Licence Appeal Tribunal File Number: 22-009968/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:
Miguel Moran
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Rajiv Kapoor, Paralegal
For the Respondent:
Kathleen Mertes, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Miguel Moran, the applicant, was involved in an automobile accident on July 5, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The 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
3The issues in dispute are:
i. Is the applicant entitled to $493.73 ($1,666.06 less $1,172.33 approved) for other assistive devices, proposed by Healthmax Brampton in a treatment plan, dated March 15, 2022?
ii. Is the applicant entitled to $4,959.75 for psychological services, proposed by Centre for Psychological and Counselling Services Inc. in a treatment plan, dated September 12, 2022?
iii. Is the applicant entitled to $2,200.00 for a Chronic Pain Assessment, proposed by Rehab & Pain Management in a treatment plan dated April 24, 2023?
iv. Is the applicant entitled to $3,081.50 for a Neurology Assessment, proposed by HAL Disability Management Inc. in a treatment plan dated April 3, 2023?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4I find that the applicant is not entitled to the treatment plans in dispute. As such, no interest is payable.
5The respondent is not liable to pay an award under s. 10 of Reg. 664.
PROCEDURAL ISSUES
The applicant has improperly introduced new evidence in his reply submissions
6I find that the applicant has produced new evidence in his reply submissions, that would prejudice the respondent. Thus, the Tribunal will not consider references to medical documentation that was not originally submitted or relied upon in the applicant’s initial written submissions.
7It is well settled that the purpose of the reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party’s submissions which could not have been reasonably raised in initial submissions. The reply is not an opportunity for the party to reformulate their argument. It is also well-settled that the right of reply is a limited one. As a general rule, parties are expected to make the entirety of their cases in their main submissions. New evidence as part of a reply typically is not permitted, because the respondent does not have the opportunity to respond to new evidence that is tendered as part of a reply.
8In addition, in his reply submissions, the applicant refers to multiple medical documents from different providers, expecting the Tribunal to go through the records independently to find support of his position. There are not any specific references or summaries of what the records state, but a mere list of the documents. It is not the responsibility of the Tribunal to read through pages of medical records to make the applicant’s case.
9I find that the applicant’s evidence and reliance on new medical documentation in his reply submissions that was not previously mentioned in his initial submissions, will not be considered in rendering my decision. Specifically, I will not consider the additional medical documents referred by the applicant in paragraph 6, 12 and 19 of his reply submissions.
Respondent’s Notice of Motion to strike evidence
10The respondent filed a notice of motion on February 27, 2024 seeking the following orders from the Tribunal:
i. An order striking paragraphs 8, 9, 11, 42, 56 and 74 from the applicant’s written hearing submissions in their entirety;
ii. An order excluding the following evidence from the evidentiary record:
a. Amended Decision of Vice-Chair Lindsay Lake, released March 3, 2021;
b. Section 44 IE Psychological Assessment Report of Dr. Neil Weinberg, Psychologist, dated April 12, 2018;
c. Section 44 IE Psychological Assessment Report of Dr. Neil Weinberg, Psychologist, dated December 6, 2021;
d. Section 25 Psychological Consultation Report of Dr. Romeo Vitelli, Psychologist, dated September 4, 2018; and
e. Section 44 IE Orthopaedic Assessment Report of Dr. Gilbert Yee, Orthopaedic Surgeon, dated March 26, 2018.
(a) Request to exclude paragraph 11 of the applicant’s submissions is granted
11The respondent’s request to exclude paragraph 11 of the applicant’s submissions is granted.
12The applicant was involved in a previous motor vehicle accident on May 24, 2017 (“2017 accident”) and made a claim for accident benefits to the respondent. He was involved in a second accident on July 5, 2018 (“2018 accident”), which is the subject accident in dispute, and made a claim for accident benefits to the same respondent. It is accepted that both accidents involve the same counsel for the respondent, the same respondent insurer and the same handling AB adjuster for the respondent.
13The applicant submits at paragraph 11 of his written submissions that the respondent is the insurer handling both the 2017 and 2018 accident benefits claims and therefore should be aware of pre-existing psychological impairments. The applicant further submits that the respondent has acted in bad faith by not applying information obtained through the adjusting of the 2017 claim to decisions made through the adjusting of the 2018 claim.
