Citation: Porco v. Aviva Insurance Canada, 2023 2024 ONLAT 21-011632/AABS - A

Licence Appeal Tribunal File Number: 21-011632/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:

Maria Porco

Applicant

and

Aviva Insurance Canada

Respondent

AMENDED DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Elvis Viskovic, Paralegal

For the Respondent:

Thulasi Kandiah, Counsel

HEARD:

By way of written submission

OVERVIEW

1Ms. Maria Porco (the “applicant”) was involved in an automobile accident on August 15, 2017, 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 Canada (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

Is the applicant barred from proceeding with her appeal because she failed to submit to an insurer’s examination (the “IE”) under section 44 of the Schedule?

2I find the applicant’s appeal may proceed in its entirety.

3Section 55(1)2 of the Schedule says an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires a section 44 IE, but the insured person has not complied with section 44 of the Schedule. This means the applicant has a duty to participate in each in-person IE that is reasonably necessary, and for which there is a Schedule-compliant notice. If the applicant fails to comply, there must be a reasonable explanation provided for the non-compliance.

4To clearly address the relief sought by the respondent, it is widely accepted that the failure of an insured to comply with a reasonably necessary IE without a reasonable explanation, and for which a compliant notice is issued, does not doom the entire application unless the IE is dispositive of all the issues in dispute.

5The respondent submits the applicant failed to attend a properly scheduled neurology IE on April 11, 2022, which was reasonably necessary to determine her entitlement to a treatment plan for a chronic pain assessment. This is the treatment plan disputed at paragraph 13(i)(iii) below. The respondent adds that the applicant failed to provide any explanation for non-attendance, and requests her entire appeal be barred per section 55 of the Schedule.

6The applicant argues that since the OCF-18 for a chronic pain assessment was denied in June 2021, she has attended two related IEs—one conducted by a psychologist and the other by a general practitioner—that were completed on December 21, 2021. The applicant says a further IE request almost a year later is not reasonably necessary because the respondent could have easily performed a file review to make its determination as to whether the applicant is entitled to a chronic pain assessment.

7The parties are not disputing whether the Notice of Examination complies with section 44(5) of the Schedule. Therefore, it remains to determine whether the IE is reasonably necessary and, if so, whether the applicant had a reasonable explanation for her non-attendance.

The IE is not reasonably necessary

8I find the neurology IE is not reasonably necessary.

9The respondent’s submissions assert the neurology IE is reasonably necessary because the notice was provided 36 calendar days after an earlier IE conducted by Dr. Pravesh Jugnundan (general practitioner) had deferred comment on the cause of the applicant’s dizziness. However, I am not convinced a neurology examination was recommended by Dr. Jugnundan to assess the applicant’s dizziness as the respondent did not point me to this finding in Dr. Jugnundan’s report.

10The respondent also explains that forcing it to proceed to a hearing without the neurological IE would be prejudicial to its defence because the applicant alleges various accident-related neurological impairments and has produced only a limited number of updated medical records that do not provide a complete medical opinion on her neurological issues. I find this argument is not persuasive because the respondent did not point me to evidence that the applicant claimed a neurological impairment, or otherwise demonstrate that the updated evidence produced by the applicant was insufficient to obtain a medical opinion about her neurological condition. In fact, the applicant’s submissions indicate it withdrew an earlier disputed OCF-18 for a neurological assessment, which, I find is inconsistent with the respondent’s claim that the applicant alleges neurological impairment.

11The respondent also claims there is a reasonable connection between the neurology IE and the applicant’s injuries because the neurologist’s findings may factor into not just the OCF-18 for chronic pain, but also for those relating to psychological assessment and services that are in dispute. I disagree. In its letter to the applicant on April 12, 2022, the respondent clearly indicates the applicant was not entitled to several OCF-18s because she had failed to attend the neurology IE, yet none of these OCF-18s were for psychology-related services or assessments, including those in dispute.

12On balance, I do not see persuasive evidence that proves the neurology IE was reasonably necessary, nor that it was dispositive for that matter. I find the respondent has failed to meet its onus, and that the applicant’s appeal to the Tribunal is not precluded for failing to attend the neurology IE. As I have determined the neurology IE was not reasonably necessary, an analysis of whether the applicant has a reasonable explanation for non-attendance is not required.

