Licence Appeal Tribunal File Number: 22-005566/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:
Vanessa Bautista
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Rachel Levitsky
APPEARANCES:
For the Applicant: Naman Nanda, Counsel
For the Respondent: Yann Grand-Clement, Counsel
HEARD: By way of written submissions
OVERVIEW
1Vanessa Bautista, the applicant, was involved in an automobile accident on March 10, 2020, 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, 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 $3,097.88 for physiotherapy services, proposed by 101 Physio in a treatment plan dated April 14, 2021?
ii. Is the applicant entitled to $3,130.77 for physiotherapy services, proposed by 101 Physio in a treatment plan dated November 25, 2020?
iii. Is the applicant entitled to $763.90 for a psychological assessment, proposed by 101 Assessment Centre in a treatment plan dated April 8, 2020?
iv. Is the applicant entitled to $830.00 for psychotherapy, proposed by 101 Assessment Centre in a treatment plan dated April 23, 2021?
v. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by 101 Assessment Centre in a treatment plan dated April 23, 2021?
vi. Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessment Centre in a treatment plan dated June 9, 2021?
vii. Is the applicant entitled to $2,460.00 for a neuropsychological assessment, proposed by 101 Assessment Centre in a treatment plan dated July 29, 2021?
viii. Is the applicant entitled to $2,460.00 for an orthopaedic assessment, proposed by 101 Assessment Centre in a treatment plan dated July 29, 2021?
ix. Is the applicant entitled to $2,460.00 for a social work assessment, proposed by 101 Assessment Centre in a treatment plan dated August 20, 2021?
x. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
xi. Is the applicant entitled to interest on any overdue payment of benefits?
3With respect to issue (iii) above, the applicant submits that the correct amount in dispute is $763.90, and not $569.41 as indicated in the Case Conference Report and Order of April 25, 2023. She also submits that the treatment plan indicated as issue (iv) above is for psychotherapy, and not for a psychological assessment.
4I have reviewed the denial letters and determined that the applicant is correct. I have accordingly reflected this in the issues in dispute listed above.
RESULT
5The applicant is entitled to $194.49 out of the $763.90 in dispute for a psychological assessment proposed by 101 Assessment Centre in a treatment plan dated April 8, 2020.
6The applicant is entitled to $2,460.00 for a chronic pain assessment proposed by 101 Assessment Centre in a treatment plan dated April 23, 2021.
7The applicant is not entitled to the remainder of the treatment plans in dispute.
8The applicant is entitled to interest on any overdue benefits pursuant to s. 51 of the Schedule.
9The respondent is not liable to pay an award.
ANALYSIS
10To 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.
Issues (i) and (ii) – physiotherapy treatment plans
11I find that the applicant is not entitled to these treatment plans.
12The treatment plans dated November 25, 2020, and April 14, 2021, proposed chiropractic treatment, massage therapy, acupuncture, TENS unit accessories, transportation, an assessment, and documentation. The goals of the treatment plans were pain reduction, increase in strength and range of motion, a return to activities of normal living, and an increase in functional status.
13Treatment plans by themselves do not prove that treatment is reasonable and necessary. There should also be supportive medical evidence to substantiate the reasonableness and necessity of the proposed treatment.
14The applicant submits that the treatment plans are reasonable and necessary, and states generally that this position is corroborated by the medical evidence. However, there is very limited medical evidence before me. I have not been provided with any clinical notes and records, despite the applicant reportedly having received physical treatment until some time in 2021. Aside from the treatment plans themselves, the applicant only relies on a s. 25 psychological report from Dr. Peter Waxer, a s. 44 psychological report from Dr. Cindi Goodfield, an occupational therapy cognitive assessment from Remik Zakrzewski, and an OCF-3 from March 20, 2020. I find that none of those documents are persuasive with respect to these treatment plans, as they do not address whether further physical treatment is warranted.
15There is little evidence before me as to how helpful the treatment received by the applicant was. She attended an assessment with Dr. Vintu (psychotherapist) and Dr. Waxer (psychologist) on March 30, 2021, and reported that the treatment she had received had not been very beneficial. During a s. 44 assessment with Cindi Goodfield, psychologist, on March 25, 2021, the applicant reported that she found physical therapy somewhat helpful in that it provided temporary relief. She reported to Dr. Michael Ko, s. 44 physiatrist, during an assessment on July 30, 2021, that physical treatment temporarily eased her pain for 2 days. Despite these comments, there is no compelling evidence within the reports or elsewhere as to the amount of pain relief that these treatments provided, or how her pain was affected when the treatment ceased.