14The respondent submits it is legally prohibited by the Personal Information Protection and Electronic Documents Act (“PIPEDA”) from accessing or relying on any personal or medical documentation submitted by the applicant in respect of his 2017 accident, absent the applicant providing a signed waiver to the respondent and/or directly serving the medical documentation arising from the prior claim on the respondent. The respondent submits that the applicant has not provided the respondent with the requisite waiver to allow it legal access to the 2017 claims file and has not otherwise served any medical documentation obtained in relation to the 2017 accident as part of the 2018 accident benefits file. It therefore submits that it is prejudicial to the respondent for the applicant to submit that the respondent’s failure to consider documentation that it was not legally allowed to review is evidence of bad faith handling of the 2018 claim.
15I find the fact the respondent is handling both the 2017 and 2018 claims does not negate the respondent’s obligations under PIPEDA and its inability to review and consider medical evidence from a different claim until it has been properly served or a waiver has been provided. The claims are considered to be separate, have separate claim numbers and are adjusted independently. The respondent does not have the right to access documentation submitted in relation to a different claim without authorization under PIPEDA.
16I therefore find that the respondent’s request to exclude paragraph 11 of the applicant’s submissions is granted and will not be considered in determining the applicant’s entitlement to a s. 10 award pursuant to Reg. 664.
(b) Request to exclude paragraphs 42, 56 and 74 of the applicant’s submissions and the four reports is denied
17The respondent’s request to exclude paragraphs 42, 56 and 74 of the applicant’s submissions and the reports of Dr. Weinberg, Dr. Vitelli and Dr. Yee is denied.
18The respondent submits that the applicant has improperly relied on medical documentation that was not served on the respondent prior to being included in his written submissions, which is in violation of the Case Conference Report and Order (“CCRO”), of Adjudicator Sofia Ahmad, dated June 14, 2023 and Rule 9 of the Common Rules of Practice and Procedure (“Common Rules”). The respondent requests exclusion of paragraphs 42, 56 and 74 of the applicant’s submissions and exclusion of the reports of Dr. Neil Weinberg, dated April 12, 2018 and December 6, 2021, Dr. Vitelli, dated September 4, 2018 and Dr. Gilbert Yee, March 26, 2017 from the evidence.
19The respondent submits that at no time prior to being served with the written submissions did the applicant provide any indication of his intention to rely on these reports at the hearing. They were not listed on the application nor on the applicant’s Case Conference Summary form. The respondent further submits that the applicant is in violation of the CCRO which provided the parties with “60 days to disclose any additional items responsive to items that have already been produced which they intend to present as evidence at the hearing”. The applicant did not serve these reports until he submitted his written submissions.
20The applicant submits that these reports were in fact in the possession of the handling adjusters and legal representative for the respondent which is evident from the review of the adjuster log notes as well as the email correspondence between the applicant and the respondent.
21Upon review of the application, under documents which will be relied upon, the applicant states, “The AB and Medical files in possession of the applicant’s representative (all of which were provided to the respondent insurer), including but not limited to, all clinical notes and records provided to the respondent insurer, medical reports and OCF forms.” In the applicant’s Case Conference Summary, there is a detailed listing of the “supporting documents”. The reports at issue were not listed.
22I agree with the respondent that the applicant did not list the reports in issue on the application nor on the applicant’s Case Conference Summary Form. I further agree that the applicant did not meet the document exchange deadlines as listed in the CCRO. However, I do not find that the respondent has demonstrated how it has been prejudiced by the late production of these documents. The respondent states that the late submission has resulted in real prejudice to the respondent, but it has not provided any specifics of this prejudice. The respondent has not provided any evidence that the late reports included new information that would have necessitated changes as to how this file was being adjusted or that it was prevented from providing a defense at this hearing. The respondent was aware that the applicant was involved in a previous accident and had an open accident benefits claim.
23Therefore, I deny the respondent’s request to exclude paragraphs 11, 42, 56 and 74 of the applicant’s submissions and the reports of Dr. Weinberg, Dr. Vitelli and Dr. Yee.
(c) Request to exclude paragraphs 8 and 9 of the applicant’s submissions and the Decision of Vice-Chair Lake is denied
24The respondent’s request to exclude paragraphs 8 and 9 of the applicant’s submissions and the Amended Decision of Vice-Chair Lindsay Lake, in Moran v. Aviva General Insurance, 2021 ONLAT 19-008529/AABS, (“Amended Decision of Vice-Chair Lake”), is denied.
25The respondent submits that the applicant has improperly relied on the Amended Decision of Vice-Chair Lake, which involved the applicant’s previous 2017 accident, as medical evidence in support of the issues in dispute in this hearing. The respondent requests that the decision be excluded from the applicant’s submissions.
