Licence Appeal Tribunal File Number: 20-013152/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:
[A.A.] (A minor by their litigation guardian, [D.A.])
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: Golan Mergui, Counsel
For the Respondent: Lisa Quan, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1[A.A.] (the “applicant”) was involved in a motor vehicle accident on December 15, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Allstate Insurance Company of Canada (the “respondent”) denied a number of treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The following issues are in dispute:
Is the applicant entitled to $3,754.92 for chiropractic treatment proposed by Bill Nikols (101 Physio) in a treatment plan/OCF-18 dated October 15, 2018 and denied on October 22, 2018?
Is the applicant entitled to $3,972.37 for chiropractic treatment proposed by Jessica Pludwinski (101 Physio) in a treatment plan/OCF-18 dated February 11, 2019 and denied on July 22, 2019?
Is the applicant entitled to $3,487.91 for chiropractic treatment proposed by Yen Dustin (101 Physio) in a treatment plan/OCF-18 dated September 13, 2019 and denied on September 26, 2019?
Is the applicant entitled to $2,460.00 for a chronic pain assessment proposed by Grigory Karmy (101 Assessments) in a treatment plan/OCF18 dated September 24, 2020 and denied on October 8, 2020?
Is the applicant entitled to $2,460.00 for a driving assessment proposed by Peter Waxer (101 Assessments) in a treatment plan/OCF18 dated September 16, 2019 and denied on January 15, 2020?
Is the applicant entitled to $2,460.00 for a psychological assessment proposed by Peter Waxer (101 Assessments) in a treatment plan/OCF18 dated January 29, 2018 and denied on January 29, 2019?
Is the applicant entitled to $1,496.18 ($4,912.80 less $3,416.62 approved) for psychological treatment proposed by Lital Grinberg (101 Assessments) in a treatment plan/OCF18 dated December 19, 2018 and partially denied on October 8, 2020?
Is the applicant entitled to $2,460.00 for a functional cognitive assessment proposed by Remik Zakrzewski (101 Assessments) in a treatment plan/OCF18 dated September 24, 2020 and denied on October 8, 2020?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule?
3Due to errors and omissions in the Case Conference Report and Order (“CCRO”) that resulted from a case conference held on August 16, 2021 where this matter was set down for a written hearing, I have clarified the list of issues above to reflect the submissions and evidence before me. Specifically, I have added the dates of the treatment plans and adjusted the dates of issues #4 and #6 to accurately reflect the dates in the OCF-18s and in written submissions.
RESULT
4I find that:
i. The applicant is not entitled to the three chiropractic treatment plans listed above as issues #1–3, nor the chronic pain assessment listed as issue #4. It follows that she is not entitled to interest on these plans as no benefits are overdue.
ii. The applicant is entitled to the treatment plans for a driving assessment, a psychological assessment, and a functional cognitive assessment, as well as the unapproved portion of the psychological treatment plan, listed above as issues #5–8. The applicant is also entitled to interest on these plans in accordance with s. 51 of the Schedule.
iii. The respondent is not liable to pay an award.
ANALYSIS
5To be entitled to a treatment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
Chiropractic Treatment Plans and Chronic Pain Assessment
6I find that the applicant is not entitled to the chiropractic treatment plans dated October 15, 2018, February 11, 2019, and September 13, 2019, nor the chronic pain assessment dated September 24, 2020 (issues #1–4 above), as she has not demonstrated them to be reasonable and necessary. It follows that as there are no overdue benefits, she is also not entitled to interest.
