Bowen v. Aviva Insurance Company, 2024 CanLII 23451

Citation: Bowen v. Aviva Insurance Company, 2024 ONLAT 21-014070/AABS

Licence Appeal Tribunal File Number: 21-014070/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:

Natalie Bowen

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Ludmilla Jarda

APPEARANCES:

For the Applicant: Alim Ramji, Counsel

For the Respondent: James Kolumbus, Counsel

HEARD: By Written Submissions

OVERVIEW

1Nathalie Bowen (the “applicant”) was involved in an automobile accident on May 31, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Aviva Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues are in dispute are:

1. Is the applicant entitled to $45.20 ($2,609.70 less $2,564.50 approved) for chiropractic services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“treatment plan”) dated November 18, 2020?

2. Is the applicant entitled to $897.66 ($4,688.38 less $3,790.72 approved) for psychological services, proposed by Dr. Jacqueline Brunshaw in a treatment plan dated January 22, 2021?

3. Is the applicant entitled to $1,803.73 for a chiropractic services, proposed by Complete Rehab Centre in a treatment plan dated October 25, 2021?

4. Is the applicant entitled to $8,485.00 for a chronic pain treatment, proposed by Complete Rehab Centre in a treatment plan dated December 9, 2021?

5. Is the applicant entitled to $2,114.85 for a chiropractic treatment and massage therapy, proposed by Complete Rehab Centre in a treatment plan dated May 2, 2022?

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

RESULT

3For the reasons that follow, I find that the applicant is not entitled to the disputed treatment plans nor interest. The application is dismissed.

ANALYSIS

4To receive payment for the disputed treatment plans under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefits are 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.

5The applicant submits that the disputed treatment plans are reasonable and necessary to treat her accident-related injuries. She claims that she suffers from chronic pain as well as physical and psychological impairments as a result of the accident.

6The applicant relies on the clinical notes and records (“CNRs”) of her family physician, Dr. Peter Dobson, Brampton Civil Hospital, Performance Physio Therapy & Wellness, and Complete Rehab Centre, prescription summaries, a Disability Certificate (OCF-3) dated October 10, 2020 completed by Dr. Rahim Jessa, chiropractor, an orthopaedic chronic pain assessment report dated November 17, 2020 completed by Dr. Osama Benmoftah, orthopaedic surgeon, and a psychological assessment report dated November 28, 2020 completed by Helen Illios, psychotherapist, under the supervision of Dr. Jacqueline Brunshaw, psychologist.

7The respondent submits that the applicant has not met her evidentiary burden to prove that the unapproved balances of the disputed treatment plans are reasonable and necessary. The respondent notes that it partially approved a treatment plan for chiropractic services and for psychological counselling (i.e. issues 1 and 2) and argues that the overall costs of these treatment plans are not reasonable and necessary. The respondent further submits that the two other treatment plans for chiropractic services and massage therapy treatment and the treatment plan for chronic pain treatment (i.e. issues 3, 4, and 5) are not reasonably required as a result of the accident.

8The respondent relies on various insurer examination reports including an orthopaedic examination dated February 24, 2022 and a musculoskeletal paper review report dated June 1, 2022, both completed by Dr. Ramunas Saplys, orthopaedic surgeon, and a psychological examination report dated December 29, 2022 completed by Dr. John W. Lee, psychologist.

The applicant is not entitled to the unapproved balance of the chiropractic services in the amount of $45.20

9I find that the applicant has failed to demonstrate, on a balance of probabilities, that the unapproved balance of the treatment plan for chiropractic services is reasonable and necessary. As such, the applicant is not entitled to $45.20 for the treatment plan dated November 18, 2020.

10The treatment plan proposes 18 chiropractic treatment sessions, 6 massage therapy sessions, TENS unit accessories, completion of the treatment plan, and mask/gloves.

