Diana Lara Arias v. Economical Insurance Company, 2023 CanLII 9227

Citation: Arias v. Economical Insurance Company, 2023 ONLAT 20-013206/AABS

Licence Appeal Tribunal File Number: 20-013206/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:

Diana Lara Arias

Applicant

and

Economical Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephanie Kepman

APPEARANCES:

For the Applicant: Arthur Semko, Student-at-law and Paralegal

For the Respondent: Modasir Rajabali, Counsel

Heard: By way of written submissions

BACKGROUND

1The applicant was injured in an automobile accident on November 14, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 ("Schedule")¹. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal").

PRELIMINARY ISSUE

Award

2The respondent submitted that the issue of a special award had not been raised with any notice, and therefore, should not be allowed to be added to the issues in dispute. The applicant submitted that the Tribunal has determined that the issue of an award can be raised at any point during a proceeding.

3After considering the submission of the parties, I agree with the applicant and find that the issue of an award can be added at any point in the proceeding, as seen in 16-004312 v Aviva Insurance Canada². I agree that the respondent has not shown me any section of the Schedule or provided persuasive case law that supports its position, and therefore, the issue of an award shall be added to the issues in dispute.

ISSUES

4The following issues are before the Tribunal:

a. Is the applicant entitled to physiotherapy services proposed by Alpha Physiotherapy and Rehabilitation Centre, as follows: i. $3,528.75, in a treatment plan (plan) dated July 24, 2020; ii. $3,476.76, in a plan dated February 18, 2021; and, iii. $2,746.52, in a plan dated June 17, 2021?

b. Is the applicant entitled to $2,460.00 for a Psychological Assessment, proposed by Knead Wellness in a treatment plan dated February 26, 2020?

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

d. 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?

e. Is the applicant entitled to costs from the respondent?

Disputed Treatment Plans

Physical therapy plans

5Sections 14 and 15 of the Schedule state that an insurer shall pay medical benefits to, or on behalf of an insured so long as said person sustains an impairment as a result of an accident and that the medical benefit in dispute is a reasonable and necessary expense incurred by the insured as a result of the accident.

6The applicant sought payments for 3 treatment plans ("OCF-18"s), dated July 24, 2020, February 28, 2021, and June 17, 2021, for physiotherapy, chiropractic services, an active exercise program and massage therapy. Since all 3 of these OCF-18s deal with the same treatment provider, with similar treatment and goals, I will address them all at once.

7The applicant submitted that prior to her accident, she lived with pre-existing, physical conditions that were exacerbated by her accident, and suffered soft tissue injuries that require physical therapy. Therefore, the disputed OCF-18s are reasonable and necessary.

8The applicant relied on her disability certificate ("OCF-3") authored by Dr. Paul Virk, chiropractor, and found she suffered an injury of the muscle and tendon at the neck and thorax level and lower back, sprain and strain of the shoulder joint, rotator cuff capsule, medial collateral ligament of the knee – bilateral, radiculopathy, disorders of the initiation and maintaining of sleep – insomnias, general anxiety disorder, headache and dizziness and giddiness as a result of her accident.

9The applicant argued that the goals of the OCF-18s, were to reduce her pain, increase her range of motion, and strength, functional restoration, avoid recurrence and patient education are all valid goals.

10The applicant also relied on the clinical notes and records ("CNR"s) of her former family doctor, Dr. Harjeet Dhanoa, which captured the applicant's ongoing complaints of neck and back from the accident. The applicant was diagnosed with a whiplash injury and soft tissue injury to her neck and upper back. The applicant was referred to physiotherapy, and massage therapy.

11The applicant also relied on the CNRs of her current family physician, Dr. Siobhan Cheema, where³ the applicant continued complaining of her back pain for a period of 5 years as well as knee and leg pain. She reported her pain was interfering with her activities of daily living ("ADL"s) including sleeping doing chores, and lifting. The applicant was referred to physiotherapy and massage. In 2021, Dr. Cheema referred the applicant to Dr. Harminder Bajaj, internal medicine specialist, due to her ongoing pain. Dr. Bajaj assessed the applicant⁴ and diagnosed her with chronic, low back pain, bilateral facet joint strain, bilateral sciatica, bilateral sacroiliac joint strain/dysfunction, chronic, bilateral shoulder pain, bilateral, suprascapular nerve strain/neuritis, chronic neck pain/cervicogenic pain, bilateral occipital neuritis and myofascial pain. Dr. Bajaj found that treatment options for the applicant included "pharmacotherapy, physio/rehab, phycological management and role of nerve blocks was discussed in detail".