16Further, after a second assessment on August 5, 2022, Dr. Ko opined that the applicant had reached maximum medical improvement, and that additional sessions of physical therapy were not reasonable and necessary due to the limited benefit that it provided and a lack of objective evidence of a structural injury or nerve impingement. The applicant did not provide any rebuttal of Dr. Ko’s opinion in her submissions, nor did she provide evidence of a medical opinion to the contrary, and I accordingly find Dr. Ko’s opinion persuasive.
17I find that the applicant has not proven, on a balance of probabilities, that the treatment plans for physical therapy are reasonable and necessary.
Issue (iii) – psychological assessment
18I find that the applicant is entitled to $194.49 of the amount in dispute with respect to this treatment plan.
19The applicant submitted a treatment plan dated April 8, 2020, for a psychological assessment in the amount of $2,460.00. This was broken down as $2,000.00 for the assessment, $200.00 for the completion of the treatment plan, and $260.00 for H.S.T.
20The respondent partially approved the treatment plan in the amount of $1,696.10, representing 10 hours at a rate of $149.61 (the maximum rate that a psychologist is entitled to charge under the Professional Services Guideline, Superintendent’s Guideline No. 03/14), plus $200.00 for the completion of the treatment plan.
21The respondent relies on the report of Ms. Goodfield, who opined that the proposed assessment could reasonably be completed in 8 to 10 hours. In reply, the applicant submits that the cost of the assessment is in line with the amount allowed by s. 25(5)(a) of the Schedule, which is $2,000.00 plus H.S.T.
22Section 25(5)(a) sets out the maximum amount allowable for each assessment. It does not require an insurer to pay $2,000.00 for an assessment. The applicant has the burden of proving that the denied amount is reasonable and necessary. Despite the fact that she attended the assessment, the applicant did not provide any evidence of how long it took to conduct the assessment and write the report. She has not made any submissions or provided any evidence as to why the additional time would be necessary. I find that she has not demonstrated why more than 10 hours would be required.
23However, the respondent did not approve an amount for H.S.T., despite it being requested in the treatment plan and allowable under s. 25(5)(a). The respondent did not explain why, nor did it make submissions on whether H.S.T. is payable. In accordance with s. 25(5)(a), I find that the applicant is entitled to $194.49 of the amount in dispute with respect to this treatment plan, which represents H.S.T. on the approved amount for the assessment.
Issue (iv) – psychological treatment
24I find that the applicant is not entitled to the amount in dispute with respect to this treatment plan.
25A treatment plan for counseling with a social worker, dated April 23, 2021, was submitted in the amount of $2,740.00. This was comprised of 16 sessions of counselling at $100.00 per hour, $240.00 for counselling notes and evaluation, $240.00 for file review, $450.00 for a progress report, and $200.00 for the completion of the treatment plan.
26The respondent partially approved $1,900.00 of the treatment plan. It agreed to pay for the treatment sessions and the completion of the treatment plan. The respondent submits that the applicant has failed to explain how the line items of “Planning, service” ($240.00) and “Documentation, support activity” ($450.00) are reasonable and necessary when $200.00 for documentation was already claimed and allowed.
27With respect to this treatment plan, the only submission made by the applicant is that it is reasonable and necessary as it is corroborated by the medical evidence. Otherwise, the applicant has not addressed the respondent’s submissions, or provided evidence in support of the additional items. While the respondent only made submissions with respect to 3 out of the 4 line items in dispute, the applicant did not address any of them. Again, the applicant has the burden of proving that the treatment plan is reasonable and necessary, and I find that she has not met this burden.
Issue (v) – chronic pain assessment
28I find that the applicant is entitled to this assessment.
29The treatment plan in dispute, dated April 23, 2021, proposes a chronic pain assessment with Dr. Grigory Karmy, physician. It indicates that the applicant is exhibiting symptoms consistent with chronic pain syndrome characterized by pain which is exacerbated by attempts to increase daily activities, and has existed for longer than six months, or beyond the point when healing would usually be expected for a given injury. The goals of the assessment were to reduce pain, restore functional tolerance and endurance, and allow the applicant to return to activities of normal living.
30I find that there is evidence that the applicant is experiencing ongoing pain and functional limitations such that a chronic pain assessment is warranted. The applicant reported to Dr. Vintu and Dr. Waxer that she was experiencing pain in her head, neck, shoulders, back, thighs and knees, arm and hand, and chest. She was only able to complete 40% of her pre-accident household activities, and found it difficult to participate in sports, lift heavy objects, or run for prolonged periods. The applicant reported similar pain complaints to Ms. Goodfield. She also reported that although she had obtained a part-time position as a cleaner, it was only for 6 hours per week, and her brother was hired for the same position and was able to help her with the tasks she had difficulty with. She no longer attended the gym, or played soccer or basketball. She only cooked occasionally due to pain, and no longer vacuumed. Her sister would help her carry grocery bags. While she was able to walk the household’s smaller dog, she was unable to walk the larger one. Further, Dr. Ko noted that she was experiencing headaches, and neck and shoulder pain that traveled down her lower back. She was no longer able to lift heavy objects such as vacuums or hampers. Upon reassessment in August 2022, the applicant reported to Dr. Ko that she had attempted to work for her aunt’s company doing tax filing, but she had to stop due to increasing headaches and pain. She reported being unable to go hiking or work out at the gym due to pain in her shoulders and back.
