Licence Appeal Tribunal File Number: 21-015306/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:
Tiziana Paniccia
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Thulasi Kandiah, Counsel
HEARD: By way of written submissions
OVERVIEW
1Tiziana Paniccia (“the Applicant”) was involved in an automobile accident on February 8, 2020, and sought benefits from Aviva Insurance Company of Canada (the “Respondent”) 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 and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The Respondent objects to the inclusion of certain records that it submits were disclosed after the production deadline. It submits that the Applicant should not be permitted to rely on these records pursuant to Rule 9.4 and according to VG v. Aviva Insurance Canada, 2019 CanLII 22214 (ON LAT). It submits that the failure to disclose documents frustrates the Tribunals ability to determine issues and the party’s ability to make full and fair submission. The Respondent seeks to strike the following documents from the hearing record:
i. Clinical notes by Dr. E. Khan, family physician, dated September 7, 2021, March 10 and June 9, 2023;
ii. A prescription summary;
iii. A report by Dr. W. Goldstein, neurologist, dated January 19, 2023; and
iv. A report by Dr. A. Oh, dated June 15, 2023.
3In reply, the Applicant denies that she disclosed the prescription summary and Dr. Khan’s note dated September 7, 2021 beyond the production deadline. She provided a copy of an email to the Respondent to confirm the disclosure. The Respondent has not denied the email and receipt of those documents therefore, I conclude that they were disclosed in accordance with the Tribunal order and will include them in the hearing record.
4With respect to the other documents, the Applicant submits that she provided them on an ongoing basis, as they became available. She submits that Dr. Goldstein’s report was served on February 23, 2023, 18 days beyond the deadline, an Dr. Oh’s report was served on the Respondent within a week of receipt. She further submits that the medical documents are integral to understanding her injuries and limitations. She submits that, pursuant to Rule 3.1 of the Tribunal’s Rules of Practice and Procedure, the disclosure rules should be liberally interpreted, applied, or varied to facilitate a fair and open process to allow effective participation by all parties.
5I find that the Applicant failed to properly disclose the reports of Dr. Goldstein and Dr. Oh, and the clinical notes of Dr. Khan, dated March 10 and June 9, 2023.
6The Applicant disclosed documents after the deadline ordered by the Tribunal. Further, the evidence demonstrates that the Applicant made no effort to seek the Tribunal’s permission to rely on the aforementioned documents, until it was pointed out by the Respondent. These actions and inactions can frustrate the Tribunal’s ability to conduct a fair and efficient process that allows for effective participation by the parties because it leaves the Respondent in a position without a medical opinion on the documents provided. This is effectively a trial by ambush that forces the Respondent to defend a case that was not before it at the time of the disclosure deadline.
7The prejudice to the Respondent if the documents are permitted cannot be cured within this hearing because the time to disclose documents and make submissions has expired. Further, I find that the Applicant is not unduly prejudiced by striking the evidence because, beyond this hearing, the Respondent has an ongoing obligation to adjust her claim and consider new evidence as it is provided.
8For the reasons above, I strike the reports of Dr. Goldstein and Dr. Oh, and the clinical notes of Dr. Khan, dated March 10 and June 9, 2023.
ISSUES
9The issues to be decided in the hearing are:
Is the Applicant entitled to attendant care benefits at the rate of $623.72 per month for the period from February 13, 2020, to-date and ongoing?
Is the Applicant entitled to a medical benefit in the amount of $3,037.92 for physiotherapy services, proposed by Health-Pro Wellness (“HPW”) in a treatment plan dated November 19, 2020?
Is the Applicant entitled to a medical benefit in the amount of $2,288.31 for chiropractic services, proposed by HPW in a plan dated May 18, 2021?
Is the Applicant entitled to a medical benefit in the amount of $1,902.56 for physiotherapy services, proposed by HPW in a plan dated December 14, 2021?
Is the Applicant entitled to a medical benefit in the amount of $3,616.64 less $2,444.20 approved by the Respondent, for psychological services, proposed by HPW in a plan dated November 11, 2021?
Is the Applicant entitled to a medical benefit in the amount of $3,566.29 less $1,696.10 approved by the Respondent, for psychological services, proposed by HPW in a plan dated August 11, 2022?
i. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
10The Applicant has not demonstrated that she is entitled to ACBs.
