Citation: Panchoo v. Aviva Insurance Company of Canada, 2023 ONLAT 21-006856/AABS

Licence Appeal Tribunal File Number: 21-006856/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:

Gary Panchoo

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: Gary Panchoo, Applicant Tina Lubman, Paralegal

For the Respondent: Aimee Draper, Counsel

HEARD: In Writing July 5, 2023

OVERVIEW

1Gary Panchoo, the applicant, was involved in an automobile accident on May 9, 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 of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant submits that as a result of the accident he suffers from intermittent neck, low back, and bilateral hip pain, left leg pain, headaches a few times per week, anxiety, depression, and sleeping difficulties.

PRELIMINARY ISSUES

3The preliminary issue in dispute is:

i. Is the applicant barred from seeking a neurological assessment (issue v.) for failing to attend a section 44 insurer’s examination, pursuant to section 55 of the Schedule?

ISSUES

4The substantive issues in dispute are:

i. Is the applicant entitled to $2,635.40 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 submitted on December 7, 2020 and denied on December 18, 2020?

ii. Is the applicant entitled to $2,893.02 for psychotherapy, proposed by 101 Assessments Inc. in a treatment plan submitted on February 5, 2021 and denied on February 19, 2021?

iii. Is the applicant entitled to $2,460.00 for a driver evaluation, proposed by Lital Grinberg in a treatment plan submitted on March 29, 2021 and denied on April 12, 2021?

iv. Is the applicant entitled to $2,460.00 for a neuropsychological assessment, proposed by Ilya Gladshteyn in a treatment plan submitted on February 8, 2021 and denied on February 22, 2021?

v. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessments Inc. in a treatment plan submitted on September 13, 2021 and denied on September 27, 2021?

vi. Is the applicant entitled to $4,390.64 for a COGMED assessment/treatment, proposed by 101 Assesments Inc. in a treatment plan submitted on February 7, 2021 and denied on February 22, 2021?

vii. Is the respondent liable to pay an award under s.10 of O.Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

5The applicant is not entitled to $2,635.40 for chiropractic services.

6The applicant is entitled to $2,893.02 for psychotherapy.

7The applicant is not entitled to $2,460.00 for a driver evaluation.

8The applicant is entitled to $2,460.00 for a neuropsychological evaluation.

9The applicant is barred from proceeding with the disputed $2,460.00 for a neurological assessment because he failed to attend properly scheduled s. 44 assessments, pursuant to s. 55(1)2 of the Schedule.

10The applicant is entitled to $4,390.64 for a COGMED assessment and treatment.

11The respondent is not liable to pay an award under s.10.

12The applicant is entitled to interest for those treatment plans that I have found to be reasonable and necessary.

ANALYSIS

Is the applicant entitled to $2,635.40 for chiropractic services?

13I find that the applicant is not entitled to $2,635.40 for chiropractic services as it is not reasonable or necessary.

14The plan proposes 12 session of chiropractic, 12 session of active therapy, 12 session of physiotherapy, and 12 sessions of massage therapy more than 1.5 years after the date of the accident.

15The applicant submits that treatment for physical injuries can have a positive effect on psychological injuries and vice-versa and relies on the August 2022 clinical notes from his family physician, Dr. Jackey Chen. Dr. Chen noted that the applicant continued to suffer from chronic headache, shoulder, back, and leg pain as a result of the accident. Dr. Chen also noted that the applicant’s headache/dizziness and cognitive decline persisted, and that a SPECT scan revealed brain perfusion defects consistent with a traumatic brain injury (“TBI”). The applicant submits that the respondent’s orthopedic assessment of Dr. Erin Boynton in February 2020 represents but a snapshot in time, and that his injuries have evolved and changed.

16The respondent relies on Dr. Boynton’s report. Dr. Boynton found that the applicant had no objective evidence of ongoing orthopaedic, musculoskeletal, or neurological impairment. His physical examination was essentially normal. Dr. Boynton concluded that the applicant had reached maximum medical recovery and did not require any further facility-based treatment, specifically chiropractic or massage therapy. She recommended that he continue with his home exercise program.