26At paragraphs 8 and 9 of the applicant’s written submissions, the applicant addresses Vice-Chair Lake’s analysis of the “but for” test in the previous decision. He submits that the findings outlined in the decision supports his position that on a balance of probabilities, his ongoing physical impairments of lower back and neck pain were worsened by the subject accident and that three of the issues in dispute are therefore reasonable and necessary for his medical recovery.
27The respondent submits that the inclusion of the prior decision is prejudicial and the findings addressing the medical documentation are in relation to a separate dispute in the prior 2017 accident and are not admissible as medical evidence in support of the issues currently in dispute.
28The applicant submits that the Amended Decision of Vice-Chair Lake is public record. He further submits that he does not rely on the decision as medical evidence. Instead, it was presented to the Tribunal for the hearing adjudicator’s comprehension of the sequence of events and to maintain uniformity with a decision directly relevant to the applicant.
29While I may consider an earlier decision of the Tribunal persuasive, I am not bound to follow a previous decision before the Tribunal. Therefore, while I will not strike paragraphs 8 and 9 of the applicant’s submissions or exclude the Amended Decision of Vice-Chair Lake, the weight that these submissions will be afforded will be set out in my decision with respect to the issues in dispute.
Applicant’s request for unredacted copies of the adjuster’s log note entries dated October 16, 2018 and November 13, 2018
30In his responding motion submissions, the applicant requested an order from the Tribunal for production of unredacted copies of the adjuster’s log note entries dated October 16, 2018 and November 13, 2018, that pertain to “file review” and “not reserves” from the respondent.
31In its reply motion submissions, the respondent provided the unredacted log notes from October 16, 2018 and November 13, 2018. Therefore, I find that no order from the Tribunal is necessary in response to this request.
ANALYSIS
a) Entitlement to Medical and Rehabilitation Benefits
32To receive payment for 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. 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.
b) Section 38(8) and 38(11) of the Schedule
33The applicant has submitted that the respondent has not complied with the procedural requirements under section 38(8) and 38(11) of the Schedule, with respect to the treatment plans in dispute.
34Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within 10-business days after it receives the treatment plan of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan. Pursuant to s.38(11), if an insurer fails to comply with its obligations under s.38(8), it must pay for all incurred goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day that the insurer received the treatment plan until such time that it gives notice that complies with s.38(8) of the Schedule.
35I am persuaded by the Reconsideration Decision of Executive Chair Lamoureux in M.B. v. Aviva Insurance Company, 2017 CanLII 87160, submitted by both parties, who addressed the requirement to provide adequate ‘medical and other reasons.’ The Executive Chair noted that:
In my view, an insurer satisfies its obligation to provide its ‘medical and any other reasons’…by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to outline a comprehensive approach to do so.
36Executive Chair Lamoureux further stated, “ultimately, an insurer’s ‘medical and any other reasons’ should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.”
c) The applicant is not entitled to the balance of the treatment plan for assistive devices, dated March 15, 2022
37I find that the applicant has not proven on a balance of probabilities that he is entitled the balance of the treatment plan for assistive devices, dated March 15, 2022.
38The applicant claims entitlement to $1,666.06, for assistive devices, proposed by HealthMax Brampton (“HealthMax”) in a treatment plan dated March 15, 2022. The respondent approved $1,172.33 of the treatment plan, leaving a balance of $493.73, which is in dispute. The treatment plan recommends the following items:
i. Documentation, support activity for claim form - $200.00
ii. Massager, personal - $155.00
iii. Ultra Bio Turmeric - $40.00
iv. Heat pad - $200.00
v. Brace - $500.00
vi. Dispensing, service - $56.41
vii. TENS unit - $370.00
viii. TENS unit accessories - $40.00
39The applicant submits that he is entitled to the remaining amount of $493.73 in the proposed treatment plan, dated March 15, 2022, for the following reasons:
i. The respondent failed to adjust the claim in good faith; and
ii. The respondent failed to adhere to section 38(8) of the Schedule.
40The applicant submits that the respondent breached its fiduciary duty to adjust the claim in good faith. He claims that the respondent initially approved the treatment plan and then subsequently changed its position and only partially approved the treatment plan. In addition, the respondent failed to provide any reasonable evidence of the retail price of each item that it partially approved payment for. The applicant claims that the respondent’s letter dated April 13, 2022, did not include any such explanation.
41The respondent submits that it corresponded directly with HealthMax and confirmed the agreement of the actual pricing that it would pay for each of the devices approved. HealthMax did not dispute the agreed upon pricing and did not respond to the respondent’s email on April 4, 2022. The respondent further submits that despite being aware of the respondent’s inquiry into the appropriate price of each of the approved items on March 28, 2022, and having only provided the respondent with the requested documentation afterhours on March 31, 2022, HealthMax proceeded to provide the applicant with the TENS machine on April 1, 2022, prior to having confirmed the agreed upon pricing of the item.
