment plan is reasonable and necessary.

17For this reason, I find that the applicant has not established, on a balance of probabilities, that she is entitled to this treatment plan.

The applicant is not entitled to $1,000.00 ($2,200.00 less $1,200.00 approved) for a social work assessment.

18This treatment plan was partially recommended based on an IE by Dr. Arpita Biswas. She opined that the assessment could be completed in 10 hours at the $135.00 per hour social worker rate. The $200.00 documentation fee was also reasonable. She recommended a total amount of $1,550.00 for this treatment plan.

19The applicant submits the respondent ignored the recommendation of its own assessor regarding the hourly rate for social workers. It determined that $100.00 per hour is appropriate, as opposed to the $135.00 quoted by Dr. Biswas. The applicant also points out that Dr. Biswas’s 10 hour estimate for the assessment is based on no psychological testing being carried out. In reality, testing for both anxiety and depression were administered. Consequently, the entire amount of the treatment plan is reasonable.

20The respondent submits that the applicant provided no rationale to justify an hourly rate of more than $100.00 per hour for a social worker. As well, the Beck Scales administered for the assessment are paper and pencil tests. These are not the detailed psychological assessments by psychologists who are qualified to analyze the results.

21I find that the applicant is not entitled to the outstanding amount of the treatment plan.

22The two disputed elements of this plan are the appropriate hourly rate for the social worker and the number of hours needed for this assessment.

23The applicant relies on the statement of Dr. Biswas to justify an hourly rate of $135.00. However, it is unclear why she believes that this is the correct rate. The respondent states that $100.00 per hour is the rate for social workers, but also provides no evidence to support this rate. I also note that the hourly rate section of Part 11 of the treatment plan is blank. Under these circumstances, there is no reliable evidence upon which to base a finding on the appropriate hourly rate for a social worker to complete this treatment plan.

24Likewise, there is little evidence available to determine the number of hours needed to complete this assessment. Dr. Biswas estimates that 10 hours is sufficient because the assessment “does not involve any detailed psychometric tests and interpretation.” This is the only estimate in evidence, but this estimate does not take into account the psychometric testing that was completed.

25The applicant suggests that 15 hours is the recommended number of hours, but provides no point of reference. The treatment plan itself does not state how many hours are needed.

26The applicant cites two Tribunal decisions, DJ v Aviva Insurance, 2016 CanLII 931136 and Long Tran v TD General Insurance, 2021 CanLII 96939, to show that the Tribunal has previously accepted $2,000.00 as the rate for a social work assessment. However, the dispute between the parties relates to the hourly rate and the amount of hours. These cases do not address this dispute.

27The applicant cites two cases as evidence to establish the rate for a social worker assessment. Caselaw is not evidence and cannot be used as evidence.

28The applicant has the burden of proof to establish, on a balance of probabilities, that the outstanding portion of the treatment plan is reasonable and necessary. There is insufficient evidence before me to determine the hourly rate and the number of hours for the social work assessment. Consequently, I find that the applicant is not entitled to the disputed amount of the treatment plan.

The applicant is not entitled to $4,660.00 for physiotherapy, massage therapy and chiropractic services.

29The goals of the treatment are to decrease the intensity and frequency of headaches, prevent chronicity, and provide education and reassurance to the applicant. The respondent initially denied this plan because it exceeded the $3,500.00 funding limit available for the applicant’s treatment in the Minor Injury Guideline (MIG). The applicant was removed from the MIG based on the psychological injuries described in the IE of Dr. Biswas.

30The applicant submits that the respondent continued to deny this plan because it did not have the clinical notes and records of Dr. Rosen which recommend ongoing massage and physiotherapy.

31The respondent submits that the findings of Dr. Jugnundan properly justify the denial.

32I find that the applicant is not entitled to this treatment plan.

33The medical evidence cited by the applicant does not support the treatment plan. Again, the clinical note by Dr. Rosen states that the applicant “requires regular massage therapy for back strain.” The stated goals of the treatment plan are to decrease the frequency of headaches, prevent chronicity, and provide education and reassurance to the applicant. The applicant has not established a nexus between the applicant’s back strain and decreasing headaches, or providing education or reassurance.

