Cosentino v. Aviva General Insurance Company, 2023 CanLII 149787

Cosentino v. Aviva General Insurance Company

Citation: Cosentino v. Aviva General Insurance Company, 2023 ONLAT 21-012127/AABS

Licence Appeal Tribunal File Number: 21-012127/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:

Anna Cosentino Applicant

and

Aviva General Insurance Company Respondent

DECISION

ADJUDICATOR: Bonnie Oakes Charron

APPEARANCES:

For the Applicant: Alex Nikolaev, Counsel

For the Respondent: Kevin Griffiths, Counsel

HEARD: In Writing

OVERVIEW

1Anna Cosentino, the applicant, was involved in an automobile accident on April 10, 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 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 $6,980.00 for a physiatry assessment, proposed by Hal Disability Management (“HDM”) in a treatment plan submitted on September 29, 2020, and denied on October 26, 2020?

ii. Is the applicant entitled to $260.00 for assistive devices, proposed by McKenzie Medical Rehabilitation Centre Inc. (“MMRCI”) in a treatment plan submitted on October 29, 2020, and denied on November 19, 2020?

iii. Is the applicant entitled to $1,417.70 for chiropractic services, proposed by Dr. Harjot Grewal in a treatment plan submitted on November 9, 2020, and denied November 19, 2020?

iv. Is the applicant entitled to $2,174.50 for chiropractic services, proposed by MMRCI in a treatment plan submitted on August 18, 2020, and denied on August 31, 2020?

v. Is the applicant entitled to $5,850.00 for a psychological assessment, proposed by HDM in a treatment plan submitted on September 11, 2020, and denied December 30, 2020?

vi. Is the applicant entitled to $1,417.70 for chiropractic services, proposed by Dr. Elad Granovsky in a treatment plan submitted on February 2, 2021, and denied on February 11, 2021?

vii. Is the applicant entitled to $1,417.70 for chiropractic services, proposed by MMRCI in a treatment plan submitted on July 2, 2021, and denied on July 13, 2021?

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

RESULT

3The applicant is entitled to the treatment plans for the assistive devices and the chiropractic services, plus interest.

4The applicant is not entitled to the treatment plans for the physiatry and psychological assessments.

ANALYSIS

5To receive payment for a treatment and assessment 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. 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 is entitled to the assistive devices.

6I find that the applicant has demonstrated that the assistive devices proposed by MMRCI are reasonable and necessary.

7Pursuant to sections 15 and 16 of the Schedule, the applicant must 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.

8The OCF-18 recommends two assistive devices to address the applicant’s accident-related injuries – a special pillow to address sleep loss, and a wrist and thumb brace for support with day-to-day tasks. The applicant submits that both devices would assist in managing her many pain symptoms following the accident. She relies on the various clinical notes and records (“CNRs”) from the hospital, her family doctor, and other treating practitioners, who all record significant pain symptoms, particularly on the left side of her body.

9For its part, the respondent submits that neither device is necessary. It relies on the findings of a s. 44 assessment by Dr. Ko on December 9, 2020, which concluded that the applicant’s left thumb pain was unrelated to the accident, and that there was no objective evidence that the sleep pillow would be of any benefit.

10With regard to the brace, the applicant has consistently reported the pain on the left side of her body, particularly the left arm, and multiple treating practitioners record this fact in their CNRs. While I recognize that Dr. Ko found that the applicant’s left thumb pain was unrelated to the accident, I am persuaded that the accident-related pain in her left arm would be aggravated by pain in her wrist and thumb. Therefore, I am convinced that in the context of day-to-day activities, the use of a wrist and thumb brace is sufficiently connected to the accident-related pain in her left arm, to be a reasonable and necessary component of her treatment and recovery.