42The respondent further submits that as per the OCF-21 invoice submitted by HealthMax on April 21, 2022, of the items listed on the treatment plan, the applicant only received the TENS machine, a personal massager and supplements, for a total invoiced cost of $638.45, with the respondent paying $445.22. The only item incurred and not paid at the invoiced amount is the TENS machine, which was invoiced at $370.00 and paid at $199.00 (plus tax), leaving a balance of $193.23 unpaid.
43Upon review of the evidence before me, I find the following:
i. By correspondence dated March 28, 2022, the respondent provided an Explanation of Benefits (“EOB”) stating, “We have approved the above noted treatment plan, however we require confirmation of the goods submitted for payment consideration.” It asks for confirmation of the make and model of all devices proposed including the size (bottle size of supplement and heating pad);
ii. On the same date, March 28, 2022, the respondent emailed HealthMax advising that further to the FSCO Cost of Goods Guidelines, it required confirmation of the make/model/size of the specific goods prior to payment being issued. It notes that “payment will be based on the items retail cost to the general public”;
iii. On March 31, 2022, HealthMax replied to the respondent and provided the requested information regarding the make/model/size of the various assistive devices listed on the treatment plan;
iv. On April 4, 2022, the respondent replied to HealthMax by email advising of the amount for each device that it was agreeable to paying and included the links to the sites from which the respondent sourced the specific retail pricing information. The respondent noted that “If there is no additional information to further confirm lines 4,5,7, and 8, I will proceed to update my HCAI decisions on the OCF-18 and will pay the invoice in accordance with my adjustments noted above”;
v. No further correspondence was received from HealthMax in reply to the respondent’s email dated April 4, 2022; and
vi. By correspondence dated April 13, 2022, the respondent provided a second EOB which states, “We have updated our approval of the above noted treatment plan, based on the information provided by HealthMax.” The approved amount for each individual assistive device was indicated.
44I do not find that the remaining balance of the treatment plan dated March 15, 2022 is reasonable and necessary. The applicant has not provided any evidence to support that the higher amounts for the assistive devices are reasonable and necessary. I do not find the respondent has breached its fiduciary duty to adjust the claim in good faith or that it has defaulted on its initial approval of the treatment plan in dispute because I find that the respondent has provided evidence of the retail prices that it approved for the items in dispute, which is evidenced in the correspondence between the respondent and HealthMax dated April 4, 2022. At all times, the respondent was in direct contact with HealthMax about its decision in respect of the items in dispute and provided an explanation as to how it procured the selected retail costs for each of the items.
45The OCF-21, dated April 21, 2022, provides an Auto Insurer Total of $445.22 approved as follows:
i. Ultra Bio Turmeric (Supplement) – (approved $40.00)
ii. TENS Unit - $370.00 (approved $199.00)
iii. Hand Held Massager – (approved $155.00)
The total approved amount of the three items plus tax would be $445.22. This is the amount that should have been paid by the respondent in respect of the three items listed above.
46The applicant further submits that the respondent did not comply with s. 38(11) of the Schedule. The applicant states that the subject treatment plan was delivered to the respondent on March 15, 2022 and as per s. 38(11) of the Schedule, the respondent must have provided the applicant with a relevant response by March 29, 2022. The applicant submits that the EOB was sent by mail to the applicant and therefore deemed delivered on April 4, 2022, which is beyond the response deadline date of March 29, 2022.
47I find that the respondent provided a copy of the EOB letter, dated March 28, 2022, to the applicant via regular mail, as well as to his legal representative via email on March 28, 2022 As the applicant had provided the respondent with a signed “Authorization and Direction” directing the respondent to deal directly with counsel with respect to the accident benefits claim, I find that the respondent complied with s. 38(11) of the Schedule and provided the notice within the required 10 business days.
48For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he is entitled to the balance of the treatment plan dated March 15, 2022.
d) The applicant is not entitled to the treatment plan for psychological services, dated September 15, 2022
49I find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plan for psychological services, dated September 15, 2022..
50The applicant claims entitlement to $4,959.75 for 16 psychological treatment sessions, “planning, service,” “documentation support activity,” “preparation, service,” and “documentation support activity for claim form”, proposed by the Centre for Psychological and Counselling Services Inc., in a treatment plan, dated September 15, 2022. The goals of the treatment plan are pain reduction, return to pre-accident level of physical and psychological functioning and return to activities of normal living.