12The applicant also relied on the section 25 Chronic Pain Assessment⁵ of Dr. Igor Wilderman, family medicine specialist, which diagnosed the applicant with chronic pain syndrome, fibromyalgia, chronic whiplash associated disorder – type ii ("WAD – II"), mechanical lower back pain pattern I – lumbago, bilateral sacroiliac joint dysfunction, bilateral trochanteric bursitis, bilateral piriformis syndrome, bilateral post-traumatic osteoarthritis of the ankle, post-traumatic chronic headaches, bilateral temporomandibular joint ("TMJ") syndrome, and bilateral internal derangement of the knee joint. The applicant submitted that the disputed OCF-18s were supported by Dr. Shanoa, Dr. Cheema, Dr. Bajaj, and Dr. Wilderman.

13The applicant also relied on the Insurer's Examination ("IE") of Dr. Alfonse Marchie, physical medicine and rehabilitation specialist, where the doctor noted: "On the other hand changing position as well as Lyrica/physical therapy/chiropractic and stretching appears to be helpful".

14The respondent disagreed that the 3 OCF-18s in dispute were reasonable and necessary. The respondent submitted that the injuries noted by Dr. Virk in the applicant's OCF-3 were not confirmed via her clinical notes and records and therefore, should be afforded no weight.

15The respondent also submitted that Dr. Dhanoa originally diagnosed⁶ the applicant with whiplash, and soft tissue injuries to her neck and upper back and did not specifically address the disputed OCF-18s.

16The respondent also relied on its IE report from Dr. Marchie, where the doctor found that the applicant suffered soft tissue injuries as a result of her accident and that she had reached maximum medical recovery. Based on this, the doctor opined that further passive therapy was not reasonable or necessary. The respondent also noted that Dr. Marchie opined that the applicant had signs of mild, trochanteric bursitis, knee pain and possible, bilateral, carpal tunnel syndrome, which were not accident related.

17The respondent also disputed Dr. Wilderman's diagnosis of chronic pain syndrome and submitted that the onus is on the applicant to prove to the Tribunal she suffers from chronic pain or chronic pain syndrome.

18The respondent relied on the decision 17-007825 v Aviva Insurance Canada⁷, where the Tribunal chose to adopt the six criteria of the American Medical Association⁸ ("AMA Guides"), which states that at least three of the six criteria must be met for a diagnosis of chronic pain. The respondent submitted that the applicant has not provided evidence to show that she meets three of the above six criteria.

19Though the respondent noted that the applicant had long-standing complaints regarding pain, she has not fulfilled the AMA Guides for demonstrating that she suffers from chronic pain. The respondent relied on R.J. v Pembridge Insurance Company⁹, where the Tribunal found that living with ongoing pain was not persuasive itself to remove an applicant's claim from the Minor Injury Guideline and objective testing was required to corroborate this position. The Tribunal also found that a functional impairment must be present.

20The respondent submitted that this matter applied to the subject matter, as she has not been diagnosed with chronic pain and has suffered a functional impairment as a result of her accident. Instead, the respondent argued that the applicant works full-time and has no limitations, despite her alleged condition.

21With respect to the report and findings of Dr. Wilderman, the respondent argued it should be afforded little weight; It submitted that Dr. Wilderman's diagnosis of fibromyalgia was not supported by the applicant's contemporaneous medical records.

22The respondent also argued that the applicant's pains in her knees, hips, hands and wrists were not related to her accident. The respondent relied on the IE¹⁰ of Dr. Alfonse Marchie, physical medicine and rehabilitation specialist. In this report, the applicant stated that these injuries were caused by an unrelated fall and due to her employment as a teacher. The respondent also relied on the clinical notes and records¹¹ of Dr. Cheema, where the applicant confirmed this and was advised to have her left ankle assessed for a torn ligament, which the respondent submitted was not investigated.