11The Applicant is entitled to the treatment and assessment plans dated November 19, 2020, May 18, and December 14, 2021, plus interest pursuant to section 51 of the Schedule.
12The Applicant is not entitled to the unapproved balances of the psychological treatment plans.
BACKGROUND
13The Applicant was the back-seat passenger of a vehicle which was struck on the front passenger side by a merging vehicle. The vehicle she was riding in was then struck from behind by another vehicle. An ambulance arrived at the scene of the accident and took the Applicant and her daughter to the hospital, where her daughter was examined. The Applicant sought no immediate medical attention while at the hospital.
14The Applicant went to her family physician, Dr. Khan, two days after the accident with complaints of neck, shoulder, back and elbow pain. Dr. Khan recommended that the Applicant engage in physiotherapy and prescribed pain mediation. A few days later, the Applicant started treatment pursuant to the MIG.
15The Applicant developed psychological injuries following the accident and, as a result, was no longer subject to the MIG and the $3,500.00 funding limit for a minor injury.
16The Applicant claims that her physical and psychological injuries negatively affect her daily life and that she requires attendant care services. She also submits that she is entitled to the treatment and assessment plans in dispute because they lead to her overall physical improvement and allow her to conduct her activities of normal living and because the costs of the plans are reasonable.
ANALYSIS
No ACBs are payable
17Pursuant to section 19 of the Schedule, ACBs shall pay for all reasonable and necessary expenses that are incurred by the Applicant for services provided by an aide or attendant. The onus is on the Applicant to demonstrate that she required the care of an aide or attendant and that she incurred the expense of hiring one. The Applicant may still be entitled to ACBs despite not hiring an aide or attendant if she can show that the expense was not incurred because the Respondent unreasonably withheld or delayed payment of the benefit.
18The Applicant submits that she is entitled to ACBs because she sustained injuries that are not included in the minor injury definition and the Respondent confirmed that her injuries are not a minor injury. She submits that she has difficulties with concentration, bending, prolonged walking, prolonged sitting, and prolonged standing. She submits that she hired a cleaner following the accident but provides no evidence that she incurred the expense of an aide or attendant.
19The Respondent submits that the Applicant has not demonstrated that she is entitled to ACBs and that she cited no medical evidence to support her claim that she requires ongoing assistance with dressing and undressing, showering, bathing, personal hygiene, mobility assistance, and more. It submits that the insurer’s examination (“IE”) reports conclude that she demonstrated sufficient strength, range of motion (“ROM”) and physical tolerances to perform her self-care tasks unaided. Further, it submits that the Applicant had not demonstrated that she incurred ACBs.
20I find that the Applicant has not demonstrated that she requires ACBs as claimed. The Form-1 by Y. Granovsky, registered nurse, dated February 13, 2020, states that the Applicant requires assistance with toenail care, meal preparation and serving, cleaning the bathroom after use, and changing bedding. Yet, there are no other medical records that indicate the Applicant is unable to complete those tasks and no medical professional has recommended that she avoid those actions. At most, the Applicant reported difficulty with some personal care tasks and has demonstrated a slight reduction in the ROM in her neck and back, but I am not persuaded that these minor impairments cause her to require the assistance of an aide or attendant. In fact, in the April 7, 2021 IE report by Dr. M. Hanna, physician, the Applicant reported that she remained independent with all her personal care and mobility tasks and meal preparation, contrary to the services proposed by Ms. Granovsky.
21I find no evidence indicating that ACBs were unreasonably withheld or delayed. The Applicant initially presented with predominantly minor injuries and was rightfully subject to the MIG at that time, which precludes entitlement to ACBs. The fact that she developed psychological injuries following the accident and was no longer subject to the MIG, does not automatically entitle the Applicant to ACBs. The onus remains with the Applicant to demonstrate that she requires the services of an aide or attendant as a result of accident-related injuries. Here, she has not met her onus.
Physical Treatment plans dated November 19, 2020, May 18, 2021, and December 14, 2021
22I find the physical treatment plans to be reasonable and necessary as a result of the accident. The plans propose chiropractic care, physiotherapy, and massage therapy in order to return the Applicant to her activities of normal life, increase strength, and increase her ROM.