51The applicant submits that the respondent has not assessed the treatment plan accordingly. It has failed to recognize and/or entirely disregarded the goals of the subject treatment plan and its subjective benefits to the applicant. The applicant submitted that the proposed psychological treatment is necessary as the applicant continues to suffer from psychological conditions which impede his ability to recover and interfere with his functional impairment. The services are reasonable as their costs fall within the Schedule limits. The applicant relies upon the reports of Dr. Romeo Vitelli, Psychologist, dated September 4, 2018, Dr. Neil Weinberg, dated April 12, 2018 and December 6, 2021 which were prepared in relation to the 2017 accident. The applicant submits that her pre-existing psychological complications persisted but were also aggravated by the 2018 accident.
52The respondent submits that the treatment plan was denied by EOB correspondence dated September 26, 2022. The EOB noted the reasons for the denial as being:
Aviva has determined the treatment submitted is not reasonable or necessary for the following reasons: As per your most recent clinical notes and records received from your family doctor, Dr. Akladios, there has been no recommendation for psychological treatment, as recently as the April 1, 2022 visit with no psychological complaints in relation to the motor vehicle accident. There is no compelling medical documentation on file to support the need for this treatment plan.
53I find that the applicant is not entitled to the psychological treatment recommended in the treatment plan, dated September 15, 2022, for the following reasons.
54I find that the applicant is relying on three psychological assessment reports that were all obtained in relation to his prior 2017 accident. As discussed above, these reports were not served on the respondent in relation to the claim from the subject accident until the applicant’s initial written hearing submissions were made. Upon review of the three reports, the s. 44 IE Report of Dr. Weinberg, dated April 12, 2018, pre-dates the subject accident. The s. 25 Report of Dr. Vitelli, dated September 4, 2018, makes no reference to the 2018 accident and attributes any psychological concerns/diagnosis directly to the prior accident in 2017. The second s. 44 IE Report of Dr. Weinberg dated December 6, 2021, was obtained to determine whether a treatment plan for psychological treatment submitted in relation to the 2017 accident was reasonable and necessary. Dr. Weinberg concluded that the applicant was still in need of additional counselling and the treatment plan proposing an additional eight one-hour sessions was deemed reasonable and necessary. It is clear from this report, that the applicant submitted and had been approved for several treatment plans for psychological counselling through the 2017 accident claim. These reports do not specifically deal with any psychological condition sustained in the 2018 accident.
55I further find that there are no references to any psychological issues or concerns in the CNRs of Dr. Akladios, family physician, from September 10, 2018 through to January 11, 2023. The CNR dated March 14, 2022, notes that the applicant was “feeling intermittently very tired at work for weeks, stressed out with his father being in hospital recently”. The applicant has not directed to me any other CNRs which detail any psychological conditions sustained in the 2018 accident.
56The applicant states that he refrained from mentioning his ongoing psychological complications to his family physician because he is reluctant to share his psychological issues with his family physician due to cultural reasons. It is the responsibility of the applicant to report his ongoing issues. Without doing so, the respondent is not privy to the complaints and there is no medical evidence to support the complaints.
57The applicant further relies on the treatment plan itself in support of its reasonableness. I am persuaded by the decision of Eapen v. Aviva Insurance Company, 2022 CanLII 84686 (ONLAT)) submitted by the respondent, where the Tribunal states at paragraph 15 that treatment plans “while they can be useful in assessing an applicant’s medical status, they must be accompanied by compelling contemporaneous medical evidence.” I agree that treatment plans on their own are not compelling evidence in support of said treatment. While the treatment plan references a report of Dr. Richard Ricardo, to be reviewed in support of the recommendations, the respondent submits it has not received this report and this report is not included in the applicant’s submissions for my consideration. I find that the treatment provider makes no reference in the “Additional Comments” section of the plan that the applicant completed any previous psychological counselling, the impact of the previous treatment or the reasons for changing treatment providers in light of the past therapeutic relationship.
58The applicant further submits that the respondent has failed to adhere to the procedural requirements under s. 38(8) of the Schedule, in denying the subject treatment plan. He refers to the EOB dated September 26, 2022, and states that the respondent refused to pay for the entirety of the subject treatment plan proposing psychological treatment and did not provide a comprehensive breakdown of which goods and services it did not agree to pay for. In addition, the respondent used generalized boilerplate language when providing ‘medical and other reasons’. The applicant relies on the Tribunal’s decision in G.P. v. Wawanesa Mutual Insurance Company, 2022 CanLII 45306 (ON LAT) to submit that the EOB is not compliant with s. 38 of the Schedule because it denied the entire treatment plan in full and did not provide a comprehensive breakdown of which goods and services it did not agree to pay for.
