21-004100/AABS - A
Licence Appeal Tribunal File Number: 21-004100/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:
Alvin Stewart
Applicant
and
Aviva General Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR: Janet Rowsell
APPEARANCES:
For the Applicant:
Alvin Stewart, Applicant
Shamim Fattahi, Daniela-Algieri Boileau, Counsel
For the Respondent: Aviva General Insurance Company, Yann Grand – Clement, Counsel
Heard by way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on September 30, 2018, 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 and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
2On September 30, 2018, the applicant’s vehicle was involved in a rear-end collision. As submitted by the respondent, the air bags did not deploy on impact and the applicant was capable of driving himself to a collision reporting centre after the accident. The applicant’s complaints to paramedics and hospital staff on the day of the accident relate to neck, left shoulder and low back pain.
3The applicant ‘s family physician, Dr. Philip Fingrut, provided a letter dated July 16, 2020, describing that the applicant suffered a workplace injury on June 22, 2015, which injured his head, chest, sternum, left shoulder with residual pain and that the applicant experienced Post Traumatic Stress Disorder (PTSD), as a result of a workplace injury.
ISSUES IN DISPUTE
4The issues to be decided in the hearing are:
i. Is the applicant entitled to a cost of examinations in the amount of $2,010.65 for a Functional Abilities Evaluation, proposed by Medex Assessments Inc. in a treatment plan submitted on May 2, 2019?
ii. Is the applicant entitled to a cost of examinations in the amount of $2,147.00 for an Attendant Care Assessment, proposed by Medex Assessments Inc. in a treatment plan submitted on March 21, 2019?
iii. Is the applicant entitled to a cost of examinations in the amount of $2,260.00 for a Psychological Assessment, proposed by Medex Assessments Inc. in a treatment plan submitted on March 21, 2019?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant is entitled to $2,260.00, as a reasonable and necessary expense, paid by the respondent insurer for a Psychological Assessment, proposed by Medex Assessments Inc. in a treatment plan/OCF-18 submitted on March 21, 2019. The applicant is entitled to interest pursuant to section 51 of the Schedule on any overdue payment for the cost of the Psychological Assessment.
6The applicant is not entitled to $2,010.65 as a reasonable and necessary expense, paid by the respondent insurer, for a Functional Abilities Evaluation, proposed by Medex Assessments Inc. in a treatment plan/OCF-18 submitted on May 2, 2019. Given that there is no overdue payment of benefits respecting the within treatment plan, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
7The applicant is not entitled to $2,147.00 as a reasonable and necessary expense, paid by the respondent insurer, for an Attendant Care Assessment, proposed by Medex Assessments Inc. in a treatment plan/OCF-18 submitted on March 21, 2019. Given that there is no overdue payment of benefits respecting the within treatment plan, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ANALYSIS
8It is well established that the appropriate test to determine causation in accident benefit cases is the “but for” test, which was confirmed by the Divisional Court in Sabadash v. State Farm et al., 2019 ONSC 1121 (Sabadash). To satisfy this test, the applicant must prove on a balance of probabilities that “but for” the accident he would not have suffered the impairments which form the basis for his application for the benefits claimed. The Court in Sabadash sets out that the existence of pre-existing medical issues does not negate an insurer’s liability. Further, that the accident need not be the only cause of the impairment but a necessary cause. For the reasons below, I find that the accident exacerbated the applicant’s pre-existing left shoulder pain and headaches based on the findings of Dr. Mark Goldstein in the Insurance Examination report (“IE”), Musculoskeletal Paper Review, completed on May 21, 2019.
Are the treatment and assessment plans reasonable and necessary?
9Sections 14 and 15 of the Schedule state that an insurer shall pay medical benefits to, or on behalf of an applicant so long as the impairment is sustained as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the applicant as a result of the accident. Treatment plans by themselves do not prove that the proposed treatment is reasonable and necessary. There should be supportive objective medical evidence to substantiate the reasonableness and necessity of the proposed treatment.
10The applicant does not make submissions respecting the reasonableness and necessity of each of the treatment plans in dispute, but rather that the plans will generally benefit the applicant and the applicant is not subject to the Minor Injury Guideline. The applicant’s submissions refer to the clinical notes and records (CNRs) of the physiotherapist Nilu Mahavitane and Dr. Daniel Silva, chiropractor and the correspondence from the applicant’s family physician, Dr. Philip Fingrut, dated July 16, 2020, which states that the applicant suffered a reactivation of left shoulder pain, neck strain, lumbar back strain and a reactivation of PTSD as a result of the accident. In addition, the applicant references prescriptions for pain medication and massage therapy as a result of the accident. The applicant refers the OCF-3 completed by Dr. Rahul Odhavji, chiropractor, diagnosing the applicant with the injuries listed in the OCF-3. However, as stated above, the applicant does not provide any evidence or submissions respecting the reasonableness and necessity of the separate treatment plans in dispute.