ISSUES

13The issues in dispute are:

i. Is the applicant entitled to the services and assessments proposed by Advanced Healthcare Management as follows:

i. A psychological assessment in the amount of $2,486.00, in a treatment plan (the “OCF-18”) submitted on August 20, 2020;

ii. Psychological services in the amount of $3,392.25, in an OCF-18 submitted on December 28, 2020;

iii. A chronic pain assessment in the amount of $2,486.00, in an OCF-18 submitted on May 6, 2021;

iv. Chiropractic services in the amount of $825.00, in an OCF-18 submitted on January 21, 2021; and

v. A gym membership and personal trainer in the amount of $3,231.80, in an OCF-18 submitted on March 23, 2022?

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

RESULT

[14] The applicant has not met her onus to demonstrate the OCF-18s in dispute are reasonable and necessary. As no benefits are payable, the applicant is not entitled to interest.

ANALYSIS

The OCF-18s are not reasonable and necessary

15I find the applicant has failed to show the OCF-18s in dispute are reasonable and necessary.

Section 14 of the Schedule compels an insurer to pay medical benefits to—or on behalf of—an insured person who sustains an impairment resulting from an accident. Section 15(1) of the Schedule explains that these medical benefits shall pay for all reasonable and necessary expenses resulting from the accident. The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

OCF-18 for a psychological assessment in the amount of $2,486.00

16I find the applicant has not demonstrated the OCF-18 for psychological assessment is reasonable and necessary.

17The applicant’s submissions say the OCF-18 included a pre-screen interview that outlined the various psychological issues that required further investigation. She contends she went ahead and incurred this OCF-18 after the respondent’s denial, and that she was diagnosed with a specified trauma- and stressor-related disorder (adjustment-like disorder with prolonged duration of more than six months), as well as a Class 3 moderate impairment. The applicant relies on the clinical records, reports, and opinions of Dr. Chantal Gupta (family physician), and Dr. Erin Langis (psychologist).

18The respondent’s submissions indicate that the fees proposed in the OCF-18 are not reasonable, and that the applicant’s psychological assessment should be given little weight in determining whether the OCF-18 is reasonable and necessary. The respondent explains that the diagnoses offered in this assessment are not corroborated by the psychometric test results, which yielded findings of low, mild, minimal, and average ratings on five different tests. The respondent also says the assessment did not consider any clinical notes or records of the applicant’s treatment providers, and that it was less effective because it was conducted virtually. The respondent relies on the IE conducted by Dr. Kelly McCutcheon (psychologist), which obtained similar test scores as Dr. Langis’ assessment, but produced no evidence of a diagnosable psychological condition.

19In response, the applicant contends there is no basis for diminishing the weight placed upon virtual psychological assessments because they have become “almost standard” pre-and-post pandemic, and because the College of Psychologists of Ontario permits virtual therapy. The applicant also says Dr. McCutcheon nevertheless identified accident-related psychological issues four years after the date of loss, and did not consider the applicant’s issues with weight gain and symptom chronicity, as well as the “interplay” of these symptoms and diagnoses.

20The pre-screen interview—embedded into the OCF-18 that outlines various psychological issues that required further investigation—was not helpful information because the applicant does not specify what these psychological issues are, or point to evidence of a medical opinion that indicates these issues may have resulted from the accident. Further, the applicant’s submissions do not speak to medical evidence of post-accident psychological difficulties that led up to the completion of this OCF-18, and which establish need for psychological assessment. Instead, the applicant says she sustained accident-related injuries to her neck, shoulders, and knees, and experiences dizziness, headaches, nausea, fatigue, numbness, tingling, vertigo, and radiating pain—none of which strike me as psychological injuries. The applicant also mentions post-accident reports of vertigo, osteoarthritis, and weight issues in the clinical notes she produced for the hearing, but I placed little weight here because I was not pointed to medical evidence that supports these conditions. The respondent asserts there are, in fact, no reports of psychological issues in the clinical notes and records in evidence, and points specifically to Dr. Gupta’s records. Given the limited evidence offered by the applicant, I agree with this aspect of the respondent’s submissions.

