Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-007250/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:
Mary Ilagan
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Alexei Antonov, Counsel
For the Respondent: Andrea Bandow, Counsel
HEARD: By way of written submissions
OVERVIEW
1Mary Ilagan, (the “applicant”) was involved in an automobile accident on October 31, 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 Aviva Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to $12,918.49 for a chronic pain program, proposed by Downsview Healthcare Inc., in a treatment plan/OCF-18 (“OCF-18”) submitted October 29, 2020 and denied November 12, 2020?
Is the applicant entitled to chiropractic treatment, proposed by Downsview Healthcare Inc., as follows:
(i) $1,363.60, in an OCF-18 submitted January 21, 2021 and denied January 22, 2021;
(ii) $1,180.00, in an OCF-18 submitted March 30, 2021 and denied April 6, 2021;
(iii) $1,340.00, in an OCF-18 submitted April 22, 2021 and denied April 26, 2021; and
(iv) $1,220.00, in an OCF-18 submitted June 3, 2021 and denied June 8, 2021?
Is the applicant entitled to $485.00 for physiotherapy services, submitted on a claim form (“OCF-6”) dated June 2, 2022 and denied July 12, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
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
3I find that:
i. The applicant is not entitled to any of the OCF-18s or the OCF-6 in dispute, nor interest.
ii. The respondent is not liable to pay an award.
iii. The application is dismissed.
PROCEDURAL ISSUES
4The respondent in its submissions raised a number of preliminary issues with respect to the applicant’s submissions and evidence. First, the respondent argues that paragraph 6 of the applicant’s submissions should be discounted, as she did not provide supporting evidence for this paragraph. Second, it argues that the applicant did not reference the clinical notes and records of her family physician, Dr. Vivienne Ang, by the specific page number, which is contrary to the Case Conference Report and Order (“CCRO”). Finally, it argues that the applicant was non-compliant with the CCRO with respect to Tabs 6 and 18e, and that these Tabs contain the records of Dr. Ang, dated February 5, 2022 to October 11, 2023, as it was not served in accordance with the CCRO. As such, the respondent argues that these records should not be admitted into evidence.
5The applicant did not provide any reply submissions with respect to the procedural issues raised by the respondent.
6The CCRO dated March 23, 2023, was clear that the deadline for documents not previously disclosed but which the parties intended to rely upon for the hearing was due 90 calendar days after the case conference (i.e., June 23, 2023).
7Rule 9.4 of the Common Rules of Practice and Procedure (October 2017) (the “Common Rules”) provides that a party that fails to comply with an order with respect to disclosure of a document may not rely on the document as evidence without the consent of the Tribunal.
8There are two arguments made by the applicant at paragraph 6 of her submissions. The respondent does not address which portion of the paragraph it has an issue with. In any event, the applicant referred to evidence to support her first argument that she has incurred treatment at Downsview Healthcare Inc., Presumably, the respondent has an issue with the second argument, where the applicant argued that she stopped treatment because the respondent unreasonably denied all treatment, as she did not refer to evidence to support this. It is unclear from the respondent’s submissions what relief it is seeking, as it is unclear what it means when it argues that this should be discounted. Submissions that are not supported by evidence won’t factor into a decision. It is also well-settled that submissions are not evidence, and as such this submission has no bearing on my decision.
9Similarly, it is unclear from the respondent’s submissions, what relief it is seeking because the applicant did not refer to the specific page numbers for Dr. Ang’s records, when referenced in her submissions. I acknowledge the respondent’s position that the applicant must direct the adjudicator to the relevant evidence and cannot leave it up to the adjudicator to connect the dots and make her case for her. I disagree that this has occurred here, as the applicant directed me to the relevant evidence of Dr. Ang by the date of the visit, instead of the page number, which I find to be sufficient.
10I now turn to the respondent’s request that Tab 6 and 18e not be admitted into evidence, as the applicant was non-compliant with the CCRO. I find that these Tabs will be admitted into the record.
11The respondent argues that the applicant did not produce Tabs 6 and 18e until December 6, 2023, when she served her written submissions, which is non-compliant with the CCRO. Therefore, it argues that the applicant has breached procedural fairness and caused prejudice to the respondent. Accordingly, it submits that the Tribunal should not admit this evidence under Rule 9.4 of the Licence Appeal Tribunal Rules, 2023 (“LAT Rules”).
