Citation: Abravani v. Aviva General Insurance Company, 2023 ONLAT 21-010496/AABS

Licence Appeal Tribunal File Number: 21-010496/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:

Mitra Abravani

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Ajay Kapur, Counsel

For the Respondent: Yann Grand-Clement, Counsel

HEARD: By way of written submissions

OVERVIEW

1Mitra Abravani, the applicant, was involved in an automobile accident on November 30, 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, Aviva General 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 $2,102.86 for physical therapy, proposed by Healthcare Management Group in a treatment plan (“OCF-18”) submitted June 28, 2019?

ii. Is the applicant entitled to $1,130.00 for PRP injections, proposed by J. Abouali Medicine Professional Corporation on an Expense Claim Form (“OCF-6”) submitted February 24, 2020?

iii. Is the applicant entitled to $2,400 for a chronic pain assessment, proposed by Healthcare Management Group in an OCF-18 submitted October 9, 2019?

iv. Is the applicant entitled to $2,200 for a psychological assessment, proposed by Healthcare Management Group in an OCF-18 submitted December 11, 2019?

v. Is the applicant entitled to $891.15 for massage therapy and education, proposed by Healthcare Management Group in an OCF-18 submitted November 2, 2022?

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

3Although in her submissions the applicant also addressed the issue of the applicability of the Minor Injury Guideline (“MIG”), in the Case Conference Report and Order dated December 21, 2022 (“CCRO”), it was noted that the issue of MIG determination had been withdrawn. I further note that in its submissions, the respondent confirmed that the applicant was out of the MIG. As such, I find that the issue of MIG determination is not an issue in dispute in this written hearing.

RESULT

4I find that:

i. The applicant is entitled to the OCF-6 for PRP injections and the OCF-18 for a psychological assessment, plus interest in accordance with s. 51 of the Schedule.

ii. The applicant is not entitled to the remaining treatment plans in dispute.

ANALYSIS

5Sections 14, 15 and 16 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident.

6The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit.

The OCF-18 for physical therapy treatment is not reasonable and necessary

7The applicant submitted an OCF-18 dated June 28, 2019 in the amount of $2,102.86 for physical therapy. The treatment plan proposed twelve sessions of spinal stabilization treatment and six sessions of massage therapy/acupuncture.

8The applicant submits that the proposed treatment is needed to address her ongoing accident-related impairments. She contends that the subject accident exacerbated pre-existing impairments and chronic pain. In 2013, the applicant sustained injuries in a workplace accident, where a cabinet fell on her shoulder. As a result of these pre-accident shoulder, neck and arm impairments, the applicant submits she suffered for years from ongoing chronic pain in her right shoulder, arm, elbow, back and neck, requiring physical therapy, acupuncture, massage treatment and PRP injections.

9The applicant argues that the subject accident aggravated these pre-existing impairments and chronic pain, and that since the accident, she has continued to be treated by her family physician, Dr. Ghaffar-Sedeh, her physiatrist, Dr. Amani and her orthopedic surgeon, Dr. Abouali, for ongoing chronic pain. She argues that the proposed treatment is reasonable and necessary to meet the stated goals of pain reduction, increased strength, range of motion, and to address core rehabilitation and spinal stabilization.

10The respondent submits that the proposed treatment is not reasonable and necessary. It argues that the OCF-18 proposes “spine stabilization” treatment, but the medical evidence establishes that the applicant did not sustain spinal impairments and that the bulk of her chronic pain complaints centred around her right shoulder, elbow and arm. It further relies on its s. 44 orthopedic assessment of Dr. Halman, who found that further facility-based treatment was not reasonable and necessary. Rather, Dr. Halman found that the applicant should engage in a home based exercise program.

11I find that the applicant has not met her onus to prove that the proposed physical therapy is reasonable and necessary. Although the applicant argues that the treatment is needed for pain reduction, the contemporaneous reports around the time the OCF-18 was submitted, did not indicate that the applicant was reporting that she found physical treatment helpful. In a February 22, 2019 report from her orthopedic surgeon Dr. Abouali, it was noted that the applicant had tried physical therapy, but “did not feel her pain had significantly improved”. In an August 8, 2019 report from her physiatrist Dr. Amani, he noted that the applicant was not attending physical therapy, that she had gone to massage treatment, but that it made it “worse”. Further, in a September 19, 2019 from the chronic pain clinic Toronto Poly Clinic, it was reported that the applicant was “not interested” in physiotherapy treatment.

12In addition to the self-reports that the applicant did not find physical treatment helpful, I further note that the applicant has not provided any treatment records or progress reports from her treating clinic, in support of the efficacy of the proposed treatment. In her submissions, the applicant argues that she had been attending for treatment with Dr. Nejad, chiropractor, for years even prior to the subject accident. However, no treatment notes or summaries have been provided to explain the treatment modalities that have been used, and how the applicant has progressed with such treatment. No explanation has been provided as to what “spinal stabilization” treatment is, whether this has been an ongoing treatment modality, and how the stated goals of the treatment plans would be met with such treatment.

13Without any such evidence, I am unable to find that the applicant has met her onus to prove that the OCF-18 is reasonable and necessary.

The OCF-6 for PRP injections is reasonable and necessary

14Although the CCRO identified the PRP injections as being submitted by way of OCF-18, the parties agree that the expense was submitted by way of OCF-6 dated February 24, 2020. The respondent disputes that the medical expense is reasonable and necessary, as the applicant herself noted in her submissions that such injections were not effective. The respondent further points to the fact that in an August 8, 2019 reporting letter, Dr. Amani had recommended against further cortisone injections, as they were not found to be helpful.

