Licence Appeal Tribunal File Number: 20-009080/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:
Burim Miftari
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Mary Tran, Paralegal
For the Respondent:
Maggie Morgan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Burim Miftari (“the Applicant”) was involved in an automobile accident on August 29, 2018, and sought benefits from Aviva Insurance Company (“the Respondent”) 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues to be decided in the hearing are:
Is the Applicant entitled to a medical benefit in the amount of $1,281.68, less $1,023.21 approved by the Respondent, for chiropractic services recommended in a treatment plan dated October 13, 2018?
Is the Applicant entitled to a medical benefit in the amount of $2,925.60 for chiropractic services recommended in a treatment plan dated November 10, 2018?
Is the Applicant entitled to a medical benefit in the amount of $2,907.68 for chiropractic services recommended by in a treatment plan dated February 22, 2019?
Is the Applicant entitled to a medical benefit in the amount of $2,925.76 for chiropractic services recommended in a treatment plan dated May 21, 2019?
Is the Applicant entitled to a medical benefit in the amount of $1,471.84 for chiropractic services recommended in a treatment plan dated October 2, 2019?
Is the Applicant entitled to a medical benefit in the amount of $1,800.00 for a yoga plan recommended in a treatment plan dated May 21, 2019?
Is the Applicant entitled to a medical benefit in the amount of $3,963.64, less $3,123.64 approved by the Respondent, for psychological services recommended in a treatment plan dated December 18, 2018?
Is the Applicant entitled to a medical benefit in the amount of $3,558.64, less $2,823.64 approved by the Respondent, for psychological services recommended in a treatment plan dated July 22, 2019?
Is the Applicant entitled to the cost of an examination in the amount of $2,401.25 for a chronic pain assessment recommended in a treatment plan dated May 13, 2019?
Is the Applicant entitled to the cost of an examination in the amount of $1,564.50 for a functional assessment recommended in a treatment plan dated February 22, 2019
Is the Applicant entitled to the cost of an examination in the amount of $1,578.62 for an attendant care assessment recommended a treatment plan dated February 15, 2019?
Is the Respondent entitled to a repayment of income replacement benefits in the amount of $400.00 per week for the period of September 5, 2018 to January 31, 2019?
Is the Applicant entitled to interest on any overdue payment of benefits?
Is the Respondent entitled to interest for the overdue repayment of income replacement benefits?
RESULT
3I find the following:
i. The Respondent agreed to fund the chiropractic treatment plans dated October 13, 2018 and February 22, 2019. The issues are no longer in dispute;
ii. The Applicant is entitled to the treatment and assessment plans dated November 10, 2018 and May 21, 2019, plus interest pursuant to section 51 of the Schedule.
iii. The Applicant is not entitled to the yoga plan dated May 21, 2019 or the chiropractic treatment plan dated October 2, 2019;
iv. The Applicant is not entitled to the unapproved balance of the psychological treatment plans dated December 18, 2018 and July 22, 2019;
v. The Applicant is not entitled to the assessments proposed in treatment plans dated February 15, 2019, February 22, 2019, and October 2, 2019, and February 15, 2022.
vi. The Respondent is not entitled to a repayment of IRBs. No interest is payable related to a repayment.
BACKGROUND
4The Applicant was the driver of a vehicle which was struck from behind while in stop-and-go traffic on an urban highway. Paramedics attended at the scene of the accident, but the Applicant declined transportation to the hospital. He experienced neck and back pain following the accident and started treatment about two days later, pursuant to the Minor Injury Guideline (“the MIG”). The Applicant later developed depressive symptoms as a result of the accident, thus he was no longer subject to the MIG and the $3,500.00 funding limit for a minor injury.
5The Applicant seeks entitlement to the treatment and assessment plans listed as issues in dispute. The onus is on him to demonstrate that they are reasonable and necessary as a result of the accident.
6In addition to the dispute over the Applicant’s entitlement to certain benefits, the Respondent seeks a repayment of income replacement benefits (“IRBs”) paid to the Applicant. With respect to this issue, the onus lies with the Respondent to demonstrate that it is entitled to a repayment of IRBs.