59The respondent submits that this denial is compliant with s. 38 of the Schedule. It provided the applicant with medical reasons that are clear and sufficient enough to allow the applicant to understand that the entire treatment plan for psychological counselling was denied and the medical reasons for same, based on the CNRs of Dr. Akladios. As the respondent was denying the entire treatment plan for psychological counseling in full, there is no need for a line-by-line breakdown.
60I find that the respondent’s denial is compliant with s. 38 of the Schedule. The applicant was provided with medical reasons that are clear and sufficient to allow the applicant to understand that the entire treatment plan for psychological treatment was denied and the medical reasons for same. As the respondent was denying the entire treatment plan for psychological counselling in full, there was no need for a line-by-line breakdown. The medical reasons for the denial as noted on the EOB referred to the entirety of the CNRs from Dr. Akladios on file at the time of submission of the treatment plan. I do not find that this is boilerplate language. The respondent specifically notes a review of the updated CNRs of Dr. Akladios and the fact that there is no recommendation for psychological treatment nor any reference whatsoever to any psychological complaints in the records provided.
61For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plan for psychological treatment, dated September 15, 2022.
e) The applicant is not entitled to the treatment plan for a chronic pain assessment, dated April 24, 2023
62I find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plan for a chronic pain assessment, dated April 24, 2023.
63The applicant claims entitlement to the treatment plan, dated April 24, 2023, proposed by Dr. Nadir Al-Jazrawi, of Rehab & Pain Management, recommending a chronic pain assessment in the amount of $2,200.00. The treatment plan states that the purpose of the chronic pain assessment is to evaluate the patient’s levels of psychological and psychosocial signs of a chronic pain condition, functional limitation and disability. It notes that,
Taking into account the fact that a considerable amount of time has passed since the date of the accident and maximum medical improvement has not been reached, it appears that the unresolved injuries consist of chronic pain associated with originally sustained injuries as the result of the accident. The examination will determine the nature of chronic pain as well as barriers to the patient’s recovery. In the course of this assessment recommendations/program for treatment of such injuries will be provided.
64The applicant submits that the goals of the proposed chronic pain assessment, is a reassessment of the applicant’s medical condition, to identify the barriers to recovery, as well as a review of the medical documents from November 2021 and onwards. This goal is not only reasonable but will also be reasonably attained.
65The applicant submits that because the respondent removed the applicant from the Minor Injury Guideline (“MIG””) on February 8, 2022, this decision implicitly concedes that the applicant’s injuries are chronic. The applicant further relies on the Chronic Pain Assessment report prepared by Dr. Tajedin Y. Getahun, dated November 11, 2021, where Dr. Getahun diagnoses the applicant with chronic myofascial strain of the cervical spine; chronic myofascial strain of the lumbosacral spine and aggravation of pre-existing spondylolisthesis and foraminal narrowing. Dr. Getahun goes on to state that the applicant’s presentation satisfies the American Medical Associations Guide to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”) criteria for chronic pain.
66The applicant submits that he has made complaints to various medical practitioners on several different dates as set out in the CNRs from City Centre Family Physician from June 6, 2021 to January 11, 2023.
67The respondent submits that at no time did it concede that the decision to remove the applicant from the MIG results in a determination that his injuries are chronic. The respondent further submits that it was not served with the report of Dr. Getahun, dated November 11, 2021, until June 6, 2023, as part of the applicant’s Case Conference productions. It submits that despite Dr. Getahun recommending that the applicant enroll in a multidisciplinary chronic pain program and to date the applicant has never submitted a treatment plan for this type of program. The respondent submits that the treatment plan in dispute provides no explanation as to why the applicant requires another chronic pain assessment despite having already completed one and participating in ongoing physical therapy and massage treatment. There is no indication as to what new information the proposed assessment would be able to determine that is not already known by the applicant’s treating providers.
68I find that the applicant has not proven on a balance of probabilities that the treatment plan recommending a chronic pain assessment is reasonable and necessary for the following reasons.
69The applicant has provided a Chronic Pain Assessment Report that was prepared by Dr. Getahun, dated November 11, 2021. The report recommends physiotherapy and chiropractic interventions in a multidisciplinary supervised setting, enrolment in a multidisciplinary chronic pain program, an in-home occupational therapy assessment for assistive devices and a psychological assessment for his reported diminished mood. Despite these recommendations, the applicant has not provided any medical evidence to support that any of these recommendations were followed by the applicant or the reasons why they were not followed. In addition, the applicant has not provided an explanation as to why this report was not served on the respondent prior to June 6, 2023.