11I find that the evidence does not support that the unapproved balance of the treatment plan is reasonable and necessary. Although the applicant argues that she requires chiropractic services in the amount of $45.20 due to the chronicity of her pain following the accident, she fails to acknowledge that the unapproved balance does not relate to chiropractic services, but rather to the cost of masks and gloves. Indeed, according to the treatment plan, the cost of the masks and gloves were included as this protective personal equipment (“PPE”) will help prevent the spread of Covid-19.

12As noted by the respondent, the cost of PPE is not covered under the Schedule. As such, it is not reasonable and necessary.

13Accordingly, the applicant is not entitled to $45.20 for the cost of masks and gloves.

The applicant is not entitled to the unapproved balance of the psychological services in the amount of $897.66

14I find that the applicant has failed to demonstrate, on a balance of probabilities, that the unapproved balance of the treatment plan for psychological services is reasonable and necessary. As such, the applicant is not entitled to $897.66 for the treatment plan dated January 22, 2021.

15The treatment plan proposes 16 counselling sessions, a re-assessment, a discharge report, and completion of the treatment plan. The proposed length of the sessions is 1.5 hours, and the hourly rate for the sessions is $149.61. In the additional comments, it is indicated that the counselling sessions will consist of psychotherapy.

16I find that the applicant has not met her onus to prove, on a balance of probabilities, that $149.61 per hour for psychotherapy services to be provided by a psychotherapist is reasonable and necessary. Although the applicant relies on J.V. v. Intact Insurance Company, 2019 CanLII 76995 (ON LAT), I.B. v. Aviva Insurance Company of Canada, 2020 CanLII 40329 (ON LAT), and A.S. v. Aviva General Insurance, 2021 CanLII 22034 (ON LAT), I am not bound by these decisions.

17It is well established that the Professional Services Guidelines issued by the Financial Services Commission of Ontario as Superintendent’s Guideline No. 03/14 (the “PSG”) sets out the maximum expenses payable for a range of healthcare services under the Schedule. Although the PSG does not provide an hourly rate for psychotherapists, it provides that the maximum hourly rate for unregulated providers is $58.19 per hour. Given that the PSG is silent on the maximum hourly rate for a psychotherapist, it is left to the parties to determine what the acceptable hourly rate would be, and if they are unable to do so, the Tribunal must decide.

18In the present case, the respondent approved the hourly rate of $58.19 per hour and advised the applicant that the provider could contact them to discuss the hourly rate. However, there is no evidence that the applicant or her provider contacted the respondent regarding the hourly rate. As the parties are unable to agree to a reasonable hourly rate, the Tribunal must decide.

19I do not find that the psychotherapist should be paid the higher hourly rate of $149.61 in the circumstances. Although the applicant argues that Bola Musiwa, psychotherapist, provides Cognitive Behavioural Therapy (“CBT”), which is treatment that is usually provided by psychologists, Ms. Musiwa’s credentials are not part of the evidentiary record. As such, there is no evidence that she has specialized training within the area of CBT nor that her experience warrants being paid an hourly rate similar to a psychologist and psychological associates. As a result, I accept that $58.19 per hour is a reasonable hourly rate for a psychotherapist to provide psychotherapy services.

20As such, the applicant has not met her evidentiary burden and proven that the unapproved balance of the treatment plan is payable.

The applicant is not entitled to the treatment plans for chiropractic services, massage therapy, and chronic pain treatment

21I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated October 25, 2021 for chiropractic services in the amount of $1,803.73, the treatment plan dated May 2, 2022 for chiropractic treatment and massage therapy in the amount of $2,114.85, and the treatment plan dated December 9, 2021 for chronic pain treatment in the amount of $8,485.00 are reasonable and necessary.

22The treatment plan for chiropractic services proposes 12 chiropractic therapy sessions, 5 massage therapy sessions, and completion of the treatment plan. The treatment plan for chiropractic treatment and massage therapy proposes 10 chiropractic therapy sessions, 5 massage therapy sessions, completion of the treatment plan, and various assistive devices, including a cervical pillow, motion medicine, a cane, heat pad, and back support.