23The Applicant’s medical record is consistent with complaints of neck, shoulder, and back pain related to the accident. CNRs from HPW note the Applicant’s ongoing complaints of pain and reduced ROM. Similarly, while the Applicant met with Dr. Khan somewhat irregularly, she nevertheless made consistent complaints of neck, shoulder and back pain and Dr. Khan consistently referred her for physical modalities such as physiotherapy and chiropractic care. While Dr. Khan regularly characterized the Applicant’s injuries as musculoskeletal pain, it does not upset the fact that the Applicant had ongoing pain and reduced ROM which required treatment, which the Applicant incurred.
24I find that the IE reports by Dr. M. Hanna, physician, unpersuasive in light of the Applicant’s ongoing complaints and the fact that she is not bound by the MIG and the $3,500.00 funding limit for a minor injury. Dr. Hanna examined the Applicant and, in the April 7, 2021 report, diagnosed her with sprain and strain injuries with post-traumatic headaches and maintained the position in the February 11, 2022 report. Dr. Hanna’s examination demonstrated that the Applicant had reduced ROM throughout her neck and back. Dr. Hanna’s reports do not address whether the treatment plans in dispute are reasonable and necessary, instead they focus on whether the Applicant sustained a minor injury and should be bound by the MIG funding limit. However, an IE report dated August 19, 2021, by Dr. A. Marino, concluded that the Applicant sustained physiological injuries as a result of the accident and is therefore not bound by the MIG and the funding limit. Considering Dr. Marino’s diagnosis that the Applicant sustained psychological injuries as a result of the accident, it is unreasonable to use the MIG or the $3,500.00 funding limit as a means to deny the Applicant entitled to reasonable and necessary physical treatment.
25The Applicant’s medical record is consistent with complaints of back, neck and shoulder pain with reduced ROM and her treating practitioners recommend physical modalities at a time contemporaneous with the treatment plans. The IEs do not upset the recommendations of the Applicant’s treating practitioners. Thus, I find that the physical treatment plans dated November 19, 2020, May18, 2021, and December 14, 2021 are reasonable and necessary as a result of the accident.
Psychological Treatment plans dated November 11, 2021 and August 18, 2022
26I find that the Applicant has not demonstrated that the unapproved balance of the psychological treatment plans is reasonable and necessary. Both psychological treatment plans propose 1.5 hour sessions, testing and scoring fees, treatment planning fees, a progress report fee, and a form fee.
27The Respondent approved both plans for one-hour treatment sessions and a form fee. It denied funding for testing and scoring, a progress report, and the treatment planning fees. The Respondent advised that testing and scoring was unnecessary, that it would request a progress report and fund it accordingly if necessary following the completion of the plan. It further advised that treatment planning fees are included in the form fee.
28The Applicant submits that the costs of the treatment plans are reasonable, but never elaborated on this point. She never addressed why she requires 1.5 hour psychotherapy sessions instead of the one-hour sessions approved by the Respondent. Likewise, the Applicant made no submissions on why the testing and scoring fees, the progress report, and treatment planning fees are reasonable and necessary. Accordingly, she has failed to meet her onus to demonstrate that the benefits she seeks are reasonable and necessary.
29The Professional Services Guideline – Superintendent’s Guideline no.03/14 (“the PSG”) stipulates that insurers are not liable for any fees that have the result of increasing the effective hourly rates or the maximum fees payable for completing forms. The Applicant made no submissions on the application of the PSG and has made no reasonable attempt to explain why the fees proposed in the plans are reasonable. As a result, I find that she has not met her onus and is not entitled to the unapproved balance of the psychological treatment plans.
Interest
30Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. The Applicant is entitled to interest with respect to the physical treatment plans dated November 29, 2020, May 18, and December 14, 2021.
CONCLUSION AND ORDER
31The physical treatment plans dated November 19, 2020, May 18, and December 14, 2021 are reasonable and necessary. The Applicant is entitled to incur these benefits and the Respondent is liable to pay for them once properly invoiced. Interest applies on these benefits, pursuant to section 51 of the Schedule.
32The Applicant is not entitled to the remaining benefits in dispute.
Released: March 11, 2024
Brian Norris Adjudicator