Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-011847/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:
Derval Clayton Barrett
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Nadia Mauro
APPEARANCES:
For the Applicant: Kunal Kapoor, Counsel
For the Respondent: Brittanny K Tinslay, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Devral Clayton Barrett, the Applicant, was involved in an automobile accident on January 20, 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 Company, 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 neuropsychological assessment, proposed by 101 Assessment Centre in a treatment plan/OCF-18 (“plan”) dated April 1, 2021?
ii. Is the Applicant entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessment Centre in a plan dated April 1, 2021?
iii. Is the Applicant entitled to $3,069.65 for chiropractic services, proposed by 101 Physio in a plan dated March 6, 2020?
iv. Is the Applicant entitled to $2,241.02 for massage therapy, acupuncture, and chiropractic treatments, proposed by 101 Physio in a plan dated April 25, 2023?
v. Is the Applicant entitled to $2,460.00 for a functional ability assessment, proposed by 101 Assessment Centre in a plan dated May 1, 2023?
vi. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3The Applicant is not entitled to the treatment and assessment plans in dispute.
4As there are no benefits owing, no interest is payable.
ANALYSIS
5I find that the Applicant has not proven, on a balance of probabilities, that the disputed treatment plans and assessments are reasonable and necessary.
6To 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.
7The Applicant submits that his impairments are well-documented and analyzed in expert reports, treatment forms, and clinical notes and records (“CNRs”) of all treating practitioners. As such, the disputed treatment and assessment plans are reasonable and necessary.
8The Respondent argues that the Applicant has not provided any support for the disputed treatment and assessment plans and has not demonstrated that they are reasonable and necessary.
Issue 1 and 2: The Applicant is not entitled to the neuropsychological and neurological assessments
9I find that the Applicant has not established that the neuropsychological and neurological assessments (the “assessments”) are reasonable and necessary.
10The Applicant’s submissions grouped the neuropsychological assessment and neurological assessment together, presenting the same evidence and arguments to establish that these assessments are reasonable and necessary.
11The Applicant submits that as a result of the subject accident, he has experienced emotional and psychological challenges. He relies on psychological report of Dr. Lital Grinberg, dated April 20, 2020, psychiatric report of Dr. Sadiq Hasan, dated February 23, 2024, and social work assessment report of Isabelle Zonenberg, dated October 24, 2023, to support that the assessments are reasonable and necessary. Moreover, the Applicant argues that he suffers from ongoing pain as a result of the subject accident that has not resolved, and pain reduction is a legitimate medical and rehabilitative goal, citing L.D. v. Aviva, 19-00065, 2020 CanLII 57402 ON LAT, P.J. v. Continental Insurance Company, 16-004272, 2017 CanLII 63661 ON LAT, and The Applicant v. Wawanesa Mutual Insurance, 17-002589 2018 CanLII 83505 ON LAT.
12The Respondent submits that none of the assessors, Dr. Grinberg, Dr. Hasan, or Ms. Zonenberg reported neurological deficits or the need for a neurological assessment. Moreover, the Respondent submits that the CNRs of family practitioner, Dr. Karveri Selvan, do not show complaints of neurological deficits. The Respondent argues that the Applicant has not provided evidence to support that he is suffering from a neurological impairment citing S.A. vs. RBC Insurance Company, 2019 ONLAT 18-005482/AABS.
13The Applicant has not submitted the treatment plans proposing the neuropsychological and neurological assessments into evidence. He did not include them with his initial submissions, and although the Respondent relied on this in its responding submissions, the Applicant still did not include the treatment plans with his reply submissions.
14I am not persuaded by the reports of Dr. Grinberg, Dr. Hasan, or Ms. Zonenberg. Dr. Grinberg made a diagnosis of Chronic Adjustment Disorder (with mixed anxiety and depressed mood), Specific Phobia Situational: vehicular, and Somatic Symptom Disorder with predominant pain: severe. The Applicant was recommended psychotherapy, and evidence-based techniques, such as cognitive behavioural therapy and neurofeedback therapy. Dr. Hasan diagnosed Somatic Symptom Disorder, predominantly pain, persistent, moderate, and Adjustment Disorder with Mixed Anxiety and Depressed Mood. The Applicant was recommended Duloxetine, psychotherapy, and cognitive behaviour therapy. However, neither assessor made a recommendation for neurological or neuropsychological assessment. Similarly, while Ms. Zonenberg reported on the Applicant’s psychosocial status post-accident, she does not recommend any neurological or neuropsychological intervention. I agree with the Respondent that the CNRs of the Applicant’s family practitioner, Dr. Selvan, also do not support complaints of neuropsychological symptomology or neurological impairment.
15On review of Dr. Selvan’s CNRs, it would appear that the Applicant made his first accident-related attendance on March 19, 2019, complaining of lower back pain, and right leg pain and numbness on and off. Dr. Selvan further reported no head trauma, no dizziness, no nausea, and no vomiting. I have not been pointed to nor have I found evidence of accident-related complaints after this date.
16Lastly, it is unclear how the cited cases, L.D. v. Aviva, P.J. v. Continental Insurance Company, and The Applicant v. Wawanesa Mutual Insurance, are in support of the Applicant’s submission for a neurological and neuropsychological assessment. None of the cases speak to or are supportive of neurological or neuropsychological assessment. I prefer the argument made by the Respondent, and their citation of S.A. vs. RBC Insurance Company, as I also find that there is a lack of contemporaneous evidence to support that the Applicant requires neurological or neuropsychological assessment.
