Paonessa v. Aviva Insurance Company of Canada, 2024 CanLII 108242

Citation: Paonessa v. Aviva Insurance Company of Canada, 2024 ONLAT 22-011088/AABS

Licence Appeal Tribunal File Number: 22-011088/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:

Lucia Paonessa

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Matthew Frontini

APPEARANCES:

For the Applicant: Dayana Soto Santana, Paralegal

For the Respondent: Aimee Draper, Counsel

HEARD: By way of written submissions

OVERVIEW

1Lucia Paonessa, the applicant, was involved in an automobile accident on January 23, 2022, 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, Insurer, 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 a non-earner benefit (“NEBs”) of $185.00 per week from February 20, 2022, to present?

ii. Is the applicant entitled to $1.010.39 ($2,560.00 less $1,549.61 approved) for psychological services, proposed by 101 Assessments in a treatment plan/OCF-18 (“treatment plan”) dated September 21, 2022?

iii. Is the applicant entitled to $2,128.53 for an attendant care assessment, proposed by 101 Assessments in a treatment plan dated August 16, 2022?

iv. Is the applicant entitled to $339.00 ($3,015.33 less $2,712.33 approved) for chiropractic services, proposed by 101 Physio in a treatment plan dated June 1, 2022?

v. Is the applicant entitled to $3,390.28 for physiotherapy services, proposed by 101 Physio in a treatment plan dated January 24, 2022?

vi. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan dated April 25, 2023?

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

RESULT

3I find that:

i. The applicant has not established that she has suffered a complete inability to carry on a normal life as a result of the accident and therefore is not entitled to NEBs;

ii. That the applicant is not entitled to the treatment plans for an attendant care assessment, a psychological assessment, psychological services, chiropractic services and physiotherapy services; and

iii. As there are no overdue benefits, no interest is payable.

ANALYSIS

The Applicant has not established that she is entitled to NEBs

4I find that the applicant has not established that she is entitled to NEBs as she has not suffered an impairment that prevents her from engaging in substantially all of the activities she engaged in prior to the accident.

5Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”) which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

6The applicant submitted an OCF-3 dated January 26, 2022, three days after the accident, indicating that she suffered a complete inability carry on a normal life. The applicant’s submissions argue that she is unable to carry out a normal life due to her extreme and chronic pain, which restricts her daily functioning. The applicant’s submissions argue that her injections to control pain and prescriptions for pain medication post-accident are evidence of this accident-related impairment. The applicant also relies on her reporting of exacerbated pain to various assessors.

7The respondent argues that the applicant has failed to establish that her post-accident functioning is substantially impaired as a result of the accident, noting the applicant’s extensive pre-accident medical history, limited function and pre-existing chronic pain. The respondent also relies on the medical evidence of Dr. Auguste, Dr. Siegel and Mr. Findlay, occupational therapist.

8In my view, when considering the applicant’s argument that she suffers chronic pain that prevents her from engaging in substantially all the activities of a normal life, it is critical to consider her pre-accident state because she has a significant pre-accident history of medical issues and treatment that is relevant to the NEB analysis. The respondent summarized these conditions in paragraph 16 of its submissions, which correspond to the extensive medical records appended to the applicant’s submissions. These conditions include tibia fractures requiring surgical intervention, chronic pain issues in her right shoulder, which resulted in several surgical interventions, culminating in a shoulder replacement surgery in 2019, regular weekly attendances at a pain clinic for injections and prescriptions for pain medication. A post-surgical assessment dated December 18, 2020 indicated that the applicant may never regain complete function in her arm, even after the surgery.