11The respondent points out, and I agree, that the applicant’s submissions include reference to a separate car accident which is not relevant to this application, as it pertains to an unrelated third party, a third-party physician and motor vehicle accident date.
Physical Impairment
12Dr. Mark Goldstein opines in his Insurer’s Examination report (“IE”), Musculoskeletal Paper Review, completed on May 21, 2019, that the applicant sustained a cervical spine sprain/strain, low back sprain/strain as a result of the accident. Dr. Goldstein further opines that it is highly probable that the applicant has left shoulder pain exacerbation along with pre-existing headache exacerbation as these medical issues were described in the CNRsof Dr. Fingrut and as pre-existing injuries not having healed as of July 2017. Dr. Goldstein opines that the applicant’s pre-existing injuries, exacerbated by the accident, remove the applicant from the Minor Injury Guideline (MIG). The applicant reported to Dr. Fingrut, his family physician the same day as the accident that he received a “bad jerk” when his vehicle was rear-ended. Dr. Goldstein describes, based on his review, that the applicant’s primary complaints to paramedics and hospital staff on the day of the accident related to neck, left shoulder and low back pain.
Is the applicant entitled to a medical benefit for $2,010.65 for a Functional Abilities Evaluation?
13The applicant is not entitled to $2,010.65 for the OCF-18, submitted on May 2, 2019, for a Functional Abilities Evaluation.
14The OCF-18 completed by Michael Sabayle, Occupational Therapist, recommends a Functional Abilities Evaluation because the applicant suffers from pain in his neck, chest, lower back, and shoulders from the accident. The applicant is also described as having a limited range of motion and being unable to maintain daily physical activities without excessive pain and discomfort. The goal of the treatment plan is for the applicant to return to the activities of daily life without excessive pain and discomfort.
15The respondent submits that the applicant has failed to meet his onus to establish, on a balance of probabilities, that the treatment plan for the Functional Abilities Evaluation is reasonable and necessary. The respondent submits that Dr. Mark Goldstein addressed the reasonableness of the treatment plan in his IE Musculoskeletal report, referencing Dr. Goldstein’s opinion that there was no medical evidence supporting the utility of the Functional Abilities Evaluation given that treatment providers had already assessed the applicant’s range of motion and strength. Dr. Goldstein opines that there is no specific need to complete a formal functional abilities evaluation to achieve the goals of the OCF-18. Dr. Goldstein opines that the treating medical providers could assess range of motion, strength, lifting, as part of their usual treatments.
16I accept the medical opinion of Dr. Goldstein that the treatment plan for the Functional Abilities Evaluation is not reasonable and necessary and would constitute a duplication of medical benefits. Dr. Goldstein conducted a comprehensive review of the relevant medical evidence pertaining to the applicant and his expert opinion is offered in the IE assessment. The applicant, as stated, has not specifically addressed the Functional Abilities Evaluation in submissions or by way of evidence beyond the CNR’s of Dr. Fingrut, and the submission that all the treatment plans would be beneficial. I find this is not sufficient to demonstrate that this treatment plan is reasonable and necessary.
Is the applicant entitled to a medical benefit for $2,147.00 for an Attendant Care/ In-Home Assessment
17The applicant is not entitled to $2,147.00 for the OCF-18, submitted on March 21, 2019, for an Attendant Care /In-Home Assessment/ Examination.
18The OCF-18 completed by Michael Sabayle, Occupational Therapist, recommending an Attendant Care/In-Home Assessment states in the comments that its purpose is to ascertain the applicant’s limitations and capabilities with respect to personal care, the activities of daily living, housekeeping and home maintenance. The OCF-18 states that its goals are pain reduction, increasing strength and range of motion, in addition to permitting the applicant’s return to the activities of normal living.
19The respondent submits that the applicant has failed to meet his onus to establish that the treatment plan for the attendant care assessment is reasonable and necessary. The respondent submits that Dr. Goldstein addressed the reasonableness of the treatment plan in his Musculoskeletal Report, referencing Dr. Goldstein’s opinion that there was insufficient medical evidence to support the reasonableness and necessity of the treatment plan, since the applicant did not self-report any significant limitations in his day-to-day activities which would render the treatment plan reasonable and necessary.
