Licence Appeal Tribunal File Number: 21-014660/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:
Raymond Spence
Applicant
and
Aviva General Insurance Company
Respondent
DECISION
ADJUDICATOR: Bonnie Oakes Charron
APPEARANCES:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Melanie Sousa, Counsel
HEARD: In Writing
OVERVIEW
1Raymond Spence, the applicant, was involved in an automobile accident on December 16, 2019, 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 Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2In his submissions, the applicant included a new issue in dispute, which was not listed in the case conference report and order (“CCRO”) dated October 4, 2022. The issue corresponds to an OCF-18/treatment plan in the amount of $3,491.47 for psychological services, submitted on November 30, 2022, and partially approved for $2,743.37 on March 17, 2023 (leaving $748.10 in dispute). He indicated that the issue was being added “on consent” of both parties in order to avoid additional costs.
3I note that the applicant did not notify the Tribunal prior to the hearing, and no Motion was filed. Further, the first mention that there is a new issue appears on page 13 of the applicant’s submissions with little explanation offered. For its part, the respondent states in its own submissions that the issues in dispute are as outlined in the CCRO. Confusingly, the respondent then addresses the new issue in the body of its submissions, along with the other treatment plans.
4I decline to recognize the additional treatment plan. The applicant failed to follow the required procedural steps to add a new issue to the dispute in accordance with the Licence Appeal Tribunal Rules. While the consent of both parties is a factor, any changes to the hearing’s parameters are governed by the Tribunal’s rules-based procedures.
ISSUES
5The issues in dispute are:
i. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from November 17, 2020, to December 16, 2021?
ii. Is the applicant entitled to physiotherapy services proposed by East Sheppard Rehabilitation Clinic (“ESRC”)/Wynford Health Clinic, as follows:
a. $1,603.57 proposed in a plan submitted on February 10, 2021, and denied on February 12, 2021?
b. $1,012.11 proposed in a plan dated June 1, 2021, and denied on June 3, 2021?
c. $1,153.89 proposed in a plan submitted on July 28, 2022, and denied on August 5, 2022?
iii. Is the applicant entitled to $598.41 ($3,940.28 less $3,341.87 approved) for psychological services proposed by NorMed Assessment Services/2430307 Ontario Ltd, in a plan submitted on November 26, 2021, and denied on December 6, 2021?
iv. Is the applicant entitled to attendant care benefits (“ACB”) in the amount of $1,068.88 per month from February 21, 2020, and ongoing?
v. Is the respondent liable to pay an award under s. 10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6The applicant is not entitled to NEB or ACB.
7The applicant is not entitled to the treatment plans for physiotherapy services, nor the balance of the plan for psychological services.
8No payments are overdue; therefore, no interest is owed.
9The applicant is not entitled to an award.
ANALYSIS
Non-Earner Benefits
10Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
11The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities. It is the burden of the applicant to demonstrate that his life circumstances have changed significantly enough to continuously prevent him from substantially engaging in the activities that he did before the accident.
12The applicant submits that he is entitled to NEB due to his many injuries and impairments caused by the subject accident. He relies on a disability certificate/OCF-3, his treatment records, and the reports of various medical professionals. He contends that as a result of the accident he has significant difficulty with activities like heavy lifting, bending, twisting, and push/pull maneuvers, with pain as a key factor in his limitations and restrictions.
13The respondent’s position is that the applicant was involved in only a minor accident and has not met his burden to prove that his injuries and impairments continuously prevent him from engaging in substantially all of the activities he engaged in prior to the accident. It relies on the reports of its s. 44 assessors including a general physician (“GP”), neurologist, psychologist, and occupational therapist.
Is the applicant entitled to Non-Earner Benefits?
14I find that the applicant is not entitled to NEB of $185.00 per week for the time period from November 17, 2020, to December 16, 2021.
15The applicant asserts that the respondent’s payment of an initial NEB after the accident confirms that he suffered a complete inability to carry on a normal life. However, the respondent denies this assertion, indicating the applicant’s benefits were terminated following the results of a multidisciplinary insurer’s examination (“IE”) dated November 5, 2020.
16The applicant submits that his continuous pain, physical limitations, psychological impairments, pre-existing medical conditions, and post-accident hip fracture have caused him to suffer a complete inability to carry on a normal life. While there is much evidence that indeed the applicant has many health challenges, there is little to connect them with the subject accident. Being retired, his main activities prior to the subject accident were some housekeeping chores, personal care tasks, and sedentary leisure activities such as playing dominoes, socializing, and spending time with his daughter’s dog. He argues that his disability certificate, treatment records, and the reports from various assessors support his entitlement to NEB. I am not convinced that the evidence supports such a conclusion as I see little difference between the applicant’s pre- and post-accident day-to-day living.
