Kein Lam v. Aviva Insurance Company, 2023 CanLII 72614

Citation: Lam v. Aviva Insurance Company, 2023 ONLAT 21-004664/AABS

Licence Appeal Tribunal File Number: 21-004664/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:

Kein Lam Applicant

and

Aviva Insurance Company Respondent

DECISION

ADJUDICATOR: Lisa Yong

APPEARANCES:

For the Applicant: Sevda Guliyeva, Paralegal

For the Respondent: Brittanny Tinslay, Counsel

HEARD: In Writing

OVERVIEW

1Kein Lam, the applicant, was involved in an automobile accident on February 19, 2019, 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.

2The applicant was taken out of the monetary limits of the Minor Injury Guideline (MIG) due to psychological (not physical) reasons.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $1,236.90 for chiropractic treatment proposed by Rudi Chan in a treatment plan which was denied on September 5, 2019?

ii. Is the applicant entitled to $2,907.68 for chiropractic treatment proposed by Solmaz Zanjani in a treatment plan which was denied on September 19, 2019?

iii. Is the applicant entitled to $2,876.04 for chiropractic treatment proposed by Rudi Chan in a treatment plan which was denied on November 22, 2019?

iv. Is the applicant entitled to $4,164.59 for psychological services proposed by Svetlana Gabidulina in a treatment plan which was denied on January 28, 2020?

v. Is the applicant entitled to $1,699.51 for a functional cognitive assessment proposed by Evgeni Amchislavsky in a treatment plan which was denied on February 5, 2020?

vi. Is the applicant entitled to $2,681.92 for chiropractic treatment proposed by Life Point Medical in a treatment plan which was denied on March 10, 2020?

vii. Is the applicant entitled to $3,265.48 for psychological services proposed by Life Point Medical in a treatment plan which was denied on May 26, 2020?

viii. Is the applicant entitled to $2,000.00 for chronic pain assessment proposed by Life Point Medical in a treatment plan which was denied on May 17, 2020?

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

RESULT

i. The applicant is entitled to the amount of $1,236.90 for a chiropractic treatment plan denied September 6, 2019, plus interest pursuant to s. 51 of the Schedule.

ii. The applicant is not entitled to any other treatment plans in dispute.

ANALYSIS

4To 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 is required to identity the goals of treatment, how the goals would be met to a reasonable degree and the overall cost of achieving them are reasonable.

The applicant is entitled to $1,236.90 for chiropractic treatment proposed by Rudi Chan in a treatment plan which was denied on September 5, 2019

5I find the chiropractic treatment plan to be reasonable and necessary.

6It is noted that the applicant did not seek medical advice until five months after the accident, on July 10, 2019. The clinical notes and records (CNRs) dated July 10, 2019, showed that Dr. Omolayomi Akinremi, general practitioner, recorded the applicant’s complaints and concerns, ordered an x-ray of the applicant, referred him to physiotherapy and prescribed Vimovo. The x-ray report was normal.

7The OCF-18 identified the goals for treatment as being “pain reduction, increase in strength, increased range of motion and other...” and “return to activities of normal living”. The proposed treatment includes five sessions of each chiropractic treatment, stimulation of muscles of head, neck and back, heat pack, massage therapy and exercise of multiple body sites.

8I note that the applicant did not confirm in its submissions if he had a family physician at the time of the accident or if Dr. Anastasia Prokubovskaya is his family physician. Based on the evidence tendered, the OHIP records showed that the applicant saw Dr. Prokubovskaya at some point post-accident on August 6, 2019. However, there were no CNRs from Dr. Anastasia Prokubovskaya, her clinic or further CNRs from Dr. Akinremi that evidenced any follow up on the applicant’s post-accident injuries.

9The respondent submits that the chiropractor, Dr. Rudi Chan’s re-examination on August 28, 2019, noted that the applicant reported the pain remained at “9/10” in all alleged areas and that the treatment plan is not reasonable and necessary as the applicant showed limited to no improvement and has not demonstrated that the goals of treatment were reached to any reasonable degree.

10Given that proposed treatment plan was dated only two months after the applicant started receiving physiotherapy or chiropractic treatment (i.e. since July 12, 2019), and taking into account of Dr. Chan’s prognosis at the time, as being “fair, considering the extent of his injuries, barriers to recover and compliant with his treatment plan. A proper and timely treatment to maximise clinic outcomes will ensure that continued progress is seen...”, I find this treatment plan to be reasonable and necessary.

11The applicant is entitled to this treatment plan, including interest.

The applicant is not entitled to $2,907.68 for chiropractic treatment proposed by Solmaz Zanjani in a treatment plan which was denied on September 19, 2019 and $2,876.04 for chiropractic treatment proposed by Rudi Chan in a treatment plan which was denied on November 22, 2019

12As stated, the applicant bears the onus of proving entitlement to proposed treatment. When considering entitlement to accident benefits pursuant to the Schedule, particularly for written hearings, adjudicators rely heavily on the evidence and submissions of the parties. The Tribunal has consistently held that it is not the responsibility of adjudicators to sift through evidence. That role belongs to the parties, who must present their evidence and arguments as to how the evidence supports or does not support, in this case, entitlement to each treatment plan.

