Citation: Patel v. Aviva Insurance Company of Canada, 2024 ONLAT 22-008678/AABS

Licence Appeal Tribunal File Number: 22-008678/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:

Samirbhai Patel

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR:

Tyler Moore

APPEARANCES:

For the Applicant:

Piera Segreto, Counsel

For the Respondent:

Yalda Aziz, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Samirbhai Patel, the applicant, was involved in an automobile accident on August 28, 2018, 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 of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $2,200.00 for an occupational therapy functional assessment, proposed by Innovative Occupational Therapy in a treatment plan/OCF-18 (“plan”) dated June 22, 2022, and denied on July 15, 2022?

ii. Is the applicant entitled to $4,638.56 for occupational therapy services, proposed by Innovative Occupational Therapy in a plan dated June 22, 2022, and denied on July 15, 2022?

iii. Is the applicant entitled to $1,528.33 for an in-vehicle driver re-integration assessment, proposed by Dr. Bodenstein in a plan dated March 30, 2023, and denied on April 14, 2023?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

vi. Is the applicant entitled to costs because the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith?

RESULT

3The applicant is entitled to $2,200.00 for an occupational therapy functional assessment proposed in a plan dated June 22, 2022. The treatment plan for occupational therapy services proposed on June 22, 2022, is partially payable in the amount of $2,494.30.

4The applicant is not entitled to $1,528.33 for an in-vehicle driver re-integration assessment.

5The applicant is entitled to applicable interest.

6The applicant is not entitled to an award or costs.

PROCEDURAL ISSUE

7The respondent’s motion to strike the last page of the applicant’s written hearing reply submissions is denied.

8The respondent brought a Notice of Motion on January 3, 2024, with respect to the applicant’s five-and-a-half pages of written reply submissions dated December 22, 2023. The respondent submits that the applicant’s reply submissions were to be limited to five pages as per the Case Conference Report and Order (“CCRO”) dated March 29, 2023. The applicant’s reply submissions, however, exceed that limit and are five-and-a-half pages in length.

9The applicant submits that at pages four to five of his submissions, a lengthy quote was reproduced for readability without any effort to manipulate the fonts or spacing for the benefit of the Tribunal. The applicant submits that it was not added to exceed the page limits. The applicant also submits that ‘TABs’ in his submissions were referred to by their full title description and not just using the wording of ‘TAB’. If the applicant had just used the wording ‘TAB’, his submissions would have been kept within the five-page limit. The applicant submits that this was also done for the benefit of the reader.

10I find that the respondent has not identified any prejudice in allowing the applicant’s additional half page of submissions to be accepted for consideration. I also find that the applicant has the burden of proof and would be prejudiced by excluding the additional half page reply submission as it is relevant to the issues in dispute.

11While I am mindful of the five-page written submission reply limit ordered in the Tribunal’s CCRO dated March 29, 2023, the CCRO also sets out that the ‘hearing adjudicator may choose not to consider submissions which exceed the page limits.’ I caution the applicant when exceeding the written submission page limits ordered by the Tribunal, but I also accept the applicant’s reasons for doing so and acknowledge that his initial written submissions do comply with the 10-page limit ordered by the Tribunal.

12For these reasons, I am not striking the additional half page of written reply submissions from the applicant. The respondent’s motion is denied.

ANALYSIS

13I find on a balance of probabilities that the applicant is entitled to the proposed occupational therapy assessment and entitled in part to the proposed occupational therapy services treatment plan.

14To 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.

15The purpose of an assessment is to determine whether a condition exists. An insured bears the onus to demonstrate that a condition exists that would warrant further investigation by way of an assessment.

16Both treatment plans have been proposed by occupational therapist Sheila Don of Innovative Occupational Therapy. The occupational therapy functional assessment and report in the amount of $2,200.00 proposes a virtual assessment with the primary goal of returning the applicant to activities of normal living. The treatment plan for occupational therapy services, also dated June 22, 2022, proposes 10, two-and-a-half hour training/motor/living skills sessions in the amount of $2,294.30, provider travel time/mileage in the amount of $348.76, 10 hours of planning service in the amount of $997.50, 2 hours of preparation in the amount of $199.50, and $200.00 for documentation/OCF-18 completion, for a total of $4,638.56. The goals of the treatment plan are to maximize the applicant’s functional restoration and address barriers impeding normal daily function.

17The applicant relies on a letter from occupational therapist, Sheila Don, dated July 6, 2022. Ms. Don presents a list of the applicant’s accident-related injuries that continue to restrict function including neck pain, low back pain, right shoulder pain, left knee pain, headaches, sleep disturbance, low mood, anxiety, driver’s/passenger anxiety, and stress. Ms. Don recommends an occupational therapy assessment and treatment to determine the extent to which the applicant’s injuries impede his level of function and the appropriate treatment to maximize his function.