17The applicant’s disability certificate demonstrates that he had limited range of motion, pain, and difficulty with movements. Dr. Bruni, a chiropractor at ESRC, authored the post-accident disability certificate, after conducting an intake interview and physical examination on January 22, 2020. He documented that the applicant had trouble with heavy lifting, bending, twisting, pushing, pulling, and prolonged standing. The applicant’s self-reported inability to perform the tasks of daily living such as personal care and housekeeping was also recorded.
18However, it is also true that he had similar complaints documented just a few months prior to the subject accident, at the same clinic. A report dated September 17, 2019, prior to the accident, indicated that the patient demonstrated “suboptimal, restricted, and painful motion of the shoulder and lumbar spine” and that further, the applicant had difficulty with heavy lifting, bending, twisting, pushing/pulling and prolonged sitting/standing/walking. Thus, a similar health situation is apparent both pre- and post-accident.
19The applicant also reports that he made ongoing complaints to Dr. Tsang, his GP and primary care provider, although he clarifies that these complaints were not well-documented. I agree, because I found little in Dr. Tsang’s treatment records to support a claim of entitlement to NEB. The ESRC clinical notes and records (“CNRs”) also offer few details. They mostly serve to confirm his ongoing attendance for treatment rather than confirm any change in his activities pre- and post-accident.
20The applicant also points to his diagnoses in the medical reports from both s. 25 and s. 44 assessors. However, Registered Nurse (“RN”) Neal is the only assessor who finds that the applicant requires increased assistance with the activities of daily living. She found that the applicant had limited range of motion, and recommended a long list of assistive devices, attendant care, and continued rehabilitation treatments for pain management. None of the other reports indicate a significant change in the applicant’s day-to-day activities pre- and post-accident.
21The February 7, 2021 report from psychologist Dr. Langlis found that the applicant was socially isolated, had cognitive difficulties, chronic pain, and non-restorative sleep. She diagnosed him with Other Specified Trauma and Stressor-Related Disorder and Somatic Symptom Disorder with Predominant Pain, Moderate, and Specific Phobia Situational (vehicular). Although Cognitive Behavioural Therapy (“CBT”) was recommended, the report did not suggest the applicant was unable to continue with his previous day-to-day activities, or that a significant change had resulted after the accident.
22The applicant also pointed to support from the respondent’s s. 44 assessors. He underwent a multidisciplinary insurer’s examination (“IE”) in the fall of 2020, with a general physician (Dr. Khaled), neurologist (Dr. Friedman), occupational therapist (Mr. Findlay) and psychologist (Dr. Goodfield). But, on review of the s. 44 assessments, I cannot agree that they support entitlement to NEB. Drs. Khaled, Yee, Friedman, and Goodfield, all concur that the applicant did not suffer an accident-related impairment that caused him to suffer a complete inability to carry on a normal life.
23Specifically, he points to the findings of Dr. Khaled who found that he had pre-existing medical conditions of obesity and diabetes that would likely delay his recovery post-accident, and who made several diagnoses including mechanical lower back pain and whiplash injury. However, Dr. Khaled’s diagnoses were more nuanced. He opined that the applicant’s pre-existing conditions may delay, but ultimately were not a barrier, to his recovery. In fact, he recorded that the applicant’s prognosis was good, despite some residual pain.
24The findings of Dr. Khaled are echoed by OT Findlay who opined that the applicant had sufficient tolerances, strength, and range of motion to engage in his pre-accident functional activity including all of his personal care, light housekeeping, and former sedentary leisure pursuits.
25The applicant also argues that Dr. Yee, orthopaedic surgeon, who conducted a subsequent IE on September 20, 2022, diagnosed him with chronic back pain and range of motion limitations. In addition, he recorded that the applicant was unable to do anything and required help from his daughter. However, read in context, the assessor was actually documenting the applicant’s self-reported limitations following his hospitalization for a hip fracture, not the subject accident. In relation to his post-accident abilities, the applicant had actually reported being able to complete his housekeeping tasks and personal care independently after the accident.
26Lastly, he points to psychologist Dr. Goodfield’s observations in a report dated March 16, 2023. She noted that the applicant had difficulty walking, sitting down, and getting up. She diagnosed him with Adjustment Disorder with Mixed Anxiety and Depressed Mood, mild severity. She identified that the applicant’s psychological impairments were the result of multiple events and pre-existing conditions. These included the subject accident, but also the cumulative effects of two subsequent motor vehicle accidents, a concussion, seizures, and hip fracture, all of which were layered over pre-existing conditions of obesity, sleep apnea and diabetes. Although she endorsed continuing psychological treatment, nowhere in the report does she opine that the applicant suffered a complete inability to carry on a normal life or experienced a recognizable change in his pre- and post-accident daily activities.
