Licence Appeal Tribunal File Number: 21-000816/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:
Claire Prescott
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Harry Adamidis
APPEARANCES:
For the Applicant:
Brennan Kahler, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Claire Prescott, the applicant, was involved in an automobile accident on July 12, 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, Insurer, 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 $2,200.00 for a chronic pain assessment, proposed by ALCAT Assessments Inc. in a treatment plan denied on February 24, 2020?
ii. Is the applicant entitled to $2,231.72 for physiotherapy services, proposed by Islington Village Health in a treatment plan dated March 6, 2019?
iii. Is the applicant entitled to $3,912.33 for occupational therapy services, proposed by Shoreham Chronic Pain & Assessment Centre in a treatment plan dated January 10, 2020?
iv. Is the applicant entitled to $1,033.00 ($1,171.99 less $138.99 approved) for assistive devices, proposed by Shoreham Chronic Pain & Assessment Centre in a treatment plan dated October 16, 2020?
v. 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?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to a chronic pain assessment.
4The applicant is entitled to physiotherapy.
5The applicant is entitled to occupational therapy.
6The applicant is not entitled to assistive devices, but is entitled to the $100.00 documentation fee.
7The applicant is entitled to interest.
8The respondent is not liable to pay an award.
ANALYSIS
9To 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.
Chronic Pain Assessment
10The applicant submits that she is entitled to a chronic pain assessment. She has ongoing pain, and the assessment is needed to diagnose her condition and provide treatment recommendations. This plan was denied based on an Insurer’s Examination (“IE”) which opined that there is no objective evidence of an ongoing impairment. The applicant argues that this is not the correct test for justifying a denial.
11The applicant further argues, there is objective evidence in line with the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (“Guides”) which show that the applicant has chronic pain. As well, the chronic pain diagnoses of Dr. Yashida and Dr. Basile confirm that the applicant continues to experience pain post-accident. The applicant submits that this assessment is reasonable and necessary.
12The respondent submits that the applicant has already been extensively assessed. The orthopaedic assessment of Dr. Auguste found there was no compelling evidence of any substantive accident-related impairment. The respondent submits that this is consistent with a clinical note of the applicant’s family doctor which indicates that the applicant sustained minor sprain injuries in the accident.
13Moreover, the respondent argues that at the time of the accident the applicant was receiving nerve block injections for pain arising from a 2015 accident, and that the applicant continues to experience pain because of pre-existing issues and not because of the accident.
14The respondent also disputes that the applicant satisfies the chronic pain criteria in the Guides. The chronic pain assessment is not reasonable and necessary.
15I find that the applicant is not entitled to a chronic pain assessment.
16Dr. Jacqueline Auguste, orthopaedic surgeon, assessed the applicant for an IE on January 16, 2019 and September 15, 2021. In the more recent assessment, Dr. Auguste opined that the applicant’s osteoarthritic back pain was aggravated by the subject accident and that this pain worsened over time due to a pandemic-related recovery setback. She further opines that the applicant has not reached maximal medical improvement. Dr. Auguste also makes extensive treatment recommendations.
17Dr. Vincenzo Santo Basile, neurologist, assessed the applicant for a s.25 examination on August 18, 2022. He also found that the applicant has ongoing pain issues related to the subject accident and makes extensive treatment recommendations.
18According to the applicant, the purpose of the proposed treatment plan is to diagnose her condition and provide treatment recommendations for ongoing pain. This has already been done by two physicians, Dr. Auguste and Dr. Basile.
19The applicant submits that Dr. Auguste is not qualified to assess and recommend treatment for chronic pain. I disagree. Dr. Auguste conducted a detailed examination of the applicant. She provides a diagnosis of the applicant’s accident related pain issues and addresses them with treatment recommendations that are clearly explained and justified. All of this work was completed within the scope of her qualifications as an orthopaedic surgeon. Consequently, I am not persuaded that she is unqualified to assess and recommend treatment for the applicant’s accident related chronic pain.
20In my view, a further assessment would result in the unnecessary duplication of the work already completed by Dr. Auguste and Dr. Basile. Consequently, I find that the applicant has not established, on a balance of probabilities, that this treatment plan is reasonable and necessary.
Physiotherapy
21The applicant submits that she is entitled to physiotherapy. She had been receiving this treatment and her pain was improving. She subsequently decided to incur this treatment, despite the respondent’s denial. Moreover, this was recommended by a number of doctors. This evidence supports the position that this treatment is reasonable and necessary.
22The respondent submits that the applicant’s soft tissue injuries would have healed by March 2019, when this plan was submitted. The treatment plan also calls for a physical re-assessment of the applicant when a physical assessment was already ordered in a previous treatment plan. As well, the doctor recommendations cited by the applicant in her submissions do not specifically reference this treatment plan. Thus, according to the respondent, this plan is not reasonable and necessary.
23I find that the applicant is entitled to this treatment plan.
24The respondent’s position, that the applicant has soft tissue injuries that should have healed by March 2019, is not supported by Dr. Auguste’s IE from September 15, 2021. As noted above, Dr. Auguste opines that the accident aggravated the applicant’s pre-existing back pain, and the applicant has not yet reached maximal medical improvement.
25The treatment plan lists $200.00 for a physical examination and $1,953.72 for therapy. The examination portion is relatively small compared to the physiotherapy itself. Moreover, examining a patient before administering therapy, on the face of it, does not seem excessive or duplicative.
