21-002581/AABS

Licence Appeal Tribunal File Number: 21-002581/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:

Thu Thi Le Tran

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Bambi Santiago, Paralegal

For the Respondent:

Kristofer Angle, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Thu Thi Le Tran (“TTLT”), the applicant, was involved in an automobile accident on November 30, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). TTLT was denied benefits by the respondent, Aviva, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

a) Are the following services proposed by Pain Rehabilitation Clinic Inc. reasonable and necessary:

i. $2,600.64 for physiotherapy in a treatment plan (OCF-18) dated November 26, 2019;

ii. $2,600.64 for chiropractic, physiotherapy and massage in an OCF-18 dated January 7, 2021;

iii. $2,200.00 for a chronic pain assessment in an OCF-18 dated May 14, 2019;

iv. $2,600.64 for physiotherapy in an OCF-1) dated April 1, 2021;

v. $2,200.00 for a psychological assessment in a plan dated April 29, 2021?

b) Is TTLT entitled to interest on any overdue payment of benefits?

RESULT

3TTLT has not demonstrated that the OCF-18s for physical treatment or a chronic pain assessment are reasonable and necessary.

4TTLT has not demonstrated that the OCF-18 for a psychological assessment is reasonable and necessary.

5No interest is payable.

ANALYSIS

The OCF-18s for physical therapy are not reasonable and necessary

6Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. To do so, TTLT should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable. TTLT bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary.

7I will address issues 2 (i), (ii) and (iv) together, as they all involve the same type of treatment. For the reasons that follow, I find that TTLT has not established that the OCF-18s for physical therapy are reasonable and necessary. TTLT relies on the clinical notes and records (“CNRS”) of her family physician, Dr. Trinh, a functional abilities evaluation from chiropractor, Dr. Bui, and the records of Pain Rehabilitation Clinic, in support of her claims for funding of the disputed OCF-18s.

8TTLT submits that her accident-related injuries, described as sprain and strain of shoulder joint, sprain and strain of thoracic spine, lumbar spine and cervical spine, require the proposed OCF-18s in order to treat her injuries, and as such, the OCF-18s are reasonable and necessary.

9In response, Aviva relies on the September 5, 2019 s. 44 report of its assessor, general physician, Dr. Tu, who concluded that there were no objective musculoskeletal impairments at the time of the assessment. In relying on Dr. Tu’s s. 44 report, Aviva determined that the disputed OCF-18s were not reasonable and necessary. I agree with Aviva.

10In Dr. Trinh’s CNRs, I note that TTLT presented with physical pain complaints during the period of visits between December 5, 2016 and January 24, 2017. While she points to Dr. Trinh’s records from 2021, I find that these records do not confirm that her pain complaints are accident related. For example, in a February 5, 2021 entry, Dr. Trinh notes right upper outer chest pain for four days, no injury, unknown trigger. Further, at a subsequent follow-up visit on March 13, 2021, Dr. Trinh notes that the chest pain went away completely and that the right chest pain was likely from muscle pain or spasm, already resolved.

11I do not find Dr. Trinh’s CNRs persuasive, as there is little by way of contemporaneous evidence that supports that further, ongoing facility-based treatment is reasonable and necessary. This is particularly so where Dr. Trinh’s treatment records, at the time of the OCF-18s, indicate that TTLT does not present with accident-related pain complaints.

12In considering Dr. Bui’s May 16, 2018 functional abilities evaluation, and as the author of several of the OCF-18s, I do not find Dr. Bui’s evaluation persuasive against TTLT’s other medical evidence. Essentially, Dr. Bui’s report supports the OCF-18s he completed on TTLT’s behalf, which I find is not supportive, objective evidence. Despite making recommendations for treatment, the medical record does not establish that, a) the disputed OCF-18s are reasonable, b) the goals of the OCF-18s are being met to a reasonable degree, or c) that the cost of the OCF-18s is reasonable.

13Consequently, I find that TTLT has not demonstrated that the OCF-18s for physical treatment are reasonable and necessary.

