Citation: Osuchowski v. Aviva General Insurance, 2023 ONLAT 21-012992/AABS

Licence Appeal Tribunal File Number: 21-012992/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:

Celine Osuchowski

Applicant

and

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Doina Marinescu, Paralegal

For the Respondent: Thulasi Kandiah, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Celine Osuchowski, the applicant, was involved in an automobile accident on July 31, 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 General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

Page limit of the applicant’s submissions

2The respondent submits that the Tribunal should not consider the applicant’s submissions beyond page 10.

3The August 31, 2022, Case Conference Report and Order (“CCRO”) required submissions and evidence to be 10 pages in length for both parties, exclusive of evidence and case law. I note that the applicant’s submissions are 11 pages. The applicant did not make submissions to the preliminary issue.

4I agree with the respondent that the applicant has exceeded the page limit set out in the CCRO by one page, however the respondent has not provided any submissions as to the prejudice suffered as a result of this breach. In addition, I note that the CCRO contains the standard clause that submissions that exceed the page limits may not be considered. As a result, I am not bound by the page limits as set forth in the CCRO.

5When weighting procedural fairness and potential prejudice brought, I find that the scales tip in favour of the applicant. The applicant would be unfairly prejudiced if portions of the hearing submissions were otherwise excluded, as striking the last page would prevent the applicant from addressing the issue of interest. As such, I will consider all of the applicant’s written submissions in rendering this decision.

ISSUES

6The following issues are to be decided:

i. Is the applicant entitled to $298.90 ($1,995.00 less partial approval of $1,696.10) for a Psychological Assessment, proposed by Scarborough Medical Centre in a treatment plan (“OCF-18”) dated August 14, 2020?

ii. Is the applicant entitled to $3,714.49 for Chiropractic Services, proposed by Scarborough Medical Centre in the OCF-18 dated October 15, 2020?

iii. Is the applicant entitled to $1,300 for Yoga Therapy Services, proposed by Scarborough Medical Centre in the OCF-18 dated June 8, 2021?

iv. Is the applicant entitled to $82.00 for Massage Therapy Services, proposed by Healing Tree Clinic in the OCF-18 dated March 6, 2022?

v. Is the applicant entitled to $2,486.00 for a Psychological Assessment, proposed by Q Medical Centre in the OCF-18 dated October 15, 2020?

vi. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Q Medical Centre in the OCF-18 dated July 17, 2021?

vii. Is the applicant entitled to $815.00 for a Nutritional Assessment, proposed by Scarborough Medical Centre in the OCF-18 dated January 20, 2022?

viii. Is the applicant entitled to $1,950.00 for an Invehicle/Mental Health Assessment, proposed by Scarborough Medical Centre in the OCF-18 December 13, 2021?

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

RESULT

7I find that:

i. The applicant is not entitled to any of the OCF-18s as they are not reasonable and necessary.

ii. The applicant is not entitled to interest.

ANALYSIS

8To 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 the treatment, how the goals would ne met to a reasonable degree and that the overall costs of achieving them are reasonable.

9Treatment plans themselves do not prove that the proposed treatments are reasonable and necessary, and there should be supportive objective medical evidence to substantiate the reasonableness and necessity of the proposed treatment.

The OCF-18 for psychological assessment is not reasonable and necessary

10I find that the applicant has not demonstrated that the treatment plan is reasonable and necessary.

11The applicant underwent a 12-hour section 25 psychological assessment by Dr. Svetlana Gabidulina, psychologist, dated October 26, 2020. Dr. Gabidulina diagnosed the applicant with Situational Phobia (automobile anxiety) and moderate Depressive Episode. The applicant submits that the psychological assessment is reasonable and necessary for the applicant’s recovery to determine functional limitations and the level of impairment as it relates to the applicant’s ability to travel in a vehicle.

12The respondent approved $1,696.10 that covered 10-hours of the psychological assessment at the hourly rate of $149.61, leaving an outstanding amount of $298.90. The respondent submits that the additional 2 hours were excessive and not reasonable and necessary.

13The respondent relies on the section 44 Insurers Examination (“IE”) psychological assessment report of Dr. Rakesh Ratti, psychologist, dated November 22, 2021. Dr. Ratti opined that the applicant meets the criteria for a diagnosis of adjustment disorder with anxiety, but these do not result in any functional impairments. However, Dr. Ratti concluded that a 10-hour assessment was reasonable and sufficient for an assessment of the applicant, providing an adequate and persuasive breakdown for all 10-hours. This includes the following: 2 hours for clinical review, 2 hours for the testing, 3 hours for report writing, 1 hour for consultation with other professionals, 1 hour for document review, and 1 hour for feedback to the applicant.