27For the reasons outlined above, I find that the applicant has not met his burden. He has not established that he suffered a complete inability to carry on a normal life, or that his functional capacity to undertake his pre-accident activities after the subject accident were altered in any significant way. Consequently, the applicant has not demonstrated entitlement to NEB for the period in dispute.
Attendant Care Benefit (“ACB”)
28Section 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”).
29The applicant submits that he is entitled to ACBs because his injuries extend beyond the MIG. He relies on the medical evidence already discussed. He also points to his incurred costs of $7,235.00, invoiced by his daughter who provided the services. The applicant further requests that benefits be deemed incurred for the period February 21, 2020 onward, pursuant to s. 3(8) of the Schedule.
30The respondent’s position is that the applicant has not demonstrated entitlement to the ACB because he has not met his burden to prove the ACBs are reasonable and necessary, there is insufficient evidence to establish that the benefits were incurred; and the Form-1 for Attendant Care Services in support of his claim was not submitted until after the services began, resulting in them being not payable pursuant to s. 42 (5).
Is the applicant entitled to an ACB?
31I find that the applicant is not entitled to an ACB of $1,068.88 per month for the time period from February 21, 2020, and ongoing.
32The applicant submits that he is entitled to ACBs because the services are reasonable and necessary to address his non-minor injuries from the accident. He highlights that his chronic pain, and physical and psychological limitations have made it impossible to perform the activities of daily living (“ADLs”) on his own. The applicant relies on the medical evidence discussed above, with a focus on the conclusions of the Attendant Care Report from RN Neal.
33The respondent asserts that s. 19 of the Schedule requires that the benefits be both reasonable and necessary, not simply payable because the applicant’s status falls outside the MIG. In this regard, it relies on the conclusions of its s. 44 examiners who completed a multidisciplinary assessment. The IEs covered both the applicant’s physical and psychological health.
34I give the report of RN Neal, from an assessment on November 15, 2020, less weight because it does not include a fulsome account of all facets of the applicant’s health. Her conclusions are based largely on the applicant’s self-reports and the list of assistive devices recommended for his use lacks any detail about why the devices are necessary or how they would address his impairments. While I acknowledge her findings that the applicant had various restrictions and limitations, I also note that she qualified her opinion by stating that her recommendations were based on both the subjective information provided by the client as well as her observations.
35I give more weight to the s. 44 assessments because of the multidisciplinary perspectives involved. All of Drs. Khaled (GP), Friedman (neurologist), and Goodfield (psychologist), as well as OT Findlay, concurred that the applicant did not need the assistance of an aide to complete his activities of personal care and daily living. Thus, the only medical assessor who recommended an aide is RN Neal. I am not convinced by her report and find the evidence of the s. 44 reports more thorough and nuanced, with aligned input and contributions from multiple practitioners of different specialities and backgrounds.
36As a result, pursuant to s. 19 of the Schedule, I find that the applicant has not established entitlement to ACB. There is insufficient evidence to support a finding the applicant requires an aide for the activities of daily living as a result of the subject accident of December 16, 2019.
37Further, because I have found that the applicant is not entitled to an ACB on the basis that the services are not reasonable and necessary, it is not necessary to address his argument that the expenses should be deemed incurred pursuant to s. 3(8), nor the respondent’s argument that the expenses incurred prior to the submission of the Form-1 are not payable pursuant to s. 42(5).
The Treatment Plans
38To 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.
39The applicant submits that all the treatment plans are reasonable and necessary to assist him to return to his pre-accident levels of functioning, both physical and psychological. Further, he argues that the respondent’s denial letters for two of the treatment plans were not compliant with s. 38(8). The respondent disagrees on both counts.
40The respondent submits that the applicant has not met his burden to prove the treatment plans are reasonable and necessary and its denials complied with s. 38(8).
OCF-18s for physiotherapy services in the amounts of $1,603.57 and $1,212.11
41I find that the applicant is not entitled to the OCF-18s for physiotherapy services in the amount of $1,603.57 submitted on February 10, 2021, and denied on February 12, 2021, or the OCF-18 in the amount of $1,212.11, submitted on June 1, 2021, and denied on June 3, 2021.
42The applicant submits that these plans, one for six weeks of physical treatments and the other for four weeks, are an important part of recovering from the injuries he sustained in the accident. He argues that the identified goals of increased strength, pain reduction, and a return to his activities of normal living, merit the cost of the plan, in order to improve his physical condition, provide pain relief, and enable him to return to independent daily living. He points to progress reports showing that over the period 2020 to 2021, he had less pain and was able to do more in his clinic-based exercises.
43It is true that the applicant made some progress over time, however it is minimal. His progress report for February 10, 2021, recorded that the patient is progressing only “slightly”. Overall, between May 7, 2020, and June 1, 2021, his progress stalls at an assessment of “light” with regard to his ability to lift, carry, push or pull objects.