31The respondent relies on the reports of Dr. Ko in its submissions, noting that he diagnosed her with uncomplicated soft tissue injuries and had reached maximum medical improvement. Dr. Ko opined that this treatment plan was not reasonable and necessary, because “there was no objective evidence of an ongoing organic pathology”. However, he did not explain why the applicant was still experiencing pain and functional limitations. I find that his opinion with respect to this treatment plan was cursory and not well-explained, and therefore not compelling.
32I accordingly find that the applicant is entitled to explore the nature of her ongoing pain and receive recommendations as to how it may be alleviated.
33The respondent also submits that this assessment could have been arranged through OHIP, and this obviates the responsibility of the respondent to fund it pursuant to s. 47(2) of the Schedule. It relies on 16-004501 v The Sovereign General Insurance Company, 2018 CanLII 13158 (“16-004501”), where the Tribunal found that x-rays were not payable by the insurer because OHIP coverage was reasonably available for them.
34I note that the Tribunal in 16-004501 referred to G.T. v. Unifund Assurance Company, 2017 CanLII 81567 (“G.T.”), for guidance of how to treat OHIP under s. 47(2). The Tribunal in that case stated that an insurer must advance some evidence or submission that, on balance, establishes that the benefit at issue was reasonably available to the insured from a collateral provider. If an insurer has satisfied that onus, the burden then shifts to the insured to prove that the benefit at issue was not in fact reasonably available.
35The Tribunal ultimately found that the insurer did not meet its burden in proving that s. 47(2) applied for the disputed orthopaedic assessment. The insurer had not explained how OHIP actually operates, or how it would cover the assessment at issue. Although the Tribunal understood that an orthopaedic assessment provided by a physician might very well be covered by OHIP, the insurer only offered the bare assertion that OHIP applies, and that was not enough to satisfy its obligation under s. 47(2).
36While I am not bound by other Tribunal decisions, I find the reasoning in G.T. to be helpful to my analysis. Here, the respondent simply stated that if a physician felt that a specialist consultation was reasonable and necessary, they could and would have arranged those assessments through OHIP. No further evidence was provided. I find that the respondent has not met its onus in establishing the availability of OHIP for this assessment.
Issue (vi) – neurological assessment
37I find that the applicant is not entitled to this assessment.
38The treatment plan, dated June 9, 2021, recommends a neurological assessment with Dr. Vince Basile. The goals of the assessment are pain reduction and a return to activities of normal living. The stated rationale for the assessment was the report of Dr. Vintu and Dr. Waxer, who indicated that she was experiencing a “common complaint of MVA victims”, that being issues with her concentration and short-term memory. It also referred to the report of Ms. Goodfield, who indicated that the applicant reported memory issues.
39The applicant also relies on a cognitive assessment by Remik Zakrzewski, occupational therapist, dated June 1, 2021. Although Mr. Zakrzewski recommended that the applicant attend a neuropsychological assessment, he did not recommend a neurological assessment. The only recommendation for a neurological assessment before me is the treatment plan itself.
40There are no records before me from the applicant’s treating physicians. Mr. Zakrzewski stated that the applicant “reported that she sustained a concussion” and “she reported that she continues to suffer from ongoing post concussive head symptoms”. There is no indication in any of the other records before me that she was ever diagnosed with a concussion. While the applicant appears to be suffering from some cognitive difficulties, there is no compelling evidence before me that these are caused by a neurological issue, as opposed to being caused by her pain, psychological injuries, or sleep difficulties.
41The applicant has the burden of proving that a neurological assessment is reasonable and necessary. I find that she has not provided compelling evidence that would necessitate a neurological assessment, and therefore she has not met her burden.
Issue (vii) – neuropsychological assessment
42I find that the applicant is statute-barred from proceeding with the dispute with respect to this treatment plan.
43The respondent submits that the applicant failed to attend an assessment pursuant to s. 44 of the Schedule with respect to this treatment plan, and is thus barred from bringing it before the Tribunal pursuant to s. 55.
44Section 44(1) of the Schedule states that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but not more often than is reasonably necessary, an insurer may require an insured person to be examined under this section by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.
45Under s. 44(5), if an insurer requires an examination, it shall give the insured person notice setting out the medical and any other reason for the examination, whether the attendance of the insured person is required at the examination, the name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions. If the attendance of the insured person is required at the examination, it shall advise of the date, time and location of the examination.
