Licence Appeal Tribunal File Number: 21-001730/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:
Daniel Talovic
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Ryan Turner, Counsel
For the Respondent:
Alexander V. Dos Reis, Counsel
HEARD: By way of written submissions
OVERVIEW
1Daniel Talovic (“the Applicant”) was involved in an automobile accident on October 16, 2018 and sought benefits from Aviva Insurance Company of Canada (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
Dr. D. Louvish’s involvement in the hearing
2Upon review of the submissions and evidence, I observed that the Applicant tendered a report by Dr. D. Louvish, physician, dated May 14, 2021. Dr. Louvish is a part-time member of the Tribunal and adjudicates cases with the Tribunal’s General Service. I asked the parties for written submissions on the possible perceived bias stemming from Dr. Louvish’s involvement.
3The Applicant submits that there should be no perception of bias, given that Dr. Louvish executed the Acknowledgement of Expert’s Duty, dated May 8, 2021. He further submits that there is no evidence Dr. Louvish was involved in this case at any point. Lastly, the Applicant submits that if the adjudicator assigned to his hearing may be biased due to past experience with Dr. Louvish, that the adjudicator should recuse themselves and another adjudicator without past experience with Dr. Louvish be assigned to the hearing.
4The Respondent submits that it was unaware of Dr. Louvish’s membership at the Tribunal prior to receiving the request for additional submissions on the issue. It advises that it takes no issue with Dr. Louvish’s involvement as an expert and trusts that the Tribunal will that all necessary steps to ensure that a fair process takes place. The Respondent asks that the Tribunal ensure the following steps are taken in order to maintain a fair process.
i. Dr. Louvish is not to be appointed as the hearing adjudicator for this matter;
ii. Dr. Louvish is not to discuss this matter with the hearing adjudicator;
iii. If Dr. Louvish does discuss the matter with the hearing adjudicator, the hearing adjudicator is to be removed as the hearing adjudicator for this matter;
iv. The Tribunal will not appoint, as hearing adjudicator for this matter, anyone who may have a conflict of interest or have a bias in favour of or against Dr. Louvish due to their existing relationship with Dr. Louvish stemming from his role as a member of the Tribunal; and
v. If the hearing adjudicator is aware of any conflict of interest or bias in favour of or against Dr. Louvish due to his or her existing relationship with Dr. Louvish stemming from his role as a member of this Tribunal, the hearing adjudicator is to let the Tribunal and both parties know before releasing the decision.
5The Applicant did not make reply submissions on the issue.
6I find that Dr. Louvish’s involvement in this hearing as an expert witness does not constitute an apprehension of bias and agree to impose the safeguards requested by the Respondent to ensure a fair and transparent process.
7As noted by the Applicant, Dr. Louvish executed an Acknowledgement of Expert’s Duty which acknowledges his duty to provide opinion evidence that is fair, objective and non-partisan, to provide opinion evidence that is related only to matters that are within his area of expertise, to provide such additional assistance as the Tribunal may reasonably require, and to determine a matter in issue. The form also acknowledges that these duties prevail over any obligation which he may owed to any party by whom or in whose behalf he was engaged.
8Additionally, I can confirm that Dr. Louvish has not been assigned to this hearing and I have not discussed the matter with him. Further, I have never had any experience working with Dr. Louvish in which to form a basis for bias.
9In any event and despite all the above, I have found that Dr. Louvish’s report holds little weight in this matter, if any at all, due to the timing of it. The chronic pain report by Dr. Louvish was issued on May 14, 2021, which is two years after the treatment and assessment plans in dispute were authored. As a result, the report is not contemporaneous with the benefits claimed and provides only a basic retroactive analysis of whether the treatment plans in dispute are reasonable and necessary.
