Tarah Picken v. Aviva Insurance Company, 2023 CanLII 96379

Citation: Picken v. Aviva Insurance Company, 2023 ONLAT 21-001978/AABS

Licence Appeal Tribunal File Number: 21-001978/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:

Tarah Picken

Applicant

and

Aviva Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Bobby Vujicic, Paralegal

For the Respondent: Christopher Lupis, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Tarah Picken (the "applicant") was involved in a motor vehicle accident on October 23, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). Aviva Insurance Company (the "respondent") denied two treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

1. Is the applicant entitled to $6,364.69 for physiotherapy services, proposed by A Med Physiotherapy and Rehabilitation in a treatment plan/OCF-18 dated August 14, 2018?
2. Is the applicant entitled to $873.26 ($2,061.73 less $1,188.47 approved) for a driving reintegration assessment, proposed by A Med Physiotherapy and Rehabilitation in a treatment plan/OCF-18 dated October 18, 2018?
3. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

3I find that:

i. The applicant is entitled to $6,364.69 for the physiotherapy services treatment plan dated August 14, 2018, plus interest in accordance with s. 51 of the Schedule. ii. The applicant is entitled to $873.26 for the driving reintegration assessment treatment plan dated October 18, 2018, plus interest in accordance with s. 51 of the Schedule.

ANALYSIS

4To be entitled to a treatment 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. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.

5I find that the applicant is entitled to the treatment plan for physiotherapy services in the amount of $6,364.69 dated August 14, 2018. She is also entitled to interest, pursuant to s. 51 of the Schedule.

6This treatment plan was completed by Dr. Sean Kerr, chiropractor, at A Med Physiotherapy and Rehabilitation. Dr. Kerr listed a number of injuries and sequelae on the form, including post-concussion syndrome, mild cognitive disorder, auditory hallucinations, concussion, injury of muscle and tendon at neck level, radiculopathy, dislocation (sprain and strain of joints and ligaments of shoulder girdle and thorax), sprain and strain of lumbar spine, other sleep disorders, and other anxiety disorders. He recommended 16 sessions each of manipulation, therapy (x2), and instruction promoting health and preventing disease, all with the goals of pain reduction, increased strength and range of motion, and a return to the activities of daily living. Dr. Kerr also noted that the applicant's progress with regard to posture, range of motion, functional testing, chiropractic testing, and psychological testing would be assessed at specific intervals during treatment.

7The applicant submits that this treatment plan should be deemed reasonable and necessary, given the evidence provided in the form of clinical notes and records ("CNRs") from her family doctor, as well as that of a chronic pain assessment, neurological and psychological reports, and diagnoses and observations made in insurer's examination ("IE") reports. She argues that a preponderance of the evidence supports her contention that she suffered concussion, post-concussion syndrome, and further physical injuries as a direct result of the accident, all of which resulted in consistent medical recommendations that she be treated with the physical therapy proposed in this treatment plan.

8The respondent counters that further physical treatment is not reasonable and necessary, relying primarily on IE reports. It also holds that the amount of treatment recommended is excessive, underlining that the plan includes 66 further sessions of physical therapy in addition to what the applicant has already undertaken. The respondent further notes that the applicant's attendance at earlier physical therapy sessions indicates that she "poorly engaged" with such treatment, and is therefore not likely to benefit from such an extensive treatment plan as the one in dispute here.

9Additionally, the respondent maintains that even if the applicant is found to be entitled to this treatment plan, she should be barred from receiving the benefit as she did not incur it within 260 weeks of the accident. The respondent references ss. 3(7)(e) and 20(1)(a) of the Schedule in support of this contention. It further notes that the applicant is not contending that the insurer unreasonably withheld or delayed payment of this benefit, which in turn means that she cannot claim an exclusion to this limitation based on the provisions in s. 3(8) of the Schedule.