23Both treatment plans have the same goals, specifically, to reduce pain, increase range of motion, increase strength, increase cardiovascular fitness levels, increase endurance and flexibility, and improve motor control of lumbopelvic and lower extremity muscles. The functional goals are return to activities of normal living and return to pre-accident work activities.

24The treatment plan for chronic pain treatment proposes 24 physiotherapy sessions, 8 chiropractic therapy sessions, 8 counselling sessions with psychotherapist, 8 counselling sessions with a social worker, 8 massage therapy sessions, documentation, and completion of the treatment plan. The goal of the treatment plan is to reduce pain, increase range of motion, increase strength, and increase endurance. The functional goals are to return to activities of normal living and return to pre-accident work activities.

25I find that the applicant’s submissions and evidence fail to demonstrate her entitlement to the disputed treatment plans. The applicant failed to include the disputed treatment plans in her written hearing submissions. As a result, the applicant has not identified the goals of treatment, how the goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable. However, since the respondent included the disputed treatment plans in its written hearing submissions, I am able to fully and properly assess the reasonableness and necessity of the disputed treatment plans.

26I further find that there is insufficient evidence to support that the disputed treatment plans are reasonable and necessary. Following the accident, the applicant consulted her family physician, Dr. Dobson, regarding her accident-related injuries, and on June 3, 2019, she complained of neck pain and pain radiating to her lower spine. Dr. Dobson recommended physiotherapy and prescribed anti-inflammatory medication. The applicant further consulted Dr. Dobson on July 29, 2019 and complained of right knee pain since the accident.

27Subsequent diagnostic imaging revealed that the applicant has a post-traumatic deformity to her right knee, consistent with an old, healed fracture, and suffers from moderate to severe osteoarthritis of the knee. However, there is no indication that this diagnosis is as a result of the accident. Rather, the CNRs of Dr. Dobson and the Brampton Civic Hospital as well as Dr. Benmoftah’s report indicate that the applicant had right knee surgery in 1996 which required the insertion of screws and plates. It is noted that the applicant was overweight at the time, weighing approximately 500 lbs, and that her weight contributed to her right knee injury.

28While the applicant claims that she may require knee replacement surgery as a result of the accident, this is not supported by the evidence. Indeed, the applicant has directed the Tribunal to the CNRs of Dr. Sarah Ramzan indicating that Dr. Heller was of the opinion that knee replacement surgery may ultimately be required; however, these CNRs do not relate to the applicant. Rather, these records belong to another individual.

29Moreover, according to the CNRs the Brampton Civic Hospital, on October 1, 2019, the applicant’s knees were assessed at the Rapid Access Clinic: Hip & Knee Arthritis. It was noted that the applicant presented with moderate knee osteoarthritis, that the applicant was high functioning, that surgery was not indicated, and that the applicant did not want surgery. The applicant was given the option to book a consultation with an orthopaedic surgeon within six months for a gel injection, and she was referred to GLA:D to manage her knee osteoarthritis.

30I find that the applicant has failed to demonstrate that she meets the test for chronic pain as outlined in American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”). While the Guides are not incorporated into the Schedule or otherwise binding on this Tribunal to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

2. Excessive dependence on health care providers, spouse, or family;

3. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;

4. Withdrawal from social milieu, including working, recreation, or other social contacts;

5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and

6. Development of psychological sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

31I am not persuaded by the applicant’s medical evidence or submissions that she meets three out of six criteria set out in the Guides for establishing chronic pain.

32While Dr. Benmoftah concluded that the applicant suffers from chronic pain as a result of the accident, his findings are not persuasive. Dr. Benmoftah only reviewed the CNRs of Dr. Dobson and Performance Physiotherapy & Wellness in preparation of his report, and he relies heavily on the applicant’s self-report. On physical examination, examination of the applicant’s neck and back was unremarkable, and there was some tenderness to the applicant’s knees.

33Although Dr. Benmoftah indicated that the applicant met at least four criteria for chronic pain syndrome under the American Medical Association, he does not discuss on what basis these criteria have been met. He simply identifies the following criteria: duration of greater than six months, dramatization, prolonged use of drugs, despair, disuse, dysfunction, diagnosis dilemma, and dependence on others and/or on passive physical therapy.