The clinical notes and records (“CNRs”) of Dr. P. Vujnovic, family physician
10During the hearing, the Respondent took issue with the legibility of Dr. P. Vujnovic’s CNRs. It submits that they ought to hold no weight because it is impossible to determine an accurate understanding of the contents of the CNRs. It submits that even if some words are legible, the words that are illegible may have a considerable impact on what the legible words mean. In response, the Applicant submits that he was unaware of the Respondent’s concerns with the legibility of the CNRs and, had this been brought to his attention earlier, would have had them transcribed for the hearing.
11I find that the legibility of Dr. Vujnovic’s CNRs affects the weight of the evidence but does not discount the evidence entirely. Dr. Vujnovic is the Applicant’s family physician and the CNRs are relevant to the dispute and provide insight into the Applicant’s medical status following the accident. While I agree that some of the CNRs are illegible and that it may impact the interpretation of their content, I find that they nevertheless remain a useful tool in assessing the Applicant’s medical status following the accident.
12Further, I agree with the Applicant that best practice provides that the Respondent ought to have notified him of the issue prior to the hearing. However, the Applicant has not directed me to any authority on this issue and I am unaware of such a rule. Parties to a dispute ought to address issues such as the legibility of CNRs prior to the hearing, so that the matter can be fairly decided on its merits.
ISSUES
13The issues in dispute are:
Is the Applicant entitled to a medical benefit in the amount of $1,464.10, less $360.00 approved by the Respondent, for chiropractic services, proposed by Toronto Healthcare Clinic in a treatment plan dated March 21, 2019?
Is the Applicant entitled to a medical benefit in the amount of $3,335.98, less $1,008.76 approved by the Respondent, for psychological services, proposed by Toronto Healthcare Clinic in a treatment plan dated May 23, 2019?
Is the Applicant entitled to a medical benefit in the amount of $1,255.95 for chiropractic services, proposed by Toronto Healthcare Clinic in a treatment plan dated May 31, 2019?
Is the Applicant entitled to a medical benefit in the amount of $627.92 for psychological services, proposed by Toronto Healthcare Clinic in a treatment plan dated May 31, 2019?
Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?
Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
14I find that the Applicant is entitled to the medical benefits outlined in the treatment plan dated March 21, 2019 in the amount of $1,464.10, less $360.00 approved by the Respondent, and the treatment plan dated May 31, 2019 in the amount of $1,255.95, because the goods and services proposed are reasonable and necessary. Interest is payable on these plans pursuant to section 51 of the Schedule.
15The Applicant is not entitled to the medical benefits outlined in the treatment plan dated May 23, 2019 in the amount of $3,335.98, less $1,008.76 approved by the Respondent, and the treatment plan dated May 31, 2019, in the amount of $627.92.
16No award is payable.
BACKGROUND
17The Applicant was the front seat passenger of a van which was struck from behind by a garbage truck while in stop-and-go traffic on a major highway. He sought no medical attention immediately following the accident, but went to his family physician, Dr. Vujnovic, and complained of issues such as neck, back, hip, legs, and knee pain together with feelings of depression and nightmares of the accident. It is unclear if Dr. Vujnovic conducted a physical examination of the Applicant, but the advice given appears to be limited to remain active and see a psychiatrist. The Applicant started treatment with Toronto Healthcare Clinic shortly after that visit, pursuant to the Minor Injury Guideline (“the MIG”). Later, the Respondent determined that the Applicant sustained psychological injuries that are not included in the minor injury definition and no longer subjected him to the MIG and the $3,500.00 funding limit for a minor injury. However, the parties remain at odds over whether the denied treatment and assessment plans in dispute are reasonable and necessary.
ANALYSIS
18To be entitled to a treatment and assessment plan under section 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. 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.
19I find that the unapproved balance of the March 21, 2019 treatment plan is reasonable and necessary as a result of the accident.
