Licence Appeal Tribunal File Number: 20-010346/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:
Amy Fowlow
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Alexei Antonov, Counsel
For the Respondent:
April Snow, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Amy Fowlow (“A.F.”), the applicant, was involved in an automobile accident on September 10, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). A.F. 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:
i. Is A.F. entitled to the medical benefits proposed by Toronto Healthcare Clinic Inc., as follows:
a. $13,589.84 for a chronic interdisciplinary pain program, in treatment plan (OCF-18), dated June 19, 2020, and denied on August 21, 2020;
b. $1,981.70 for a driving rehabilitation evaluation, in an OCF-18 dated November 4, 2019, and denied on November 5, 2019;
c. $3,335.98 for psychological services, in an OCF-18 dated November 1, 2019, and denied on November 5, 2019; and
d. $2,000.00 for a psychology assessment, in an OCF-18, dated on April 6, 2019, and denied on April 15, 2019.
ii. Is Aviva liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to A.F.?
iii. Is A.F. entitled to interest on any overdue payment of benefits?
RESULT
3A.F. has failed to demonstrate that the disputed OCF-18s are reasonable and necessary. Interest and an award are not payable.
ANALYSIS
Are the OCF-18s reasonable and necessary?
4Sections 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 accident. In all cases, A.F. bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary. In order to do so, A.F. 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.
OCF-18 for an interdisciplinary pain program dated June 19, 2020 - $13,589.84
5The June 19, 2020 OCF-18 was a request for funding for an interdisciplinary pain rehabilitation program. The OCF-18 proposes active and passive modalities; Botox injections; as well as 10 psychological counselling sessions. The goals of the OCF-18 are noted to be pain reduction; increased range of motion; increase in strength; and a return to activities of normal living.
6A.F. submits that she suffered chronic back issues as a result of the accident. She refers to the clinical notes and records of Sturgeon Community Hospital from September 1, 2020 to September 2, 2020, wherein it is indicated that she loses feeling in her legs and has tingling and numbness down both legs. She also relies on a February 26, 2020 chronic pain report from Dr. Jacobs, who diagnosed A.F. with chronic pain; discogenic pain in the lumbar spine; and zygapophyseal joint pain involving the thoracic and lumbar spine.
7In further support of her claim for benefits, A.F. relies on the clinical notes and records of her family physician, Dr. Oguekwe, in particular, the notes of an August 12, 2020 visit, where she presented with complaints of severe back pain and associated radicular symptoms. Dr. Oguekwe recommended physiotherapy.
8Regarding the psychological counselling sessions, A.F. relies on a June 28, 2019 pre-screen report from Dr Shaul and Ms. Ilios. Dr. Shaul diagnoses A.F. with adjustment disorder with mixed anxiety and depressed mood and specific phobia (travelling in and around a vehicle). In a December 13, 2020 pre-screen report from Dr. Brunshaw and Ms. Paul, A.F. complained of anxiety and depression.
9In response, Aviva submits that there is no evidence of a chronic pain disorder. Its position is that A.F. has failed to adduce evidence that addresses any of the chronic pain criteria.
10While a diagnosis of chronic pain is not strictly required, in the absence of a diagnosis, the Tribunal has used the six criteria provided in the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th ed. (the “AMA Guides”) as an interpretive tool for evaluating chronic pain claims. Here, A.F. does not satisfy the minimum three criteria.
11For example, there is no evidence of an increase, or unhealthy reliance on prescription medication. The evidence shows that she remained completely independent with her self-care and housekeeping tasks. She was able to work, at time more than one job at a time, and continue to pursue further education. She returned to driving and exercising at the gym, post-accident. There is no evidence of any deconditioning as a result of fear-avoidance of physical activity, or a withdrawal from social milieu, including recreation or other social interactions. A.F. did not develop any psychosocial sequelae as a result of the accident. Thirdly, there is no evidence of a failure to restore her pre-accident function to the extent that her physical ability is not sufficient enough to engage in work, family or recreational activities. Most notably, at the time of the OCF-18, A.F. had moved to Alberta, rendering the treatment not reasonable and necessary, as she is not able to attend the proposed pain program.