15I find that the medical expense for PRP injections is reasonable and necessary. While I agree with the respondent that such injections were later found not to be helpful, the receipt indicates that these injections were purchased on February 22, 2019 at the applicant’s orthopedic surgeon, Dr. Abouali’s office. The CNRs of Dr. Abouali indicate that on this date, he had recommended and treated the applicant with PRP injections to treat her shoulder pain. Although at a later date it was determined that such injections were no longer indicated, at the time of purchase, the treatment was being recommended by the applicant’s treating orthopedic surgeon.

The OCF-18 for a chronic pain assessment is not reasonable and necessary

16The applicant submitted an OCF-18 dated October 9, 2019 in the amount of $2,400.00 for a chronic pain assessment.

17I find that the applicant has not established that the proposed assessment is reasonable and necessary.

18While I accept that the applicant suffers from ongoing chronic pain, I agree with the respondent that the proposed assessment is duplicative. The applicant’s physiatrist, Dr. Amani had referred the applicant to Dr. Kevin Rod at the Toronto Poly Chronic Pain Clinic. The September 19, 2019 chronic pain assessment report from the clinic, indicates that the applicant had been assessed by its muti-disciplinary pain management team. She was diagnosed with chronic pain and mild depression and anxiety, and treatment options were discussed. An injection was provided and a follow-up appointment was scheduled. The report indicated that the applicant would be followed by the clinic’s team until her pain syndrome was better managed.

19The applicant has not provided sufficient explanation as to why another chronic pain assessment is required by a different clinic, only three weeks after the Toronto Poly clinic’s assessment report. As such, I find that the proposed chronic pain assessment is not reasonable and necessary.

The OCF-18 for a psychological assessment is reasonable and necessary

20The applicant submitted an OCF-18 dated December 11, 2019 for a psychological assessment. The respondent disputes the reasonableness and necessity of the assessment. It argues that the applicant did not report any psychological symptoms to her treating physicians in the years post-accident and that the medical record does not establish sufficient evidence of a psychological impairment.

21In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, the applicant must point to objective evidence that there are grounds to suspect she has the condition for which she seeks the assessment.

22I find that the applicant has led sufficient evidence that the proposed psychological assessment is reasonable and necessary. Although I agree with the respondent that the CNRs of the family physician do not report a psychological diagnosis or treatment, the applicant has reported some psychological symptoms to Dr. Ghaffar-Sedeh post-accident. On October 9, 2019, the applicant reported sleep difficulties, and on January 14, 2020, Dr. Ghaffar-Sedeh discussed relaxation techniques with the applicant.

23More persuasively, the chronic pain assessment report of Dr. Ashtarani of the Toronto Poly clinic, diagnosed the applicant with chronic pain post-MVA, along with mild depression and anxiety. In subsequent Pain Management Progress Notes dated September 26, 2019 and November 7, 2019, the clinic again noted depression and anxiety. Finally, the OCF-18 itself included a pre-screening interview where the applicant was provisionally diagnosed with an adjustment disorder with anxiety and depressed mood, and specific phobia vehicular.

24I note the respondent’s argument that the notes of the Toronto Poly clinic are not sufficient evidence of a psychological impairment. However, in order to establish that a proposed assessment is reasonable and necessary, it is sufficient to lead objective evidence that there are grounds to suspect that a claimant has the condition for which she seeks the assessment. I further note that the respondent did not appear to pursue its own s. 44 psychological assessment. As such, I do not have an opposing assessment or psychological diagnosis refuting Dr. Ashtarani’s diagnosis. Based on the medical evidence, I find that the applicant has led sufficient evidence that further investigation into whether she has sustained an accident-related psychological impairment due to her chronic pain, is warranted.

The OCF-18 for massage therapy and education is not reasonable and necessary

25The applicant submitted an OCF-18 dated November 2, 2022 for ten sessions of massage therapy. She submits that ongoing massage therapy is needed to address her ongoing pain and functional impairments.

26I agree with the respondent that the applicant has not led sufficient evidence to establish that further facility-based treatment is warranted, four years post-accident. The applicant has not provided any contemporaneous CNRs from her treating physicians or chronic pain clinic, recommending ongoing massage therapy. The last medical records provided were from 2020, more than two years before the OCF-18 was submitted. The applicant only relies on the commentary provided in the OCF-18 by her chiropractor, Dr. Nejad. However, no supporting documentation, such as treatment records or progress reports, have been provided by the treating clinic.

27In order to establish the reasonableness and necessity of a treatment plan, it is not sufficient to provide evidence of ongoing impairments. Rather, the applicant must also lead evidence to establish that the goals of treatment are being met to a reasonable degree and that the time and cost expended to achieve these goals is proportional to the benefit. Without any objective evidence to establish that treatment goals are being met, I am unable to find that the applicant has met her onus to prove that the proposed treatment is reasonable and necessary.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the OCF-6 for PCP injections and the OCF-18 for a psychological assessment.

ORDER

29For the reasons provided above, I find that:

i. The applicant is entitled to the OCF-6 for PRP injections and the OCF-18 for a psychological assessment, plus interest in accordance with s. 51 of the Schedule;

ii. The applicant is not entitled to the remaining OCF-18s in dispute.