9The applicant’s submissions rely on her attendance at a pain clinic, Neupath Centre for Pain & Spine, for regular injections to address her chronic pain. While the applicant’s submission draw attention to her attendance at Neupath post-accident, the clinical notes and records appended to the applicant’s submissions are from January 2019 to November 23, 2022. This period covers a significant pre-accident period as well as nearly a year of post-accident treatment. These extensive records detail the applicant’s scoring of her best, worst and average pain on a scale of 1 -10; duration of relief from injections; a pain disability index (PDI), with the higher the score indicating the more that pain interferes with daily life; activities of daily living; a heading titled “subjective” which described the applicant’s state; and an assessment.

10I find that the Neupath records do not support her entitlement to an NEB because they indicate that the applicant’s pre- and post-accident scoring of pain and its effects are not substantially different. For example, her scoring of pain did not change pre- and post-accident, often reporting a 10. The applicant’s PDI was also consistent during the pre- and post-accident periods, scoring around 60. The applicant also generally reported the answer of “same” for the activities of daily living pre- and post- accident. Under the “subjective” heading, there were only two references made to the motor vehicle accident itself and these references did not describe any specific changes to applicant’s state as a result of the accident. Finally, the “assessment” section of these records indicated “no change to current pain diagnosis” throughout the pre- and post-accident period.

11The respondent relies on the assessments by Dr. Auguste, Dr. Siegel and Mr. Findlay, occupational therapist, all of whom reviewed records detailing the applicant pre-accident medical history. Dr. Auguste’s assessment entailed a review of the applicant’s extensive medical history and a physical examination of the applicant. Based on his examination of the applicant and review of her medical history, he did not identify any impairments resulting from the accident and that concluded that she did not suffer a complete inability to carry on a normal life as a result of the accident. I find that these assessments are compelling as they are consistent with the objective medical records produced by the applicant and they further support the finding that the applicant does not suffer an accident-related impairment that continuously prevents her engaging in substantially all of the activities in which she ordinarily engaged before the accident.

12The respondent’s psychological assessor, Dr. Sigel, did not find that the applicant suffered a psychological impairment as result of the accident that prevents her engaging in substantially all of the activities in which she ordinarily engaged before the accident. As the applicant’s submissions assert that entitlement to NEBs is based on chronic pain, I do not address Dr. Siegel’s report in detail in these reasons.

13Mr. Findlay’s report details the applicant’s reporting that her functioning in self-care, homemaking, caregiving and leisure were largely same pre- and post accident. The assessment also entailed observations of the applicant’s functional capabilities, ultimately concluding that the applicant is able to engage in her pre-accident activities, including personal care housekeeping and caregiving.

14I find that the applicant has not established that she is entitled to NEBs because the objective medical evidence, particularly the extensive Neupath records indicate that she experiences the same level of chronic pain and function after the accident as before. I find the Neupath records are consistent with the conclusions of the respondent’s section 44 assessment reports which found that that there are no accident-related impairments, including accident-related chronic pain, that prevent the applicant from engaging in substantially all of the activities in which the applicant ordinarily engaged before the accident. Therefore, the applicant has not established that she is entitled to NEBs.

The applicant is not entitled to the treatment plan for chiropractic services in the amount of $339.00 ($3,015.33 less $2,712.33 approved)

15I find that the applicant is not entitled to the disputed amount of $339.00, pertaining to travel expenses in the treatment plan for chiropractic services.

16The respondent also notes that the denied amount of $339.00 ($3,015.33 less $2,712.33 approved) corresponds to transportation costs. The respondent argues that the denial of these transportation costs was proper because the distance traveled did not exceed the 50 km deductible required for as set out at section 3(1)(b) of the Schedule, as set out in the explanation of benefits to the applicant.

17The applicant did not make any submissions regarding the denial based on 3(1)(b) of the Schedule.

18Given the applicant’s lack on submissions on this key point, I find that she is also not entitled to the denied amount of $339.00 for transportation costs in the treatment plan for chiropractic services proposed by 101 Physio, dated June 1, 2022.

The applicant is not entitled to the treatment plan for physiotherapy services in the amount of $3,390.28

19I find that the applicant has not established that she is entitled to the disputed treatment plan for physiotherapy services.

