Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-002404/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:
Matthew Williams Applicant
and
Aviva Insurance Company Respondent
DECISION
ADJUDICATOR: Amanda Marshall
APPEARANCES:
For the Applicant: Doina Marinescu, Paralegal
For the Respondent: Cara Boddy, Counsel
HEARD: By way of written submissions
OVERVIEW
1Matthew Williams, the applicant, was involved in an automobile accident on December 30, 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 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 $2,650.72 for chiropractic services, denied April 30, 2019?
ii. Is the applicant entitled to $2,330.24 for chiropractic services, denied September 26, 2019?
iii. Is the applicant entitled to $1,974.03 for psychological services, denied October 27, 2020?
iv. Is the applicant entitled to $2,401.25 for the cost of a chronic pain assessment, denied December 13, 2020?
v. Is the applicant entitled to $2,486.00 for the cost of a physiatry assessment, denied September 22, 2020?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
3The respondent raised the following preliminary issue in its written submission:
i. Is the applicant precluded from proceeding with his application disputing his entitlement to psychological services in the amount of $1,974.03 for failing to attend a s. 44 insurer’s examination (“IE”) pursuant to s. 55 of the Schedule?
4The preliminary issue was not listed in the Case Conference Report and Order (CCRO) dated November 16, 2021. However, I find that the issue can be added for the following reasons:
i. The respondent provided a copy of its submissions to the applicant on July 18, 2022, which contained the preliminary issue. As outlined in the November 18, 2021, CCRO, the applicant was given until July 25, 2022, to provide a reply to the respondent’s submissions.
ii. On July 25, 2022, the applicant notified the Tribunal that he would not be submitting a reply.
5I find that the applicant was notified that the respondent was adding a preliminary issue and was provided an opportunity to reply to the respondent’s submissions. Therefore, the preliminary issue can be added to the hearing.
RESULT
6The applicant is barred from proceeding with the psychological services treatment plan as he failed to attend the scheduled IEs.
7The applicant is not entitled to chiropractic services, the cost for the chronic pain assessment and the physiatry assessment, or interest.
PRELIMINARY ISSUE
The applicant is barred from proceeding with the psychological services treatment plan.
8The respondent bears the onus of establishing that the applicant is statute-barred from applying to the Tribunal for failing to comply with s. 44(9)2 of the Schedule.
9Section 44(1) of the Schedule governs the IE process for the purpose of assisting the insurer to determine if the applicant is or continues to be entitled to a benefit under the Schedule for which an application is made, but not more often than is reasonably necessary. The respondent may require an insured person to be examined under this section by one or more persons chosen by the respondent who are regulated health professionals or who have expertise in vocational rehabilitation.
10Section 44(5)(a) of the Schedule states that if the respondent requires an IE, it shall give the applicant a notice setting out the medical and any other reasons for the examination. In addition, that notice must include the name of the person conducting the examination, any regulated health profession they belong to, their title and designations, including specialization, as well as the day, time and location of the examination must also be set out in the notice.
11Section 55(1) 2 of the Schedule states that if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied, the insured person shall not apply to the Tribunal.
12The respondent submits the applicant was approved for mental health therapy with Brian Cook, Psychologist and with Cicelia Atilade, Social Worker. It argues that it is reasonable to request the applicant attend an IE for the psychological services treatment plan in dispute given there was limited progress identified after his approved mental health therapy, the report was completed by a different service provider, there was a lack of documentary information provided by the actual service provider, and as the information contained in the progress report conflicted with diagnoses from Dr. Kerry Lawson, Psychologist s. 44 IE assessor and Mr. Cook’s earlier reports.
13Also, the respondent states that proper notice was provided, and the applicant failed to attend the IEs.
14The applicant had an opportunity to provide a reply to the respondent’s submissions but chose not to do so.
