Fraschetti v. Aviva Insurance Company, 2023 CanLII 15070

Citation: Fraschetti v. Aviva Insurance Company, 2023 ONLAT 20-015357/AABS

Licence Appeal Tribunal File Number: 20-015357/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:

Gabriella Fraschetti

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR:

Janet Rowsell

APPEARANCES:

For the Applicant:

Matthew Wasserman, Counsel

For the Respondent:

Kevin Griffiths, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on February 9, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule, - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied certain benefits by the respondent company and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2On February 9, 2017, as a seat-belted driver, the applicant’s motor vehicle was involved in a rear-end collision while stopped at a traffic light.¹ The applicant was the sole occupant of the vehicle when the collision took place and the car pushed into a snowbank. The airbags did not deploy and there were no secondary vehicular impacts.

3The applicant stated to Dr. Frank Loritz, in Dr. Loritz’s Insurance Examination (“IE”) General Practitioner Assessment issued on May 8, 2017,² that she was unaware whether she had lost consciousness as a result of the motor vehicle accident.³ Emergency services, consisting of police and paramedics did not attend the scene and there was no emergency hospitalization. The applicant reported that she developed painful symptoms in her neck, left shoulder, middle back and left knee in addition to headaches and nausea as a result of the accident.

ISSUES

4The issues in dispute are:

i. Is the applicant entitled to $2,170.28 for occupational therapy services for proposed by Caring Rehabilitation in a treatment plan dated January 19, 2019?

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

Procedural Issue

5The applicant’s submissions reference a report issued on January 6, 2022, by Dr. Mehvish Mamoon, Chiropractor.⁴ The respondent requests that Dr. Mamoon’s report be excluded from the evidence since it was served past the production deadline set out in the previous Case Conference Report and Order dated October 22, 2021. The respondent submits there was no notice of the forthcoming report, and it was served only one day prior to the deadline for the applicant’s written submissions. Finally, the respondent submits it has been afforded no opportunity to review and respond to the report.

6The respondent has raised grounds which could impact procedural fairness pursuant to Rule 3.1 of the Tribunal’s Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission (effective October 2, 2017). However, after reviewing the clinical report of Dr. Mehvish Mamoon, I am prepared to accept the report into evidence. The evidentiary weight accorded the report takes into consideration the potential prejudice to the respondent. Insurance examinations were concluded by December 3, 2021, and the respondent’s counsel was offered no notice of the report’s submission nor, as stated, an opportunity to respond to Dr. Mamoon’s report.

RESULT

7I find, for the reasons described herein, that the applicant has not met the burden of proof, by demonstrating, on a balance of probabilities, that the proposed treatment plan for occupational therapy services recommended by Caring Rehabilitation in a treatment plan dated January 19, 2019, is reasonable and necessary pursuant to the Schedule. Given that there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

8Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the motor vehicle accident. The applicant bears the onus of proving, on a balance of probabilities, that any proposed treatment or assessment plan is reasonable and necessary.

9The insured person has the burden of proving and establishing entitlement to benefits under the Schedule. There has to be objective medical evidence to substantiate the reasonableness and necessity of the proposed treatment plan. Treatment and Assessment Plans by themselves do not prove that the treatment proposed is reasonable or necessary.

10The applicant submits that the treatment plan dated January 19, 2019, is reasonable and necessary since, despite the applicant being provided earlier Occupational Therapy services in January 2017, she suffers from chronic pain and an inability to return to the activities of normal life. The applicant submits that she continues to avail herself of the services of Dr. Mamoon, Chiropractor, which services do not pertain to occupational therapy, but which services assist with pain relief.

11Having reviewed the report of Dr. Mamoon, Chiropractor,⁵ I note that she opines that the applicant struggles and suffers with Chronic Pain Syndrome and that the applicant’s prognosis is poor in terms of maximal medical recovery taking place at some point in the foreseeable future. Dr. Mamoon mentions the previous motor vehicle accident in 2013, however, she opines that the direct cause of the applicant’s injuries result from the 2017 accident. Dr. Mamoon describes that the applicant has been her patient following the accident in the year 2017 to 2019. However, Dr. Mamoon does not describe what diagnostic tests or medical evaluations led to her findings relating to causation.