21The applicant does not offer submissions on the OCF-18’s goals, or which psychological issues they aim to assess. The applicant does not make a persuasive argument pertaining to whether the goals of the OCF-18 can reasonably be met, or the reasonableness of the costs. These factors contribute to the applicant’s failure to meet her onus here. While I appreciate the respondent raised a rate discrepancy in its arguments to show the fees were not reasonable, I was not persuaded this was accurate because I was not pointed to the Professional Services Guideline that establishes these rates, nor the amount of time the OCF-18 allocates between psychological and psychometric testing.

22Although I recognize the applicant incurred this OCF-18, and that it produced evidence of psychological diagnoses, it does not automatically follow that the assessment becomes reasonable and necessary. The applicant did not show a clear relationship between the goals of the OCF-18 and the goals of the assessment (i.e., were they the same and did the assessment produce findings that represent reasonable progress on those goals). Even when an OCF-18 is incurred, the onus remains on the applicant to show the goals were reasonable and were reasonably met, as well as the reasonableness of the costs. The applicant has failed to do so, and I therefore find, on a balance of probabilities, that this OCF-18 is not reasonable and necessary.

OCF-18 for psychological services in the amount of $3,392.25

23I find the applicant has not demonstrated the OCF-18 for psychological services is reasonable and necessary.

24The positions of the parties on this OCF-18 for psychological services are the same as those presented for the OCF-18 that proposed a psychological assessment. In fact, both parties made written submissions that globally addressed both OCF-18s. As such, I will not repeat those submissions here.

25The applicant’s submissions again failed to make arguments on the reasonableness of the OCF-18s goals, or whether they can reasonably be met. I did not receive submissions on the reasonableness of the costs. In fact, the applicant states the OCF-18 was based on the psychological assessment, which identified the applicant’s weight gain, dizziness, and low energy as her main challenges. The applicant’s submissions do not point me to a medical opinion offered by Dr. Langis or any other medical professional that attributes her challenges or diagnoses to the accident, or establishes these challenges are psychological issues that relate to her diagnoses. This evidence, in and of itself—and before attributing any weight to the respondent’s concerns about Dr. Langis’ assessment—is not sufficient to show the OCF-18 for psychological services is reasonable and necessary because the applicant establishes no link between her claimed challenges and the proposed goals and performance methods in the OCF-18. The applicant’s submissions also fail to show me how her diagnoses relate to the OCF-18’s goals and performance measures, or persuade me to accept her challenges and diagnoses relate to the accident for that matter.

26I am not convinced this OCF-18 is reasonable and necessary on a balance of probabilities because the applicant has not shown me sufficient evidence of accident-related psychological issues that would require assessment, nor that the OCF-18 has reasonable goals that can reasonably be met at a reasonable cost.

OCF-18 for a chronic pain assessment in the amount of $2,486.00

27I find the applicant has not demonstrated the OCF-18 for a chronic pain assessment is reasonable and necessary.

28The applicant’s submissions say she incurred this OCF-18 after the respondent’s denial, and that this report provides in-depth commentary on her poor prognosis, her psychological issues and condition, and how it all relates to her diagnosis of a chronic pain condition. The applicant relies on the chronic pain assessment report of Dr. Leon Rivlin (emergentologist), dated July 12, 2021.

29The respondent’s submissions argue that Dr. Rivlin’s report should be given no weight because it does not contemplate the criteria for chronic pain syndrome as per the American Medical Association’s Guides to the Evaluation of Permanent Impairment (6th Edition) (the “Guides”). The respondent also claims the applicant has not reported any pain symptoms to Dr. Gupta, and that none of her treating providers have diagnosed chronic pain. The respondent says most of the applicant’s post-accident complaints are not related to pain or accident-related injuries, and points to an IE performed by Dr. Jugnundan on December 21, 2021, that concludes the applicant does not suffer from chronic pain because she functions relatively well, has no significant disability, and is not making excessive use of medication or health care resources. The respondent also points to the IE performed by Dr. Auguste to support its position that any pain experienced by the applicant is owing to pre-existing degenerative conditions, age, and obesity that are not related to the accident.

30I am not convinced the applicant’s evidence shows the OCF-18 is reasonable and necessary. The applicant’s submissions do not address the reasonableness of the OCF-18’s goals, or even mention what they are. The applicant fails to show the goals can reasonably be met by the services proposed in the OCF-18. I was not directed to arguments on the reasonableness of the costs. Although the applicant says the report of Dr. Rivlin is in-depth, she does not point me to the medical evidence in this report that she relies on to show the OCF-18 is reasonable and necessary. It is unclear from the submissions as to who diagnosed a chronic pain condition, or what medical evidence supports this diagnosis. Like the OCF-18 for a psychological assessment, the applicant seems to place a great deal of weight on the incurred status of the OCF-18 for a chronic pain assessment to show it is reasonable and necessary. And as I earlier explained, this is an incorrect paradigm that falls short of the applicant’s onus.