34I also note that the applicant has not addressed the reason for the denial. Dr. Jugnundan opined that the applicant’s injuries from MVA II are minor and would have resolved, and that any residual pain was likely from MVA I. The medical evidence cited by the applicant does not address causation.

35Consequently, I give more weight to the IE of Dr. Jugnundan and find that the applicant has not established, on a balance of probabilities, that this treatment plan is reasonable and necessary.

The applicant is not entitled to $4,587.63 for physiotherapy and massage therapy.

36Similar to the previous treatment plan, the goals of this plan are to decrease the intensity and frequency of headaches, prevention of chronicity, and provide education and reassurance to the applicant.

37The respondent denied this treatment plan because the previous IE of Dr. Jugnundan determined that this type of treatment is not reasonable and necessary based on causation. Dr. Jugnundan completed a second IE on May 27, 2021. He determined that the applicant has cervicogenic headaches, trapezius region sprain and strain injuries, neck pain, upper and lower back pain, shoulder pain, and a WAD II injury. Similar to the first IE, he opines that these injuries are attributable to MVA I.

38The applicant submits that Dr. Jugnundan’s second IE establishes that the applicant has ongoing injuries. Moreover, Dr. Rosen recommended regular massage and physiotherapy for back strain less than a month before this denial. Both documents support a finding that this treatment plan is reasonable and necessary.

39The respondent submits that the findings of Dr. Jugnundan’s second IE are consistent with the first IE. As such, its denial of this plan remains valid.

40I agree with the respondent in regard to Dr. Jugnundan’s second IE being consistent with his first IE. Both reports opine that the applicant’s injuries are not caused by MVA II.

41The applicant continues to rely on the clinical note of Dr. Rosen from April 28, 2021. As previously discussed, this note does not address causation which is the reason for the denial.

42As such, I give weight to the two IE’s of Dr. Jugnundan as the applicant has not cited any other evidence on the issue of causation. As causation has not been established, I find that the applicant is not entitled to this treatment plan.

The applicant is not entitled to $177.62 ($2,971.15 less $2,793.53 approved) for occupational therapy.

43This plan was partially approved, and the applicant is seeking the remaining amount of $177.62 based on the recommendation of an IE dated July 12, 2021 by Lisa Slapinski, occupational therapist.

44The applicant submits that Ms. Slapinski considered the OT sessions in a vacuum and not in the context of a multidisciplinary care as recommended. The applicant further submits that no reasons are provided for proposing just two hours.

45The respondent submits that the applicant has not met the burden of proof, on a balance of probabilities, that the entire plan is reasonable and necessary.

46The evidence for resolving this issue consists of two opinions by two occupational therapists. Hannah Pape, the occupational therapist who completed the treatment plan, states that six hours are needed for communication. Ms. Slapinski opined that allotting six hours for communication with the applicant, treating team, and service providers seems excessive. She opines that two hours is sufficient.

47The applicant submits that Ms. Slapinski has offered not explanation for why two hours are sufficient. However, I find the same is true for Ms. Pape--she does not explain why six hours are needed.

48To meet the balance of probabilities test, the evidence must be substantial enough to show that a finding of fact is more likely than not. Crucially, the burden remains on the applicant to prove her entitlement, and not on the respondent to disprove it.

49Both parties rely on the opinions of occupational therapists. Neither occupational therapist provides and explanation for the number of hours of communication they are recommending. As such, there is no evidentiary basis upon which to find that one opinion is better justified than the other.

50Under these circumstances, I find the applicant failed to establish, on a balance of probabilities, that the remaining amount of the treatment plan is reasonable and necessary.

The applicant is not entitled to $6,005.00 for a nutritional assessment.

51The applicant submits that she has experienced weight gain due to low mood and poor eating habits, including stress eating. She relies on a recommendation from Dr. Rosen for an assessment and for care from a dietician to deal with body changes due to a lack of physical activity related to severe back pain.

52The respondent submits that a multidisciplinary IE dated August 4, 2021 contains assessments by two doctors who found that this treatment plan is not reasonable and necessary. As such, the denial is properly justified.

53I find that the applicant is not entitled to this treatment plan.

54She relies on a clinical note from Dr. Rosen dated April 28, 2021 which states, “This patient has been assessed and requires care from a dietitian to deal with body changes due to lack of physical activity secondary to severe back pain.”

