Phuong Hoang v. Aviva General Insurance, 2024 CanLII 30715

Citation: Hoang v. Aviva General Insurance, 2024 ONLAT 22-005531/AABS

Licence Appeal Tribunal File Number: 22-005531/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.

Parties

Between:

Phuong Hoang Applicant

and

Aviva General Insurance Respondent

DECISION

ADJUDICATOR: Samia Makhamra

APPEARANCES:

For the Applicant: Naman Nanda, Counsel

For the Respondent: Evan Argentino, Counsel

Heard by Written Submissions

OVERVIEW

1Phuong Hoang, the applicant, was involved in an automobile accident on August 17, 2020, 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 General Insurance, 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 an income replacement benefit (“IRB”) in the amount of $284.18 per week from April 6, 2021 to June 1, 2022?

ii. Is the applicant entitled to attendant care benefits (“ACB”) in the amount of $1,107.40 per month from September 21, 2021 to date and ongoing?

iii. Is the applicant entitled to the following medical/rehabilitation benefits: i. $931.33 for assistive devices, proposed by 101 Assessment Centre in a treatment plan dated July 13, 2021; ii. $2,286.22 for chiropractic services, proposed by 101 Physio in a treatment plan dated May 4, 2021; iii. $2,568.68 for chiropractic services, proposed by 101 Physio in a treatment plan dated August 19, 2020; iv. $1,298.79 for chiropractic services, proposed by 101 Physio in a treatment plan dated November 24, 2020; and v. $2,900.14 for chiropractic services, proposed by 101 Physio in a plan dated January 5, 2021?

iv. Is the applicant entitled to the following assessments proposed by 101 Assessment Centre: i. $2,460.00 for an orthopaedic assessment, proposed in a treatment plan dated August 4, 2021; ii. $2,460.00 for a neuropsychological assessment, proposed in a treatment plan dated October 5, 2021; iii. $579.38 for an attendant care needs assessment, proposed in a treatment plan dated June 1, 2021; and iv. $2,460.00 for a chronic pain assessment, proposed in a plan treatment dated March 4, 2021?

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

RESULT

3The applicant is not entitled to any of the benefits in dispute.

BACKGROUND

4The applicant had a number of appointments with his family doctor, Dr. Maurice Keltz, for accident-related injuries. In summary, Dr. Keltz recommended physiotherapy, massage and acupuncture on November 24, 2020, and provided a number of referrals to further investigate the applicant’s complaints. Dr. Keltz’s care for the accident-related injuries are summarized below:

i. On August 21, 2020, the applicant saw Dr. Keltz for complaints of head, neck, and right shoulder pain. On August 24, 2020, ultrasounds of the right neck and shoulder were normal.

ii. On September 24, 2020, the applicant saw Dr. Keltz for a complaint of back pain. Dr. Keltz referred the applicant for an MRI.

iii. On November 24, 2020, the applicant reported back pain and tingling. Dr. Keltz recommended physiotherapy, massage and acupuncture. On December 6, 2020, an MRI of the lumbar spine revealed no significant stenosis or vertebral body compression with no evidence of nerve root impingement and was otherwise unremarkable.

iv. In January 2021 (exact date is illegible), the applicant complained of right shoulder and back pain.

v. The applicant underwent an MRI of the right shoulder on March 15, 2021. Results indicated a small tear with a small associated parameniscal cyst; the remainder of the examination was unremarkable.

vi. The applicant underwent an MRI of his thoracic spine on March 23, 2021. Results were normal except for a very mild disc desiccation.

vii. On October 13, 2021 the applicant complained of back and right shoulder pain.

5The applicant underwent s. 44 assessments in January and February 2021. Dr. Gilbert Yee conducted an orthopaedic assessment on January 13, 2021. Dr. Yee’s findings did not support the claim for an IRB, chiropractic treatment, or an additional orthopaedic assessment.

6Dr. Christopher Hope, psychologist, assessed the applicant on February 25, 2021. Dr. Hope’s findings did not support the claim for an income replacement benefit.

7On March 22, 2021, Dr. Lital Grinberg, psychologist, conducted a s. 25 psychological assessment. He diagnosed the applicant with somatic symptom disorder with predominant pain (moderate), specific phobia situational (driving), and unspecified adjustment disorder. Dr. Grinberg recommended psychological therapy and a cognitive assessment.