44Therefore, the applicant has not demonstrated that ongoing treatment has resulted in any meaningful gains toward the goals of the plan. As a result, he has not established that the plan is reasonable and necessary.
OCF-18 for physiotherapy services in the amount of $1,153.89
45I find that the applicant is not entitled to the OCF-18 for physiotherapy services in the amount of $1,153.89 dated July 26, 2022, submitted on July 28, 2022, and denied on August 5, 2022.
46Like the previous plans, this one proposes four weeks of similar physical treatments, and identifies the same goals. Here, the applicant submits that the plan is reasonable and necessary to treat his injuries from the accident and his chronic pain. He also submits that the respondent’s denial of the claim was not compliant with s. 38(8). For its part, the respondent submits that a compliant denial letter was issued on August 5, 2022, and that the applicant has not provided any compelling evidence that he has chronic pain or requires further clinic-based treatment more than two and half years post-accident.
47First, I accept the respondent’s denial letter of August 5, 2022, submitted into evidence, as compliant with s. 38(8). It was issued within ten days and with sufficient explanation for its denial.
48Second, the respondent argues that the applicant has not provided any compelling medical evidence that he has chronic pain. Again, its argument is supported by the evidence, given he was not referred to a chronic pain specialist, nor diagnosed with chronic pain by any qualified practitioner.
49Third, with respect to whether the plan is reasonable and necessary, the respondent points me to the applicant’s more recent medical records as well as the September 20, 2022 report of s. 44 assessor Dr. Yee, orthopaedic surgeon. Dr. Yee determined that the applicant had already reached maximal medical recovery and any further clinic-based rehabilitation would not be helpful. The progress reports from the clinic issued on May 7, 2020, February 10, 2021, and June 1, 2021, support this opinion, given that little progress is shown over the time period covered by the plans.
50Neither do the 2022 CNRs of GP Dr. Tsang convince me he was supportive of ongoing physiotherapy due to the subject accident. There is no clear referral for physiotherapy – a single notation records that the applicant is receiving treatments following the subject accident. There is also nothing in the applicant’s hospital record for a hip surgery in 2022 that would link any need for physiotherapy to the subject accident.
51For the reasons outlined above, the applicant has not established that the treatment plan is reasonable and necessary or that the respondent’s denial letter was not compliant with s. 38(8).
OCF-18 for Psychological Services in the amount of $3,940.28, less $2,341.81 approved, leaving $598.41 in dispute
52I find that the applicant is not entitled to the remaining $598.41, in the OCF-18 for psychological services, submitted on November 26, 2021, and partially approved on December 5, 2021.
53The plan for psychological services proposes 12 sessions to address the applicant’s ongoing psychological symptoms. The goals of the plan include pain reduction, and a return to his pre-accident psychological functioning with regard to personal care, housekeeping, and social activities.
54The applicant submits that despite showing signs of progress, the respondent’s denial of the full cost of the treatment plan has hindered his recovery. This however is not what is at issue. Both the applicant’s and the respondent’s assessors agree that the applicant needs ongoing psychological counselling.
55I accept the respondent’s argument that it approved the maximum permitted fees under the Professional Services Guideline (“Guideline”) and should not be liable for any administrative or other costs that would increase the provider’s hourly rate beyond what is authorized. Here, the respondent reduced the amount payable for “Planning Service, Preparation Service and/or Brokerage Fee” in alignment with the limits set by the Guideline. I recognize that these services are included in the hourly rate for professional services, which the Guideline sets to be inclusive of documentation, support, and planning.
56As a result, the applicant has not demonstrated entitlement to the full cost of the treatment plan. The reduction in funding for administrative activities of the provider is unrelated to the applicant’s claim that his recovery is hindered by this reduction.
Conclusion
57I find that the applicant is not entitled to any of the OCF-18s for physiotherapy services, or the balance of the OCF-18 for psychological services. He has not provided any compelling medical evidence that the plans are reasonable and necessary, the balance of the plan for psychological services is related to his medical recovery, or that the respondent’s denials were not compliant with s. 38(8).
Interest
58No interest is owed as no benefit payments are overdue.
Award
59One of the issues in dispute as per the CCRO was an award under s. 10 of Regulation 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
60The applicant made no submissions about an award. In any case, as no benefits are owing, the respondent could not have unfairly withheld or delayed them.
61Accordingly, no award is payable.
ORDER
62I order as follows:
i. The applicant is not entitled to NEB or ACB.
ii. The applicant is not entitled to the treatment plans for physiotherapy services, nor the balance of the plan for psychological services.
iii. No payments are overdue; therefore, no interest is owed.
iv. The applicant is not entitled to an award.
Released: January 25, 2024
Bonnie Oakes Charron Adjudicator