11With regard to the pillow, the OCF-18 recommends the device to address sleep loss due to pain. The applicant has provided ample evidence of both her sleep deprivation and ongoing pain symptoms. The sleep loss has been documented by her family doctor immediately after the accident, by psychiatrist Dr. Naidoo in a consultation report dated December 3, 2019, as well as neurologist Dr. Best in a consultation report dated March 26, 2020. Based on these medical records, it is clear that the applicant suffers from a lack of restorative sleep. Further, her neck and shoulder pain were both documented at the hospital on the day of the accident, and thereafter by Drs. Dakhil, Robertus, and Dessouki. Despite Dr. Ko’s assertion that there is no evidence that the pillow would be of any benefit, I am confident based on the recommendation from the treatment providers at MMRCI, coupled with the CNRs from Drs. Dakhil, Naidoo, and Best, that there is enough evidence to conclude that the pillow would benefit the applicant and aid in her recovery.

12I find that the applicant has proven, on a balance of probabilities, that the assistive devices represent a reasonable and necessary treatment plan.

The applicant is entitled to the treatment plans for chiropractic services.

13I find that the applicant has demonstrated that the four treatment plans for chiropractic services are reasonable and necessary.

14Pursuant to sections 15 and 16 of the Schedule, the applicant must 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.

15The four OCF-18s for chiropractic services are dated sequentially between 2018 and 2021. The objectives of the ongoing treatment plans are to decrease pain, increase strength and range of motion, and assist with a return to the activities of normal living and employment. Active therapy, chiropractic, physical therapy, and massage therapy are identified as components of the treatment plans.

16The applicant submits that these plans are reasonable and necessary to address the pain in her neck, left shoulder, back, and right knee, and more generally, to help her manage the symptoms of Chronic Pain Syndrome (“CPS”) and post-concussion syndrome (“PCS”). In support, she points to recommendations from Drs. Robertus (2019), Dakhil (2019), Dessouki (2020), Jha (2020), and Akef (2021) for continued physical treatment therapies consistent with those proposed in these plans.

17The respondent submits that it denied the treatment plans for chiropractic services because the applicant was only obtaining occasional pain relief from her facility-based treatments. Dr. Ko concluded from a s. 44 assessment on December 9, 2020, that the applicant would not receive any further benefit from facility-based treatments. A follow-up paper review from Dr. Ko repeated the same conclusion on March 15, 2021. At another s. 44 assessment, Dr. Nesterenko also concluded that the applicant had no ongoing objective impairment and had reached maximal medical improvement.

18Although I acknowledge that Drs. Ko and Nesterenko both determined that the applicant would not benefit from any further physical treatments, I am persuaded by the many recommendations otherwise from the applicant’s multidisciplinary treatment providers. The applicant has provided evidence in the form of CNRs from her GP, two chronic pain specialists, a neurosurgeon, and a physiatrist. All these treating physicians recommended that she continue with a multidisciplinary approach to managing her chronic pain and symptoms, including therapies consistent with those proposed in the four treatment plans.

19I find that the applicant has proven, on a balance of probabilities, that the four treatment plans for chiropractic services are reasonable and necessary.

The applicant is not entitled to the physiatry and psychological assessments.

20I find that the applicant is not entitled to the physiatry and psychological assessments.

21Pursuant to sections 15 and 16 of the Schedule, the applicant must 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.

22The applicant submits that the purpose of the assessments in dispute was to challenge the findings of the respondent’s s.44 assessment, obtain an opinion as to her prognosis/diagnosis, and recommend a treatment plan to allow her to re-enter the workforce and live a higher quality of life with less pain.

23With regard to the physiatry assessment, the applicant submits that it is reasonable and necessary because there is compelling medical evidence to show that she suffers from CPS and needs to investigate treatment options. For evidence, she points to her diagnosis of chronic pain by both her general practitioner Dr. Dakhil (GP) and a Chronic Pain Specialist Dr. Robertus.

24Regarding the psychological assessment, the applicant submits that it is reasonable and necessary because her psychological issues were documented by her GP, and she was “hospitalized” (although the only related reference I could find in the evidence was of a mental health consultation at Etobicoke General Hospital with Dr. Stroganova on September 25, 2019). She also points to the following official diagnoses:

i. Post-Traumatic Stress Disorder (PTSD) by Dr. Stroganova, psychiatrist;

ii. Adjustment Disorder with Mixed Depression and Anxiety by Dr. Naidoo, psychiatrist; and

iii. Major Depressive Disorder by Dr. Harris, psychologist.