7At issue are three chiropractic treatment plans completed by 101 Physio and a chronic pain assessment completed by Dr. [G.K.], physician, via 101 Assessments. The chiropractic plans feature sessions of physical rehabilitation, manual therapy, acupuncture, and osteopathy, along with fees for TENS unit accessories, ice/heat packs, BioFreeze, and education and assessment reports. This treatment was recommended to address a number of injuries and sequelae alleged to have been the direct result of the accident, including injury of muscle and tendon at neck level, sprains and strains of the lumbar spine and pelvis, and chronic pain. Pain reduction, increase in strength and range of motion, and a return to the activities of normal living/increased functional status are the listed goals of these plans. The chronic pain assessment is to address the same injuries and to meet the same goals as noted in the chiropractic treatment plans, with the added objective of determining the extent of the applicant’s injuries and establish an appropriate multidisciplinary pain management program.
8The applicant submits that the chiropractic plans should be deemed reasonable and necessary due to their goals of pain reduction, while the chronic pain assessment should be awarded for the same reason, along with the applicant’s cognitive difficulties as a result of the accident. She relies on two prior Tribunal decisions. These are: The Applicant v Wawanesa Mutual Insurance, 2018 CanLII 83505 (ON LAT), in which it was found that pain reduction could be regarded as a necessary goal of treatment; and T.S. v Aviva General Insurance Company, 2020 CanLII 51295 (ON LAT), in which it was held that chronic pain was ongoing or recurrent pain lasting beyond three-to-six months.
9The respondent argues that while pain relief has long been established as a legitimate objective of treatment by this Tribunal, such relief must be supported by objective, contemporaneous medical evidence—which has not been adduced by the applicant. It relies on Rajaratnam v Aviva Insurance Company of Canada, 2022 CanLII 11142 (ON LAT).
10I agree with the respondent. The applicant’s medical evidence does not support the need for such ongoing physical rehabilitation, due primarily to a lengthy gap in the CNRs of Dr. [G.G.], family physician, the applicant’s activity between the accident and the treatment plans in dispute, and unrelated injuries that the applicant sustained between the accident and the filing of these treatment plans. Further, while I am not bound by prior decisions of the Tribunal, I prefer the opinion as expressed in Rajaratnam v Aviva over the decisions raised by the applicant, for the following reasons.
11While the applicant claims that physical pain due to accident-related injuries was consistent and long-lasting, the evidence does not support this assertion. The applicant was diagnosed with “thoracolumbar sprain/strain” by Dr. [G], at an appointment on December 20, 2017, but the physician found no evidence of neurological or other impairments and noted that the applicant denied hitting her head in the accident. Although the applicant saw Dr. [G] again on January 30, 2018 due to her concerns of sustaining a concussion in the accident, she did not raise any musculoskeletal injury or pain concerns. Dr. [G] also noted again that there were no signs of head trauma as a result of the accident.
12After this, the applicant did not visit Dr. [G] with regard to any physical pain until November 22, 2018. Even then, the applicant did not mention the accident in her complaint of lower back pain at that appointment. Further, she could not attribute this pain to any known cause or injury and she also claimed that physiotherapy was not helping and that her symptoms were worsening.
13As a result, I do not concur with the applicant’s argument that she suffered from long-lasting, consistent pain warranting the relief of the treatment plans in dispute, or that such enduring pain warranted an assessment for chronic pain. She saw Dr. [G] just one time regarding injuries directly linked to the subject accident, on December 20, 2017, some 10 months before the denial of the first disputed chiropractic treatment plan, over a year before the denial of the second plan, and going on two years before the denial of the third.
14Also, the applicant denied during the November 22, 2018 appointment with Dr. [G] that physiotherapy was helping with relief of her lower back pain. Even if I did have the evidence before me to connect this pain to the accident, the applicant's statement further undermines the applicant’s argument for finding these plans to be reasonable and necessary, as she claimed that this form of treatment was not helping. Further, there is no evidence before me to indicate a change in focus in physical therapy between what she said was not working and the plans in dispute.