14I accept that the applicant identified the goals of the assessment and how it would be met. However, I find that the cost to complete the psychological assessment is not reasonable. Time to complete an assessment may vary depending on a variety of factors. I am persuaded by the respondent’s submissions that Dr. Gabidulina did not review any clinical notes and records (“CNRs”) in preparing the psychological assessment. There were no interpreters, no limitations or disabilities, the applicant did not present a complex history as there were no pre-accident issues or causation issues, all of which would be factors to vary the length of time to complete an assessment. I find that the applicant did not provide compelling evidence to demonstrate that the cost of the additional 2- hours to conduct the assessment in the OCF-18 was reasonable and necessary.

The OCF-18 for chiropractic services is not reasonable and necessary

15I find that the applicant has not demonstrated that the treatment plan is reasonable and necessary.

16The OCF-18 dated October 15, 2020 provides that the treatment is reasonable and necessary for her recovery as she continues to experience pain in her neck, shoulder, back, and right knee.

17The respondent submits that the OCF-18 is not reasonable and necessary, considering no treatment provider has recommended any form of physical therapy since August 13, 2019. The applicant sought medical attention two weeks after the accident on August 13, 2019, when she attended a walk-in clinic. The assessing physician diagnosed her with a concussion, recommended physiotherapy, and sent her for x-rays. The x-rays identified no abnormalities. This date is her only post-accident consultation with a healthcare provider.

18The respondent further relies on the s. 44 Physiatry Assessment Report of Dr. Deborah Rabinovitch, physiatrist, dated November 15, 2021. Dr. Rabinovitch opined that from a musculoskeletal perspective, the applicant sustained minor soft tissue injuries and that the OCF-18 is not reasonable and necessary as the applicant has reached maximum therapeutic benefit from facility-based care.

19I find that there is a lack of medical evidence and CNRs to support the applicant’s claim of ongoing pain symptoms in her neck, shoulder back and right knee which require chiropractic services. The applicant’s submissions do not have details to support the need for this treatment and there is no evidence from a physician which provides why the chiropractic treatment is reasonable and necessary. I am persuaded by the opinion of Dr. Rabinovitch that the applicant has reached maximum therapeutic benefit from facility-based care, and I find that the OCF-18 is not reasonable and necessary.

The OCF-18 for yoga therapy is not reasonable and necessary

20I find that the applicant has not demonstrated that the treatment plan is reasonable and necessary.

21The OCF-18 dated June 8, 2021, provides that yoga therapy is reasonable and necessary for the applicant’s physical and psychological recovery, as it has been shown to reduce anxiety, depression, and pain symptoms. It is the applicant’s position that the OCF-18 will assist her in managing her complex injuries.

22The respondent makes the same arguments as outlined in paragraph 17 and 18, above.

23I find that there is a lack of medical evidence and CNRs to support the applicant’s claim of complex injuries. The applicant’s submissions do not have details to support the need for this treatment and there is no evidence from a physician which provides why the yoga therapy is reasonable and necessary. I am persuaded by the opinion of Dr. Rabinovitch that the applicant has reached maximum therapeutic benefit from facility-based care, and I find that the OCF-18 is not reasonable and necessary.

The OCF-18 for massage therapy services is not reasonable and necessary

24I find that the applicant has not demonstrated that the treatment plan is reasonable and necessary.

25The OCF-18 dated March 6, 2022 provides that the massage therapy treatment is reasonable and necessary for the applicant’s recovery, as it can help alleviate her ongoing pain symptoms.

26The respondent makes the same arguments as outlined in paragraph 17 and 18, above.

27I find that there is a lack of medical evidence and CNRs to support the applicant’s claim of ongoing pain. The applicant’s submissions do not have details to support the need for this treatment and there is no evidence from a physician which provides why the massage therapy is reasonable and necessary. I am persuaded by the opinion of Dr. Rabinovitch that the applicant has reached maximum therapeutic benefit from facility-based care, and I find that the OCF-18 is not reasonable and necessary.

The OCF-18 for psychological assessment is not reasonable and necessary

28I find that the applicant has not demonstrated that the treatment plan is reasonable and necessary.

29The OCF-18 submitted October 15, 2020 provides that a psychological assessment is reasonable and necessary for the applicant’s recovery. The OCF-18 completed by Dr. Rick Lindal, psychologist, outlines the goals of the treatment is to acquire, validate, and interpret data needed to identity and evaluate the patient’s psychological, emotional and social repercussions following the accident.

30The respondent submits that the OCF-18 is redundant, as it has already partially approved a psychological assessment outlined in paragraph 12 and has further approved an OCF-18 for psychological treatment, an issue not in dispute before the Tribunal.

