Sarras v. Aviva General Insurance, 2023 CanLII 34480

Citation: Sarras v. Aviva General Insurance, 2023 ONLAT 21-002457/AABS

Licence Appeal Tribunal File Number: 21-002457/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:

Nidal Sarras

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Andrew Bergel, Counsel

For the Respondent: Michael W Chadwick, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Nidal Sarras, the applicant, was involved in an automobile accident on January 24, 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, 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 $2,294.07 for psychological treatment, proposed by Dr. Ilya Gladshteyn in a treatment plan (“OCF-18”) dated April 2, 2020?

ii. Is the applicant entitled to $2,459.00 for physiotherapy, proposed by Focus Physio Clinic in an OCF-18 dated December 21, 2020?

iii. Is the applicant entitled to $1,995.50 for physiotherapy, proposed by Westmount Physio Clinic in an OCF18 dated March 15, 2021?

iv. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by Dr. Peter Waxer of 101 Assessments in an OCF18 dated May 28, 2021?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that:

i. The applicant is entitled to the four treatment plans in dispute, plus interest in accordance with s. 51 of the Schedule;

ii. The applicant is not entitled to an award pursuant to s. 10 of Reg. 664.

PROCEDURAL ISSUES

Page Limit of Applicant’s Submissions

4The respondent submits that the applicant exceeded the 10-page limit as mandated in the Case Conference Report and Order (CCRO) dated August 11, 2021. It requests that given the applicant’s breach of the CCRO, that none of the applicant’s submissions exceeding the 10-page limit be considered.

5I agree with the respondent that the applicant was not compliant with the page limit set out in the CCRO. Even if the cover page and index are not included in the page count, the applicant’s submissions would total 12 pages. However, the respondent has failed to demonstrate any prejudice that it sustained as a result. Although it submits that given the 10-page limit, it would not be able to properly address new issues raised by the applicant, such as s. 38(8) and s. 44(5) non-compliance, upon review of the respondent’s submissions, I find that it was able to adequately address all the issues raised in the applicant’s submissions.

6When weighing procedural fairness and any potential prejudice brought, I find the scales tip in favour of the applicant. The applicant would be unfairly prejudiced if portions of the hearing submissions were otherwise excluded in this matter. As such, I will not exclude the applicant’s submissions as requested by the respondent.

ANALYSIS

Medical and Rehabilitation Benefits

7Sections 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.

8The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary and as a result 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.

OCF-18s for Physiotherapy Services dated December 21, 2020 and March 15, 2021 are Reasonable and Necessary

9The applicant submitted two OCF-18s for physiotherapy services. The first OCF-18 dated December 21, 2020, listed injuries including sprain and strain of the cervical, thoracic and lumbar spine, sprain and strain of hip and shoulder joint, muscle strain of the shoulder and radiculopathy. The second OCF-18 dated March 15, 2021, listed the applicant’s impairment of the hip and thigh, cervical disc disorder with myelopathy and radiculopathy, shoulder lesions and anxiety disorder.

10The respondent denied the treatment plans, relying on the insurer’s examination (IE) assessment of its orthopaedic surgeon, Dr. Auguste, dated February 16, 2021, and an addendum dated March 25, 2021. Dr. Auguste concluded that the applicant had sustained only WAD 1 cervical strain/sprain, lumbar, right shoulder and right hip strains and sprains, and that the applicant would have likely achieved maximum medical recovery within several weeks of the accident. As such, Dr. August opined that the proposed treatment was not reasonable and necessary.

11The respondent further raises the issue of causation, submitting that the applicant’s current impairments were in fact caused by a subsequent accident on September 1, 2020, when a car backed into the applicant when he was riding his bicycle. The respondent contends that the clinical notes and records (CNRs) of the applicant’s family physician Dr. Bernholtz indicate that the applicant did not complain of neck pain at all from May 31, 2018 to August 14, 2020, but after the bicycle accident, Dr. Bernholtz consistently noted the applicant’s neck pain and radiculopathy. With respect to 2021 diagnostic imaging showing disc protrusion at the C5-6 level, the respondent submits that the medical evidence is clear that there was no such disc protrusion prior to the bicycle accident and refers to a January 24, 2018 X-ray of the cervical spine which did not show any abnormalities.

12I find that the applicant has adduced sufficient medical evidence to establish that the proposed physiotherapy treatment is reasonable and necessary.

