Licence Appeal Tribunal File Number: 21-008754/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:
Ian Pollard
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Bonnie Oakes Charron
APPEARANCES:
For the Applicant: Ramy Akladios, Counsel
For the Respondent: Alicia Edwards, Paralegal
HEARD: In Writing
OVERVIEW
1Ian Pollard, the applicant, was involved in an automobile accident on October 14, 2016, 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.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to $3,592.16 for psychological services, proposed by Dr. Jacqueline Brunshaw, in a treatment plan/OCF-18 (“plan”) dated May 28, 2021, denied on June 2, 2021?
ii. Is the applicant entitled to $8,552.80 for a chronic pain management treatment plan proposed by Complete Rehab Centre, dated June 10, 2021, denied on July 9, 2021?
iii. 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?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant is not entitled to the treatment plans. No interest or award is payable.
ANALYSIS
Is the applicant entitled to the treatment plan for psychological services?
4The applicant has not demonstrated that the treatment plan for psychological services is reasonable and necessary as a result of the accident.
5To 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.
6The applicant submits that in May 2021 he was assessed by psychologist Dr. Brunshaw. He reported during the assessment that he suffered from pain in his body, back, and neck, had sleep difficulties, low energy, and was nervous while being a pedestrian or a passenger. Dr. Brunshaw determined that his symptoms indicated he was suffering from an Adjustment Disorder with Anxiety, Major Depressive Disorder, and a Specific Phobia of being a passenger or a pedestrian. Her conclusion was that these conditions stem from the accident, contrary to the findings of an insurer’s examination (“IE”) conducted by Dr. Ratti the previous month.
7Dr. Brunshaw’s report resulted in the proposed treatment plan for psychological services. With regard to the goal of the treatment plan, how the goals would be met, and the reasonableness of the cost, the applicant submits that the treatment plan would address the limitations imposed by his sleep difficulties, fatigue, low motivation, and cautious driving. The OCF-18 indicates the goals as being psychological treatment with a functional goal of a return to the activities of normal living, while the evaluation would be through the patient’s response to treatment, clinical observation and monitoring, and self-report.
8The respondent submits that the plan is not reasonable and necessary because the accident was over four years earlier and there is no credible link between the psychological issues identified by Dr. Brunshaw and the accident in question. It points to the CNRs of the applicant’s general practitioner (“GP”) which show only three visits in 2016 related to the accident, and no further visits in 2017, 2018, or 2019. A passing reference is made to the accident at two visits in 2020, and none thereafter.
9The respondent points to the following in support of its view:
i. The IE psychological report from Dr. Ratti dated April 9, 2021, wherein the applicant was assessed and found to not meet the criteria for any mental health diagnosis as a result of the accident.
ii. Dr. Ratti confirms this opinion in two subsequent Paper Reviews, one on June 15, 2021, and the other on July 9, 2021. Notably, Dr. Ratti found that the applicant had made an immediate return to work as a courier after the accident with no driving anxiety. In total, the assessor concluded three separate times that the applicant did not meet the criteria for any mental health diagnosis.
iii. The CNRs of the applicant’s family physician that include a note about the applicant having some psychological symptoms in 2014. There is a progress note in 2016, but nothing recorded thereafter. Post-accident, there is no referral for a psychological assessment or mental health treatment.
10I find that the applicant has not met his burden to prove that the treatment plan for psychological services is reasonable and necessary as a result of the accident for the following reasons:
i. There is no compelling evidence to show how the applicant’s psychological symptoms, as reported to Dr. Brunshaw, are caused by the accident that happened four years earlier.
ii. There is also no referral from the applicant’s family doctor for psychological assessment or treatment.
iii. It is only Dr. Brunshaw who makes a finding that the applicant requires psychological treatment. Her opinion is not supported by the CNRs of the applicant’s general practitioner (“GP”) nor the conclusions of the s. 44 assessor Dr. Ratti.
11For the reasons outlined above, the applicant is not entitled to the treatment plan for psychological services.
Is the applicant entitled to the treatment plan for chronic pain management?
12The applicant has not demonstrated that the treatment plan for chronic pain management is reasonable and necessary as a result of the accident.
13The applicant submits that the treatment plan for chronic pain management is reasonable and necessary due to his diagnosed chronic pain and injuries sustained in the accident. With regard to the goals, evaluation, and cost of the plan, he submits that the goals are pain reduction, increased range of motion and a return to the activities of daily living. The OCF-18 adds increased endurance and a return to his pre-accident work activities to the list. The form notes that evaluation would be through assessments, periodic functional and psychological testing, questionnaires, and measured outcomes.
14The respondent submits that the applicant has failed to show any functional impairment or disability due to chronic pain, despite being diagnosed with it in 2015. It points to his immediate return to work as a courier after the accident, the lack of referral to a chronic pain management program or specialist, and the fact that he has not demonstrated that he meets any of the objective criteria in the American Medical Association Guides (“the Guides”) for diagnosing chronic pain. The Guides area framework used to evaluate subjective complaints of chronic pain against the following objective criteria:
i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
ii. Excessive dependence on health care providers, spouse, or family.
iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
iv. Withdrawal from social milieu, including work, recreation, or other social contracts.
v. 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.
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
Accordingly, the respondent asserts that the applicant has not reached the threshold that would require a chronic pain management program to be reasonable and necessary.
15From a physical perspective, the respondent denied the plan for chronic pain management based on the findings of Dr. Chaudhry who conducted a Medical Physician IE report dated April 9, 2021, with a follow-up Paper Review on July 9, 2021. Dr. Chaudry’s report recorded that the applicant did not take any time off work following the accident, was working at the time of the assessment, and there was no evidence of acute abnormalities or pathology. Dr. Chaudhry concluded that a chronic pain treatment program was not reasonable and necessary, and noted that the applicant was under the care of an orthopaedic surgeon who could better address his complaints.
16The respondent also denies that the applicant requires a chronic pain management plan to address psychological issues. It points to Dr. Ratti’s s. 44 report of July 9, 2021. Dr. Ratti found that the applicant did not present with any emotional or psychological distress, that no pain behaviours were observed, and there was nothing to indicate that any psychological issues played a role in his physical pain.
17I agree with the respondent. Despite a pre-accident chronic pain diagnosis, the medical evidence does not point to a link between the 2016 motor vehicle accident and any psychological or physical symptoms that the applicant may have developed in the years thereafter.
18In my view, the applicant has failed to show that the chronic pain management treatment plan is reasonable and necessary, as a result of the accident, for the following reasons:
i. He has not demonstrated that he has a functional limitation or disability due to chronic pain.
ii. There is no referral from his family physician to a chronic pain management program or specialist.
iii. He returned to work immediately following the accident and neither his physical nor psychological symptoms have prevented him from working as a courier - despite driving being a core duty in this line of work.
19For the reasons outlined above, the applicant is not entitled to the treatment plan for chronic pain management.
Interest
20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
21Given that there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
22The 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.
23Having determined that the applicant is not entitled to the disputed OCF-18s, the respondent cannot have unreasonably withheld or delayed payment of benefits.
24Accordingly, no award is payable.
ORDER
26I order as follows:
i. The applicant is not entitled to the treatment plans.
ii. No interest or award is payable.
27The application is dismissed.
Released: October 18, 2023
Bonnie Oakes Charron
Adjudicator