31In conclusion, I find the applicant has failed to show me this OCF-18 is reasonable and necessary on a balance of probabilities because the applicant has not directed me to persuasive evidence that establishes her pain may be chronic and requires assessment, nor that the OCF-18 has reasonable goals that can reasonably be met at a reasonable cost.

OCF-18 for chiropractic treatment in the amount of $825.00

32I find the applicant has not demonstrated the OCF-18 for chiropractic treatment is reasonable and necessary.

33The applicant’s submissions point to the IE conducted by Dr. Jacqueline Auguste (orthopaedic surgeon) on April 12, 2021. The applicant says Dr. Auguste suggests the accident exacerbated pre-existing degenerative disc disease and that her complaints were related to the natural history and progression off the underlying pre-existing degenerative condition. The applicant adds that she had been obtaining ongoing and needed treatment in the months leading up to this IE, and points to a billing statement (dated August 23, 2022) from Scarborough South Physio and Rehab Centre that shows she incurred therapy in the amount of $825.00

34The respondent contends the applicant has consulted Dr. Gupta only twice for accident-related injuries in the past six years, and did not report any pain symptoms on either of those visits. The respondent claims that none of the applicant’s treating providers have recommended physical therapy since 2018, and that the applicant has reached maximal medical improvement with no further need for facility-based therapy. The respondent relies on the clinical records and opinions of Dr. Auguste and Dr. Jugnundan.

35In response, the applicant says she disagrees with the respondent’s submissions in their entirety, but offers no details as to why she disagrees with the submissions related to this OCF-18.

36The applicant’s submissions do not make arguments that pertain to the reasonableness of the OCF-18’s goals, or provide an explanation of how the goals can reasonably be met by the services proposed in the OCF-18. The applicant offers no submission on the reasonableness of the costs. These factors weigh against the applicant’s claim that this OCF-18 is reasonable and necessary.

37The billing statement provided by the applicant does not persuade me that the OCF-18 is reasonable and necessary. This is because the applicant does not connect the services listed there, which are specified as “physical rehab session” and “massage therapy,” to the goals of the OCF-18. Further, there are no progress reports to show the billed treatment was reasonably meeting those goals. The applicant provided no evidence to show the rates on this billing statement are reasonable.

38On balance, I find the evidence of Dr. Auguste to be persuasive. Dr. Auguste’s IE specifically addressed this OCF-18 and concluded it was not reasonable and necessary because the applicant’s complaints were not related to the accident. The applicant’s submissions do not explain how or why Dr. Auguste’s finding of accident-related exacerbation of her complaints is relevant to the reasonableness and necessity of the OCF-18, so I see no reason to disagree with the conclusion offered by Dr. Auguste. I did not find the report of Dr. Jugnundan to merit much weight here because it addressed other OCF-18s.

39In conclusion, I find the applicant has failed to show me this OCF-18 is reasonable and necessary on a balance of probabilities because the applicant has not pointed me to sufficient evidence of a need for chiropractic treatment, nor that the OCF-18 has reasonable goals that can reasonably be met at a reasonable cost.

OCF-18 for a gym membership and personal trainer in the amount of $3,231.80

40I find the applicant has not demonstrated the OCF-18 for a gym membership and personal trainer is reasonable and necessary.

41The applicant did not provide submissions specific to this OCF-18, other than to say it was submitted on March 23, 2022, and denied by the respondent on March 29, 2022. The applicant failed to address the reasonableness of the OCF-18’s goals, whether those goals could reasonably be met by the services proposed in the OCF-18, or offer an argument on the proposed costs. I was not pointed to medical evidence or opinions that support the reasonableness or necessity of a gym membership and personal trainer. I find the applicant did not meet her onus. On balance, I am therefore not convinced this OCF-18 is reasonable and necessary.

Interest

42There are no benefits payable, therefore no interest is owing.

ORDER

43The applicant is not entitled to the OCF-18s in dispute, nor interest. The application is dismissed.