13With respect to causation, I find that the medical record establishes that the applicant sustained a number of physical impairments as a result of the subject accident. With respect to his hip injury, 2018 diagnostic imaging post-accident showed suspected superior acetabular detachment. Throughout 2018 and 2019, the applicant consulted with his family physician and specialists, including orthopaedic surgeons such as Dr. Jaskarndip and Dr. Whelan, regarding his hip pain. Dr. Jaskarndip recommended that the applicant pursue active physiotherapy with reassessment after a year to consider surgery. Dr. Whelan also offered the applicant hip surgery.

14I further agree with the applicant that the medical record establishes that additional injuries listed in the OCF-18s can be linked to the subject accident. The CNRs of Dr. Bernholtz indicate that the applicant consistently reported right shoulder pain post accident, which was agreed to be an exacerbation of a pre-accident shoulder dislocation. Dr. Bernholtz’s CNRs further indicate that immediately post-accident, the applicant reported neck and back pain, in addition to the shoulder pain. An OCF-3 prepared by Dr. Bernholtz dated February 4, 2019 states that the applicant sustained a right hip superior labral injury, right shoulder injury, neck and lumbar sprain, as a result of the accident. I also agree with the applicant that there are additional references to the applicant’s neck and shoulder pain in the medical record, prior to the September 2020 bicycle accident.

15Most notably, the s. 25 orthopaedic assessment of Dr. West dated February 4, 2020, specifically noted that prior to the subject accident, the applicant had no previous history of back or neck pain, but since the subject accident now had constant neck and back pain, in addition hip and shoulder pain. Dr. West recommended physiotherapy for the applicant’s neck, back, right shoulder and right hip, in addition to medication. While I agree with the respondent that the applicant’s reports of neck pain greatly increased after the September 2020 bicycle accident and that the reports of radiculopathy and neuropathy also began after September 2020, I do not agree that there were no reports of neck, back or shoulder impairments prior to September 2020. I also note that the OCF-18s in dispute list a wide-range of impairments to be treated, not just the neck injury and radiculopathy.

16I further find the report of the applicant’s family physician to be persuasive, both on the issue of causation and with respect to the reasonableness and necessity of physiotherapy treatment.

17In a reporting letter dated December 10, 2021, Dr. Bernholtz lists the impairments attributable to the subject accident as being the neck injury, back, right shoulder and right wrist sprains, worsening of pre-existing hip pain and other unspecified trauma disorder. The respondent submits that this report should be given no weight as Dr. Bernholtz did not reference the September 2020 bicycle accident, which he had previously noted in his CNRs as the cause of the applicant’s neck issues. However, I agree with the applicant that as his primary care physician, Dr. Bernholtz’s assessment of the applicant’s injuries should be given significant weight. Dr. Bernholtz was aware of the applicant’s September 2020 bicycle accident. And yet in his reporting letter he specifically linked the impairments to the subject accident and noted that the applicant was still in constant pain and continued to suffer from physical symptoms 3 years after the accident. Dr. Bernholtz actively managed the applicant’s various physical impairments in the years post-accident and as such, I find his opinion to be persuasive.

18Dr. Bernholtz also specifically recommended physiotherapy and a comprehensive pain management program in his December 2021 reporting letter. Physiotherapy was similarly recommended by Dr. West in his February 2020 orthopaedic assessment to address the applicant neck, back, right shoulder and right hip pain. Although the respondent relies on the IE assessments of Dr. Auguste which found further treatment was not reasonable and necessary, I prefer the reports of Dr. Bernholtz and Dr. West who both recommended additional physiotherapy. I further note that while Dr. Auguste denied the proposed treatment on the basis that the applicant had achieved maximum medical recovery, there was no discussion of the additional stated goal of pain reduction.

19As such, I find that the applicant has led sufficient evidence that the OCF-18s dated December 21, 2020 and March 15, 2021 are reasonable and necessary.

OCF-18 for a Psychological Assessment and OCF-18 for Psychological Treatment are both Reasonable and Necessary

20The applicant submitted an OCF-18 dated May 28, 2021, for a psychological assessment and an OCF-18 dated April 2, 2020 for psychotherapy treatment. He submits that both OCF-18s are reasonable and necessary as a result of his ongoing psychological impairments. The respondent denied both of these treatment plans on the basis of two psychological IE assessments conducted by Dr. Rubenstein, psychologist, one dated July 19, 2019 and one dated June 18, 2021. Dr Rubenstein found that the applicant had not sustained any diagnosable psychological impairment as a result of the accident.