ANALYSIS
7The Applicant submits that following the accident he depended primarily on the practitioners at the treatment facility for care to address his neck and back pain, rather than his family physician. He highlights that he suffers from headaches and decreased functionality with reduced range of motion throughout his neck, back, and shoulders. He also notes that he started consuming prescription pain medication following the accident and continues to do so, and that his ongoing pain impacts his ability to sleep and has reduced his sleeping hours. To the Applicant, the chiropractic treatment plans are reasonable and necessary because the treatment proposed through those plans provides temporary pain relief and some mild improvement in functionality. In addition, the Applicant seeks entitlement to the unapproved balance of the psychological treatment plans and various assessments.
8The Respondent submits that the Applicant has not demonstrated that the treatment plans in dispute are reasonable and necessary. It suggests that, with respect to the physical treatment plans, the Applicant has gained very little benefit from similar treatment and that it would be unreasonable to approve further facility-based treatment. With respect to the psychological treatment plans, the Respondent submits that the dispute pertains to the hourly rate of a social worker providing psychological treatment. Regarding the chronic pain assessment, the Respondent submits that the Applicant does not meet three of the six criteria to warrant a diagnosis of chronic pain and disputes the Applicant’s claims on this issue.
9In its submissions, the Respondent advised that it approved the balance of these chiropractic treatment plans and has since paid the benefits in full. The Applicant had an opportunity to dispute this in reply submissions but chose not to. As a result, I conclude that this issue is no longer in dispute.
10I find these chiropractic treatment plans to be reasonable and necessary as a result of the subject accident.
11Both of these chiropractic treatment plans propose 16 sessions each and include various modalities of care. The plans seek to reduce the Applicant’s pain, increase his strength and range of motion, to return the Applicant to his activities of normal living and employment, and to foster the Applicant’s transition to self-management of his symptoms.
12This plan was denied, based on the IE report of Dr. A. Belfon, dated January 9, 2019, which the Respondent maintains is the case to-date. Dr. Belfon’s report acknowledges that the Applicant has ongoing neck, back, and shoulder pain but finds that it relates to a minor injury. As a result, Dr. Belfon concludes that further facility-based therapy is unlikely to bring about substantial therapeutic gain outside of the parameters of the MIG. I find this opinion unpersuasive given that it was determined that the Applicant sustained injuries that fall outside the minor injury definition. In reality, Dr. Belfon, and the Respondent, denied the Applicant entitlement to this treatment plan based on the funding limit provided by the MIG only, and not based on whether the plan is reasonable and necessary. This position is untenable once the Applicant is no longer subject to the MIG.
13Further, Dr. Belfon’s addendum report, dated April 26, 2019 is equally unpersuasive. In that report, Dr. Belfon opined that the Applicant had not reached maximum medical recovery but felt that he could achieve it by adhering to a diligent home stretching, condition, and walking program with pharmacological management as needed, and with ongoing management from his family physician. If anything, considering the timing of the report – that the Applicant benefitted from months of therapy leading up to it, including this treatment plan in dispute – it favours the Applicant. It demonstrates that the Applicant has ongoing issues as a result of the accident and that he has not reached maximum recovery.
14The other documents in the Applicant’s medical record indicate that this treatment plan is reasonable and necessary. The evidence shows that the Applicant made ongoing complaints of back, neck and shoulder pain to Dr. A. Tsang, his family physician, albeit on an infrequent basis. Nevertheless, the complaints made by the Applicant to Dr. Tsang were sufficient to warrant a referral to Dr. K. Bir, rheumatologist, who recommended an MRI of the entire spine. I struggle to see why Dr. Tsang would refer the Applicant for further investigation if the Applicant did not exhibit ongoing pain symptoms.
15Further, Dr. Bir recommended that the Applicant engage in core/abdominal strengthening exercises and work on posture while waiting for the MRI appointment. The chiropractic treatment plans in dispute were recommended at a time contemporaneous with Dr. Tsang’s referrals to specialists such as Dr. Bir, whose recommendations to engage in strengthening exercise is generally consistent with the goals of the chiropractic treatment plans. The Applicant’s ongoing pain complaints caused Dr. Tsang to refer him for ongoing physiotherapy on July 24, 2019. Accordingly, I find that the chiropractic treatment plans dated November 10, 2018 and May 21, 2019 are reasonable and necessary as a result of the accident.
16I find this yoga treatment plan not reasonable and necessary as a result of the accident.