20Based on the medical opinion in the IE of Dr. Goldstein and the lack of medical evidence establishing that the Attendant Care/In-Home Assessment proposed in the OCF-18 is reasonable and necessary, I find that the applicant has not demonstrated that the OCF-18 is reasonable and necessary.
Is the applicant entitled to a medical benefit for the cost of an examination in the amount of $2,260.00 for a Psychological Assessment?
21The applicant is entitled to $2,260.00 for the OCF-18, submitted on March 21, 2019, for a Psychological Assessment.
22The OCF-18 completed by Dr. Zack Cernovsky, Psychologist, recommends a Psychological Assessment, stating in the section respecting injuries and sequelae information, that the issues and complaints to be addressed for the applicant include: acute stress reaction, depressive episode, generalized anxiety disorder, irritability and anger, nonorganic sleep disorders and chronic post-traumatic headaches. The purpose of the Psychological Assessment is to return the applicant to the activities of daily living.
23The respondent submits that there is sparse medical evidence which supports or indicates that the applicant suffered any accident-related psychological impairment. The report of Dr. Couperthwaite is not tendered in evidence but the respondent references a report by a Dr. Couperthwaite, where the applicant is alleged to have stated that he had no interest in psychological treatment. As stated, the report is not in evidence, therefore the respondent’s submission can not be considered for the purpose of the Tribunal’s assessment and analysis of the reasonableness of the treatment plan.
24The medical evidence consisting of the CNR’s of the Family Doctor, Dr. Philip Fingrut, and his correspondence, describe the applicant suffering PTSD following the workplace injury in 2015, and that the PTSD was reactivated by the subject accident. The applicant’s pre-existing injuries, including his PTSD, are described in the correspondence of Dr. Fingrut dated July 16, 2020. Dr. Fingrut’s correspondence opines, together with CNRs from 2017, that the applicant suffered a workplace injury on June 22, 2015, which injured his head, chest, sternum, left shoulder with residual pain and that the applicant experienced PTSD as a result. The panel considers the evidence of the applicant’s PTSD being reactivated based on Dr. Fingrut’s CNRs and correspondence, together with the pre-existing physical injuries, which removed the applicant from the MIG, as persuasive medical evidence that the proposed Psychological Assessment is reasonable and necessary.
25The respondent submits that the OCF-18 is excessive and the costs proposed and set forth in Part 12 should only be partially approved in the event that the Tribunal determines that the OCF-18 is considered reasonable and necessary.
26The Financial Services Commission of Ontario, Professional Services Guideline Number 03/14, establishes the maximum expenses payable by automobile insurers under the Schedule related to the services of any of the health care professional or health care providers listed in the Guideline. Although insurers are not prohibited from paying above any maximum amount or hourly rate established in the Guideline, the maximum hourly rate for a psychologist is $149.61 in a non-catastrophic claim.
27Part 12 of this OCF-18 shows that the maximum hourly rate pursuant to the Financial Services Commission of Ontario, Professional Services Guideline Number 03/14, is charged for the psychological assessment and the preparation of the report. Section 25(5)(a) of the Schedule states the maximum payable for an assessment is $2,000.00 plus tax. The Tribunal finds no basis for a partial approval as submitted by the respondent, given that the hourly rate for a psychologist’s services as set by the Guideline was charged in the OCF-18. In addition, the amount of $2,260.00 for the treatment plan conforms with section 25(5)(a) of the Schedule.
ORDER
28The application is granted in part:
29The applicant is entitled to $2260.00 for a Psychological Assessment, proposed by Medex Assessments Inc. in a treatment plan/OCF-18 submitted on March 21, 2019. The applicant is entitled to interest pursuant to section 51 of the Schedule on any overdue payment for the cost of the Psychological Assessment.
30The applicant is not entitled to $2010.65 for a Functional Abilities Evaluation, proposed by Medex Assessments Inc. in a treatment plan/OCF-18 submitted on May 2, 2019. Given that there is no overdue payment of benefits respecting this treatment plan, the applicant is not entitled to interest.
31The applicant is not entitled to $2147.00 for an Attendant Care Assessment, proposed by Medex Assessments Inc. in a treatment plan/OCF-18 submitted on March 21, 2019. Given that there is no overdue payment of benefits respecting the with treatment plan, the applicant is not entitled to interest.
Released: June 22, 2023
Janet Rowsell
Adjudicator```