12Dr. Mehvish Mamoon is not qualified as an expert capable of making diagnoses of Chronic Pain syndrome nor is she qualified to opine on the causation of the applicant’s medical condition and the applicant’s degree of medical recovery following the 2017 motor vehicle accident. Dr. Mamoon is licensed as a chiropractor and, in addition, Dr. Mamoon is described as a licensed acupuncturist and provider of Registered Massage Therapy. It is by reason of Dr. Mamoon’s lack of qualification to make the diagnoses offered respecting the applicant’s impairments, in addition, to a consideration of the respondent’s inability to respond to Dr. Mamoon’s report, that I am unable to assign any weight to Dr. Mamoon’s findings respecting the applicant’s injuries and impairments.⁶

13The respondent relies on the Insurer’s Examination (“IE”) report of Dr. Frank Loritz, General Practioner, dated March 14, 2019. In his examination of the applicant, Dr. Loritz identified limitations in cervical and lumbar mobility, in addition to left knee signs and symptoms consistent with osteoarthritis and patellofemoral joint pain.⁷ Dr. Loritz opined that the applicant’s pre-accident musculoskeletal condition and her status as clinically obese, required rehabilitation services that would exceed the Minor Injury Guideline (“MIG”) and the MIG funding limit.⁸

14In a second IE Assessment Report dated March 15, 2018, Dr. Loritz responds to questions regarding the reasonableness and necessity of an OCF-18 submitted for chiropractic treatment dated January 15, 2018. Dr. Loritz stated that the applicant reached maximum medical improvement by March 2018; that the applicant had completed one-year of rehabilitative treatments; that following over a year’s passage since the subject motor vehicle accident, any soft tissue injuries would have resolved with rehabilitative therapy; that additional treatment was unlikely to provide any therapeutic benefit to the applicant, therefore, Dr. Loritz opines that the proposed treatment plan for additional chiropractic care is neither reasonable nor necessary.⁹ Dr. Loritz opines that it was not possible to identify any objective impairments distinguishable from the effects of the applicant’s pre-accident medical condition including the applicant’s obesity and left knee osteoarthritis.

15The applicant submits that the disputed treatment plan for occupational therapy will serve to reduce the applicant’s pain and allow her to resume the normal activities of daily life. The previous treatment plan for occupational therapy services submitted in May 2018, served the same purpose.¹⁰ Occupational Therapist Heather Lyons recommended twelve hours of occupational therapy education. An Insurance Examination (“IE”) assessment of the proposed May 2018 treatment plan, undertaken by Occupational Therapist, Ashley Allen opined in the assessment dated September 7, 2018, that the applicant reported independence with self-care together with strategies which were taught in Occupational Therapy sessions.¹¹

16With respect to the occupational therapy services recommended in the May 2018 treatment plan, Ashley Allen stated that: The applicant “demonstrated sufficient strength, mobility, and active tolerance to complete many of her functional tasks while incorporating strategies such as pacing, proper body mechanics, and alternative work strategies, due to pain; she is limiting her participation in many bookkeeping and home maintenance tasks.”¹² She recommended two, one-hour in-home educational sessions with an occupational therapist. Ms. Allen recommended household cleaning tools be provided to the applicant, which devices were funded by the respondent.

17In her Occupational Therapy In-Home Assessment, issued on March 21, 2019,¹³ Ashley Allen states following the applicant’s evaluation that the disputed treatment plan relating to further occupational therapy, would amount to duplicative treatments to those recommended in her assessment issued on September 7, 2018. Ms. Allen states in her March 21, 2019, assessment that the provision of additional treatments of a similar nature is unlikely to provide any significant therapeutic benefits and risks the applicant developing a dependence on facility-based treatments for ongoing symptom relief.¹⁴

18In her assessment, issued on March 21, 2019,¹⁵ Ms. Allen directly evaluates the reasonableness and necessity of the disputed treatment plan. The assessment by Ms. Allen included an interview; clinical observation of the completion of functional tasks; evaluating the applicant’s range of motion; manual muscle testing; and evaluating the applicant’s physical tolerance.¹⁶ Ms. Allen finds that the disputed treatment plan for occupational therapy services issued on January 17, 2019, is not reasonable and necessary. Ms. Allen states that during the home assessment, although (the applicant) demonstrated some activity/ functional limitations due to pain, decreased mood, lower energy and weakness; it was Ms. Allen’s opinion that the treatment plan for six sessions of direct occupational therapy proposed, would constitute services that were not reasonable and necessary. Ms. Allen encourages the applicant to engage in self-directed home exercises and active rehabilitation efforts.¹⁷