46Section 55(1)2 of the Schedule states that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied. The onus is on the insured person to put forth a reasonable explanation for their non-attendance. The Tribunal may, under s. 55(2), permit an insured person to apply to the Tribunal despite a failure to comply with s. 44, subject to terms and conditions.
47By way of Notice of Examination dated August 17, 2021, the respondent requested the applicant’s attendance at an assessment pursuant to s. 44 with Mohammad Nikkhou, neuropsychologist, on October 8, 2021.
48The applicant did not make any submissions regarding this issue or the sufficiency of the notice letter. I have reviewed the letter and am satisfied that the respondent complied with s. 44(5). The letter provided medical and other reasons for the assessment, as it referred to insurer examination reports from March 25 and August 10, 2021, which did not support the need for the treatment plan. It also set out the name and profession of the assessor, and the date, time, and location of the assessment.
49A letter from October 7, 2021, stated that the applicant did not attend the assessment and she was thus not entitled to the treatment plan. There is no neuropsychological report before me. Without any submissions or evidence to the contrary, I accept that the applicant did not attend.
50The applicant has not provided any explanation for her non-attendance, despite having the opportunity to by way of reply submissions. Given that she failed to attend a properly scheduled s. 44 assessment, I find that the applicant is statute-barred from proceeding with the dispute with respect to the treatment plan for a neuropsychological assessment.
Issue (viii) – orthopaedic assessment
51I find that the applicant is not entitled to this assessment.
52This treatment plan, dated July 29, 2021, is for an orthopaedic assessment with Dr. Tajedin Getahun. The goals of the treatment plan are pain reduction, increase in strength, increased range of motion, a return to activities of daily living, and a return to pre-accident work activities.
53The applicant has made no specific submissions as to why she is entitled to this assessment, aside from stating that her position is corroborated by all of the medical evidence.
54I have already found that a chronic pain assessment is reasonable and necessary. The applicant did not provide any explanation as to what goals a chronic pain assessment would not be able to meet that would necessitate an orthopaedic assessment as well. Without this information, I find that it would not be reasonable and necessary for the applicant to undergo two assessments for the purposes of addressing her physical injuries and pain. This applicant is accordingly not entitled to an orthopaedic assessment.
Issue (ix) – social work assessment
55I find that the applicant is not entitled to this assessment.
56The treatment plan, dated August 20, 2021, proposes a social work assessment with Isabelle Zonenberg, social worker. The goals of the treatment were to assess the applicant’s needs with respect to resource management and coping mechanisms in order to improve her daily life.
57The applicant already underwent a psychological assessment on March 30, 2021, and has received treatment from Na Kyung Park, a social worker. The applicant has not explained why an additional psychological assessment is required, or why the goals indicated above could not be met during the treatment sessions she has already attended. I accordingly find that she has not met her burden in proving that this assessment is reasonable and necessary.
Interest
58I find that the applicant is entitled to interest on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
59The 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. I find that the applicant is not entitled to an award.
60The applicant submits that the respondent unreasonably withheld payments without giving due consideration to the entire medical records before them, including the family doctor’s records. The respondent submits that the applicant has never produced any pre- or post-accident medical records, and the applicant did not address this submission in her reply. Further, the applicant did not provide me with any records from her family physician in this hearing. The applicant has not pointed to any other medical records that she alleges the respondent failed to consider. I accordingly do not agree with the applicant’s assertion that the respondent failed to consider medical records in denying benefits.
61With respect to the treatment plans that I have determined the applicant is entitled to in whole or in part, I do not accept that the respondent’s failure to fund them was due to conduct that was excessive, imprudent, stubborn, inflexible, and unyielding. The bar for an award is high. The respondent is not held to a standard of perfection in its decision making. In denying the chronic pain assessment, it relied on the s. 44 reports of Dr. Ko, and although I did not find Dr. Ko’s conclusion to be compelling, I do not find that the respondent acted unreasonably in relying on it. With respect to the amount payable for the psychological assessment, I have not been directed to any evidence that the respondent’s denial met the high bar that would warrant an award.
62I accordingly find that the applicant has not established that the respondent is liable to pay an award.
ORDER
63The applicant is entitled to $194.49 out of the $763.90 in dispute for a psychological assessment proposed by 101 Assessment Centre in a treatment plan dated April 8, 2020.
64The applicant is entitled to $2,460.00 for a chronic pain assessment proposed by 101 Assessment Centre in a treatment plan dated April 23, 2021.
65The applicant is not entitled to the remainder of the treatment plans in dispute.
66The applicant is entitled to interest on any overdue benefits pursuant to s. 51 of the Schedule.
67The respondent is not liable to pay an award.
Released: October 30, 2024
Rachel Levitsky
Adjudicator