17This treatment plan proposes 16 yoga sessions, conducted by a massage therapist, at an hourly rate of $100.00. The goals of the plan are virtually identical to the chiropractic treatment plans submitted on the Applicant’s behalf earlier in the year. The Respondent denied the plan on the recommendation of Dr. Belfon who, as noted previously, found that further therapy would be unlikely to provide any substantial gain to the Applicant.
18I find that the Applicant has not met his onus to demonstrate that the yoga plan is reasonable and necessary. He never addressed this plan directly in submissions and never advised of why or how he would benefit from a yoga treatment plan. Further, the Applicant made no submissions on the proposed cost of the plan, which exceeds the maximum hourly rates outlined in the PSG.
19While it is possible that the Applicant would benefit from a yoga program, I am unable to find it to be reasonable and necessary based on the evidence and submissions before me.
20While I have found the previous chiropractic treatment plans to be reasonable and necessary, I find that this plan is not because the goals of the plan are not being met to a reasonable degree.
21I find this chiropractic treatment plan to be not reasonable and necessary because it appears that the treatment was no longer benefitting the Applicant at the time it was submitted. As highlighted by the Respondent, this treatment plan was submitted over a year following the accident and after the Applicant engaged in considerable amounts of treatment including 70 chiropractic sessions, 17 massage therapy sessions, 64 physiotherapy sessions, 71 exercise sessions, and 17 laser sessions. Yet, his subjective complaints continue to be the same. For example, this treatment plan includes the rating that the Applicant assigned to his pain and headaches which is the exact same as at the outset of his injuries, prior to engaging in scores of treatment sessions. It is not reasonable for the Respondent to continue to fund ongoing treatment that is providing no meaningful benefit to the Applicant.
22Additionally, Dr. Belfon assessed the Applicant again in June 2019 and maintained that no further facility-based treatment was reasonable and necessary for the Applicant. In the report dated July 8, 2019, Dr. Belfon concluded that there was no ongoing objective and consistently verifiable indicators of physical impairment related to the subject accident. I reviewed the balance of the Applicant’s medical record, including Dr. Tsang’s clinical notes and records, and find no information to upset Dr. Belfon’s conclusion.
23I find that the Applicant is not entitled to the unapproved balance of these psychological treatment plans.
24These treatment plans proposed psychological treatment to be provided by a social worker at a rate of $135.00 per hour. The Respondent partially approved the treatment plans at an hourly rate of $100.00 per hour.
25Superintendent’s Guideline No. 03/14 (“the PSG”) provides that the maximum hourly rate for psychologists or psychological associates is $149.61 per hour. There is no maximum hourly rate prescribed for social workers, but the PSG provides a maximum hourly rate for unregulated service providers of $58.19.
26I find that the Applicant has not demonstrated that the social worker providing services to her is entitled to a rate of more than $100/hour. Notably, the Applicant’s submissions focus on whether her therapy should include 1.5-hour long sessions, instead of one hour sessions. However, this is not the issue at hand. The treatment plans note that the treatment sessions are scheduled for one hour and a half hour is allocated for planning and documentation for each hour. Thus, her submissions hold no weight as they are inconsistent with the evidence and do not address whether the social worker is entitled to an hourly rate of anything greater than $100.00.
27Otherwise, the Applicant has led no evidence and made no other submissions that indicate that the social worker is entitled to an hourly rate above the PSG. As a result, I find that she has not met her burden to prove entitlement to the unapproved balance of the psychological treatment plans.
28I find that the chronic pain assessment plan is not reasonable and necessary.
29The Applicant submits that his evidence demonstrates that he suffers from chronic pain. He further submits that it is not necessary for him to demonstrate that he probably suffers from chronic pain, but that the assessment is reasonable and necessary to determine whether he suffers from chronic pain. The Respondent submits that a chronic pain assessment is not reasonable and necessary because the Applicant does not meet the criteria for chronic pain syndrome in the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”).
30I find that the chronic pain assessment is not reasonable and necessary because it is unlikely that he suffers from a chronic pain condition. The Tribunal typically considers chronic pain conditions in two ways: whether the person meets three of the six the criteria in the AMA Guides, or whether the person suffers from an ongoing functional impairment due to pain. I find that it is unlikely the Applicant meets either criterion.