55To be clear, this note does not recommend an assessment as alleged by the applicant. The clinical note only recommends the care of a dietician.

56The clinical note links the applicant’s body changes to severe back pain. However, Dr. Rosen makes no comments what is causing the back pain. As such, this clinical note provides no insight on any possible nexus between MVA II and the need for care by a dietician.

57The IE dated August 4, 2021 contains a report from Dr. Pushpa Kanagaratnam, psychologist. She opines that the applicant has ongoing psychological impairments from MVA II. However, the treatment plan is not reasonable and necessary because the applicant’s psychological issues have not yet been adequately treated in order for the applicant to benefit from the services of a dietician.

58I note that the report of Dr. Kanagaratnam is based on forms completed by the applicant and subsequent interview that took two hours to complete. The report covers the applicant’s personal and medical history, pre- and post-accident functioning, clinical observations, an analysis of psychometric testing, and a psychological diagnosis. The detail and insight found in Dr. Kanagaratnam’s report is more persuasive than the single line written by Dr. Rosen. For this reason, I give more weight to the IE and find that this treatment plan is not reasonable and necessary.

59The applicant further submits that this plan includes an assessment that is payable under section 38(11) of the Schedule. She submits that the respondent initially denied this plan on June 5, 2021. This was more than “10 days” after the plan was submitted and after the assessment was incurred on May 29, 2021.

60Section 38(8) of the Schedule requires an insurer to give insured persons a notice that identifies the goods, services, assessments and examinations described in a treatment plan that the insurer agrees to pay for, and any the insurer does not agree to pay for within 10 business days after the plan is received.

61If this is not done, then under section 38(11) of the Schedule, an insurer must pay for all goods, services, assessments and examinations described in a treatment plan that relate to the period starting on the 11th business day after the day the insurer received the plan and ending on the day the insurer gives the notice in section 38(8).

62The account summary of Health Bound Network Inc, the company that prepared the OCF-18, shows that the plan was submitted on April 22, 2021 and that the respondent replied on the following day.

63The respondent issued an Explanation of Benefits dated April 23, 2021 which states that this treatment plan is not payable because it is unable to determine whether the plan is reasonably required for the injuries received by the applicant in MVA II.

64As such, I am satisfied that the initial denial was not on June 5, 2021 as alleged by the applicant and find that the respondent complied with 38(8) of the Schedule by issuing letter the day after receiving the treatment plan. Consequently, I further find that 38(11) of the Schedule does not apply.

The applicant is not entitled to $205.23 ($690.62 less $485.39 approved), for medical devices.

65This treatment plan was partially approved. The outstanding portion relates to a kitchen and bathtub stools.

66The applicant submits that these assistive devises are needed to avoid straining her neck, shoulders, and back when reaching for items on her kitchen shelf and for bathtub transfers. The applicant further submits that the costs of these items are minor and the denial ignores the genuine need for these items to increase her functional independence.

67The respondent submits that this partial denial is justified based on the applicant’s functional level of independence noted in the IE of Ms. Slapinski.

68I find that the applicant is not entitled to the outstanding portion of this treatment plan.

69Ms. Slapinski is an occupational therapist. As noted in her IE report, it is beyond the scope of her practice to comment on causation. Her recommendation for the assistive devices in this plan is based on an assessment of the applicant’s functional needs and does not consider causation.

70In order for the applicant to be entitled to a treatment plan, she must first establish the plan is reasonable and necessary as a result of the accident. In regard to this plan, neither the applicant nor the respondent has made submissions on causation.

71The assistive devices in dispute are meant to lessen the pain felt by the applicant while completing certain tasks. As noted above, I have already found that the applicant’s pain complaints are caused by MVA I, not MVA II based on the two IE of Dr. Jugnundan. There is no new evidence or submissions on this point. As such, I find, on a balance of probabilities, that causation has not been established. I further find that the applicant is not entitled to the outstanding portion of this treatment plan.

Interest

72As there are no overdue payments of benefits, I find that the applicant is not entitled to interest under section 51 of the Schedule.

Award

73As no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s.10 of Regulation 664.

ORDER

74This application is dismissed.