15I have reviewed the evidence presented by the respondent and find that the request for an IE was reasonable. The respondent sent a notice to the applicant on October 27, 2020, outlining the reasons for the denial and providing information that the applicant would be required to attend an IE. A letter was issued on December 2, 2020, informing the applicant of the IE scheduled for January 12, 2021. I find the notice to be proper as it contained the name of the person conducting the examination, their regulated health profession, their title, and designation, as well as the day, time, and location.
16The applicant did not attend the January 12, 2021, IE. No explanation was provided.
17The respondent scheduled another IE for March 23, 2021 and sent notification of such on February 25, 2021. Again, I find the respondent’s notice to be proper as it contained the information required as per s. 44(5)(a). Section 55 (1) 2 acts as a bar to the insured in the event of non-attendance at a properly scheduled IE. The applicant failed to attend the February 25, 2021, scheduled IE and failed to provide an explanation for his non-attendance.
18I find the respondent has met its onus of establishing that the applicant is stature barred from proceeding with his application disputing his entitlement to psychological services for $1,974.03.
ANALYSIS
19To 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.
20The applicant submits that he suffers from chronic pain stemming from the accident and further treatment is necessary for his recovery. He relies on the clinical notes and records (CNRs) from his family doctor, Dr. Seymour Frydrych, and the comments by the treating practitioners provided in the treatment plans/OCF-18s in dispute.
21The respondent submits the applicant failed to demonstrate on a balance of probabilities that the disputed chiropractic treatment, chronic pain assessment, and physiatry assessment are reasonable and necessary. The respondent relies on the s. 44 Physician’s Assessment Report of Dr. Sabrina Ming-Wai Tu, General Practitioner.
The applicant is not entitled to the chiropractic services.
22Since both disputed treatment plans deal with similar modes of therapy with similar goals, I will address issues i. and ii. together.
23The first treatment plan in dispute, dated April 18, 2019, recommends 16 sessions of muscle stimulation, hyperthermy of multiple body sites, chiropractic treatment, massage therapy and exercise at a cost of $2,650.72. The goals of this therapy are pain reduction, an increase in strength, and an increased range of motion so that the applicant can return to his activities of normal living and his pre-accident work activities.
24The second treatment plan in dispute, dated September 12, 2019, recommends a reassessment, and 16 sessions identical to the OCF-18 of April 30, 2019. The goals of the treatment plan are the same as in the previous treatment plan. The cost of treatment is $2,330.00.
25I find that the applicant has not met his onus of establishing that the proposed chiropractic services are reasonable and necessary. Reassessments were completed by Dr. Bohdan Osoba; one in April 2019 and one September 12, 2019. Dr. Osoba reported that the applicant’s neck and back pain have remained unchanged and that his left shoulder pain has worsened. On both reassessment reports, Dr. Osoba stated that the applicant’s prognosis is poor.
26With regard to the chiropractic treatment plans, I prefer the medical evidence provided in the December 31, 2019, IE report of Dr. Tu. Dr. Tu reported that the applicant returned to work full time and at full duties after the accident. At 11 months after the accident, the applicant’s pain remains unchanged. She found that the applicant does not require any further facility-based therapy.
27I agree with Dr. Tu’s findings. The applicant received chiropractic services for many months after the accident with no indication that his condition was improving. In fact, the medical records showed the applicant’s condition worsened. This suggests that the treatment is ineffective, given that the applicant has seen little improvement over many months.
28The applicant has not provided any details on how the treatments would assist in meeting the goals would be met or that the overall costs are reasonable which is required to find the plans to be reasonable and necessary.
29Given the reasons above, I find that the applicant has not proven that the chiropractic treatment plans in dispute are reasonable and necessary.
The applicant is not entitled to a chronic pain assessment.
30The applicant submits that he suffers from chronic pain as documented by multiple healthcare practitioners and assessors and, therefore, a chronic pain assessment is reasonable and necessary. The applicant further submits that even the respondent’s IE psychological assessor, Dr. Kerry Lawson, found the applicant has chronic pain.