12As set out above, it is Rule 9.4 of the Common Rules that is applicable, not the LAT Rules. Upon review of Tab 6 of the applicant’s documentary brief, I note that it contained the account summary from Revive Health Centre, dated June 1, 2022. Likewise, upon review of Tab 18e of the applicant’s documentary brief, I note that it contained records of Dr. Ang from October 5, 2021 to October 11, 2023.
13I find that both the account summary from Revive Health Centre, dated June 1, 2022 (Tab 6) and the records of Dr. Ang (Tab 18e) are relevant to the issues in dispute and I am admitting them, despite the applicant being in breach of the CCRO. The respondent did not provide specific submissions or refer me to evidence as to prejudice it would suffer, if any, as a result of this late disclosure being admitted. In any event, even if the respondent would suffer prejudice, the evidence’s probative value outweighs it.
14In summary, I will admit the account summary from Revive Health Centre, dated June 1, 2022 (Tab 6) and the records of Dr. Ang (Tab 18e), into the record.
ANALYSIS
The Treatment Plans
15To 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.
The applicant is not entitled to the OCF-18 for a chronic pain program, in the amount of $12,918.49 submitted on October 29, 2020
16I find that the applicant has not established that the proposed chronic pain program is reasonable and necessary.
17The proposed chronic pain program consists of the following treatments: chiropractic rehabilitation, a functional exercise program, spinal decompression therapy, laser therapy, massage therapy, shockwave therapy, mobilization, and psychotherapy sessions.
18The applicant argues that an abundance of evidence establishes that the proposed chronic pain program is reasonable and necessary. To this end, she relies upon the clinical notes and records of Dr. Ang, and various s. 25 reports completed by Dr. Grigory Karmy, physician, Dr. Vincenzo Santo Basile, neurologist, and Ms. Helen llios, registered psychotherapist, and Dr. Jacqueline Brunshaw, psychologist.
19In response, the respondent argues that the applicant has not met her burden to demonstrate that the proposed chronic pain program is reasonable and necessary. To support its position, the respondent relies on the s. 44 reports of Dr. John Heitzner, physiatrist, Dr. Alfonso Marino, psychologist, and Dr. Rajiv Gandhi, orthopaedic surgeon. It argues that in these reports, the applicant has reported that she has returned to work, is independent with her self-care, and can complete light housekeeping. As well, the applicant has reported that she is already undergoing mental health counselling and that massage therapy/chiropractic treatment were not leading to any improvement.
20I find that the applicant has not led sufficient evidence to establish that the proposed physical components of the chronic pain program are reasonable and necessary.
21First, I find that aside from the s. 25 reports of Dr. Karmy and Dr. Basile (which will be discussed below), the applicant has not directed me to other contemporaneous medical evidence that supports or recommends the proposed treatments. Although the applicant refers me to the entries of Dr. Ang, to support her position that she is in constant pain, and that chiropractic treatment was recommended. I do not find this to be persuasive because the last time Dr. Ang recommended chiropractic treatment was on August 24, 2019, which is not contemporaneous to this OCF-18. Notably, on October 9, 2019, Dr. Ang diagnosed the applicant with chronic left neck pain, yet she did not recommend the proposed treatment to address this chronic pain.
22In a similar vein, in the entries most contemporaneous to this OCF-18 (October 17, 2020, November 30, 2020, and September 1, 2021), the applicant presented with left knee pain, lower back pain (which the respondent appears to be arguing is not related to the accident), and shoulder pain. Nevertheless, Dr. Ang did not recommend the proposed treatments or note that the applicant required a chronic pain program. Instead, Dr. Ang recommended Tylenol, Vimovo, ice, heat, avoiding heavy lifting, and rest.
23I place significant weight on these entries of Dr. Ang because she is the applicant’s family physician and has more intimate knowledge of her treatment needs than the s. 25 assessors. In short, Dr. Ang last recommended chiropractic treatment in 2019, and despite diagnosing the applicant with chronic left neck pain, she has not recommended a chronic pain program in order to treat this condition.
24Next, I acknowledge that pain relief is a legitimate goal of therapy, however the applicant has not provided sufficient evidence that this treatment goal is being met to a reasonable degree with the proposed services. I acknowledge that the applicant relies on the entry of Dr. Ang, dated June 29, 2019, where she self reported that her neck pain was improving with “chiro/rehab”, however the pain reoccurred after rehab ended. However, this self-reporting is not contemporaneous with the OCF-18.