23The respondent relied on the "but for" causation test of Sabadash v. State Farm et al.¹², and argued that based on a balance of probabilities, the applicant's above-mentioned intervening fall and her continued, sedentary work results in the applicant's non-accident injuries and symptomology.

24Since the applicant carries the burden of showing that the disputed treatment is reasonable and necessary, and has not, the respondent submitted that the request related to the disputed OCF-18s should be dismissed.

25The applicant submitted that 17-007825 was not relevant to the current matter, as this decision created what the applicant described as a "2-tier chronic pain" system, with tier 1 being reporting ongoing pain beyond the three to six-month period of recovery and tier 2, comprising of tier 1's pain plus evidence of the pain impacting the applicant's well-being, as seen in the AMA Guides. The applicant relied on the matter of Barroilhet v. Aviva General Insurance¹³, where this was summarized. The applicant submitted that she meets the criteria for tier 1 chronic pain and has been removed from the MIG on the basis of her psychological injuries.

26In terms of the AMA Guides, the applicant relied on Dr. Wilderman's report¹⁴, and submitted that the doctor noted:

i. The doctor noted that the applicant was taking Lyrica and her drug use was not considered excessive or abusive. ii. The applicant reported that she was attending her regular, medical appointments. However, the applicant reported she no longer participated in of daily living ("ADL's") and needed help from her family to complete these tasks. She also reported stopping her pre-accident activities such as dancing, hiking, and sewing due to her pain. iii. Dr. Wilderman noted that the applicant reported a decrease in her ADLs, which he opined has resulted in deconditioning and aggravation of her impairments as well as a withdrawal from her social milieu and recreation. iv. Withdrawal from social milieu, including work, recreation, or other social contracts.

27I find that the applicant has not shown that the disputed OCF-18s for physiotherapy are reasonable and necessary. I did not find the applicant's OCF-3 useful beyond capturing the applicant's history of her pain. I agreed that Dr. Dhanoa captured the applicant's complaints of her neck and back pain as a result of the accident and the doctor's diagnosis of a whiplash injury and soft tissue injury to the applicant's neck and back. I also agreed that the applicant's clinical notes and records from Dr. Cheema captured the applicant's continued complaints of her back pain and self-reporting that passive therapy provided her with temporary relief.

28In terms of the applicant's argument that the disputed OCF-18s were reasonable and necessary and supported by Dr. Shanoa, Dr. Cheema, Dr. Bajaj and Dr. Wilderman, I disagreed; when reading the evidence relied upon by the applicant, none of the doctors specifically recommended the disputed OCF-18s. Instead, the doctors made general comments with respect to passive therapy and not if the applicant required further passive therapy, what kind, how many sessions and for how long. I echo this comment with respect to Dr. Marchie's finding that physical therapy was helpful.

29However, I did agree that the doctors CNRs did capture the applicant's long-standing issues and complaints related to her neck, back and right leg pain and found that these records supported Dr. Wilderman's findings.

30I did accept that some of the applicant's pain may have been related to her fall and employment, as captured by Dr. Marchie and Dr. Cheema. However, I disagreed with the respondent's position that her back, right leg and neck pain were unrelated to her accident, When reviewing the applicant's CNRs as a whole, have been the sites of her longstanding pain. Therefore, I accepted that the applicant's pain in these areas is accident related.

31I was persuaded by Dr. Wilderman's findings that the applicant suffers from chronic pain syndrome. After reviewing the evidence, I do agree that the doctor assessed the applicant using the AMA Guides and found she suffers from chronic pain syndrome and found these findings persuasive. Dr. Wilderman correctly interpreted the AMA Guides and found that the applicant fulfilled three of the six criteria. The doctor also found that she had not reached maximum medical recovery.

32However, I also noted that the doctor recommended that the applicant find effective pain management and recommended she enter a multimodal treatment plan which incorporates passive therapy. This is not the proposed OCF-18 and instead, was recommended as a component of a multimodal treatment plan. Since I was not provided with specific medical evidence that speaks to the reasonableness and necessity of the applicant receiving these specific OCF-18s for physical therapy, she has not met her evidentiary burden.

Psychological Assessment

33Section 25 of the Schedule states that insurers shall pay the reasonable costs of examinations/assessments on behalf of an insured person and that the maximum rate for said assessment shall be $2,000.00 plus tax.