25In summary, she suggests that her psychological condition has prevented her from working and engaging in the activities of normal living.

26For its part, the respondent submits that the applicant is not entitled to the assessments for several reasons.

27First, the stated goal of the assessments, as per the OCF-18s, is a post-104 week determination. As such, it argues that the Tribunal has no jurisdiction to award the treatment plans given that the Schedule does not obligate an insurer to fund assessments that address whether an insured is entitled to a post-104 week Income Replacement Benefit (“IRB”). The respondent points me to Green v. Intact Insurance Company, 2021 CanLll 40765 (ON LAT) (“Green v. Intact”), where the claimant argued that s. 25 of the Schedule should be expanded to include funding for disability reports to challenge an insurer’s section 44 assessments. Adjudicator McGee found that there is no such provision in the Schedule and the claim was dismissed.

28Second, the respondent submits that in the case of the psychological assessment, the Health Claims for Auto Insurance (“HCAI”) number on the OCF-18 shows that it was submitted six days after the assessment was conducted. Therefore, in accordance with the provisions of section 38(2) of the Schedule, the Tribunal has no jurisdiction to award expenses incurred before a plan is submitted.

29Lastly, the respondent submits that over and above the previous two reasons, both assessments are neither reasonable nor necessary from a medical perspective. It argues that the s. 44 report of physiatrist Dr. Ko from December 9, 2020, found that the applicant had no ongoing physical injury arising from the accident, nor functional impairment, and had reached maximum improvement. In the s. 44 report of psychologist Dr. Lubbers from December 29, 2020, he opined that the psychological assessment proposed by the applicant was not reasonable and necessary from a psychological perspective, given its purpose was to examine work alternatives.

30In reply submissions, the applicant counters that the assessments are actually s. 25 reports because they were obtained in the pre-104 week period, the applicant was off work and receiving treatment at the time, and the assessor commented on the effectiveness of both the current treatment plan and future ones.

31With regard to the date, the applicant asserts the psychological assessment was sent to the respondent on the date it was completed, September 11, 2020, and did not take place prior to being submitted.

32The applicant submits that both reports are s. 25 reports completed in the pre-104 week period, and that the reports address the applicant’s eligibility for both IRB and current and future treatment plans. As such, she asserts they are reasonable and necessary.

33In my view, the goal of each assessment is clearly identified on the OCF-18 as being a “post-104 week determination”. Further, the title of Dr. Harris’ report is “Post-104 Disability Assessment Psychology Report”. Therefore, I agree with the respondent and find that the applicant is not entitled to the assessments under s. 25 of the Schedule as claimed by the applicant.

34The respondent has provided several reasons, with supporting evidence, to explain why the treatment plans are not payable. I am persuaded by the decision in Green v. Intact. The purpose of the OCF-18s is a threshold issue making it unnecessary for me to make a finding about the submission date via HCAI, nor whether the assessments are reasonable and necessary.

35The applicant is not entitled to the assessments because the stated and sole purpose on the OCF-18s is a “post-104 determination”, and there is no such provision in the Schedule (i.e., an assessment to determine if the claimant would qualify for IRB).

The applicant is entitled to interest on overdue benefits.

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

37I find the applicant is entitled to interest in accordance with s. 51 of the Schedule for the assistive devices and chiropractic services treatment plans.

ORDER

38The applicant is entitled to the treatment plan for the assistive devices in the amount of $260.00, plus interest.

39The applicant is entitled to the treatment plans, plus interest, for chiropractic services in the amounts of:

i. $1,417.70 (Issue iii)

ii. $2,174.50 (Issue iv)

iii. $1417.70 (Issue vi)

iv. $1417.70 (Issue vii)

40The applicant is not entitled to the treatment plan for a physiatry assessment or the treatment plan for a psychological assessment.