31I agree with the respondent. The applicant has the onus to establish that this assessment is reasonable and necessary. Clearly, a previous psychological assessment and treatment was approved by the respondent. The OCF-18 fails to specify how this assessment would differ from the psychological assessment previously funded. I cannot infer how the proposed assesment of Dr. Lindal differs from the proposed assessment of Dr. Gabidulina. Therefore, I find this assessment to be duplicative, and not reasonable and necessary.

The OCF-18 for a chronic pain assessment is not reasonable and necessary

32I find that the applicant has not demonstrated that the treatment plan is reasonable and necessary.

33The OCF-18 dated June 7, 2021 provides that the treatment is reasonable and necessary for the applicant’s recovery as she continues to experience pain in her neck, shoulder, back, and right knee. The applicant relies on Mayer v. 1220147 Ontario Inc., 2017 ONCA 819, which found that chronic pain assessments are necessary when the applicant continues to experience pain that affects their daily life.

34The respondent submits that the applicant failed to provide any evidence to demonstrate that she has chronic pain, or that a chronic pain assessment is reasonable and necessary. The respondent relies on the s. 44 Physiatry Assessment Report of Dr. Rabinovitch. Dr. Rabinovitch opined that from a musculoskeletal perspective, the applicant sustained minor soft tissue injuries and that the OCF-18 is not reasonable and necessary as the applicant has reached maximum therapeutic benefit from facility-based care.

35The respondent further submits that the applicant failed to establish that she meets the requirements under the American Medical Association Guides (“AMA Guides”). The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. The AMA Guides provides that you can be diagnosed with chronic pain when you have three or more of the six factors. I agree with the respondent that the applicant did not provide evidence to demonstrate that she meets three of the six factors as there is limited or no evidence of abuse of or dependence on prescription drugs or other substances, of excessive dependence on health care providers, her spouse, or family, any physical deconditioning, withdrawal from social milieu, or failure to restore pre-injury function. The applicant has consulted with a doctor only once, almost four years ago, she has returned to social and recreational life, she is working full-time and moved to British Columbia after the accident.

36The applicant has the onus to establish this assessment is reasonable and necessary. I find that there is no evidence from any expert, physician or health care provider which establishes why a chronic pain assessment is reasonable and necessary. The medical evidence before me suggests that the applicant suffered soft tissue injuries. I accept that the applicant has not consulted with any healthcare provider since 2019 and has resumed a normal life. As such I am persuaded that she is not experiencing any ongoing accident-related pain symptoms, and a chronic pain assessment is not reasonable and necessary.

The OCF-18 for a nutritional assessment is not reasonable and necessary

37I find that the applicant has not demonstrated that the treatment plan is reasonable and necessary.

38The OCF-18 dated January 20, 2022 states that a nutritional assessment is reasonable and necessary for the applicant’s recovery as she has experienced an increase in appetite and weight gain since the accident.

39The respondent denied the OCF-18 on the basis that it was not reasonable and necessary, and relied on the psychiatry paper review by Dr. Rabinovitch, dated February 16, 2022. The respondent submits that the applicant has not relied on any medical evidence to support her claim, and in the CNRs from the one occasion post-accident that she consulted with a healthcare provider, she did not report any issues with her appetite or weight. To the contrary, in the interview with Dr. Ratti the applicant reported that her appetite was normal.

40I agree with the respondent. The applicant did not provide any evidence to support the proposed nutritional assessment. I am persuaded by the report of Dr. Ratti that the applicant’s appetite was normal. I find that the nutritional assessment is not reasonable and necessary.

The OCF-18 for an in-vehicle/ mental health assessment is not reasonable and necessary

41I find that the applicant has not demonstrated that the treatment plan is reasonable and necessary.

42The OCF-18 dated December 13, 2021 states that the applicant has experienced significant driving anxiety and avoidance since the accident and an in-vehicle mental health assessment is reasonable and necessary.

43The respondent denied the OCF-18, concluding that an in-vehicle mental health assessment is not reasonable and necessary. The respondent relies on a review of the evidence that the applicant has not reported any driving-related anxiety since the accident. To the contrary, in the interview with Dr. Ratti she reported that she continues to drive and only experiences mild anxiety during heavy traffic. The applicant denied anxiety as a passenger. Dr. Ratti opined that the OCF-18 was not reasonable and necessary.

44I agree with the respondent. The applicant did not provide any evidence to support the proposed in-vehicle mental health assessment. As the only evidence before me, I am persuaded by the report of Dr. Ratti and find that the OCF-18 is not reasonable and necessary.

Interest

45Since I found no benefits payable, the applicant is not entitled to interest.

ORDER

46For the forgoing reasons, I find that:

i. The applicant is not entitled to any of the treatment and assessment plans in dispute as she has not demonstrated that they are reasonable and necessary.

ii. The applicant is not entitled to interest.