10I agree with the applicant, who has presented thorough and consistent medical documentation regarding both the injuries she sustained in the subject accident and physician recommendations supporting the need for physiotherapy treatment listed in this plan. Key aspects of this medical evidence are as follows:

i. Clinical notes and records of Dr. Denise J. D'Addario, family physician, show that the applicant was diagnosed with whiplash and a suspected concussion as a result of the accident on October 26, 2017. In a subsequent visit on December 5, 2017, Dr. D'Addario diagnosed the applicant with a concussion due to ongoing complaints of fatigue and headaches, as well as forgetfulness that was resulting in difficulties at her job. Dr. D'Addario recommended physiotherapy and further clinical assessment. As a result, the applicant began attending A Med for physical therapy on October 28, 2018.

ii. Dr. Kerr completed a Disability Certificate/OCF-3 on November 2, 2017, which also listed concussion as one of the applicant's accident-related injuries. The remaining injuries and sequelae noted in this form essentially mirror those listed above in the treatment plan in dispute, also authored by Dr. Kerr.

iii. The applicant was consistent in the reporting of her physical injuries to two psychological assessors. Both Dr. Shahriar Moshiri, psychologist, who filed a psychological IE on May 30, 2018, and Dr. Ilya Gladshteyn, psychologist, who completed psychological assessments dated July 5, 2018 and December 10, 2018, recorded that the applicant made virtually identical comments regarding her physical injuries and symptoms. Although I assign these reports limited weight as the physicians have no claimed expertise with physical impairments and the treatment of same, the reports are noteworthy in that they indicate the consistency of the applicant when reporting her symptoms and sequelae to medical practitioners.

iv. In a chronic pain assessment report dated August 13, 2018, Dr. Khal Efala, orthopaedic surgeon, diagnosed the applicant with chronic pain of the neck, back, and bilateral elbows as a direct result of the accident. He further noted his opinion that the applicant had not reached maximum medical improvement and recommended physiotherapy to reduce pain and increase functionality. The report of Dr. Efala directly resulted in the treatment plan in dispute, which took into account both his diagnoses and recommendations.

v. Physiotherapy was also recommended in the January 22, 2020 neurological report of Dr. Ewan Lewis, neurologist. On the referral of Dr. D'Addario, Dr. Lewis assessed the applicant and diagnosed her with post-concussion syndrome and a mild traumatic head injury that resulted in persistent headaches as well as other physical, cognitive, sleep, and emotional elements. He recommended active rehabilitation, including occupational therapy as well as physiotherapy, and reported the applicant's comment that she was working with a physiotherapist with "some success," to which I infer she is referencing her ongoing treatment at A Med Physiotherapy and Rehabilitation. Dr. Lewis also wrote "I would stress that [the applicant] continue to have this issue treated as [it] will otherwise likely interfere with her overall recovery." I accept this as a general, if not specific, endorsement of the treatment recommended in the treatment plan in dispute.

11In reply, the respondent relies largely on the November 29, 2018 IE report of Dr. Alan Kruger, physician. Dr. Kruger found that the treatment plan in dispute was not reasonable and necessary. However, I agree with the applicant's contention that Dr. Kruger's conclusions do not line up with his observations, and that his report was not entirely thorough as he did not reference the applicant's history of concussion and post-concussion symptoms. I assign the report limited weight as a result.

12Most notably, I concur with the applicant's critique of Dr. Kruger's notation that although the applicant "may not have reached maximum medical improvement (MMI) from a symptomatic perspective, it is my medical opinion that she has reached [MMI] from a physiological perspective." While the respondent explains in submissions that what the applicant characterizes as a contradiction is actually Dr. Kruger stating that the applicant's symptoms have "plateaued," this is not entirely what the physician wrote in his report. Further, even if Dr. Kruger found that the applicant's symptoms were "at a point where a plateau has been reached," this does not adequately address the pain relief listed as a goal of the physiotherapy services in dispute, and which has been long accepted as a legitimate goal of such treatment by this Tribunal.

13I also assign limited weight to the June 7, 2018 neurological IE report of Dr. Garry Moddel, neurologist. This report is brief by comparison with the report of Dr. Lewis completed in 2020. Dr. Moddel answers all questions regarding his diagnoses on the last pages of his report with abbreviated paragraphs that contain little in the way of detail or context to expand on the preceding, similarly short examination and summary sections. Dr. Moddel also does not reference the suspected concussion noted by Dr. D'Addario, despite being provided with the family physician's CNRs.