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

14Regarding Dr. Ta’s October 1, 2020 report, Dr. Ta notes that TTLT has normal neck range of motion with mild pain, however, Dr. Ta opined that TTLT suffers from fibromyalgia. Dr. Ta diagnosed TTLT with post-traumatic fibromyalgia syndrome; post-traumatic myofascial pain; greater occipital nerve neuritis; sacroiliac joints pain; disturbed sleep patterns, and pre-diagnosed (but post-accident) psychiatric illness. Dr. Ta concluded with a recommendation that TTLT be seen by a chronic pain specialist, as her impairments meet the definition of chronic pain.

15Conversely, Aviva submits that little weight should be placed on Dr. Ta’s report, as she is not a chronic pain specialist, only that she has a “special interest” in chronic pain as an anaesthesiologist. TTLT argues that the Royal College of Physicians and Surgeons of Canada (“RCPC”) provided the definition (RCPC 2017 version 1.0 – Anesthesiology Competencies; practice and s. 1, ss. 1.3.9., ss. 1.3.9.6.) of Dr. Ta’s speciality, that anaesthesiologists can also diagnose conditions and manage patients suffering from chronic or acute pain.

16I agree with Aviva, that despite the definition from the Royal College of Physicians and Surgeons, it does not state that an anaesthesiologist can diagnose chronic pain; rather, it states that they can “apply their expertise…in the provision of chronic pain management”. I find managing patients suffering from chronic pain to be a very clear distinction from being qualified to “diagnose” patients to determine if they are suffering from chronic pain.

17While I appreciate that Dr. Ta may have a “special interest” in chronic pain, I am not pointed to any recognized medical qualifications that designate her as a chronic pain specialist. Accordingly, I place little weight on her chronic pain report, as I find she is not qualified to diagnose chronic pain.

18For the reasons above, I find that TTLT has not demonstrated that the OCF-18 for a chronic pain assessment is reasonable and necessary.

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

19For the reasons that follow, I find that TTLT is not entitled to funding for the OCF-for a psychological assessment.

20In considering whether the OCF-18 is reasonable and necessary, I find Dr. Trinh’s records persuasive. For example, at a July 18, 2017 visit, TTLT is requesting a mental assessment, due to complaining of depressed & anxious mood for over one year after menopause, which was getting worse in the last 3-4 months, crying often at home and work. There is no mention of the accident, and Dr. Trinh made a referral to a psychiatrist. On August 11, 2017, TTLT presented with similar complaints as the July 18, 2017 visit; Dr. Trinh noted a visit scheduled with a psychiatrist on October 19, 2017. Again, there is no mention of the accident.

21Further, on September 7, 2017, TTLT visited Dr. Trinh complaining of depression and anxious mood for over one year after menopause, with Dr. Trinh noting the October 2017 psychiatrist appointment. At an August 30, 2018 visit, TTLT presents with anxiety, Dr. Trinh notes a long history of anxiety and intermittent depression for years. Dr. Trinh indicates that TTLT has a mild current depressed mood, and again recommended a psychiatrist consultation. I note at a September 3, 2018 visit, Dr. Trinh indicated that TTLT was sent to see a psychiatrist in October 2017, but she did not go for the appointment. At no time when presenting with any psychological complaints does TTLT make any reference to the accident as the cause of her psychological symptomatology.

22I find that TTLT’s evidence does not support that a psychological assessment is reasonable and necessary for several reasons. First, Dr. Trinh recommended for her to see a psychiatrist, not a psychologist. Second, treatment from a psychiatrist is reasonably available through OHIP, and despite this option, TTLT did not follow up with her referral. Lastly, I do not find that any of TTLT’s psychological complaints are as a result of the accident based on the lack of medical evidence to support same.

23Having failed to meet her onus, I see no reason to interfere with Aviva’s determination that the OCF-18 is not reasonable and necessary.

Interest

24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having determined that TTLT is not entitled to any of the claimed benefits, no interest is payable.

ORDER

25TTLT has not demonstrated that the disputed OCF-18s are reasonable and necessary. No interest is payable.