21I find that the applicant has met his onus to prove that both the psychological treatment and psychological assessment are reasonable and necessary.

22The medical record establishes that the applicant reported ongoing psychological symptoms after the subject accident. In an August 3, 2018 s.25 psychological assessment by Dr. Gladhteyn, the applicant was diagnosed with adjustment disorder with mixed anxiety and depressed mood and specific phobia (driver and passenger). A course of psychotherapy was recommended. However, the applicant subsequently continued to report psychological symptoms. Dr. Bernholtz referred the applicant to Dr. Abraham, a psychiatrist at CAMH. In a June 18, 2020 report, Dr. Abraham diagnosed the applicant with other specified trauma and stressor-related disorder and panic disorder. Dr. Abraham recommended antidepressants and encouraged the applicant to get further “trauma therapy from his insurance company”.

23After the May 28, 2021 OCF-18 for a psychological assessment was denied, it appears that the applicant subsequently obtained the assessment. In a report dated June 20, 2021, Ms. Lital Grinberg, psychological associate/psychotherapist, diagnosed the applicant with chronic adjustment disorder with mixed anxiety and depressed mood, somatic symptom disorder with predominant pain and specific phobia situational, vehicular, and recommended psychotherapy treatment. Ms. Grinberg’s report is further bolstered by the applicant’s family physician’s reporting letter of December 10, 2021. Dr. Bernholtz noted that the applicant continued to have psychological symptoms and distress three years post-accident. He also opined that the applicant had only received a limited number of psychotherapy sessions and that “his psychological treatment to date has been inadequate”.

24When comparing the s. 44 assessments of Dr. Rubenstein to the opinions of Dr. Gladhteyn, Dr. Abraham, Ms. Grinberg and Dr. Bernholtz, I prefer the evidence submitted by the applicant. In contrast to Dr. Rubenstein’s findings of no diagnosable psychological impairments, the various assessments and reports submitted by the applicant are consistent with the medical record, which shows that the applicant has reported and sought treatment for ongoing psychological impairments post-accident. Further, I agree with the applicant’s submissions that the respondent’s submissions did not address its previous IE assessor’s findings, where Dr. Biswas found in June 2018 that the applicant met the criteria for adjustment disorder with mixed anxiety and depressed mood. Dr. Rubenstein appeared to base his finding of no diagnosable psychological impairment on the fact that testing results raised concerns with reliability and validity based on symptom amplification. However, I note that the s. 25 assessors, the applicant’s family physician and Dr. Abraham, a psychiatrist at CAMH, did not raise such reliability or credibility concerns.

25For the reasons noted above, I find that the OCF-18s for psychological treatment and a psychological assessment are reasonable and necessary, and therefore, payable.

Interest

26The applicant is entitled to interest in accordance with s. 51 of the Schedule, for the treatment plans in dispute.

Award

27The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant submits that the respondent deliberately delayed the process for the applicant to receive treatment, ignored evidence from its own IE examiner Dr. Biswas, and that the adjuster’s log notes indicate that there were numerous claim handlers which fostered confusion, that the insurer had enough information to properly approve ongoing treatment and that the respondent failed to consider and ignored all the new medical evidence and reports.

28I find that the applicant has not established that he is entitled to an award. Although he makes reference to the adjuster’s log notes and states that they indicate that the respondent ignored medical evidence, that having numerous claims adjusters led to confusion and lack of attention and that the respondent deliberately delayed the process, I have not been provided with any specific examples or log note entries to substantiate these claims. Without specific detail substantiating these claims, I cannot find that the respondent’s behaviour rose to the level of unreasonable conduct warranting an award.

29The only specific reference provided by the applicant was that the respondent ignored the evidence of its own s. 44 assessor Dr. Biswas, who in 2018 found that the applicant had a psychological impairment. However, I note that the respondent’s subsequent IE assessor, Dr. Rubenstein found in two subsequent s. 44 assessments that the applicant did not have a psychological diagnosis. While I disagreed with Dr. Rubenstein’s findings, I do not find that this amounts to an unreasonable withholding of payment. The respondent’s denials appeared to be based on objective assessments of the applicant. Thus, an award under s. 10 is not warranted.

ORDER

30For the foregoing reasons, I find that:

i. The applicant is entitled to the four treatment plans in dispute, plus interest in accordance with s. 51 of the Schedule;

ii. The applicant is not entitled to an award.