34The applicant submitted that her OCF-18 for a psychological assessment with Ms. Singh, was reasonable to address her accident-related psychological impairments. The applicant also limited her claim to the amount of $2,000.00 plus Harmonized Sales Tax ("HST").

35The applicant relied on the section 25 Psychological Report¹⁵ of Mandeep Singh, psychological associate, and was diagnosed with adjustment disorder with mixed anxiety and depressed mood – persistent and specific phobia, situation type – travelling in a motor vehicle. She submitted that this report shows that the applicant required the disputed assessment.

36The applicant submitted that before her accident, she was treated by Dr. Colleen Blake-Miller. Unfortunately, as Dr. Blake-Miller does not participate in the Health Claims for Auto Insurance ("HCAI") system, the applicant was not able to receive treatment from the doctor. The applicant submitted she was not aware of this, and that had she had known this would delay her assessment, she would have worked with another specialist who was enrolled in HCAI.

37The applicant submitted that the disputed OCF-18 was denied based on a letter of August 20, 2020, where IE assessor Dr. Siegel found that the OCF-18 for a psychological assessment was not reasonable and necessary. The applicant submitted that this was because the service was considered duplicative, as the applicant already attended psychological counselling with Dr. Blake-Miller who recommended the applicant receive an additional twelve sessions of such for her accident-related injuries.

38The applicant submitted that the respondent only advised her of the HCAI issue on February 17, 2021, and as a result, was forced to incur the disputed OCF-18 herself.

39The applicant also relied on the CNRs of Dr. Cheema, which she submitted supports her diagnoses and supports the reasonableness and necessity of the disputed OCF-18.

40The respondent submitted that the OCF-18 for a psychological assessment was not reasonable and necessary. It argued that the issue of the applicant suffering a psychological impairment as a result of her accident was not the issue at hand, but rather, that an assessment with Ms. Singh was not reasonable.

41The respondent submitted that the applicant filed three applications with the Tribunal, which were all joined at the case conference and discussed Dr. Siegel's recommendation that the applicant receives further psychological treatment and not an assessment. The respondent argued it received 2 OCF-18s for psychological treatment; one from Dr. Radhika Sundarakrishnan, psychologist, for psychological treatment, which is not in dispute. The second OCF-18 requested treatment with Ms. Singh. The respondent submitted that the applicant preferred counselling with Dr. Sundarakrishnan, and this OCF-18 was approved, and the OCF-18 for treatment with Ms. Singh was withdrawn by the applicant.

42The respondent submitted that there is no reason for the applicant to require a psychological assessment; she was already receiving psychological treatment from Dr. Blake-Miller, had been removed from the Minor Injury Guideline ("MIG") on this basis and wished to continue treatment with Dr. Blake-Miller or Dr. Sundarakrishnan. The respondent submitted its denial of the disputed OCF-18 addressed the lack of need for a psychological assessment, and it has continued funding the applicant's psychological treatment with Dr. Sundarakrishnan.

43The respondent also noted that based on section 47 of the Schedule, Manulife is the first payer with respect to incurred expenses by the applicant.

44The applicant submitted that the issue of arguing that her psychological assessment is duplicative indicates the paradoxical nature of the Schedule. Moreover, the respondent's position that subjecting the applicant to an IE creates a duplication of services is unfair to the applicant, as the respondent chose the deny the applicant the assessment.

45Instead, the applicant submitted that based on 16-001944¹⁶, where the Tribunal found that the correct standard of proof for the applicant to satisfy is based on a balance of probabilities if the assessment is reasonable and necessary. The applicant submitted that as Dr. Blake-Miller did not conduct an assessment or treat the applicant after her accident, the applicant did not receive the disputed service.

46The applicant argued she did not state she did not wish to be assessed by Ms. Singh, but instead was forced to submit two OCF-18s for psychological treatment after the respondent denied her first OCF-18 with Dr. Sundarakrishnan.

47I find that the applicant is not entitled to the OCF-18 for a psychological assessment, as it is a duplicative service. After reviewing the evidence and submissions of the parties, the applicant submitted OCF-18 for a psychological assessment on February 26, 2020, and the respondent denied it on April 1, 2020.

48Though the applicant could have incurred the OCF-18 after the eleventh day of non-compliance by the respondent, as the respondent corrected the issue via a valid request for an IE, this issue is moot with respect to section 38(8) of the Schedule but can be considered in the section in relation to an award.