8On June 9, 2021, Dr. Vincenzo Basile, neurologist, conducted a s. 25 neurological assessment. He diagnosed the applicant with post-concussive syndrome consistent with a traumatic brain injury, post-traumatic headaches, tension-type headaches and migranious features, and musculoskeletal soft-tissue injuries as a source of pain in the neck and back areas.

9On July 10, 2021, Ms. Natalia Khramtsova prepared an attendant care needs assessment and Form 1. Ms. Khramtsova noted the applicant’s injuries from the accident and recommended the assistive devices and attendant care services in dispute.

10On September 21, 2021, Rodney Pritchett, chiropractor, conducted a s. 44 assessment. Mr. Pritchett concluded that the applicant did not require the assistive devices or attendant care services in dispute.

11On October 2, 2022, Dr. Sadiq Hasan, psychiatrist, conducted a s. 25 psychiatric assessment. He diagnosed the applicant with somatic symptom disorder with predominant pain, specific phobia, situational (driving/vehicular), and adjustment disorder with mixed anxiety and depressed mood.

ANALYSIS

The applicant is not entitled to an IRB

12I find that the applicant is not entitled to an IRB. I am persuaded by the s. 44 assessment reports of Dr. Gilbert Yee, orthopedic surgeon, and Dr. Christopher Hope, psychologist. Both assessors concluded that the applicant did not suffer a substantial inability to perform the essential tasks of his employment. At the time of the accident, the applicant worked as a security guard at a condo building. His job included standing, walking, and carrying packages to the residents or a storage room.

13To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

14Dr. Yee examined the applicant on January 13, 2021. The examination revealed tenderness on palpation to the neck, right shoulder and back, but functional range of motion. Dr. Yee diagnosed the applicant with a myofascial strain to the cervical spine, right trapezius, right shoulder, and thoracolumbar spine but found no functional impairments. He concluded that the applicant did not suffer a substantial inability to perform the essentials tasks of his employment.

15Dr. Hope examined the applicant on February 25, 2021 and concluded that there was little evidence that his physical difficulties were exacerbated by psychological factors. The applicant also stated that he believed he would return to his previous level of function. Dr. Hope concluded that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment as there was no evidence of an accident-related psychological condition that would significantly impact his ability to work.

16The applicant submits I should prefer the information provided in a disability certificate by Dr. Wayne Coghlan, dated August 27, 2020, and the opinions of the s. 25 assessors, Dr. Lital Grinberg, psychologist, Dr. Vincenzo Basile, neurologist, and Dr. Sadiq Hasan, psychiatrist. Dr. Coghlan noted the applicant’s injuries, including an injury of muscle and tendon at neck level, rotator cuff syndrome, sprain and strain of thoracic spine and shoulder girdle, headaches, sleep disorder, reaction to severe stress and adjustment disorders. He concluded that the applicant was substantially unable to perform the essential tasks of his employment and could not return to work on modified duties. He noted the duration of the disability to be more than 12 weeks.

17On March 22, 2021, Dr. Grinberg prepared a psychological report and diagnosed the applicant with somatic symptom disorder with predominant pain, specific phobia (situational, vehicular), and unspecified adjustment disorder. On June 9, 2021, Dr. Basile, neurologist, diagnosed the applicant with post concussive syndrome consistent with a traumatic brain injury, posttraumatic headaches, tension type headaches and migrainous features, musculoskeletal soft tissue injuries as a source of pain in the neck and back areas. On October 2, 2022, Dr. Hasan prepared a psychiatric report and diagnosed the applicant with somatic symptom disorder with predominant pain, persistent; specific phobia, situational (driving, vehicular), and adjustment disorder with mixed anxiety and depressed mood.

18In summary, the respondent submits the applicant does not meet the test for an IRB according to the s. 44 assessment reports. The respondent also reiterates that the applicant has not provided independent medical opinions to challenge the findings of the s. 44 assessors with respect to the claim for an income replacement benefit.

19I am persuaded by the findings of the s. 44 assessors. They examined the applicant and, based on their clinical findings, specifically addressed the question of whether the applicant was substantially unable to complete the essential tasks of his employment. Both assessors examined the applicant, and their findings are consistent with the medical evidence from Dr. Keltz in that the applicant suffered minor injuries. On the other hand, the s. 25 assessors did not address the question of the applicant’s ability to perform the tasks of his employment. In addition, the diagnosis offered by the s.25 assessors (specific phobia – vehicular, post-concussive syndrome, and somatic syndrome with persistent pain) are inconsistent with the injuries from the subject accident. I also prefer the s. 44 assessment reports over the disability certificate by Dr. Coghlan as they are more current in comparison – conducted in January and February 2021, compared to the disability certificate prepared in August 2020 – and provide a more fulsome analysis of the applicant’s abilities.