18The applicant argues that the recommendations contained in the s.44 IE assessment report of occupational therapist, Anghela Sivananthan, dated October 4, 2022, should be given little weight by the Tribunal. The applicant submits that Ms. Sivananthan’s recommendations are premised on the findings of physiatrist, Dr. Lori Feigelson, in her October 2019 and February 2020 physiatry report and addendum. The applicant submits that Dr. Feigelson’s reports are dated years before Ms. Sivananthan’s assessment and have limited relevance because they do not reflect the applicant’s functional status at the time of the proposed treatment plans. The applicant submits that Dr. Feigelson concluded that his injuries should be captured by the MIG, yet he has been removed from the MIG since that time without any updated physiatry opinion.

19The respondent argues that treatment plans by themselves do not prove that proposed treatments are reasonable and necessary. There should be supportive objective medical evidence to substantiate what is being proposed.

20The respondent submits that the applicant’s rehabilitation treatment ceased in July 2019 and there are no medical records from any treating doctor beyond November 2020. That demonstrates that the applicant had not seen his family doctor in 19 months when the disputed treatment plans were proposed.

21The respondent relies on the s. 44 physiatry IE reports of Dr. Feigelson, the s. 44 occupational therapy assessment report from Ms. Sivananthan, and the clinical notes and records of the applicant’s family physician, Dr. Lenus Louis. The respondent submits that Dr. Louis’ clinical notes and records dated November 27, 2020, show that the applicant was working, travelling, and working out at that time. Dr. Feigelson also concluded that from a physical perspective, there was no structural damage preventing the applicant from performing the essential tasks of his pre-accident employment in construction. The respondent also submits that Ms. Sivananthan’s report corroborates the existing medical record through her observations that the applicant demonstrated physical tolerances and functional ranges of motion. Specifically, the applicant was able to sit for 45 minutes, stand without support, transfer from sitting to standing without support, kneel and rise without support, and engage in continuous physical and functional activities for nine minutes, and carry 5 lbs in his right hand.

22While I am mindful that the proposed treatment plans were submitted almost four years after the accident, I find that the evidence supports the applicant’s consistent report of ongoing pain and functional limitations since the accident. Though the respondent submits that there are no records from a treating doctor after November 2020, the clinical notes and records from Dr. Louis are included with the applicant’s submissions up until to November 2021, including a referral by Dr. Louis for additional physiotherapy, massage therapy, and chiropractic treatment for chronic low back and shoulder pain dated November 21, 2021.

23As the applicant’s family physician, I have given weight to Dr. Louis clinical note date July 20, 2021, which indicates that the applicant was still having issues with low back pain and was unable to find a comfortable position. The note also supports that the applicant was irritable at home and at work because of pain, he was unable to lift and carry his daughter, and according to the applicant’s wife, he was inactive at home because of pain. Dr. Louis recommended no lifting until the applicant’s pain was gone and that he continues with physiotherapy and occupational therapy. Based on Dr. Louis’ clinical notes and records, I find that the respondent’s submissions regarding the applicant’s limited continuity of care and the inconsistency of his reported functional limitations to be inaccurate.

24Based on the evidence presented, I also have given limited weight to the respondent’s submission that the applicant was actively pursuing workouts at the gym since the accident. Ms. Sivananthan’s report notes that the applicant was going to the gym every other day to work out for one-and-a-half to two hours before the accident, but at the time of her report in October 2022 he had only recently started going back to the gym two times per week for 45 minutes to walk and climb stairs. I find that this supports the applicant’s ongoing limitations with respect to post-accident function and that he has not returned to pre-accident function.

25I agree that Ms. Sivananthan acknowledges the applicant’s functional limitations and pain behaviours through her own observations but defers to Dr. Feigelson’s findings when making recommendations. Specifically, Ms. Sivananthan reported that the applicant had back pain, bilateral shoulder pain, and bilateral hip pain when asked to perform movements. He also declined overhead lifting and squatting because of pain, and his ability to lift more than 5 lbs, which is less than what his daughter would weigh, was not assessed.

26I find that Ms. Sivananthan’s observations corroborate Dr. Louis’ clinical notes and records and Ms. Don’s recommendations, and I accept that the applicant’s ongoing functional limitations warrant further investigation by way of an occupational therapy functional assessment and occupational therapy treatment.