17I have also considered the chronic pain assessment report of Dr. Michael Gofeld, pain specialist, dated March 2020. Dr. Gofeld found that it was unlikely that the accident caused the applicant’s low back and hip/leg pain, but based on the mechanism of injury (rear ended), it was more likely than not that his headaches and neck pain were directly related to accident.

18I am persuaded by Dr. Gofeld’s finding that it was unlikely that the accident caused the applicant’s low back and hip/leg pain given the mechanism of injury, and Dr. Boynton’s finding of no objective evidence of ongoing musculoskeletal or neurological impairment months before the treatment was proposed. While Dr. Chen did note that the applicant’s headaches and cognitive decline persistent in 2022, and that a SPECT scan of the applicant’s brain revealed perfusion defects, the proposed physical treatment would not impact those conditions. I agree with Dr. Boynton that primarily passive, facility-based physical treatment over 1.5 years after the accident would be of limited benefit compared to an active home exercise program.

Is the applicant entitled to $2,893.02 for psychotherapy services?

19I find that the applicant is entitled to $2,893.02 for psychotherapy services as it is reasonable and necessary.

20The disputed plan proposes eight 1.5 hour psychotherapy treatment sessions plus an additional two hours for evaluation, and four hours to draft a progress report.

21The applicant submits that Dr. Peter Waxer, psychologist, concluded in September 2019 that he was suffering from an adjustment disorder with mixed anxiety and depressed mood, somatic symptom disorder with predominant pain, and vehicular phobia. Dr. Waxer reported that the applicant’s psychological difficulties were sufficiently severe that psychological treatment would be considered necessary and reasonably required. The applicant also relies on the psychological

22In denying the proposed plan, the respondent relies on the neuropsychological report of Dr. Mohammad Nikkhou. In November 2019, he found that there was no objective evidence of a psychological diagnosis, condition, or impairment, and that psychotherapy was not reasonable or necessary. Dr. Nikkhou diagnosed the applicant with subclinical features of adjustment disorder with mixed anxiety and depressed mood. He also noted that the applicant displayed symptom exaggeration in reporting his symptoms based on validity testing results. However, Dr. Nikkhou also noted that the applicant reported ongoing nightmares, feelings of sadness and fatigue, sleep disturbances, memory difficulties, and concern about his post-accident health.

23The respondent also relies on the medical note from Dr. Henry Thai. In February 2020, Dr. Thai noted that the applicant had no neurological symptoms, his sleep was “ok”, and that he had no recent nightmares/flashbacks.

24This is the first plan proposing psychotherapy treatment for the applicant. While I am mindful that there has been noted by Dr. Nikkhou about the applicant’s exaggeration of his psychological symptoms, the applicant has consistently reported anxiety to his assessors related to the accident itself, re-injury, and his current health status. Specifically, Dr. Nikkhou reported that the applicant expressed ongoing nightmares, feelings of sadness and fatigue, concern about various health issues, sleep disturbances, and memory difficulties.

25I find that the proposed treatment is reasonable and necessary to explore the applicant’s ongoing psychological symptoms.

Is the applicant entitled to $2,460.00 for a driver evaluation?

26I find that the applicant is not entitled to $2,460.00 for a driver evaluation as it is not reasonable or necessary.

27The applicant relies on the psychological assessment of Dr. Waxer, who diagnosed the applicant with specific phobia, vehicular. Dr. Waxer noted that the applicant reported ongoing anxiety related to operating a vehicle and that he was agitated while driving. He avoided driving during rush hour and was also anxious as a passenger. Dr. Waxer was of the opinion that the applicant would benefit from a driver evaluation to determine the necessity of treatment so that he could overcome his fears and concerns related to driving.