20The applicant argues that she is entitled to these disputed treatment plans because of her aggravated pain following the motor vehicle accident and that “[s]ections 14 and 15 of the SABS require that an insurer pay for medical benefits to or on behalf of the [a]pplicant so long as the medical benefits are reasonable and necessary.” The applicant’s submission do not state why the applicant believes that these treatment plans are reasonable and necessary. In her submissions regarding a denied psychological assessment, she asserts that pain reduction is a legitimate medical and rehabilitative goal. I therefore infer that the applicant’s arguments regarding pain reduction apply to the treatment plans for chiropractic and physiotherapy services as well.

21The respondent argues that the applicant has not established that the treatment plans in dispute are reasonable and necessary based on a lack of objective medical that the treatment plans in dispute will treat accident-related injuries and impairments.

22In considering all the evidence, I find that the applicant’s submissions and evidence have not established that (1) she suffers from chronic pain arising from the motor vehicle accident; (2) that the motor vehicle accident exacerbated her pre-existing pain; or (3) that the treatment plans in dispute are reasonable and necessary because of the dearth of objective medical evidence that the disputed plans will treat accident-related impairments.

23In reaching this conclusion, I note that, as set out above, the applicant has been experiencing chronic pain and has been attending a pain clinic for injections long before the accident as well as having prescription medications for pain for many years as well. She attended the pain clinic at the same frequency and reported similar pain scores and pain disability index before and after the accident. Her pain medications have also not changed since the accident.

24As such, I find that the applicant has not established that these treatment plans are reasonable and necessary to treat impairments resulting from the motor vehicle accident.

The Applicant is not to entitled to $2,460.00 for a psychological assessment, proposed in a treatment plan dated April 25, 2023

25I find that the applicant has not established that she is entitled to the disputed treatment plan for a psychological assessment as the respondent had previously approved an earlier psychological assessment.

26The applicant’s submissions on her entitlement to a psychological assessment were made together with her submissions that she is entitled to the treatment for psychological services. She claims that because two previous assessment she had in August 2022 by Dr. Papazoglou and March 2023 by Dr. Kazmi indicated she suffers from psychological impairments, and because she has ongoing pain from the accident, she is entitled to both the treatment plan for psychological assessment and the treatment plan for psychological services.

27The respondent argues that the disputed treatment plan is not reasonable and necessary because the applicant was already under the care of a psychotherapist following an earlier section 25 assessment that the respondent had approved.

28I find that the applicant has not established that the disputed treatment plan for a psychological assessment is reasonable and necessary. The applicant’s submissions do not address why a psychological assessment in a treatment plan dated April 25, 2023, would be reasonable and necessary so close in time to Dr. Kazmi’s psychological assessment in March of that same year. Therefore, I find that the applicant has not met her onus to establish why this second treatment plan is reasonable and necessary. Furthermore, the applicant had previously been diagnosed in her assessment in 2022 and is receiving treatment pursuant to that diagnosis.

The applicant is not entitled to $1,010.39 ($2,560.00 less $1,549.61 approved) for psychological services, in a treatment plan dated September 21, 2022?

29I find that the applicant has not established that she is entitled to the disputed amount for a treatment plan for psychological treatment as she has not utilized the approved portions of this or other treatment plans for these services.

30As described above the applicant asserted that she is entitled to the disputed treatment plan for psychological services because two previous assessments she had in August 2022 by Dr. Papazoglou and March 2023 by Dr. Kazmi indicated she suffers from psychological impairments and would benefit from treatment. She notes that Dr. Papazoglou’s assessment recommended 12 sessions and that Dr. Kazmi’s assessments recommend a further 12 sessions.

31The respondent argues that the disputed treatment plan is not reasonable and necessary because (1) the applicant did not consume the partially approved amount of the treatment plan in dispute; and (2) the applicant did not consume any part of subsequently partially approved treatment plan for psychological services in April 2023. The applicant did not address the respondent’s submissions despite having the opportunity to do so in reply.