13The applicant has not provided references to the evidence in support of these proposed treatment plans. The applicant’s submissions contained a history of the claim and spoke of the issues the applicant was having following the accident. The applicant then suggested that the treatment plans were reasonable and necessary because there were medical complaints made by him, the treatment plans were prepared, the treatment was undertaken and predominantly incurred. However, those are not viable bases for determining whether a plan is reasonable and necessary. Instead, the plan is assessed regarding whether the treatment goals as identified are reasonable, whether the treatment goals are being met to a reasonable degree, and whether the overall cost of achieving those goals are reasonable.

14The applicant did not specifically identify why each treatment plan is reasonable or necessary.

15The respondent submitted that these two treatment plans are not reasonable and necessary on the basis of the musculoskeletal assessment report dated January 10, 2020, by Dr. Nikolaos Harmantas, general practitioner, who determined that the treatment plans were not reasonable and necessary.

16Despite the lack of CNRs from any family physicians, and having only been provided with the OCF-18s of the treatment plans along with the progress reports written by the recommending medical professionals, I reviewed the OCF-18s and the respective chiropractors’ progression reports in detail.

17I note that Dr. Chan reported on the OCF-18 that, although the applicant subjectively found that he improved by about 10%, he objectively found that there have been no significant changes in the Range of Motion (ROM) testing and orthopedic testing. He also noted that the applicant reported “…that he finds therapy beneficial in providing short term symptomatic relief.” His prognosis on the applicant’s recovery is identical to his previous OCF-18.

18I find Dr. Harmantas’ report to be persuasive, as he reviewed documentation and conducted a physical examination of the applicant’s condition, and provided his medical opinion on whether the treatment plans are reasonable and necessary.

19Dr. Harmantas opined that the applicant “should engage in a self-directed home-based exercise program moving forward. After careful consideration, it is my professional opinion that from a musculoskeletal perspective, the proposed Treatment and Assessment Plans (OCF-18’s) listed above are not reasonable and necessary as related to the impairments from the motor vehicle accident.” He concluded his report by finding the applicant to have “primarily sustained soft tissue injuries to his thoracolumbar spine, right hip, cervical spine [WAD I/II], right shoulder, left ankle and left knee as a direct result of the subject motor vehicle accident” which falls squarely under the definition of a “minor injury” as defined in the Schedule.

20Given the strength of the respondent’s expert medical report and the applicant’s failure to provide any substantiating evidence in support of the treatment plans, I find that the treatment plans are not reasonable and necessary.

The applicant is not entitled to $1,795.59 for psychological services proposed in the OCF-18 dated October 11, 2019

21The Case Conference Report and Order dated April 19, 2022 identified the respective OCF-18 in dispute is in the amount of $4,164.59. However, the Explanation of Benefits dated January 28, 2020 identified that the OCF-18 was partially approved for $2,369.13. Therefore, the remaining amount in dispute is $1,795.59.

22The applicant submits the fact that the applicant continuously attended and incurred the costs of a significant portion of the treatments, despite the insurer’s denial, shows the need for the treatment and to mitigate any regression of the psychological and physical condition.

23The respondent relies on the s. 44 psychological assessment report dated January 10, 2020, by Dr. Rodney Day, where he opined that the treatment plan was partially reasonable and necessary and therefore the treatment plan was partially approved in the amount of $2,369.13.

24Dr. Day opined that: 12 one-hour sessions of psychological treatment (12 x $149.61); one progress/discharge report ($224.42); one-hour for psychological testing near the completion of the sessions ($149.61); and documentation, completion of the OCF-18 claim form ($200.00) were sufficient, reasonable and necessary services. As stated, the applicant has offered no further evidence or reply submissions to meet his onus to show that the entirety of the disputed treatment plan is reasonable and necessary. There was no explanation as to why Dr. Gabidulina recommended 16 1.5 hour sessions of psychological treatment but completed the OCF-18 with 16 one-hour sessions of psychological treatment and 16 half-hour sessions for “planning, service”. Further, it is not enough to assert that a treatment plan should be funded in its entirety merely because the applicant had incurred the cost of treatment or that the applicant is entitled to utilise the balance of the non-MIG and non-catastrophic monetary limit of $65,000.00.

25For the above reasons, I find that the disputed amount of this treatment plan is not reasonable and necessary.

The applicant is not entitled to $1,699.51 for a functional cognitive assessment proposed by Evgeni Amchislavsky in a treatment plan which was denied on February 5, 2020

26The applicant did not make any specific submissions or lead any evidence specifically in support for this treatment plan.

27The respondent submits that there is no basis for the recommendation for this treatment plan and submits that its assessor, Dr. Day, recommended treatment for the applicant’s “depression, not a cognitive assessment for which no justification is provided”. The applicant did not file any reply submissions to dispute this point.

28Based on Dr. Day’s report, he recommended that provision of “12 one-hour sessions of evidence-based treatment such as cognitive behavioral psychotherapy is warrant” (sic).