34Further, while the applicant argues that she meets criteria 1, 5, and 6 above, the evidence does not support the applicant’s position.

35With respect to criterion 1, there is insufficient evidence to support that the applicant used prescription drugs beyond the recommended duration and/or abused of or depended on prescription drugs or other substances. While the applicant argues that she became increasingly reliant on pain medication and anti-depressants, she has not directed me to any evidence to support that she was using her prescribed medication beyond the recommended duration and/or was abusing of or depended on prescription drugs or other substance. Also, while the applicant advised Dr. Dobson on April 18, 2022 that she had taken her mother’s oxy, Dr. Dobson declined to prescribe this medication.

36With respect to criterion 5, there is insufficient evidence to support that the applicant failed to restore her pre-injury function after a period of disability, such that her physical capacity was insufficient to pursue work, family, or recreational needs. While the applicant argues that she was unable to pursue recreational activities such that she was not able to enjoy leisure walks or go to the gym, the applicant reported to Dr. Lee that she was able to work full time, complete all house care tasks, including housework, grocery shopping, and laundry, and is fully independent with personal care and caregiving tasks.

37Also, there is no indication that the applicant could not return to the gym. Rather, there are several indications in the applicant’s medical records that she is obese and that she should follow an exercise routine to lose weight. Further, according to a Consultation Report dated January 11, 2023, Melanie Coschignano, physiotherapist, recommended, among other things, that the applicant stretch to increase her range and flexibility, do strength training for her quadriceps and glutes, lose weight (with a target of 5% of her current body weight,) and engage in physical activity (with a target of 150 minutes per week, low impact exercises).

38With respect to criterion 6, while the evidence supports that the applicant developed psychological sequelae following the accident, there is insufficient evidence to support that the applicant continues to suffer from a psychological impairment as a result of the accident. As noted by the applicant, Dr. Brunshaw diagnosed her with the following DSM-5 psychological impairments as a result of the accident: adjustment disorder with anxiety, major depressive disorder, and specific phobia (driving, being a passenger, and being a pedestrian).

39However, when the applicant was more recently assessed by Dr. Lee, it was noted that the applicant had reached maximum medical recovery for her accident-related psychological impairment, and that her adjustment disorder was in the process of remission. Dr. Lee also found that the applicant did not exhibit symptoms congruent with somatic symptom disorder that would warrant further treatment in the context of chronic pain. Correspondingly, the applicant self-reported that she did not feel as though she required further psychological treatment.

40Also, I prefer Dr. Saplys’ reports as her opinion is primarily based on objective evidence and includes a review of extensive medical records from the applicant’s treatment providers and diagnostic imaging. In her report dated February 24, 2022, Dr. Saplys concluded that the applicant sustained musculoligamentous strains to the paralumbar structures as well as an exacerbation of pre-existing degenerative changes in her right knee as a result of the accident. It is Dr. Saplys’ opinion that the applicant achieved maximal medical recovery from her accident-related injuries. She noted that one would reasonably expect the applicant’s soft tissue injuries to her lumbar spine to resolve over a period of three months following the accident, and the exacerbation of pre-existing degenerative changes in her right knee to resolve over a period of approximately six months following the accident.

41Finally, there is insufficient evidence to support that further facility-based physical and psychological treatment is reasonably required. Although Dr. Benmoftah recommended that the applicant participate in a multi-disciplinary rehabilitation facility that specializes in treatment for chronic pain, aside for the disputed treatment plans, the applicant has not directed the Tribunal to any evidence to support that further facility-based treatment is reasonably required beyond the previously approved therapy. As I accept the evidence that the applicant has reached maximum medical recovery of her accident-related injuries, I find that further physical and psychological treatment is not reasonable and necessary.

42As such, I find that the applicant has not proven that the disputed treatment plans are payable.

Interest

43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.

ORDER

44For the reasons outlined above, I find that the applicant is not entitled to the disputed treatment plans nor interest.

45The application is dismissed.