28The respondent relies once again on the November 2019 neuropsychological assessment report of Dr. Nikkhou. Dr. Nikkhou reported that the applicant was able to drive and did not have any problems concentrating on driving. He determined that there was not enough objective supporting evidence for a diagnosis of a specific phobia or vehicular anxiety. As a result, the proposed driver evaluation was not reasonable or necessary. The respondent submits that the applicant denied vehicular anxiety during his assessment with Dr. Nikkhou and resumed driving shortly after the accident without modification or restriction. He also reportedly advised Dr. Nikkhou that he did not need driving rehabilitation even though he felt concerned and anxious about being in another accident.

29While I accept that the applicant suffers some psychological symptoms as a result of the accident, I find that they can best be addressed through the proposed psychotherapy that I have found to be reasonable and necessary. I am persuaded by Dr. Nikkhou’s report that the applicant returned to driving shortly after the accident and he denied vehicular anxiety during the assessment. Additionally, the applicant advised Dr. Nikkhou that he did not require driving rehabilitation. For these reasons, I find that the proposed driver evaluation is not reasonable or necessary.

Is the applicant entitled to $2,460.00 for a neuropsychological assessment?

30I find that the applicant is entitled to $2,460.00 for a neuropsychological assessment as it is reasonable and necessary. The assessment was incurred when Dr. Ilay Gladshteyn, psychologist, assessed the applicant and provided a report dated December 30, 2021.

31The applicant submits that he did not loss consciousness, have post-concussive symptoms, or strike his head upon impact during the accident. However, a distortion of the meninges of the brain, without hitting one’s head or losing consciousness can lead to serious brain injuries and sequelae. In fact, Dr. Gladshteyn found that the applicant was suffering from a major cognitive disorder and that he continued to experience significant cognitive difficulties. Dr. Chen echoed this sentiment in August 2022. Dr. Chen noted that the applicant continued to suffer from cognitive decline and that there was objective evidence of an accident-related traumatic brain injury (“TBI”), based on SPECT scan findings.

32The respondent relies on the neurological report of Dr. Kucher and the neuropsychological report of Dr. Nikkou. They found that there was no evidence of any neurological, psychological, or cognitive impairments. The respondent also submits that according to the psychological report of Dr. Shayna Nussbaum, any of the applicant’s cognitive difficulties would have resolved within one year of the accident, and so any further treatment beyond that date would not be reasonable or necessary.

33I am persuaded by Dr. Gladshteyn’s finding and the SPECT scan results which objectively support that the applicant suffered a TBI as a result of the accident. Both Dr. Gladshteyn and Dr. Chen have noted the applicant’s ongoing psychological and cognitive impairments, and as a result I find that I find the proposed treatment plan to be reasonable and necessary.

Is the applicant barred for s. 44 non-compliance, or is he entitled to $2,460.00 for a neurological assessment?

34I find that the applicant is barred from pursuing $2,460.00 for a neurological assessment pursuant to s. 55 of the Schedule.

35Section 55(1)2 of the Schedule sets out that an insured person shall not apply to the Tribunal if the insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44, but the insured person has not complied with its request for attendance. Section 44 sets out that an insurer may require an insured person to be examined to assess entitlement to a benefit but not more than is reasonably necessary. A notice under s. 44(5) must state the medical and any other reasons for the examination, whether the insured’s attendance is required, the name, title, and designation of the person conducting the IE and the date, time, and location of same.

36The respondent provided sufficient medical reasons in denying the proposed assessment. Those reasons included Dr. Boynton’s finding that there was no evidence of radiculopathy, and Dr. Thai’s medical note in February 2020 indicating that the applicant had no neurological symptoms.

37The respondent submits that the applicant was scheduled to attend a s. 44 IE assessment on December 21, 2021, but he refused. The assessment was re-scheduled at the applicant’s request to July 2022 and then again to September 2022, but the applicant refused to attend both re-scheduled assessments. All notices to the applicant indicated that his attendance was required, and included the assessor’s name, date, time, and location of the assessments.

38The applicant submits that he had legitimate and reasonable reasons for re-scheduling the missed IE examinations related to this issue in dispute. Specifically, the applicant took the position that the respondent was acting in bad faith in denying the proposed neurological assessment and that the proposed assessment was necessary for the medical management of the file. As a result, the applicant refused to attend the s. 44 neurological assessments.