25The applicant has reported varied levels of pain relief from chiropractic, and massage treatment. On March 16, 2020, the applicant has reported to Dr. Gandhi that overall, her symptoms are getting worse, and that massage/chiropractic treatment is not “fixing her problem”. On December 8, 2020, the applicant reported to Dr. Marino that chiropractic treatment was “somewhat helpful.” She reported to Dr. Heitzner on December 17, 2020, that chiropractic treatment “helped a bit”, and massage therapy provided temporary relief.
26Although the applicant submits that she has incurred $26,712.87 worth of treatment at Downsview Healthcare Inc., she did not direct me to specific entries that support the efficacy of the proposed treatment. Further, the records from Downsview Healthcare Inc., are largely illegible, and contain no progress reports. Without such evidence, I am unable to assess whether the applicant received any benefit from the treatment she received, or what her progress is respect to pain relief. This information could have shed light on how much pain relief the applicant has received, and whether the goal of pain relief will be met to a reasonable degree.
27Finally, I find the s. 25 reports of both Drs. Basile and Karmy to have limited evidentiary value. First, both Drs. Basile and Karmy reviewed limited medical records in arriving at their conclusions. For example, Dr. Karmy reviewed the records of Dr. Ang from December 2, 2017 to October 9, 2019. Meanwhile, it is unclear if Dr. Basile reviewed the records of Dr. Ang, as he wrote in his report, that he reviewed “CNR from Family Doctor and hospital if any”. If Drs. Karmy and Basile had reviewed the updated records of Dr. Ang, they would have known that chiropractic treatment was last recommended in 2019, and a chronic pain program has not been recommended.
28Both Drs. Basile and Karmy provide an insufficient rationale on how the proposed treatment will address the applicant’s chronic pain when Dr. Ang has not recommended these services in contemporaneous entries. For example, Dr. Karmy in his report, recommended a course of comprehensive multidisciplinary rehabilitation therapy such as an active exercise program, massage therapy, chiropractic adjustments, and spinal decompression therapy but provided no rationale on how this treatment would address the applicant’s chronic pain.
29Further, Dr. Karmy did not inquire from the applicant on how effective massage and chiropractic treatments were, despite her advising him that she received these treatments. Therefore it is unclear how Dr. Karmy arrived at the conclusion that the applicant continued to suffer from impairments without significant improvement when he did not ask the applicant how effective her treatment regime was and the physical examination was largely normal. Dr. Karmy also opined that chiropractic manipulations for the cervical and lumbar spine was not recommended due to possible radiculopathy but the OCF-18 does not clarify what chiropractic rehabilitation entails of.
30Dr. Basile in his report recommended a multidisciplinary rehabilitation program because it would benefit the applicant but provides no explanation on how it would benefit her. Nor did Dr. Basile address what services were required under the multidisciplinary rehabilitation program.
31Now turning to the proposed psychotherapy sessions, I find that the applicant has not established that these are reasonable and necessary. I acknowledge that Drs. Brunshaw and Marino have diagnosed the applicant with psychological impairments and recommended treatment. However, as noted by Dr. Marino, the applicant is already receiving psychological treatment, and that these sessions can incorporate a component of pain management with respect to various pain techniques. The applicant provided no submissions or referred me to evidence on why the proposed additional psychotherapy sessions are required. As such, I find that the applicant has not established that the additional 12 sessions are reasonable and necessary.
32In conclusion, I find that the applicant has not met her onus to establish on a balance of probabilities that the proposed chronic pain program is reasonable and necessary.
The applicant is not entitled to an OCF-18 for chiropractic treatment in the amount of $1,363.60, submitted on January 21, 2021
The applicant is not entitled to an OCF-18 for chiropractic treatment in the amount of $1,180.00, submitted on March 30, 2021
The applicant is not entitled to an OCF-18 for chiropractic treatment in the amount of $1,340.00, submitted on April 22, 2021
The applicant is not entitled to an OCF-18 for chiropractic treatment in the amount of $1,220.00, submitted on June 3, 2021
33I find that the applicant is not entitled to the proposed OCF-18s for chiropractic treatment, as she has not established on a balance of probabilities that they are reasonable and necessary.