49The applicant then was assessed by the respondent's assessor Dr. Siegel on July 30, 2020, and his report was authored on August 13, 2020. Dr. Siegel diagnosed the applicant with adjustment disorder with mixed symptoms of depression and anxiety and recommended the applicant receive further counselling.

50I fail to see the purpose of the applicant's section 25 assessment with Ms. Singh on April 25, 2021, or less than a year after Dr. Siegel's assessment. Had Dr. Siegel not found that the applicant suffered a psychological impairment, I would have understood the reason to obtain a competing, independent report to continue to investigate the applicant's impairment.

51However, Ms. Singh's report is similar to Dr. Siegel's, as one would expect, and diagnoses the applicant with adjustment disorder with mixed anxiety and depressed mood – persistent and specific phobia – situational type – travelling in a motor vehicle. I was surprised that the applicant chose to incur this assessment prior to the respondent's approval, despite already receiving a formal diagnosis from Dr. Siegel and a recommendation for treatment.

52Though I certainly empathize with the applicant's desire to investigate and explore her psychological impairments as a result of her accident, unless some intervening act occurred between Dr. Siegel and Dr. Singh's report, I cannot find that a subsequent assessment is reasonable.

Interest and award

53Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

54Section 10 of R.R.O. 1990, Regulation 664, Automobile Insurance states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to the insured person may award a lump sum of up to fifty percent of the amount to which the insured person was entitled to at the time of the award, with interest, on all amounts owing to the insured person.

55The applicant made submissions with respect to issues with section 38(8) of the Schedule and the alleged late approval of an OCF-18. However, since I have found that no benefits are outstanding, no interest or award can be given. Therefore, I will not consider this issue. The applicant is not entitled to interest or an award.

COSTS

56The applicant also requested costs in her submissions, due to the respondent's unreasonable, frivolous, vexatious or bad faith actions during the proceeding, pursuant to Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure – October 2, 2017, as amended ("Rules").

57Rule 19.2 provides that a request for costs can be made in writing or orally. Rules 19.4 states that a party must provide the reasons and particulars for costs. Rule 19.6 provides that the amount for costs shall not exceed $1,000.00 per full day of attendance at a motion, case conference or hearing.

58The applicant submitted that the respondent had no basis to deny the OCF-18 of Dr. Sundarakrishnan, which caused her to be forced to file subsequent applications. Therefore, the respondent acted unreasonably, frivolously, and in bad faith and therefore warrants costs. The applicant did not specify the amount of costs she sought.

59The respondent did not address this issue.

60I find that the applicant is not entitled to costs. The applicant has not provided persuasive evidence that the respondent's denial of the OCF-18 rises to the level of serious action contemplated by Rule 19. Moreover, this denial was provided outside of the hearing process, and therefore, is not subject to Rule 19's authority.

61Therefore, no costs shall be ordered.

Order

62The applicant is not entitled to any of the benefits in dispute, nor to interest, nor an award, nor costs. I dismiss the application entirely.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Ibid.
3. 3Clinical notes and records of Dr. Cheema dated July 17, 2020.
4. 4Report of Dr. Bajaj dated March 20, 2021.
5. 5Independent Medical Evaluation of Dr. Wilderman dated August 10, 2021.
6. 6Clinical notes and records of Dr. Dhanoa dated December 18, 2019.
7. 717-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT) at para. 6.
8. 8American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp.23-24,
9. 9R.J. v Pembridge Insurance Company, 2020 CanLII 80289 (ON LAT) at para 23, 23 and 24
10. 10Independent Physiatry Evaluation of Dr. Marchie dated May 14, 2021.
11. 11Clinical notes and records of Dr. Cheema dated July 15, 2020.
12. 12Sabadash v. State Farm et al. 2019 ONSC 1121.
13. 13Barroilhet v. Aviva General Insurance, 2021 CanLII 43539 (ON LAT).
14. 14Independent Medical Evaluation of Dr. Wilderman dated August 10, 2021.
15. 15Psychological Report of Ms. Singh dated April 26, 2021.
16. 1616-001934 v Aviva Insurance Company of Canada, 2017 CanLII 59514 (ON LAT).