32I agree with the respondent. I find that the applicant has not established that the denied portion of this treatment is reasonable and necessary given that she did not consume the already approved portion of the same plan, or that of a subsequent treatment plan. Therefore, I find that the applicant has not met her onus to establish on a balance of probabilities that the disputed portion of this treatment plan is reasonable and necessary.

The applicant is not entitled to $2,128.53 for an attendant care assessment proposed in a treatment plan dated August 16, 2022

33I find that the applicant has not established that she is entitled to the disputed treatment plan for an attendant care assessment.

34The applicant asserts that she is entitled to this treatment plan because “[a]ll of her treating practitioners, including his [sic]: chronic pain doctor, psychologist, physiotherapists, and chiropractors, have all noted her various Accident-related Impairments.” She further argues that “all of the medical reference previously referenced [in the applicant’s submissions] goes toward Lucia’s limitations”. Respectfully, I disagree with the applicant’s characterization of the evidence.

35I find that there is very little evidence supporting that an attendant care assessment as a result of an accident-related impairment is reasonable and necessary. As discussed above, the Neupath records of her chronic pain doctor do not demonstrate any change in her chronic pain or function post-accident. The applicant’s evidence brief notes that she has not seen her family doctor since 2020. The applicant has not pointed to any records provided by physiotherapist and chiropractors, other than the disputed treatment plans themselves.

36I do note however that the psychological assessments Dr. Papazoglou and Dr. Kazmi both refer to the applicant’s reporting of pain and Dr. Papazoglou even diagnoses the applicant with chronic pain because the pain has persisted beyond three months post-accident. I give very little weight to these assessments’ recommendations based on pain. It does not appear that either Dr. Papazoglou or Dr. Kazmi reviewed medical documentation pertaining to the applicant’s pre-existing medical history, instead relying entirely on the applicant’s reporting. In reviewing his report, Dr. Papazoglou’s numerous recommendations on various treatments other than psychological treatment were based on the applicant reporting a difficulty and Dr. Papazoglou recommending a corresponding treatment.

37The respondent notes that the contemporaneous medical evidence indicates that the applicant’s functioning is similar pre- and post-accident and as such an attendant care assessment is not reasonable and necessary. The respondent also relies on the assessment by Mr. Findlay, which found that the applicant was independent with respect to her personal care activities post-accident.

38I find that the applicant has not established that the disputed attendant care assessment is reasonable necessary. A review of all the evidence, much of which has been discussed above, does not support that the disputed treatment plan for an attendant care assessment is reasonable and necessary. I also place great weight on the Mr. Findlay’s assessment as it is consistent with the medical records tendered by the applicant.

Interest

39As the applicant has not established that she is entitled to any of the disputed benefits, there are no overdue amounts owing and no interest is payable.

ORDER

40I find that:

i. The applicant is not entitled to NEBs of $185.00 per week from February 20, 2022, to present.

ii. The applicant is not entitled to $1.010.39 ($2,560.00 less $1,549.61 approved) for psychological services, proposed by 101 Assessments in a treatment dated September 21, 2022.

iii. The applicant is not entitled to $2,128.53 for an attendant care assessment, proposed by 101 Assessments in a treatment plan dated August 16, 2022.

iv. The applicant is not entitled to $339.00 ($3,015.33 less $2,712.33 approved) for chiropractic services, proposed by 101 Physio in a treatment plan dated June 1, 2022.

v. The applicant is not entitled to $3,390.28 for physiotherapy services, proposed by 101 Physio in a treatment plan dated January 24, 2022.

vi. The applicant is not entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan dated April 25, 2023.

vii. The applicant is not entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule.

41The application is dismissed.

Released: November 7, 2024

__________________________

Matthew Frontini

Adjudicator