20The March 21, 2019 treatment plan proposes an assessment, functional exercise program, passive modalities, massage therapy, acupuncture, and mobilization. The Respondent approved the exercise component of the plan, in the amount of $360.00 and denied funding for the balance of the plan. The plan notes that the Applicant’s impairments affect his ability to carry out his activities of normal living, and cause limitations and difficulty with walking, bending, lifting, carrying, overhead activity. The goals of the plan are to reduce pain, increase strength and range of motion (ROM), return the Applicant to his activities of normal living, reduce scar tissue, and provide patient education.
21The Applicant submits that it is reasonable and necessary based on the opinion of Dr. Louvish in the May 14, 2021 report. He submits that he suffers from chronic pain and that the services proposed in the plan will provide pain relief, a valid goal, for the symptoms he reported to Dr. Vujnovic, the clinicians are Toronto Healthcare Clinic, and Dr. Louvish. The Respondent submits that the unapproved balance of the plan is not reasonable and necessary according to Dr. I. Harrington, orthopaedic surgeon, in the April 15, 2019 insurer’s examination (“IE”) report. It submits that Dr. Harrington’s contemporaneous opinion should be preferred, and that the Applicant’s subjective complaints should be dismissed due to inconsistencies in his reporting.
22I find that the Applicant has demonstrated on a balance of probabilities, that he has ongoing accident-related pain for which the unapproved balance of the treatment plan will address. While acknowledging the issues with the legibility of Dr. Vujnovic’s CNRs earlier, I nevertheless conclude that the entries contemporaneous with the treatment plan indicate that the Applicant made complaints of neck, back, shoulder, hip, and knee pain. The Applicant continued to make similar, consistent, and ongoing complaints of pain at various times throughout 2019. Dr. Vujnovic, it appears, advised the Applicant to engage in exercise and “activity” and, on February 16, 2019, physiotherapy. To me, this recommendation carries significant weight as Dr. Vujnovic is in the best position to address the Applicant’s care due to the ongoing doctor-patient relationship. Dr. Vujnovic’s recommendation comes at a time when the Applicant was exhibiting range of motion deficits in his neck, shoulders, and back, as noted in the insurer’s examination by R. Campos, occupational therapist, dated April 15, 2019.
23Contrary to the Respondent’s submissions, there is nothing in Dr. Vujnovic’s records, or the balance of the Applicant’s medical record, that indicates that the Applicant lacks credibility when reporting his symptoms. Indeed, the Applicant reported different durations for which he lost consciousness at various occasions. Yet, this is insufficient to conclude that the Applicant is not credible or that his self-reported symptoms are untrue considering that, I suspect, it is difficult for an unconscious person to determine the duration of the period of lost consciousness.
24I find Dr. Harrington’s report to be unpersuasive. Dr. Harrington examined the Applicant and diagnosed him with neck and back sprains – mild to moderate in severity, with persistent symptoms, as well as chronic pain. Dr. Harrington opined that ongoing passive modalities of therapy will only enhance physician dependence and that a total body assessment is not required in his view. Yet, Dr. Harrington noted that the Applicant found some improvement in his symptoms since engaging in passive modalities and conducted a total body assessment for the IE. It is well-established that pain relief is a valid treatment goal. Further, a total body assessment would be reasonable and necessary for the treatment provider to determine the appropriate care for the Applicant and the $200.00 fee is in accordance with the Professional Services Guideline – Superintendent’s Guideline no.03/14 (“the PSG”).
25I find that this treatment plan is reasonable and necessary as a result of the accident for mainly the same reasons as the March 21, 2019 treatment plan.
26This plan proposes massage therapy, chiropractic treatment, and acupuncture to address the Applicant’s chronic neck, shoulder, and back pain, amongst other issues. It seeks to return the Applicant to his activities of normal living, reduce his pain, and increase his strength and ROM.
27Again, I am persuaded by the information in Dr. Vujnovic’s CNRs, which indicate that the Applicant continued to complain of constant pain at the time this plan was submitted. As noted previously, the plan was submitted at a time contemporaneous with Dr. Harrington’s diagnosis of chronic pain in the April 15, 2019 report. Considering the diagnosis, the Applicant’s ongoing complaints to Dr. Vujnovic, and his reported benefit from treatment, I conclude that the plan is reasonable and necessary as a result of the accident.