31The respondent argues that OCF-18 was completed by Dr. Doreen Payan, who is a chiropractor, and does not have the qualifications to diagnose chronic pain. The respondent also relies on the IE of Dr. Tu dated December 31, 2019, that found a chronic pain assessment is not reasonable or necessary.
32Upon my review, the applicant failed to submit a copy of the OCF-18 for the chronic pain assessment in dispute. However, the respondent had a copy of it in its submissions.
32The goal of the treatment plan is to determine the biological mechanism of pain through documentation of the pain location, intensity, quality, and onset/duration. The recommended chronic pain assessment is to assist with returning the applicant to normal levels of function. The treatment plan in dispute was completed by Dr. Doreen Payan, Chiropractor. I agree with the respondent and find that it is beyond a chiropractor’s scope of practice to diagnose chronic pain.
33Further, I am persuaded by Dr. Tu’s report. As with the reasons above with respect to the chiropractic treatments, Dr. Tu documented that the applicant went back to work soon after the accident. She found that he sustained uncomplicated soft tissue injuries as a direct result of the accident, and he does not require any further medical intervention as he has reached maximum medical improvement.
34The Tribunal, in previous decisions, has considered the criteria outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008 (the “Guides”), as an evaluative tool for assessing chronic pain. The AMA Guides assist in distinguishing chronic pain that lasts for 3 to 6 months but does not adversely affect an individual's well-being from chronic pain that is severe enough that it is, according to the criteria in the AMA Guides, functionally disabling.
35While the applicant experienced pain, he has not submitted evidence that his pain impacts his ability to function, that he is dependant on prescription drugs, excessively dependent on family or health care providers, and there is no evidence to support that he suffered from physical deconditioning due to disuse or fear or avoidance of physical activity due to pain. In fact, the applicant returned to work soon after the accident to full time hours.
36I find the chronic pain assessment is not reasonable and necessary for the following reasons:
i. There is limited evidence to support that the applicant’s pain was such that he had difficulty functioning.
ii. Neither his family doctor nor Dr. Lawson recommended the applicant undertake a chronic pain assessment nor commented that the applicant’s pain impacts his ability to function.
iii. The treatment plan in dispute was completed by a chiropractor who is not qualified to diagnose chronic pain.
iv. There is no indication that the applicant incurred the cost of the treatment plan. While the assessment does not need to be incurred to be payable, it does need to be reasonable and necessary which I find it is not.
37The request for a chronic pain assessment is denied.
The applicant is not entitled to a physiatry assessment.
38The applicant relies on the comments made by Dr. Mehvish Mamoon, Chiropractor, on the treatment plan in dispute. Dr. Mamoon recommended the applicant see a physiatrist due to the persistence and chronicity of his injuries. The goal of the physiatry assessment is to determine the precise location and underlying cause of the applicant’s pain and to provide recommendations to improve his functional outcomes.
39The respondent submits that the family physician has not voiced his support for a physiatry assessment nor do Dr. Tu’s findings in her report of December 31, 2019, recommend a physiatry assessment.
40The applicant visited his family doctor in June 2020 and then again at the beginning of September. Dr. Frydrych documented that the applicant continues to have back pain. He noted that the applicant has received physiotherapy services for two years and suggests he consider changing service providers. The family doctor did not recommend the applicant for a physiatry assessment.
41As outlined in my previous findings, Dr. Tu identified that the applicant has reached maximum medical recovery. Therefore, a physiatry assessment would not assist in providing anything further with respect to the applicant’s level of functioning.
42I find that a physiatry assessment is not reasonable and necessary.
The applicant is not entitled to interest.
43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are due, no interest is payable.
ORDER
44The applicant is not entitled to the treatment and assessment plans in dispute.
45The applicant is not entitled to interest.
Released: June 12, 2023
Amanda Marshall Adjudicator