The applicant is not entitled to ACBs

20I find that the applicant is not entitled to ACBs for the period claimed. I am persuaded by a s. 44 occupational therapy report and Form 1, completed by Rodney Pritchett, and dated October 1, 2021. Mr. Pritchett found that the applicant did not require any attendant care and recommended $0 for attendant care services. In this report the applicant stated that he was independent with his personal care tasks and home exercise program. Mr. Pritchett reported he did not observe any functional condition or impairment that would affect the applicant’s functioning and ability to carry out his personal care and housekeeping and home maintenance tasks.

21Section 19 of the Schedule states that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident for attendant care services (ACBs) provided by an aide or attendant. Section 42(1) of the Schedule provides that an application for ACBs must be in the form of, and contain the information required to be provided in, the version of the document entitled Assessment of Attendant Care Needs (“Form-1”).

22In addition, my review of the existing medical records indicates that Mr. Pritchett’s conclusions are consistent with the medical evidence. For example, the applicant reported to Dr. Yee on January 13, 2021 that he was independent with his personal care tasks. While his wife helped him with heavier housekeeping chores, he continued to complete all light housekeeping and home maintenance. During his psychological assessment with Dr. Hope in February 2021 the applicant stated that he remained independent with his personal care tasks, meal preparation, driving and bill payments. In addition, the applicant did not report any difficulties with self-care tasks to his family doctor during this period.

23The applicant provided invoices for November and December 2021 and January 2022, all three in the amount of $1,107.40/month. ACBs were provided by a Phuong Hoang from CaringForU, for 7 hours per day at $35.00 per hour.

24The applicant submits he is entitled to attendant care based on a report and Form 1 dated July 10, 2021, prepared by Natalya Khramtsova, and approved by the respondent on July 27, 2021. Ms. Khramtsova noted the applicant’s many impairments, including pain in the neck, left elbow, low back and bilateral lower limb, and left ankle areas, headaches, sleep disorder, eating disorder, anxiety disorder, major depression, cognitive dysfunction, post-traumatic stress disorder, minor concussion, traumatic brain injury, and post concussive syndrome. Ms. Khramtsova recommended some assistive devices (steam mop, light weight vacuum, electric heating pad, analgesic cream, and cervical pillow), and recommended $1,074.85/month for attendant care services.

25However, I am persuaded by the report and Form 1 of October 1, 2021 by Mr. Pritchett, which indicated that the applicant no longer required attendant care services, as it is supported by the medical evidence. Accordingly, the applicant is not entitled to the attendant care services as claimed.

The applicant is not entitled to the medical benefits in dispute

26To receive payment for a treatment 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.

27Based on the medical evidence, I find that the applicant is not entitled to the assistive devices, or the four treatment plans for chiropractic treatment that are in dispute.

28The assistive devices in dispute are listed in an assessment report and Form 1 by Ms. Khramtsova dated July 10, 2021 as follows: steam mop, light weight vacuum, electric heating pad, analgesic cream, and cervical pillow. I rely on the assessment report by Mr. Pritchett of October 1, 2021. As part of the assessment, Mr. Pritchett observed the applicant using a mop and vacuum without difficulties and noted that the applicant did not need a different pillow for sleep, an analgesic cream, or an electric heating pad. Mr. Pritchett concluded that the assistive devices were not required.

29Regarding the treatment plans for chiropractic treatment, I find that they are not reasonable and necessary. Dr. Yee reviewed treatment 4.iii, 4.iv, and 4.v, above, and concluded that they were not reasonable and necessary. In his assessment, Dr. Yee examined the applicant and reviewed the medical records available to him. Dr. Yee found that the applicant had residual symptoms related to myofascial strain of the cervical spine, right trapezius, right shoulder girdle, and thoracolumbar spine, with functional range of motion and no radiculopathy or myelopathy. He concluded that the treatment plans for chiropractic treatment were not reasonable and necessary. As for the treatment plan for chiropractic treatment 4.ii, I find that it is not reasonable and necessary. I rely on Dr. Yee’s conclusion that the applicant did not require any further chiropractic treatment.