15In addition, the applicant was very active and she sustained at least two significant injuries between her accident-related visit with Dr. [G] on January 30, 2018, and the submission of the treatment plans and the chronic pain assessment. Dr. [M.C.E.H.], psychologist, wrote in a psychological assessment IE report dated June 25, 2018 that the applicant told her that she resumed playing all of her pre-accident sports—including volleyball, basketball, and badminton—after a break of approximately four weeks following the accident. The applicant visited [the emergency room] in a wheelchair on September 18, 2018 after falling down stairs and injuring her right ankle. More seriously, the applicant sustained a concussion during wrestling practice on October 9, 2018. This condition was diagnosed as a result of an ER visit and an appointment with Dr. [G]. Lastly, the applicant reported to, registered nurse, in counselling sessions that took place from June 2019 to January 2020 that she was playing sports at least five days a week, working at a fast-food restaurant, and participating in all regular activities.
16All of the above indicates a level of activity that does not align with the applicant’s claims of such persistent pain that extensive chiropractic treatment and a chronic pain assessment were required. Also, I have not been directed to any evidence indicating that these later injuries were connected to the subject accident.
17Accordingly, the applicant is not entitled to the three chiropractic treatment plans in dispute, nor the chronic pain assessment, nor interest.
Driving Assessment Treatment Plan
18I find that the applicant is entitled to the driving assessment treatment plan dated September 16, 2019 (issue #5, listed above), as she has demonstrated it to be reasonable and necessary. She is also entitled to interest in accordance with s. 51 of the Schedule.
19In dispute is a driving evaluation recommended to address the applicant’s reported post-accident fear of obtaining her G1 driver’s license and overall anxiety and nervousness when riding in any sort of motor vehicle.
20The applicant submits that this treatment plan should be deemed reasonable and necessary, as a number of psychological assessments note vehicular anxiety since the accident. To answer this argument, the respondent submits that the applicant has provided conflicting information on riding in vehicles with friends, that there is no note of vehicular anxiety in the CNRs of her family physician, and that she was clinically diagnosed with low anxiety about being in a motor vehicle.
21I agree with the applicant. Although the respondent correctly writes that the applicant did not discuss specific vehicular anxieties with her family doctor, much of the rest of the medical evidence indicates that her anxiety in a vehicle as well as her overall pre-existing anxiety increased post-accident. The latter is noted by Dr. [G] in his records of the appointment on January 30, 2018, for instance. Even though Dr. [EH] diagnosed the applicant with sub-clinical levels of vehicular anxiety as a result of her original assessment report dated June 25, 2018 and in a follow-up assessment report dated January 7, 2020, she also wrote that the applicant’s comfort level when riding in a vehicle was dependent on who was driving. Also, the applicant told Dr. [EH] that this anxiety resulted in her being too fearful to try and earn her G1 driver’s license upon turning 16.
22Moreover, I assign weight to the s. 25 psychological assessment report of [L.G.], psychologist, dated September 21, 2020, with regard to vehicular anxiety. I have some concerns about the report being too reliant on the self-reporting of the applicant, as some of her comments contradict other evidence regarding her level of activity post-accident. However, the applicant’s statements here when it comes to anxiety in a vehicle are in accordance with what she mentioned to Dr. [EH]. She told Ms. [G] that she was experiencing too much severe anxiety and fear to obtain her G1 licence, and that when riding in a car with her boyfriend she would feel like she was choking and that she had a “ton of weight” on her chest whenever he swerved or applied the brakes “fast.”
23Overall, I find that the CNRs of Dr. [G], the reports of Dr. [EH] (despite her conclusion), and the report of Ms. [G] support that the applicant experienced an overall increase in her anxiety level post-accident that is rooted in vehicular anxiety. The applicant tells a consistent, believable story that the subject accident increased her anxiety when riding in a car and impacted on her ability to secure her driver’s licence.
24Correspondingly, the applicant is entitled to the driving assessment treatment plan, along with interest in accordance with the Schedule.