28I find that the Applicant has not demonstrated that the unapproved balance of this psychological treatment plan is reasonable and necessary as a result of the accident.
29The plan, completed by Dr. Minella, chiropractor, proposes fourteen 90-minute psychotherapy sessions to be provided by Dr. Shaul or a therapist working under his direct supervision. It also seeks funding for progress report in the amount of $144.10, psycho-educational material in the amount of $50.00, and “possibly transportation”. The plan seeks to reduce the Applicant’s pain, manage his emotional response to the difficulties he is experiencing, and return him to his activities of normal living.
30The total amount of the plan is $3,335.98. The Respondent approved the plan at the hourly rate of $58.19, the rate for unregulated professionals, as outlined in the PSG.
31The Applicant submits that this plan is reasonable and necessary due to his ongoing psychological symptoms as reported to Dr. Vujnovic, Dr. Louvish, and the providers at Toronto Healthcare Clinic. He submits that the services are in line with the recommendations in Dr. Shaul’s report, dated February 18, 2019. He further submits that, in the chronic pain report dated May 14, 2021, Dr. Louvish opined that this plan is reasonable and necessary. With respect to the fees proposed in the plan, the Applicant submits that the cost of the proposed treatments is “in line with industry standards.”
32The Respondent agrees that the Applicant requires and is entitled to psychological counselling but disagrees on the hourly rate of the provider. It submits that the appropriate hourly rate is $58.19, the rate of an unregulated service provider as outlined in the PSG. To the Respondent, psychotherapists are not listed in the PSG and the rate of their services should be agreed upon between the parties and the onus is on the Applicant to demonstrate that the rate proposed is reasonable and necessary. The Respondent highlights that the Applicant cites no evidence in support of his claim that the costs are within industry standards and that he, nor his treatment provider, has advised the Respondent of who would be providing the psychotherapy and it does not specify in the treatment plan. In closing on this issue, the Respondent submits that the Applicant should only be entitled to the hourly rate of $58.19 because he has failed to provide any credentials, education details or experience of the service providers to justify the higher rate. The Applicant never addressed the hourly rate of the service provider in reply submissions.
33I agree with the Respondent and find no evidence demonstrating that the Applicant should be entitled to the services at the rate proposed. He has provided no information on the service provider, nor their credentials, to justify the rate claimed. Further, while the Applicant submits the rates are in line with industry standards, he has provided no evidence of information to support this claim. Accordingly, I find that the Applicant has not demonstrated that he is entitled to the unapproved balance of the treatment plan.
34I find that the Applicant has not met his onus to demonstrate that the psychological CDs and the costs associated with them are reasonable and necessary as a result of the accident.
35Similar to the psychological treatment plan, the Applicant submits that the psychological CDs are reasonable and necessary due to his ongoing psychological symptoms and the CDs are in line with Dr. Shaul and Dr. Louvish’s recommendations. The Respondent submits that this plan is not reasonable and necessary and highlights that the plan for psychological CDs was submitted by a chiropractor, who is not qualified to weigh in on psychological issues. It further submits that the Applicant has not offered any evidence to confirm the materials are the same as what was recommended in the Feb 18, 2019 report by Dr. Shaul and that he provided nothing to explain how the costs are reasonable.
36I agree with the Respondent and find that the Applicant has not met his onus to demonstrate that the psychological CDs are reasonable and necessary as a result of the accident. The Applicant provided no information to confirm that the CDs in this plan are what was recommended in Dr. Shaul’s report. Similarly, he provides no information to demonstrate that the costs are reasonable and “in line with industry standards” as he suggests.