12While A.F. relies on the February 26, 2020 chronic pain report of Dr. Jacobs, I find this report unpersuasive. First, there is no comment on the records of family phsyciian, Dr. Kharangate. Dr. Jacobs notes that A.F. has returned to work and is able to do her housekeeping tasks, albeit with some difficulty. Lastly, Dr. Jacobs makes no comment on which of the criteria that support a chronic pain diagnosis.
13For the reasons above, I find that A.F. has not demonstrated on a balance of probabilities, that the OCF-18 for a pain management program is reasonable and necessary.
OCF-18 for a psychology assessment dated April 6, 2019 – $2,000.00
OCF-18 for psychological services dated November 1, 2019 – $3,335.98
OCF-18 for a driving rehabilitation evaluation dated November 4, 2019 – $1,981.70
14The goals of the three OCF-18s are similar―pain reduction; to evaluate the psychological repercussions of the accident; to provide psychological counselling; to assist with driving in a vehicle; to increase self-confidence with respect to driving; and return to activities of normal living.
15A.F. relies on the December 13, 2020 psychological progress report from Dr. Brunshaw and Ms. Paul, where they note that A.F. continues to experience anxiety and depression as she works towards her goal of adapting to her post-accident lifestyle, in spite of pain, physical limitations, and anxious and depressive effect. Psychologist, Dr. Yan’s records note that A.F.’s psychological symptoms, at a September 28, 2021 visit, included anxiety and depression, that were becoming worse. At a September 30, 2021 visit, A.F. complained of constant anxiety; catastrophizing thoughts; anxious feelings the day before work; and decreased concentration. On January 18, 2022, Dr. Yan noted that A.F. may also have depression. On April 21, 2022, A.F. was diagnosed with depression in addition to the anxiety diagnosis.
16Interestingly, A.F. relies on the s. 25 report from Dr. Shaul, which noted similar objective findings to those of Dr. Challis, however, Dr. Shaul found that A.F. suffered psychological impairment. I agree with Aviva that Dr. Shaul’s report is not supported by the medical evidence. The family physician records are silent on any psychological symptomatology, and A.F. has not directed me to any objective evidence that supports that the disputed treatment plans are reasonable and necessary.
17Aviva relies on the December 27, 2019 s. 44 Insurer Examination (“IE”) report of psychologist, Dr. Challis. In the IE report, Dr. Challis noted that objective testing revealed mild results. From a psychological standpoint, Dr. Challis opined that A.F. did not sustain an impairment, nor did her symptoms meet the criteria for a diagnosis.
18I am not persuaded by A.F.’s evidence. Notably, there are no records of A.F. making any psychological complaints to her family physician. Further, her new family physician in Alberta, Dr. Oguekwe opined in an August 2020 entry, that A.F. was not depressed. Further, despite these psychological complaints, A.F. was engaging in substantially all of her daily activities. I further note that the OCF-18s are from 2019, however, much of A.F.’s medical documentation is from 2021. My issue with her reliance on the more recent records, is that this evidence is not corroborative in support of the disputed OCF-18s.
19Despite her subjective reporting to Dr. Shaul and Dr. Yan, I find that the objective evidence from Dr. Challis is persuasive, and a true reflection of A.F.’s post-accident psychological well-being, which is supported by the medical records.
20Accordingly, I find that A.F. has not demonstrated that the psychological OCF-18s are reasonable and necessary. On a balance of probabilities, I find she has not met her onus.
Interest
21Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
22I have found that none of the disputed OCF-18s are reasonable and necessary, therefore, interest is not payable.
Award
23The 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.
24Having determined that A.F. is not entitled to any of the disputed OCF-18s, Aviva cannot have unreasonably withheld or delayed payment of benefits. Accordingly, no award is payable.
ORDER
25The OCF-18s in dispute are not reasonable and necessary; interest and an award are not payable.
Released: July 21, 2023
Derek Grant
Adjudicator