29I have reviewed all the medical evidence and documentation tendered by the parties and agree with the respondent. There is no compelling medical evidence to support the basis for a functional cognitive assessment and therefore the treatment plan is not reasonable and necessary.

30As such, the applicant is not entitled to payment of this treatment plan.

The applicant is not entitled to $2,681.92 for chiropractic treatment proposed by Life Point Medical in a treatment plan which was denied on March 10, 2020

31Again, the applicant did not make specific submissions with respect to this specific treatment plan.

32The respondent submits that the treatment plan is not reasonable and necessary on the basis that the goals of the treatment plan were identical (or with minor variation), and the applicant showed limited to no improvement and has not demonstrated that the goals were being met to any reasonable degree.

33I find the respondent’s submissions to be persuasive. Based on the lack of specific submissions from the applicant or supporting medical evidence, I find the applicant has not met its evidentiary burden to establish this treatment is reasonable or necessary pursuant to the Schedule.

34The applicant is not entitled to payment of this treatment plan.

The applicant is not entitled to $3,255.48 for various assistive devices and physical treatment proposed by Life Point Medical in a treatment plan which was denied on May 26, 2020

35The Case Conference Report and Order dated April 19, 2022 identified the respective OCF-18 in dispute is in the amount of $3,265.48 for psychological services. However, upon review of the OCF-18 and Explanation of Benefits dated August 20, 2020, the disputed amount is $3,255.48 for various assistive devices and physical treatment.

36The applicant did not make any specific submissions relating to this OCF-18.

37The respondent relies on the addendum report of Dr. Harmantas dated August 6, 2020, upon which he opined that the applicant had reached maximum medical improvement from his accident-related injuries and concluded that this treatment plan was not reasonable and necessary.

38In the absence of any reply submissions from the applicant to dispute Dr. Harmantas’ finding, I am not persuaded that the applicant has established its burden of proof that the treatment plan is reasonable and necessary.

39Therefore, I find that the treatment plan is not reasonable and necessary.

The applicant is not entitled to $2,000.00 for chronic pain assessment proposed by Life Point Medical in a treatment plan which was denied on May 17, 2020

40The applicant submits that there is compelling medical evidence that showed he suffers from chronic pain as it was documented, by multiple healthcare practitioners and assessors, to have been affecting multiple aspects of his life. He submits that the assessment is reasonable and necessary as he was “actively involved and willing” in his recovery process. The respondent submits that the OCF-18 notes “compelling evidence” but does not indicate what was the evidence in support of the proposed treatment plan, and therefore the applicant has not met its burden of proof.

41The respondent submits that the treatment plan is not reasonable or necessary based on Dr. Harmantas’ opinion in his further report dated August 6, 2020 in which he found that a chronic pain assessment was not reasonable and necessary. He opined that the applicant had reached “maximum medical improvement from his accident-related injuries”.

42The applicant submitted that Dr. Mir-Reza Nabavi, chiropractor, opined the applicant would benefit from continued psychological counselling to manage and understand pain better.

43However, I note that this OCF-18 is proposing a chronic pain assessment, not psychological counselling. While Dr. Nabavi could have recommended a chronic pain assessment, he does not have the expertise to recommend psychological treatment with regards to the applicant’s psychological condition.

44There is a lack of clinical notes and records from any family physicians or medical professionals, other than the treating medical professionals from Life Medical Clinic, that show ongoing complaints of pain nor evidence of ongoing prescribed pain medications. There is no evidence that the applicant has been taking or is reliant on pain medication. The applicant has not kept in contact with his family physician, although it was recommended by the chiropractors that his condition “should be monitored with the family physician”. None of the IE reports or s. 25 assessment reports find that a chronic pain assessment is reasonable and necessary. The medical records reveal no compelling reasons for a chronic pain assessment.

45The CNRs from Life Medical Centre do not suggest that the pain affects the applicant’s functionality or requires further investigation. There is no evidence before me that shows the applicant is reliant on care providers, family members or prescribed medications. It is unclear whether the applicant’s daily activities have been affected. There was no evidence of any withdrawal from social situations other than the applicant having reported that he is unemployed and was starting his own business venture prior to or after the accident.

46In the CNRs of Dr. Robert Yufe, a neurologist, there was a letter dated October 19, 2020 from Dr. Dominic Rosso, a physician, who reported largely about an event of stroke which happened on June 21, 2020 and subsequent neurological investigations and findings. It was noted that the applicant takes medications for blood pressure, cholesterol, Aspirin and takes Tylenol intermittently for pain. Chronic pain was not recorded as one of the primary concerns during that consultation.

47Due to the lack of compelling medical evidence, I find the chronic pain assessment is not reasonable and necessary.

ORDER

48For the above-noted reasons, I find the following:

i. The applicant is entitled to the amount of $1,236.90 for a chiropractic treatment plan denied September 6, 2019, plus interest pursuant to s. 51 of the Schedule.

ii. The applicant is not entitled to any other treatment plans in dispute.