37I find Dr. Louvish’s comment on the treatment plan to be unpersuasive and give it no weight when considering whether the cost of the psychological CDs are reasonable and necessary. In the May 14, 2021 report, Dr. Louvish listed eight treatment and assessment plans, including the plan for psychological CDs, and concluded that they are reasonable and necessary. Dr. Louvish gave no basis for the finding and never commented on whether the costs proposed are reasonable and necessary.
38While I agree that the Applicant suffers from accident-related psychological impairments, this fact alone does not entitle him to any psychological treatment he seeks. The onus remains with him to demonstrate that the goods and services proposed are reasonable and necessary and that the associated costs are as well. I am unable to accept the Applicant’s unsubstantiated submission that the costs are in line with industry standards and thus, conclude that the plan is not reasonable and necessary as a result of the accident.
Interest
39Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Considering that I found the March 14 and May 30, 2019 treatment plans to be reasonable and necessary, it follows that interest is payable on these two treatment plans.
Award
40I find no award is payable.
41The Applicant sought an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable plus interest if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
42The Applicant submits that the Respondent only considered the opinions in the IEs and closed its mind to the evidence he provided. He submits that the Respondent has an ongoing obligation to adjust his claim and did not reconsider its prior determinations with respect to his claim, resulting in the withholding and/or delaying of benefits. He further submits that he would be entitled to an award if the Tribunal considers Dr. Vujnovic’s evidence, because the Respondent failed to do so and prejudiced him as a result and that the Respondent’s failure to bring the issue regarding the legibility of Dr. Vujnovic’s CNR’s to him to remedy prior to the hearing is an act of bad faith. Lastly, the Applicant submits in reply that the Respondent’s submissions that he uses a cane “for show” is an uncivil comment without any medical or surveillance evidence to support it and that he should be entitled to an award as a result of that comment alone.
43The Respondent submits that the issue is improperly before the Tribunal because the Applicant failed to provide particulars of his award claim, as ordered by the Tribunal in the Case Conference Report and Order dated August 13, 2021. According to the Respondent, the Applicant missed the initial deadline of March 1, 2022 to provide particulars of the award claim. The Respondent then moved to have the issue struck from the hearing. The Tribunal ordered the issue to be addressed at this hearing and ordered the Applicant to provide submissions in response to the motion, by July 22, 2022. The Respondent submits that the Applicant has yet to provide responding submissions to the motion and never provided particulars of the claim until June 29, 2022. The Applicant never addressed this issue in reply.
44The Respondent further submits that if it is determined that some benefits are payable, its conduct has not risen to the level beyond making an incorrect decision in order to warrant an award. It submits that it made its decisions based on the IEs as well as the evidence provided by the Applicant.
45I find that the Applicant failed to comply with a Tribunal order and that he has not demonstrated that the Respondent unreasonably withheld or delayed the payment of benefits.
46The Applicant’s failure to provide particulars of the award claim, contrary to a Tribunal order, is sufficient to strike the issue from the hearing. Procedural fairness provides that parties ought to have a reasonable idea of the case they are required to meet. The Applicant was ordered to provide particulars of his claim and failed to do so, resulting in a scenario where the Respondent is subject to “trial by ambush”, which the Tribunal was trying to avoid by making the order for particulars. To-date, the Applicant has provided no reason for why he could not comply with the Tribunal order.
47Further, the Applicant has not demonstrated that the Respondent unreasonably withheld or delayed the payment of benefits. As noted previously, the Respondent’s decision regarding the Applicant’s entitlement to medical benefits was based on the opinions from medical professionals who conducted IEs. It is reasonable for the Respondent to rely on that advice when it is reasonably harmonious with the balance of the evidence. Accordingly, I find no award to be payable.
CONCLUSION AND ORDER
48The treatment plans dated March 14, and May 30, 2019 are reasonable and necessary. The Applicant is entitled to the goods and services proposed in these plans, plus interest pursuant to section 51 of the Schedule.
49The Applicant is not entitled to the remaining benefits claimed, nor an award.
Released: November 28, 2023
__________________________
Brian Norris
Adjudicator