34The applicant submits that the entries of Dr. Ang, dated October 17, 2020, November 30, 2020, and September 1, 2021 support that chiropractic services are reasonable and necessary. She argues that these entries demonstrate that she continues to complain of musculoskeletal pain in various parts from this accident, and that pain relief is a legitimate goal for treatment.
35The respondent argues that there is no evidence that the applicant would receive meaningful medical benefit from the proposed services, and that her treating physician has not recommended this treatment.
36First, as noted above, the applicant has not provided contemporaneous medical records from her family physician, Dr. Ang, recommending chiropractic treatment. I acknowledge that the applicant met with Dr. Ang on October 17, 2020, November 30, 2020, and September 1, 2021, however she did not recommend chiropractic treatment. As such, I am not persuaded by the applicant’s position that these entries help to establish that chiropractic treatment is reasonable and necessary.
37Second, I again acknowledge that pain relief is a legitimate goal of therapy. However, as noted above, the applicant has reported different results of the pain relief received from the treatment to various assessors and has not directed me to evidence from Downsview Healthcare Inc., that supports how helpful the treatment has been, or whether the goals will be met to a reasonable degree. Without this evidence, it is difficult to ascertain whether the goal of pain relief will be met to a reasonable degree. Likewise, there are no progress notes, from any treatment provider discussing her progress, despite her incurring a significant amount of treatment.
38Third, Drs. Basile and Karmy provide a vague rationale on why chiropractic treatment is recommended. Significantly, Dr. Basile in his report noted that the applicant should continue with chiropractic and physiotherapy treatment, because she has had some relief from this. However, the applicant only self-reported to Dr. Basile that her symptoms worsened when physiotherapy is missed. There is no indication from this self-reporting that the applicant reported pain relief from chiropractic treatment as indicated by Dr. Basile. Meanwhile, Dr. Karmy, notes that chiropractic treatment should be provided, but provides no justification or rationale on why.
39Lastly, I acknowledge the applicant’s position that she incurred the chiropractic services. However, in order for an OCF-18 to be payable by the respondent, the applicant has to establish that the proposed services are reasonable and necessary, which I find she has not.
40For all these reasons, I find that the applicant has not met her onus to establish on a balance of probabilities that the proposed chiropractic treatment is reasonable and necessary.
The applicant is not entitled to an OCF-6 in the amount of $485.00 for physiotherapy services, dated June 2, 2022
41I find that the OCF-6 is not payable, in accordance with s. 38(2) of the Schedule.
42Pursuant to s. 38(2)(c) of the Schedule, the respondent is not liable to pay an expense in respect to a medical benefit that was incurred before the insured person submits a compliant treatment and assessment plan unless the expense is reasonable and necessary as a result of the impairment sustained by the insured person for (i) drugs prescribed by a regulated health professional, or (ii) goods referred to in clauses 15(1)(d) to (f) and 16(3)(h) to (j) with a cost of $250 or less per item.
43Instead of addressing s. 38(2) of the Schedule, the applicant only made submissions on why the incurred expenses are reasonable and necessary, which was because Dr. Ang recommended it on February 5, 2022. She did not address whether an OCF-18 was submitted before she incurred the expenses.
44The respondent argues that under s. 38(2), it is not liable to pay for an expense that is incurred before an OCF-18 is submitted, and that none of the exceptions are applicable.
45The applicant did not provide reply submissions to address the application of s. 38(2).
46The applicant did not make any submissions whether the exceptions listed in s. 38(2) apply. I agree with the respondent that none of the exceptions are applicable because this is not a drug, prescription eyewear, denture, other dental devices, hearing aid, wheelchair or other mobility device, prostheses, orthotics, other assistive devices, workplace modification/workplace device, home modification/device, and vehicle modification. Although I have carefully considered the applicant’s submissions, I find that the requirements set out in s. 38(2) are clear, and the OCF-6 is not payable.
Interest is not payable
47As there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
The respondent is not liable to pay an award
48The applicant seeks an award and interest under s. 10 of Reg. 664. Under s. 10, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. For conduct to attract a s. 10 award, the conduct must rise above being simply an incorrect decision and be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
49As the applicant has been found to not be entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Consequently, the applicant is not entitled to an award.
ORDER
50For the reasons outlined above, I find that:
i. The applicant is not entitled to any of the OCF-18s or the OCF-6 in dispute, nor interest.
ii. The respondent is not liable to pay an award.
iii. The application is dismissed.
Released: November 27, 2024
Tanjoyt Deol
Adjudicator