Psychological Assessment, Cognitive Assessment, and Psychological Services Treatment Plans
25I find that the applicant is entitled to the treatment plans for a psychological assessment dated January 29, 2019 and the functional cognitive assessment dated September 24, 2020, as well as the unapproved portion of the psychological services treatment plan dated December 19, 2018, (issues #6-8 listed above), as she has demonstrated them to be reasonable and necessary. It follows that she is also entitled to interest, pursuant to s. 51 of the Schedule.
26The psychological assessment in dispute recommends a mental health assessment for the purposes of addressing numerous reported post-accident symptoms, which include headaches, nausea, blurry vision, phonophobia, brain fog, speech pathology, changes in temperament, angry outbursts, cognitive impairments, and passenger anxiety. Goals are to prepare an effective treatment regimen that would assist in the applicant’s recovery.
27The functional cognitive assessment in dispute is recommended to determine the applicant’s level of cognitive function following the accident and develop a plan to address her difficulties involving concentration, memory, and focus on tasks.
28The psychological treatment plan recommends 16 1.5-hour sessions and one 2-hour session of mental health counselling along with fees for documentation and testing, to address the issues noted above in paragraph #26 and diagnoses of Generalized Anxiety Disorder (“GAD”), Panic Disorder, Somatic Symptom Disorder with Predominant Pain (Severe), and Specific Phobia: Situational (Vehicle). The primary goals of this plan are to treat the applicant’s psychological conditions to reduce her symptomology.
29In submissions, the applicant argues that all of these plans should be found to be reasonable and necessary due to the CNRs of her family doctor, other medical practitioners and treatment facilities, and psychological assessment reports.
30The respondent submits that the psychological assessment involves a duplication of treatment offered by OHIP-funded providers, that the cognitive assessment is not warranted by the medical evidence and is also duplicative, and that the psychological treatment plan fails to justify the need for 1.5-hour treatment sessions (the insurer approved 16 one-hour sessions at the maximum allowable rate, denying the additional half-hours), and includes an unwarranted fee for counselling notes and evaluation that should have been covered within the cost of the therapy sessions.
Psychological and cognitive assessments
31I find that the applicant is entitled to both the psychological assessment and the cognitive assessment. The medical evidence before me indicates that the applicant had been experiencing psychological impairments well before the subject accident, and I accept the opinion of Dr. [G] expressed in his CNRs from January 30, 2018 that the accident exacerbated the applicant’s anxiety.
32The necessary nature of these plans has been made apparent by the submitted medical evidence. [D.H.], registered psychotherapist, under the supervision of Dr. [A.B.], psychologist, diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia (traveling anxiety) as a result of the accident in a report dated March 11, 2018. Dr. [EH], in the two psychological IE reports noted above from June 2018 and January 2020, concluded that the applicant met the criteria for GAD and panic attacks, both of which were pre-existing and were exacerbated by the accident. And, as already detailed above, the report of Ms. [G] indicated similar psychological conditions, including cognitive issues.
33With that said, I concur with the respondent’s concerns in some areas. There are aspects of the applicant’s submissions that are contradictory. For example, she told Dr. [G] during her December 20, 2017 appointment that she did not hit her head in the accident, but reports to other medical examiners and claims throughout written submissions that she did. The applicant also claims to have been diagnosed with a concussion as a result of the accident. However, she has not directed me to evidence of this diagnosis other than reference to [the hospital] clinical report dated March 29, 2019 that consists solely of the applicant’s self-reporting this concussion to Dr. [M.B.], psychiatrist. Also, the diagnosed concussion due to a wrestling injury in October 2018 is not linked to the accident in the medical evidence, and as a result seems entirely unrelated, and is a possible cause of some of the psychological issues.
34However, the opinions of the psychological practitioners stand for themselves. While the above factors are noteworthy, they do not outweigh the psychological reports detailed above—including that submitted by the respondent’s own expert, Dr. [EH]. Also, as noted above the applicant tells a consistent and believable story of psychological and cognitive issues, both before and after the October 2018 wrestling concussion.