30The applicant submits that the medical records from his family doctor, Dr. Keltz, and s. 25 assessors support these treatment plans. Based on Dr. Yee’s conclusions, I disagree. During the period of the treatment plans for chiropractic treatment, August 2020 to May 2021, there was no persuasive medical evidence that they were reasonable and necessary. In addition, Dr. Keltz did not recommend chiropractic treatment. He recommended physiotherapy, massage and acupuncture following a visit in November 2020, and provided several referrals for an ultrasound and MRI imaging but did not recommend chiropractic treatment.

The applicant is not entitled to the assessments in dispute

31Based on the medical records, I find that the assessments in dispute are not reasonable and necessary. The applicant’s family doctor, Dr. Keltz, did not recommend any of these assessments, the s. 44 assessors did not recommend any additional assessments, and there is no other medical evidence to support the assessments.

Orthopaedic assessment

32I rely on Dr. Yee’s conclusions to find the treatment plan for an orthopaedic assessment not reasonable and necessary. As I indicated earlier in this decision, Dr. Yee, who is an orthopaedic surgeon, examined the applicant and concluded that no further intervention was required.

33The applicant submits that the result of an MRI of his right shoulder done on March 15, 2021 warrants an orthopaedic assessment. The MRI showed a tiny tear with a small associated parameniscal cyst. The applicant submits the assessment is reasonable and necessary to assess this injury and provide an opinion on diagnosis and prognosis of the injury. I am not persuaded by this argument as it is not corroborated by the medical evidence. I note that the applicant’s family physician received the result of this MRI and did not order any additional testing.

Neuropsychological assessment

34The applicant submits the neuropsychological assessment is reasonable and necessary as a result of Dr. Grinberg’s psychological report of March 22, 2021, wherein a cognitive assessment was recommended to address the applicant’s reported cognitive difficulties.

35I disagree. Dr. Grinberg did not recommend a neuropsychological assessment. In addition, a few weeks earlier, in February 2021, Dr. Hope assessed the applicant and made no recommendations for any additional assessments. As indicated earlier in this decision, Dr. Hope concluded that there was little evidence that the applicant’s physical difficulties were exacerbated by psychological factors. As such, I find no evidence to support a treatment plan for a neuropsychological assessment.

Attendant care assessment

36The amount claimed is the unapproved portion of a treatment plan for $2,128.51. In its denial letter of July 6, 2021, the Insurer advises that the unpaid portions are for duplicate services and for services (planning services) that are not payable according to FSCO Professional Services Guideline No.03/14.

37I have not been provided with any evidence that the unpaid portions of this treatment plan are payable. As such, the unapproved amount in dispute is not reasonable and necessary.

Chronic pain assessment

38There is no evidence in the medical records that the applicant suffered from chronic pain when this treatment plan was prepared. Dr. Keltz makes no mention of chronic pain in his records, nor do any of the section 44 assessors or section 25 assessors. Based on this, I find this treatment plan not to be reasonable and necessary.

The respondent is not liable to pay an award

39The respondent submits that this issue is improperly before me as the applicant only raised it as an issue in his written submissions. The respondent further asks for two additional pages for its submissions on this issue. In summary, the respondent submits it properly adjusted the applicant’s file and no award is warranted.

40I have considered the parties’ submissions with respect to this issue as an award can be raised at any time during a proceeding. In addition, there is no procedural unfairness to the respondent as it has provided its submissions.

41In examining whether an insurer’s conduct in withholding or denying a benefit warrants an award, the case law is well established that, the insurer’s behaviour must be seen as “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate”. I do not find that an award is payable in this case. The Insurer properly adjusted the file, and, as there are no benefits owed to the applicant, there are no benefits on which to base a s.10 award.

ORDER

42For the reasons outlined above, I order the following:

1. The applicant is not entitled to an income replacement benefit.
2. The applicant is not entitled to attendant care benefits.
3. The applicant is not entitled to the treatment plan for assistive devices or the treatment plans for chiropractic treatment.
4. The applicant is not entitled to the treatment plans for an orthopaedic assessment, a neuropsychological assessment, an attendant care needs assessment, or a chronic pain assessment.
5. The respondent is not liable to pay an award.
6. The applicant is not entitled to interest as there are no overdue benefits.