19The objective medical evidence provided, including the Insurance Examinations (“IE”s) and assessments dated May 8, 2017 and March 15, 2018, by Dr. Loritz, offer cogent evidence that the applicant reached maximum medical improvement by March 2018; that any soft tissue injuries would have resolved a year following the accident and that additional treatment would be unlikely to provide any therapeutic benefit for the applicant. In addition, Dr. Loritz opines in his March 15, 2018, assessment that it was not possible to identify any objective impairments distinguishable from the effects of the applicant’s pre-accident medical condition including the applicant’s obesity and left knee osteoarthritis.

20Ashley Allen, Occupational Therapist, in her March 21, 2019, IE assessment opines that the disputed treatment plan is neither reasonable nor necessary. Ms. Allen, as earlier stated, opines additional treatments of a similar nature to those that Ms. Allen commented on in her assessment of September 7, 2018, were unlikely to provide any significant therapeutic benefit and risks the applicant developing a dependence on facility-based treatments for ongoing symptom relief.¹⁸

21The applicant has not provided compelling medical evidence to establish that the treatment plan in dispute is reasonable and necessary pursuant to the Schedule. I place weight upon the objective medical evidence provided by the respondent, including the IE reports by Dr. Loritz dated May 8, 2017 and March 15, 2018, in addition to the Occupational Therapy In-Home Assessment, issued on March 21, 2019,¹⁹ by Ashley Allen, Occupational Therapist. For the reasons described, I find that the applicant has not met the burden of proof, by demonstrating, on a balance of probabilities, that the proposed treatment plan for occupational therapy services dated January 19, 2019, is reasonable and necessary pursuant to the Schedule.

Interest

22Given that there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

CONCLUSION

23The OCF-18 for $2,170.28 for occupational therapy services proposed by Caring Rehabilitation dated January 19, 2019, is not reasonable and necessary pursuant to the Schedule.

24Given that there is no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Footnotes

1. 1Respondent’s Submissions, Applicant’s self-report collision report, Tab H.
2. 2Respondent’s Submissions, General Practitioner Assessment by Dr. Frank Loritz, issued on May 8, 2017, Tab G, p. 2 of 9.
3. 3Ibid.
4. 4Clinical Report #32563580 of Dr. Mehvish Mamoon, D.C., Moksha Yoga, Brampton, Ontario, dated January 6, 2022.
5. 5Clinical Report of Dr. Mehvish Mamoon, D.C., Moksha Yoga, Brampton, Ontario, January 6, 2022.
6. 6Ibid.
7. 7Respondent’s Submission, General Practitioner Assessment by Dr. Frank Loritz, issued on March 15, 2019, Tab I p. 6 of 9.
8. 8Respondent’s Submission, General Practitioner Assessment by Dr. Frank Loritz, issued on May 8, 2017, Tab G, p. 6 of 9.
9. 9Respondent’s Submission, General Practitioner Assessment by Dr. Frank Loritz, issued on March 15, 2019, Tab I, p. 5 to 9.
10. 10Respondent’s Submission, General Practitioner Assessment by Dr. Frank Loritz, issued on May 8, 2017, Tab G, p. 6 of 9.
11. 11Respondent’s Submissions, Tab J.
12. 12Respondent’s Submissions, Tab K, Occupational Therapy In-Home Assessment, Ashley Allen, issued March 21, 2019, Tab K, pp. 1 to 20.
13. 13Ibid.
14. 14Ibid. p. 14 of 20.
15. 15Respondent’s Submissions, issued March 21, 2019, Tab K, pp. 1 to 20.
16. 16Ibid. p. 2 of 20.
17. 17Ibid, p. 14 to17, of 20.
18. 18Ibid. p. 14 0f 20.
19. 19Respondent’s Submissions, Occupational Therapy In-Home Assessment, Ashley Allen, issued March 21, 2019, Tab K, pp. 1 to 20.