27With respect to the proposed treatment plan for occupational therapy services, I find that the proposed quantum for occupational therapy services does not comply with the Schedule and is therefore only partially payable. Provider travel time and provider mileage are not authorized or payable pursuant to s. 15 of the Schedule, and I find that the proposed fees for preparation services, planning services, and documentation have not been substantiated by the applicant as reasonable and necessary.

28For these reasons, I find on a balance of probabilities that the applicant is entitled to $2,200.00 for an occupational therapy functional assessment and report as proposed, and $2,294.30 for 10 sessions of occupational therapy services as well as $200.00 for the completion of a related OCF-18, for a total of $2,494.30.

29I find that on a balance of probabilities the applicant is not entitled to $1,528.33 for an in-vehicle driver re-integration assessment dated April 14, 2023.

30Again, the purpose of an assessment is to determine whether a condition exists. An insured bears the onus of demonstrating that a condition exists that would warrant further investigation by way of an assessment.

31The treatment plan by Dr. Eyal Bodenstein, psychologist, proposes $472.50 for an assessment, $135.00 for provider travel time, $95.00 for planning services, $450.00 for documentation, $200.00 for the completion of an OCF-18, and HST. The goal of the assessment is to determine the specifics of the applicant’s in-vehicular anxiety.

32The applicant relies on the psychological assessment report of Dr. Bodenstein dated March 21, 2023, which notes the applicant’s persistent reluctance to be driven by others and his apprehension about driving. The report also contains a diagnosis of a specific isolated phobia – automobile anxiety – passenger. The applicant submits that proposed assessment is reasonable and necessary to be able to observe the specifics of his in-vehicular anxiety, both regarding his perception of the accident, and his in-vehicular behaviour. The applicant argues that the respondent cannot assume that since the applicant drives that he does not experience any vehicular anxiety or require in-vehicle sessions.

33The respondent submits that Dr. Bodenstein has already diagnosed the applicant with passenger anxiety and recommended cognitive behaviour interventions, including systematic desensitization and/or stress inoculation, to address the applicant’s symptoms of anxiety as a passenger. The respondent submits that this treatment was approved on March 23, 2023, but the applicant did not incur it.

34The respondent also argues that the applicant has not provided compelling medical evidence to demonstrate the need for a driving assessment in addition to the approved cognitive-behavioural interventions that is to address passenger anxiety. Specifically, there is no record of the applicant reporting any vehicular anxiety to Dr. Louis in the nearly five years since the accident occurred.

35I am not persuaded by the applicant’s submissions or evidence. I find that the applicant has not demonstrated how or why his diagnosed passenger anxiety could not be addressed by way of the already approved cognitive behavioural therapy sessions with Dr. Bodenstein that have yet to be incurred. As outlined above, the purpose of an assessment is to determine whether a condition exists, and that condition has already been diagnosed. I am not satisfied that the applicant’s passenger anxiety, which has only been diagnosed by Dr. Bodenstein, warrants further investigation through an in-vehicle assessment. For these reasons, I find on a balance of probabilities that the proposed assessment is not reasonable or necessary.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to applicable interest for the proposed occupational therapy assessment and treatment plans dated June 22, 2022.

Award

37The 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.

38The applicant submits that the respondent’s denial has caused him to face delayed recovery, and financial and emotional distress.

39The respondent submits that the applicant only submitted the treatment plans in question shortly before the expiration of the five-year limitation period. According to the respondent, it has relied on the available evidence provided, reviewed the same in a timely way, and obtained s. 44 reports where it was necessary. This does not constitute unreasonable conduct.

40I am not persuaded that the respondent has unreasonably withheld or delayed the payment of benefits. I find that the applicant is not entitled to an award.

Costs

41The applicant requested an order for costs in the amount of $500.00 in his response to the motion because the motion was brought unnecessarily.

42Rule 19.1 of the Licence Appeal Tribunal Rules, 2023 provides that a party may make a request to the Tribunal for its costs where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith.

43The respondent submits that the motion was not unnecessary and was within its right to bring. As a result, awarding costs is unwarranted.

44The applicant has not convinced me that the respondent has acted unreasonably, frivolously, vexatiously, or in bad faith or that this has met the high threshold to award costs. As such, I find that the applicant has not met his onus, and it therefore not entitled to costs.

ORDER

45The applicant is entitled to $2,200.00 for an occupational therapy assessment proposed in a plan dated June 22, 2022, and is entitled to $2,494.30 for occupational therapy services proposed in a plan dated June 22, 2022.

46The applicant is not entitled to $1,528.33 for an in-vehicle driver re-integration assessment.

47The applicant is entitled to applicable interest.

48The applicant is not entitled to an award or costs.