14Lastly, I do not agree with the respondent's assertion that the applicant is not entitled to this treatment plan as she has submitted no evidence to indicate that it was incurred within 260 weeks of her accident, in accordance with s. 20(1)(a) of the Schedule. I agree with the applicant's argument as advanced in her reply submissions, which cite Han v. Wawanesa Mutual Insurance Company, 2023 CanLII 1465 (ON LAT). This preliminary decision of Vice-Chair Flude reaffirmed that case law and prior Tribunal decisions have determined that requiring an insured person to pre-pay for treatment before proceeding to the Tribunal would "disadvantage the impecunious." Although I am not bound by prior decisions of the Tribunal, I subscribe to the same opinion as Vice-Chair Flude in this instance, particularly his comments in paragraphs 13-14. If I were to accept the argument of the respondent here, this would lead to similar absurdities. Moreover, such acceptance would also lead to a contravention of the consumer protection basis of the Schedule, which ensures that treatment is made available to those in need, regardless of one's ability to pay.

15For the above reasons, the applicant is entitled to the treatment plan for physiotherapy, plus interest.

16I find that the applicant is entitled to the treatment plan for a driving reintegration assessment in the amount of $873.26 ($2,061.73 less $1,188.47 approved) dated October 18, 2018. She is also entitled to interest, pursuant to s. 51 of the Schedule.

17This treatment plan was completed by Nina Belyakova, psychologist, who recommended a driving reintegration assessment and included additional fees from such items as file review, intake form completion, travel time, mileage, documentation/testing/scoring, and report preparation. Ms. Belyakova noted that the primary goal of the plan was to assist the applicant in her return to pre-accident psychological functioning by addressing the symptoms of a specific vehicular phobia that was diagnosed in the psychological assessment report of Dr. Gladshteyn, already mentioned above.

18The applicant contends that this treatment plan should also be held to be reasonable and necessary, due to the diagnoses and recommendations of Dr. Gladshteyn. She also maintains that the opinions of Dr. Gladshteyn were echoed by Dr. Moshiri in both of his IE reports, as he similarly documented his findings that the applicant suffered from depression, anxiety, and specific vehicular phobia as a direct result of the accident.

19In response, the respondent explains that it partially approved this treatment plan based on the diagnoses of Dr. Moshiri as expressed in his December 10, 2018 report, but that it adopted the physician's conclusion that the driving reintegration assessment was only partially reasonable and necessary due to cost. In his report, Dr. Moshiri recommended an alternative driver reintegration plan valued at $1,188.47, which was approved by the insurer. This plan included 1.5 hours for external material review (rate not specified); OCF-18 preparation (time not specified); 1.5 hours of driving reintegration (rate not specified); $149.61 for travel time (time not specified); $66.40 in mileage (calculation not specified), 2.5 hours of testing/scoring (rate not specified); and two hours of report preparation at an hourly rate of $149.61.

20Also, the respondent argues that even if the applicant is found to be entitled to this treatment plan, she should be barred from receiving the benefit as she did not incur it within 260 weeks of the accident. Reasons cited by the respondent are the same as those listed above in paragraph #9.

21I find the medical evidence regarding the applicant's post-accident psychological impairment to be consistent and thorough. The applicant was diagnosed with similar conditions as a direct result of the accident by both Dr. Moshiri and Dr. Gladshteyn, namely depression, anxiety, and a situational vehicular phobia. In their reports, both psychologists also endorsed some form of driver re-integration assessment and/or treatment. Essentially, the physicians differed only on the specifics and the cost of this treatment.

22I agree with the driver reintegration assessment recommendations and costs in the treatment plan in dispute, as it involves a more thorough and better itemized listing than that in the alternative provided by Dr. Moshiri. While Dr. Moshiri offered a breakdown of his belief how a driver reintegration assessment should be organized and priced, he did not include any background on how he came up with these suggestions and costs or any details on what his plan would precisely entail. Also, he is somewhat vague on specifics such as the monetary rate charged per hour and the time required to complete each service. Also, Dr. Moshiri did not note any particular expertise with regard to driver reintegration assessments or training in his report. As a result, I am further unsure of how or why he came to these conclusions and the attached numbers, and find his assessment less dependable than that in the disputed treatment plan.

23For the same reasons as described above in paragraph #14, I also reject the respondent's claim that this treatment plan should be deemed not payable as no evidence was submitted that it was incurred within 260 weeks of the accident.

24Accordingly, the applicant is entitled to the remainder of the treatment plan for a driving reintegration assessment, as well as interest.

ORDER

25I find that:

i. The applicant is entitled to $6,364.69 for the physiotherapy services treatment plan dated August 14, 2018, plus interest in accordance with s. 51 of the Schedule. ii. The applicant is entitled to $873.26 for the driving reintegration assessment treatment plan dated October 18, 2018, plus interest in accordance with s. 51 of the Schedule.