39I find that Aviva’s IE request was reasonably necessary to assess the applicant’s entitlement, and that its notices were proper under the Schedule. Dr. Boynton and Dr. Thai found no evidence of neurological injury that would warrant a neurological assessment. I also find that the applicant’s reason for non-attendance was not a reasonable one. Aviva made attempts to accommodate the applicant by scheduling and re-scheduling the s. 44 IE on three separate occasions.

40Where the applicant has not provided a reasonable explanation for his non-attendance, it follows that he is statute-barred from proceeding with his claim for the proposed neurological assessment under s. 55(1)2.

Is the applicant entitled to $4,390.64 for a COGMED assessment/memory training?

41I find that the applicant is entitled to $4,390.64 for a COGMED assessment/rehabilitation as it is reasonable and necessary.

42The disputed plan recommends 24 sessions of cognitive rehabilitation training, file review, and a progress report. The goal of the proposed treatment/assessment is to improve the applicant’s working memory, concentration, and sustained/divided attention.

43The applicant relies on the December 2021 neuropsychological assessment report of Dr. Ilya Gladshteyn and 2022 SPECT scan findings and clinical notes from Dr. Chen. Dr. Gladshteyn diagnosed the applicant with a major cognitive disorder and noted that the applicant was experiencing significant cognitive difficulties such as reduced memory, concentration, and attention as a result of the accident. In August 2022, Dr. Chen noted that a July 17, 2022 SPECT scan report of the applicant’s brain revealed perfusion defects in the anterior temporal/inferior frontal area that were consistent with a TBI. The applicant submits that these findings objectively support that the proposed treatment is both reasonable and necessary to improve the applicant’s accident-related cognitive impairments.

44The respondent submits that there is no evidence of any accident-related traumatic brain injury or cognitive disorder according to the July 7, 2022 psychological assessment report of Dr. Shayna Nussbaum. Dr. Nussbaum, however, was not able to consider the SPECT scan findings at the time of her assessment.

45I am persuaded by Dr. Gladshteyn’s report, Dr. Chen’s note, and the SPECT scan findings. The SPECT scan results would not have been available to Dr. Nussbaum when she concluded that there was no evidence of any accident-related traumatic brain injury. Dr. Chen’s note also confirms that the applicant’s headaches/dizziness and cognitive decline continued into August 2022, with no contributory pre-accident conditions. For these reasons, I find that the proposed COGMED assessment/treatment is reasonable and necessary.

Interest

46I find that the applicant is entitled to interest related to all treatment plans deemed reasonable and necessary pursuant to s. 51 of the Schedule. S. 51 sets out that interest applies on the payment of any overdue benefits.

Award

47I find that an award is not appropriate. The 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. The test for an award is whether the insurer’s behaviour is excessive, imprudent, stubborn, inflexible, or unyielding.

48The applicant submits that the respondent failed its ongoing obligation to adjust the file, and that the applicant had purchased additional option policy coverage. As a result of the respondent’s decision to deny entitlement, the applicant has had significant barriers to his potential recovery and has incurred unnecessary costs.

49While I find that some of the issues in dispute are reasonable and necessary, the applicant has not demonstrated that Aviva’s conduct meets the threshold to warrant a s. 10 award.

ORDER

50The applicant is not entitled to $2,635.40 for chiropractic services.

51The applicant is entitled to $2,893.02 for psychotherapy.

52The applicant is not entitled to $2,460.00 for a driver evaluation.

53The applicant is entitled to $2,460.00 for a neuropsychological evaluation.

54The applicant is barred from proceeding with the disputed $2,460.00 for a neurological assessment because he failed to attend properly scheduled s. 44 assessments, pursuant to s. 55(1)2 of the Schedule.

55The applicant is entitled to $4,390.64 for a COGMED assessment and treatment.

56The respondent is not liable to pay an award under s.10.

57The applicant is entitled to interest for all of the treatment plans in dispute that I have found to be reasonable and necessary.