Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-012789/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:
Samson Tano
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Robert Rock
APPEARANCES:
For the Applicant: Anna-Marie Musson, Counsel
For the Respondent: J.-C. Rioux, Counsel
HEARD: By way of written submissions
OVERVIEW
1Samson Tano, the applicant, was involved in an automobile accident on September 14, 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 $2,486.00 for a Chronic Pain Assessment proposed by Downsview Healthcare Inc. in a treatment plan dated October 28, 2022?
ii. Is the applicant entitled to $2,486.00 for a Psychological Assessment proposed by Downsview Healthcare Inc. in a treatment plan submitted November 11, 2022?
iii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payments of benefits?
RESULT
3I find that the applicant has not met his onus to prove on a balance of probabilities that the two disputed treatment plans are reasonable and necessary.
4As no benefits have been unreasonably withheld or delayed, no special award is owed.
ANALYSIS
The applicant is not entitled to the proposed chronic pain assessment.
5I find that the applicant has not met his onus and proven on a balance of probabilities that the chronic pain assessment is reasonable and necessary.
6To 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.
7The goals of the October 28, 2022, chronic pain treatment plan is to evaluate the extent of the applicant's chronic injuries and psychological complaints to provide a prognosis and recommendations for recovery and return to activities of normal living.
8The applicant argues the chronic pain assessment is reasonable and necessary and he relies on the clinical notes and records (CNRs) of Dr. Safieh, the applicant's family doctor. In review of the CNRs from November 3, 2018, to August 21, 2021, there is evidence of ongoing complaints to Dr. Safieh regarding ongoing back pain, to which the Dr. Safief refers to as both mechanical and chronic pain. The CNRs do not contain any reference to Dr. Safief ordering any medical testing or other investigations in association with these reports of pain.
9The respondent argues that the applicant has not met his burden to prove on a balance of probabilities that the chronic pain assessment is reasonable and necessary. The respondent relies on a general practitioner assessment report completed my Dr. Loritz, General Practitioner, on December 19, 2022. Dr. Loritz's clinical opinion is that the applicant sustained myofascial sprain/strain injuries, and his examination did not identify any objective impairments of a musculoskeletal or neurological nature that would be directly attributable to the subject motor vehicle accident. Further, it was the doctor's opinion that the applicant's recurrent pain symptoms are caused by postural strain on a background of suboptimal physical conditioning, and not in association with the accident. Because of this opinion, Dr. Loritz outlines that the pain is recurrent, acute pain, not chronic pain syndrome. It was Dr. Loritz's opinion that the chronic pain assessment proposed was not reasonable or necessary.
10I find the applicant has not proven on a balance of probabilities that the chronic pain assessment is reasonable and necessary. I gave greater weight to the report by Dr. Loritz as it maked a specific reference to his opinion on the type of pain currently being experienced by the applicant as recurrent acute pain, but not chronic pain. Additionally, this opinion included a broader review of the pain source, attributing the applicants roll as a short haul trucker, and his constant sitting as a potential source of his ongoing back pain related complaints. This opinion is corroborated by the pattern of pain reporting by the applicant in the CNRs of Dr. Safief.
11I find the applicant has not met his onus to prove on a balance of probabilities that the chronic pain assessment is reasonable and necessary.
The applicant is not entitled to the proposed psychological assessment
12I find that the applicant has not met his onus and proven on a balance of probabilities that the psychological assessment is reasonable and necessary.
13The goals of the November 11, 2022, treatment plan is to evaluate the applicant's psychological and emotional repercussions following the accident, and to return the applicant to activities of normal living.
14The applicant argues the OCF-18 for a psychological assessment is reasonable and necessary and he relies on a psychological pre-screen interview by Dr. Brunshaw, C. Psych included in the OCF-18. This pre-screen report was completed by phone. At the conclusion of the interview, it was Dr. Brunshaw's opinion that the applicant required a comprehensive psychological assessment. It was not clear in the OCF-18, if the assessment was completed by video or phone, nor was there any indication of the length of the assessment. There is no evidence that Dr. Brunshaw reviewed any of the applicant's medical records, and relied solely on the applicant's anecdotal evidence. There is a lack of corroborating medical evidence to support some of the applicant's statements in the CNRs of his family doctor. These would include complaints regarding sleep disturbances, any issues completing his activities of daily life, or any psychological issues.
15The respondent argues that the applicant has not met his onus on a balance of probabilities to prove that the psychological assessment is reasonable and necessary. The respondent relies on a psychology assessment report completed by Dr. Syed, C. Psych, on January 27, 2023. This was an in-person assessment that included a clinical interview, clinical history review and psychometric testing. Based on this, it was Dr. Syed's opinion that the applicant was not suffering from any psychological impairment as a result of the accident. It was also Dr. Syed's opinion that the psychological assessment proposed was not reasonable or necessary because no psychological impairment was present.
16I find the applicant has not proven on a balance of probabilities that the psychological assessment is reasonable and necessary. I placed more weight on Dr. Syed's psychological assessment as it was in-person, included a review of the applicant's medical history, and included psychometric. It was Dr. Syed's opinion that there were no psychological impairments present with the applicant.
17I find the applicant has not met his onus to prove on a balance of probabilities that the psychological assessment is reasonable and necessary.
Special Award
18As no payment to the applicant was unreasonably withheld or delayed, no special award under s.10 of O. Reg. 664 is due.
Interest
19As the applicant is not entitled to any payments no interest is due.
ORDER
20I find that the applicant:
i. Has not met his onus on a balance of probabilities to be entitled to the two disputed treatment plans,
ii. As no benefits were unreasonably withheld or delayed, no special award is owed,
iii. As no benefits are owed, no interest is due.
iv. The application is dismissed.
Released: December 3, 2024
Robert Rock
Adjudicator