26Consequently, the evidence is enough to find, on a balance of probabilities, that this treatment plan is reasonable and necessary.
Occupational Therapy and Driver Rehabilitation
27The applicant submits that she is entitled to occupational therapy and driver rehabilitation. Medical evidence shows that she has a driving phobia. This treatment is needed for her to overcome her fear and anxiety. She has already made progress with this type of treatment but still needs more occupational therapy. As well, doctors have recommended this treatment. According to the applicant, this plan is reasonable and necessary.
28The respondent agrees that medical experts recommend treatment for driving anxiety but submits that the applicant has already received this type of treatment from an earlier plan, dated August 19, 2019, that was approved. Consequently, according to the respondent, providing the same treatment again constitutes an unnecessary duplication.
29I find that the applicant is entitled to occupational therapy and driver rehabilitation.
30Dr. Goodwin Lau, psychologist, assessed the applicant on March 22, 2022 for an IE. He opined that the applicant is experiencing a number of psychological disorders, including specific phobia associated with driving, as a result of the accident. He further opined that the applicant has not reached maximum medical improvement and she requires treatment for driving anxiety.
31The respondent submits that additional therapy for driving anxiety would duplicate treatment already received by the applicant, and therefore, is unnecessary. I disagree. The evidence shows that the applicant continued to suffer from a psychological disorder even after receiving treatment from a previously approved plan. The evidence also shows that she has not reached maximum medical improvement. In my view, the plan in dispute is not an unnecessary repetition or “duplication” of previous treatment. It is a continuation of treatment that the applicant needs further her recovery. The cost, $3,912.33 for 34 sessions, is reasonable. For all these reasons, I find that this treatment plan is reasonable and necessary.
Assistive Devices
32According to the applicant, she is entitled to assistive devices. This plan was partially approved. The respondent denied three requested items, delivery and installation, and the cost of preparing the plan. The applicant needs these items help to reduce her driver anxiety. As such, the applicant submits that she is entitled to the denied items in the plan.
33The respondent submits that the applicant has not provided evidence to show that she needs the denied items.
34I find that the applicant is not entitled to the outstanding assistive devices, nor the delivery and installation fee, but she is entitled to the $100.00 documentation fee.
35The respondent denied three assistive devices: a seat backrest, back up sensors, and a swivel seat cushion for the applicant’s vehicle. The treatment plan recommends these items to assist her in overcoming driving anxiety.
36The applicant submits that the Future Cost of Care Report of Marla Tennen and Celia Sirianni, registered nurses, recommends the backrest. In fact, they recommend an Obus Forme back support at a cost of $140.00. The report does not provide a reason for the recommendation or an explanation on how this item is to be used. The treatment plan recommends a backrest to support a driver’s adjustable seat in a vehicle at a cost of $225.00. In my view, there is no clear indication that the Future Cost of Care Report is recommending a backrest for applicant’s vehicle.
37The applicant makes submissions on how the driver’s seat backrest, back up sensors, and swivel seat cushion will help her, but she does not point to any evidence that support her submissions. This results in an evidentiary gap as submissions are not evidence. For this reason, I find that the applicant has not established, on a balance of probabilities, that the three assistive devices are reasonable and necessary.
38As the applicant is not eligible for assistive devices in dispute, nor the delivery and installation of the devices fee.
39The applicant submits that $100.00 is a reasonable amount for completing the treatment plan. The respondent made no submissions on this point, but the explanation of benefits letter, dated November 3, 2020, states that $100.00 is not a reasonable fee to compile a list of devices.
40I disagree. The “list of items” is just one part of the OCF-18. The form itself consists of ten pages. In my view, $100.00 is not an exorbitant fee for the time a health care professional needs to properly review and complete this form. Moreover, two of the items in the treatment plan were approved. Consequently, I find that the applicant is entitled to the $100.00 documentation fee.
Interest
41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
42I have determined that the applicant is entitled to two treatment plans and a $100.00 document fee. As such, the applicant is entitled to interest for the overdue payment of these benefits pursuant to s. 51(4) of the Schedule.
Award
43The 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. Provide the basis for the award. Identify the response. Make a finding and provide reasons to support it.
44The applicant submits that the respondent’s denials are unreasonable. There is overwhelming evidence of the applicant’s ongoing impairments, her interest in treatment, and progress made by the applicant through treatment. In particular, the applicant notes that the respondent denied treatment recommended by its own expert, Dr. Lau.
45I find that the respondent is not liable to pay an award.
46I found that the applicant is entitled to two treatment plans and a document fee. I disagree with the respondent’s reasoning for these denials, but this does not make the denials unreasonable. The respondent provided cogent reasons for its decisions.
47The point made by the applicant, that the respondent failed to consider the recommendation its own expert Dr. Lau, in my view, is inaccurate. Dr. Lau assessed a different treatment plan for a similar type of treatment. He did not consider the treatment plan in dispute.
48For these reasons, I find that the respondent is not liable to pay an award.
ORDER
49I order the following:
i. The applicant is not entitled to $2,200.00 for a chronic pain assessment.
ii. The applicant is entitled to $2,231.72 for physiotherapy.
iii. The applicant is entitled to $3,912.33 for occupational therapy.
iv. The applicant is not entitled to assistive devices, but is entitled to the $100.00 documentation fee.
v. The applicant is entitled to interest.
vi. The respondent is not liable to pay an award.
Released: September 26, 2023
__________________________
Harry Adamidis
Adjudicator