17I find that on a balance of probabilities, the Applicant has not satisfied his onus in establishing that the neuropsychological and neurological assessments are reasonable and necessary.
Issue 3, 4, and 5: The Applicant is not entitled to chiropractic services; massage therapy, acupuncture, and chiropractic treatments; and a functional ability assessment (the “FAE”)
18As above, the Applicant grouped the treatment and assessment plans together, and the same evidence and arguments were made in favor of their reasonableness and necessity.
19The Applicant submits that as a result of the accident, he has experienced: headaches, neck pain, left shoulder pain, left leg pain, left thigh pain, and lower back pain. Since the subject accident, the Applicant alleges that he is unable to resume his social and leisure activities because of the widespread chronic pain, headaches, psychological issues. Additionally, his driving, pedestrian, and passenger anxiety restricts his ability to commute in day-to-day life. The Applicant relies on S.M. v. Aviva Insurance Company, 2020 ONLAT 17-008818/AABS as the fact pattern is similar to the facts in this matter.
20The Respondent argues that the CNRs of Dr. Selvan contradict the Applicant’s submissions; there is no objective evidence of any ongoing physical impairment and little weight should be given to the psychological and social work assessment reports in the context of physical impairment. The Respondent further relies on s. 44 assessor, general practitioner, Dr. Shehla Qadeer. With respect to the FAE, the Respondent argues that no complaints regarding the Applicant’s function related to the accident have been raised with Dr. Selvan; the Applicant returned to work post-accident; and the only impairment listed in the Applicant’s submissions is his driving anxiety affecting his day-to-day life. However, no physician has provided this conclusion, and in any case, the FAE would be an inappropriate assessment.
21As with the disputed neurological and neuropsychological assessments, the Applicant has not submitted into evidence the treatment plans for the proposed: chiropractic services (“Treatment Plan 1”); massage, acupuncture, and chiropractic treatment (“Treatment Plan 2”); or (iii) the FAE. Again, the Applicant did not include them with his initial submissions, and although the Respondent relied on this in its responding submissions, the Applicant still did not include the treatment plans with his reply submissions.
22In any event, I agree with the Respondent that little weight should be given to the psychological and social work assessment reports in the context of physical impairment. While pain symptomology is present within their reports, no recommendations for physical treatment is discussed.
23Moreover, s. 44 assessor, Dr. Qadeer, opined the Applicant sustained “lumbar strain soft tissue injury to right leg.” This assessor reported that there was no objective evidence of any residual musculoskeletal impairment attributable to the injuries sustained in the subject accident and concluded that Treatment Plan 2 was not reasonable or necessary. No comment is made on Treatment Plan 1 or the FAE.
24With respect to the FAE, the Applicant argues that “he still experiences symptoms of driving, passenger and pedestrian anxiety, all of which contribute to his restricted ability to commute in day-to-day life” and that his headaches, sleep, and daytime fatigue impact his activities and social interactions. I note that within Dr. Grinberg’s psychological assessment, a recommendation was made for Driving Evaluation “to assess the severity and extent of anxiety [the Applicant] experiences in a vehicle.” However, I am not pointed to evidence indicating whether the Applicant underwent this evaluation. In any event, the Applicant has reported to Dr. Grinberg, Dr. Hasan, and Ms. Zonenberg, that he continues to work, and despite their examinations, I am not pointed to a recommendation by these assessors with respect to a FAE. Moreover, I am not pointed to any compelling evidence of the Applicant reporting functional impairments, as a result of the subject accident, to his family practitioner, Dr. Selvan, that would corroborate the need for the FAE.
25Finally, I differentiate S.M. v. Aviva Insurance Company from the case herein for two reasons. First, the treatment in dispute in S.M. v. Aviva was found to be reasonable and necessary as the applicant’s family doctors, chronic pain specialist, and treating chiropractor all recommended ongoing treatment. In this matter, the Applicant has not pointed me to compelling evidence of any treating practitioner recommending the continuation of physical treatment. Secondly, the applicant in S.M v Aviva made continuous complaints to his family doctor. As noted above, the Applicant in this matter has not made continuous accident-related complaints to this family practitioner.
26As such, the Applicant has not pointed me to any compelling or contemporaneous evidence that would support that the treatment and assessment plans are reasonable and necessary.
Interest
27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, no interest is payable.
Award
28The Applicant made submissions seeking an award under s. 10 of Reg. 664, but this issue was not included within the Case Conference Report and Order as an issue in dispute. Therefore, it is not before me. Even if it was, as the Applicant is not entitled to the benefits in dispute, it follows that there is no basis for an award.
ORDER
29For the reasons outlined above, I find that:
i. The Applicant is not entitled to the neuropsychological assessment, dated April 1, 2021.
ii. The Applicant is not entitled to the neurological assessment, dated April 1, 2021.
iii. The Applicant is not entitled to chiropractic services, dated March 6, 2020.
iv. The Applicant is not entitled to massage therapy, acupuncture, and chiropractic treatments, dated April 25, 2023.
v. The Applicant is not entitled to the functional ability assessment, dated May 1, 2023.
vi. The Applicant is not entitled to interest.
vii. The application is dismissed.
Released: October 24, 2024
Nadia Mauro Adjudicator