31The AMA Guides provide that three of the following six criteria must be met to find that someone suffers from chronic pain syndrome:
a. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
b. Excessive dependence on health care providers, spouse, or family;
c. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;
d. Withdrawal from social milieu, including work, recreation, or other social contracts;
e. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and
f. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
32I find no evidence that suggests that the Applicant would meet three of the six criteria listed above. The Applicant led no evidence indicating that he is abusing or using prescription drugs beyond the recommended duration, he is not dependent on health care providers, and he returned to work as a carpet installer, a physically demanding job, which suggests that he would not meet criteria ‘c’, ‘d’, or ‘e’. At most, the Applicant developed psychosocial sequalae after the initial incident. Evidence of psychological injuries without evidence suggesting that the Applicant meets any of the other criteria is insufficient to render a chronic pain diagnosis, therefore the chronic pain assessment to be reasonable and necessary.
33Similarly, the Applicant has not demonstrated that he suffers form an ongoing functional impairment due to pain. The Tribunal has considered a person’s functionality when assessing whether they suffer from a chronic pain condition or whether a chronic pain assessment is reasonable and necessary. Here, the Applicant has not demonstrated he is impaired by pain. Instead, his evidence demonstrates that he suffered from some ongoing pain symptoms that warranted additional chiropractic treatment but remained independent with all his personal care tasks and returned to work as a carpet installer following the accident.
34While the Applicant is not required to demonstrate that he suffers from a chronic pain condition, at a minimum he must demonstrate that there is a reasonable likelihood that he suffers from one. It would be unreasonable to force the Respondent to fund an assessment for a condition which the Applicant has a very low probability of suffering from. Consider, the aforementioned report by Dr. Belfon, dated July 8, 2019, concluded that the chronic pain assessment was not reasonable and necessary. Dr. Belfon opined that the Applicant had been adequately evaluated and received comprehensive physical rehabilitation and pharmacological management for his predominantly uncomplicated soft tissue injuries.
35Accordingly, I find that the Applicant has not demonstrated that a chronic pain assessment is reasonable and necessary.
36I find that the Applicant has not demonstrated that the functional abilities and in-home assessments are reasonable and necessary.
37The Applicant’s submissions are silent on why the functional abilities and in-home assessments are reasonable and necessary. This alone is sufficient to dismiss his claim for entitlement to these assessments. Whereas the Respondent noted that the Applicant remains independent in self-care and returned to his pre-accident employment within two weeks of the accident. It also highlights that the April 26, 2019 insurer’s examination report of Dr. Belfon and Dr. B. Kucher, neurologist, concluded that the assessments were not reasonable and necessary.
38In light of the absence of evidence and submissions tendered by the Applicant regarding these assessments, and the evidence demonstrating his functionality, I find that the Applicant has not met his onus to demonstrate that the functional abilities and in-home assessments are reasonable and necessary.
Repayment of IRBs in the amount of $4,028.58
39I find that the Respondent is not entitled to a repayment of IRBs. The Respondent holds the burden of demonstrating that it is entitled to a repayment of benefits. However, it made no submissions on this issue and tendered no evidence demonstrating that it is entitled to a repayment of benefits. As a result, the Respondent’s claim for a repayment of IRBs fails. It follows that no interest is payable as no repayment is owed.
Interest
40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that the Applicant is entitled to the treatment and assessment plans dated November 10, 2018 and May 21, 2019, it follows that he is also entitled to interest on any overdue amounts related to these benefits.
CONCLUSION AND ORDER
41On a balance of probabilities, I find the following;
I. The Respondent agreed to fund the chiropractic treatment plans dated October 13, 2018 and February 22, 2019. The issues are no longer in dispute;
II. The Applicant is entitled to the treatment and assessment plans dated November 10, 2018 and May 21, 2019, plus interest pursuant to section 51 of the Schedule.
III. The Applicant is not entitled to the yoga plan dated May 21, 2019 or the chiropractic treatment plan dated October 2, 2019;
IV. The Applicant is not entitled to the unapproved balance of the psychological treatment plans dated December 18, 2018 and July 22, 2019;
V. The Applicant is not entitled to the assessments proposed in treatment plans dated February 15, 2019, February 22, 2019, and October 2, 2019, and February 15, 2022.
VI. The Respondent is not entitled to a repayment of IRBs. No interest is payable related to a repayment.
Released: September 14, 2023
Brian Norris
Adjudicator