35Consequently, I find both the psychological assessment and the cognitive assessment to be reasonable and necessary.
Psychological treatment plan
36I find that the applicant is entitled to the full amount of the psychological treatment plan that was partially denied.
37While the respondent claims that the need for 1.5-hour sessions was not explained or justified, the [H/B] report specifically requests 12 1.5-hour sessions and includes extensive reasons. It is noted in the report that “1.5-hour sessions are suggested because counselling treatments related to traumatic events utilizes [sic] imaginal exposure and/or EMDR techniques” and that this length of time was “imperative” so that the therapist could fully recall the “trauma memory” and then exit the session “safe and secure psychologically.” The report also supports the added fees for counselling notes and evaluation to address the factors listed above and to screen the applicant for the psychiatric/neurological issues she was reporting.
38As a result, I am satisfied that a sufficient rationale has been provided for the 1.5-hour length of the therapy sessions, as well as the counselling notes and evaluation fees. Further, given the already detailed psychological issues of the applicant and their exacerbation in the subject accident, I agree with the [H/B] report regarding the extended length of the therapy sessions, and find the full amount of this treatment plan to be reasonable and necessary.
OHIP
39In addition, I do not agree with the respondent’s claim that the psychological and cognitive assessments and the psychological services treatment plan should be denied because they duplicate OHIP-provided psychological services.
40While the respondent submits that the applicant attended an intake appointment at [the hospital] on January 7, 2019, and that she was then referred for more in-depth psychiatric consultations and family therapy, it does not detail how or why such treatment was duplicative of that proposed in the treatment plans. Also, the applicant specifically denies such additional therapy in its reply submissions.
41Regardless, the medical evidence before me establishes that the applicant suffered from psychological issues both before and after the accident, and that the accident exacerbated these issues.
Conclusion
42For the reasons detailed above, the applicant is entitled to the treatment plans for a psychological assessment and a functional cognitive assessment, as well as the unapproved portion of the psychological services treatment plan, along with interest, pursuant to the Schedule.
AWARD
43I find that the respondent is not liable to pay an award.
44Section 10 of Reg. 664 allows the Tribunal to award a lump sum of up to 50 per cent of the amount to which an insured person is entitled plus interest as applicable if it is found that the insurer behaved in a manner that was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate, and as a result unreasonably withheld or delayed the payment of benefits. However, it is well established that an award should not be ordered simply because an insurer made an incorrect decision regarding benefits.
45The applicant argues that an award is warranted specifically because the insurer maintained its denial of the psychological assessment treatment plan even after acknowledging the applicant’s psychological impairments due to the diagnoses by its examiner, Dr. [EH]. She seeks an unspecified award amount for the unreasonable withholding of these benefits, which in turn delayed her from securing needed psychological treatment.
46The respondent counters that its denials were reasonable, and that it did approve some of the psychological treatment based on a flexible and unbiased adjusting of the file.
47I agree with the respondent. Although I have found the applicant to be entitled to some of the treatment plans in dispute, I do not fault the insurer for unreasonably withholding or delaying payment of these benefits. The insurer commissioned a number of assessments to investigate the applicant’s symptoms and changed course to approve some of the psychological treatment plan. There is no misconduct here that would rise to the level of an award being warranted.
48Accordingly, the respondent is not liable to pay an award.
ORDER
49I find that:
i. The applicant is not entitled to the three chiropractic treatment plans listed above as issues #1-3, nor the chronic pain assessment listed as issue #4. It follows that she is not entitled to interest on these plans as no benefits are overdue.
ii. The applicant is entitled to the treatment plans for a driving assessment, a psychological assessment, and a functional cognitive assessment, as well as the unapproved portion of the psychological treatment plan, listed above as issues #5-8. The applicant is also entitled to interest on these plans in accordance with s. 51 of the Schedule.
iii. The respondent is not liable to pay an award.
Released: November 17, 2023
Brett Todd
Vice-Chair