70The applicant submits that he has attended for therapy for the 2018 accident however he has not provided any specifics about the type of treatment received, the dates of treatment received or the benefits of any treatment received in his submissions.
71The applicant submits that a reassessment of the applicant’s medical condition is required and relies on the CNRs from City Centre Family Physician. These CNRs, however, do not show a recommendation for a chronic pain assessment or an indication that the applicant’s condition has worsened since the date of the November 11, 2021 report.
72The applicant further submits that the respondent has contravened s. 38(8) of the Schedule by failing to specify the goods and services that it did not agree to pay for in denying the subject treatment plan. It is the applicant’s position that in its denial letter dated May 1, 2023, the respondent merely noted that the chronic pain assessment was refused, despite there being two components of the assessment outlined in the treatment plan. This lack of comprehensive breakdown in the denial notice renders it deficient.
73The respondent submits that by EOB correspondence dated May 1, 2023, it advised the applicant of the denial of the proposed chronic pain assessment. The reasons for denial were noted as follows:
Aviva has determined the treatment submitted is not reasonable or necessary for the following reasons: As per the most recent records from your family doctor up to April, 2022, there is no mention and no recent medical records to support a chronic pain assessment as a result of the motor vehicle accident at this time. As per the record dated April 1, 2022, you started working full time again and requested new orthotics and Percocet in case of pain flare ups. You had fatigue in March 2021 due to your work schedule. You were to attend massage therapy for chronic neck and low back pain due to degenerative disc disease and myofascial pain in January 2022 and therefore an assessment would not seem reasonable and necessary at this time.
74The respondent submits that this denial is compliant with s. 38 of the Schedule. It is sufficient for the respondent to note that the treatment plan for a chronic pain assessment was denied in full without having to provide a breakdown.
75I find that the respondent’s denial is compliant with s. 38 of the Schedule. The applicant was provided with medical reasons that are clear and sufficient to allow the applicant to understand that the entire treatment plan for the chronic pain assessment was denied and the medical reasons for same. As the treatment plan proposed one chronic pain assessment plus the standard treatment plan completion fee, there was no requirement for the respondent to provide a line-by-line breakdown when denying the entire assessment in full.
76For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he is not entitled to the treatment plan for a chronic pain assessment, dated April 24, 2023.
f) The applicant is not entitled to the treatment plan for a neurology assessment, dated April 3, 2023
77I find that the applicant has not proven on a balance of probabilities that he is entitled to the treatment plan for a neurology assessment, dated April 3, 2023.
78The applicant claims entitlement to $3,081.50 for a neurology assessment, proposed by Dr. Dahir Hashi, Chiropractor, of HAL Disability Management Inc. in a treatment plan dated April 3, 2023. The goal of the treatment plan is listed as “neurological assessment to determine prognosis and treatment options”.
79The applicant submits that the treatment plan is both reasonable and necessary. It is reasonable as its costs fall within the Schedule limits and it is necessary as the applicant continues to face neurological complications and radiculopathy that contribute to daily functional impairments. The applicant further submits that the respondent has failed to consider new medical information as it became available to make a proper determination of the applicant’s neurological condition and his ongoing need for rehabilitation benefits. The applicant relies on the reports of Dr. Gilbert Yu Ming Yee, dated March 26, 2018 and September 30, 2019 in relation to the 2017 accident. He further relies on the note of Dr. Aimal Sediq, general practitioner, dated January 28, 2020 to support ongoing neurological issues and Dr. Mehdi Shahideh’s note, dated January 18, 2023 who he saw for a neurosurgical consultation. The applicant submits that the goal of a neurological assessment, given the applicant’s worrying and persisting symptomatology, is to identify any possible diagnoses and sequelae caused by the accident and to determine whether intervention would help the applicant manage same.
80The respondent submits that it did not receive the s.44 IE Orthopaedic Assessment Report of Dr. Gilbert Yee, orthopaedic surgeon, dated March 26, 2018, as it was obtained as part of the 2017 accident claim, and was never served on the respondent in relation to the subject accident.
81The respondent submits that the report of Dr. Mehdi Shahideh, neurosurgeon, dated January 18, 2023, was not served on the respondent until June 6, 2023. The respondent further submits that the report confirms that the applicant would benefit from lumbar decompression and instrumental fusion at the L5-S1 junction. The report notes that the applicant is currently managing his pain and although he will likely require surgery in the future, he advised the applicant to continue working with his rehabilitation team which he was already doing. With respect to neck pain, the applicant does not have any myelopathic or advanced radicular symptoms that would warrant surgery and that continued therapy and strengthening of the neck muscles was recommended. Steroid injections were also discussed with the applicant advising that he would “think about it.”
82The respondent submits that the treatment plan in dispute does not state why the applicant requires another neurological assessment and what benefit Dr. Basile, neurologist, could provide when the applicant had already been recently assessed by a neurosurgeon. In addition, there is nothing in the treatment plan itself to support that Dr. Basile, neurologist, ever met with the applicant or reviewed his entire medical file prior to submitting the treatment plan for consideration. This is further supported by the fact that the treatment plan was submitted by Dr. Dahir Hashi, chiropractor. It is completely outside the scope of practice of a chiropractor to make any diagnosis or determination regarding neurological injuries.
83I find that the applicant has not proven on a balance of probabilities that the treatment plan recommending a neurological assessment is reasonable and necessary for the following reasons.
84I find that the reports of Dr. Gilbert Yu Ming Yee, dated March 26, 2018 and September 30, 2019 were prepared in relation to the previous 2017 accident. While the applicant relies on these reports to assert that the applicant did not sustain any neurological injuries in the 2017 accident, they do not provide evidence of any injuries suffered in the 2018 accident.
85The report of Dr. Sediq, general practitioner, dated January 28, 2020 makes multiple recommendations of treatment for the applicant. There is no recommendation for a neurological assessment to be conducted.
86The applicant relies on the report of Dr. Shahideh, neurosurgeon, dated January 18, 2023, in his submissions. However, the applicant has not provided any explanation as to why the applicant would require a second neurological opinion as recommended in the treatment plan in dispute when the applicant underwent a full neurological assessment by Dr. Shahideh. Dr. Shahideh made a diagnosis and recommendations for intervention. There is no medical evidence before me that Dr. Shahideh’s recommendations were followed by the applicant.
87The treatment plan was prepared by Dr. Dahir Hashi, chiropractor. There is no indication in the treatment plan that the applicant was ever assessed by Dr. Basile, the neurologist who would be performing the neurological assessment. There is no mention of what medical evidence was relied on or the type of assessment performed by Dr. Hashi, when making the recommendation for a neurological assessment.
88The applicant also submits that the respondent has contravened s. 38(8) of the Schedule. He submits that the treatment plan was denied by the respondent using boilerplate language and merely noted a lack of medical documentation to support a neurological assessment. The respondent cited that the applicant’s injuries did not indicate any neurological deficits based on a review of the family doctor records up to April, 2022. The applicant submits that the respondent failed to consider and/or wholly ignored that there are several notes and concerns of neurological deficits.
89I further find that the respondent’s denial is compliant with s. 38 of the Schedule. The applicant was provided with medical reasons that are clear and sufficient to allow the applicant to understand that the entire treatment plan for the neurological assessment was denied and the medical reasons for same. The respondent provided its response based on its review of the medical documents provided to date.
90The respondent submits that it provided EOB correspondence to the applicant dated April 12, 2023, advising of the denial of the proposed neurological assessment. The reasons for the denial were noted as follows:
Aviva has determined the treatment submitted is not reasonable and necessary for the following reasons: As per your medical documentation on file, there is no documentation to support a neurological assessment. The records of your family doctor are received up until April, 2022 and the record dated January 5, 2022 indicated that there were no neurological deficits, and does not state any further neurological notes or concerns.
91The respondent further submits that the EOB is compliant with s. 38 of the Schedule in that it provided the medical reasons for the denial based on the medical documentation provided by the applicant at that time which was limited to the CNRs of Dr. Akladios up to April, 2022. As the treatment plan proposed one neurological assessment plus the standard treatment plan completion fee, there was no requirement for the respondent to provide a line-by-line breakdown when denying the entire assessment in full.
92For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that he is not entitled to the treatment plan for a neurological assessment dated April 3, 2023.
Interest
93Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that the applicant is not entitled to the disputed treatment plans, no payments are overdue, and thus no interest is payable.
Award
94The applicant sought an award under s. 10 of Reg. 664, submitting that the respondent unreasonably withheld and delayed the payment of benefits and failed to consider the medical evidence before it. I find an award is not appropriate because there is no evidence that the respondent unreasonably withheld or delayed the payment of benefits.
ORDER
95For the reasons outlined above, I find:
i. The applicant is not entitled to the treatment plans in dispute. As such no interest is payable;
i. The respondent is not liable to pay an award pursuant to s.10 of Reg. 664; and
ii. The application is dismissed.
Released: November 7, 2024
Melanie Malach
Adjudicator