Licence Appeal Tribunal File Number: 22-000139/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 Bak

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Dagmara Szczudlo

APPEARANCES:

For the Applicant:

Rebecca L Wissenz, Counsel

For the Respondent:

Melanie Sousa, Counsel

HEARD:

By way of written submissions

1Maria Bak, the applicant, was involved in an automobile accident on October 30, 2018, 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 $1,825.66 ($4,584.12 less $2,758.46 approved) for chiropractic services, proposed by Dr. Catherine Cooke in a treatment plan/OCF-18 (“plan”) dated June 24, 2020? Note: amount in dispute listed in the AABS Order released April 27, 2023, was updated to $1,825.66 based on applicant and respondent’s written submissions.

ii. Is the applicant entitled to $1,359.00 for chiropractic services, proposed by Dr. Catherine Cooke in a plan dated August 20, 2022?

iii. Is the applicant entitled to $1,760.90 ($4,015.75 less $2,254.85 approved) for occupational therapy services, proposed by Innovative OT in a plan dated December 17, 2020? Note: amount in dispute listed in the AABS Order released April 27, 2023, was updated to $1,760.90 based on respondent’s written submission.

iv. Is the applicant entitled to $4,948.16 for occupational therapy services, proposed by Innovative OT in a treatment plan/OCF-18 (“plan”) dated June 11, 2022?

v. Is the applicant entitled to $1,672.64 ($2,100.07 less $427.43 approved) for assistive devices, proposed by Innovative OT in a plan dated July 27, 2022? Note: amount in dispute listed in the AABS Order released April 27, 2023, was updated to $1,672.64 based on respondent’s written submission.

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

Note: The Applicant withdrew the remaining issues in dispute as listed on the AABS Order released April 27, 2023, in her written submissions.

RESULT

3The applicant is not entitled to the disputed OCF-18s, as they propose goods and services that are not reasonable and necessary.

4Since there are no benefits owed, or payments outstanding, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

The applicant is not entitled to $1,825.66 for chiropractic services

5The applicant has not demonstrated that the treatment plan for $1,825.66 for chiropractic services is reasonable and necessary for the following reasons.

6To 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.

7The applicant submits that this treatment plan was partially denied due to the Minor Injury Guideline (MIG) limit and when the applicant was removed from the MIG due to a mild concussion, the remaining amount of $1,825.66 was not approved by the respondent. The treatment goals of the OCF-18 in dispute were listed as pain reduction, increase in strength, increased range of motion, and return to the activities of normal living. The applicant’s submission does not include information as to why the balance of this treatment plan is reasonable and necessary.

8The respondent submits that the denied portion of the OCF-18 is not reasonable and necessary as it is duplicative and redundant. All treatment incurred during the time period proposed by the plan (8 weeks from June 25 to August 20, 2020) as well as additional plans (to December 15, 2020) were fully covered and paid by the collateral benefits provider Manulife and the respondent.

9In reviewing the documentation provided by the parties, I agree with the respondent that chiropractic treatment for the period of June 25 to December 15, 2020 was fully paid and the amount in dispute is not payable to the applicant. Although there was a denied amount associated with this OCF-18, subsequent chiropractic treatment plans were approved, and the applicant received regular chiropractic treatment from Dr. Cooke during the disputed time period. The applicant has not demonstrated any out of pocket expense for chiropractic treatment incurred as of May 12, 2023, as shown by the statement of account from Dr. Cooke. The applicant has not met the burden of proof to demonstrate why the balance of this treatment plan is reasonable and necessary. As a result, the applicant is not entitled to $1,825.66 for chiropractic services.

The applicant is not entitled to $1,359.00 for chiropractic services

10The applicant has not demonstrated that the treatment plan for $1,359.00 for chiropractic services is reasonable and necessary for the following reasons.

11The applicant submits that a claims summary from Manulife shows that despite being denied chiropractic care, she continued to attend treatments and is out of pocket for chiropractic care and massage therapy not funded by her collateral benefits provider.

12The respondent relies on the Section 44 insurer's examination ("IE") of Dr. Michael Ko (physiatrist), dated November 10, 2022, in support of its denial. The opinion expressed was that the applicant suffered a sprain/strain injury of the lumbar spine as a result of the accident on October 30, 2018, but she did not sustain an impairment, from a physical perspective. Dr. Ko was of the opinion that the OCF-18 in dispute was not reasonable and necessary and that the applicant had reached maximum medical improvement in the four years since the accident.

13I find the report of Dr. Michael Ko to be more persuasive than the claims summary from Manulife provided by the applicant. The Manulife summary shows that the applicant continues to receive chiropractic treatment and is reimbursed by her collateral benefits provider, however, it does not demonstrate why these additional chiropractic treatments are reasonable and necessary as a result of the subject accident on October 30, 2018. As a result, the applicant is not entitled to $1,359.00 for chiropractic services, proposed by Dr. Catherine Cooke in a treatment plan dated August 20, 2022 as she has not met the onus of proof for the reasonableness and necessity of these services.

The applicant is not entitled to $1,760.90 for occupational therapy services

14The applicant has not demonstrated that the treatment plan for $1,760.90 for occupational therapy services is reasonable and necessary for the following reasons.

15The partially denied treatment plan proposed eight occupational therapy treatment sessions. The respondent approved six occupational therapy treatment sessions (1.6 hrs each) on the basis of an IE conducted by Lisa Slapinski (occupational therapist), dated March 17, 2021. Ms. Slapinski expressed that at approximately 2 years and 3 months post accident, the applicant had not participated in any occupational therapy treatment to date and could benefit from occupational therapy intervention to further her rehabilitation/recovery. However, Ms. Slapinski was of the opinion that six sessions would be sufficient to address the applicant’s needs since the identified barriers were interfering with only some of the applicant’s activities of daily living.

16The applicant relied on medical records from the Hamilton Health Sciences Acquired Brain Injury Program (dated October 26, 2020), and a neurocognitive and psychological assessment performed by Dr. William Fulton dated May 21, 2021 which recommended occupational therapy treatment and an assessment to implement cognitive remediation and/or compensatory strategies to minimize the impact of identified memory deficits on day-to-day functioning.

17I find the neurocognitive and psychological assessment performed by Dr. Fulton to be persuasive. The applicant demonstrated that she had an impairment which required occupational therapy treatment, and both the applicant’s and the respondent’s assessors agreed that the applicant required treatment. The only difference, however, is related to the number of required sessions and ancillary expenses. I find that the evidence presented by the applicant is insufficient to demonstrate that the two additional occupational therapy sessions were reasonable and necessary as a result of the accident and note that Dr. Fulton’s assessment did not include a specific number of recommended occupational therapy sessions. As a result, the applicant is not entitled to the unapproved amount of $1,760.90 proposed by Innovative OT in a plan dated December 17, 2020.

The applicant is not entitled to $4,948.16 for occupational therapy services

18The applicant has not demonstrated that the treatment plan for $4,948.16 for occupational therapy services is reasonable and necessary for the following reasons.

19The applicant submits that an occupational therapy update letter from Bristol Baldwin, occupational therapist, dated August 3, 2022 supports the necessity of additional occupational therapy services. The stated goals of the treatment were listed as:

i. improvement of activity tolerance and implementation of pain management strategies;

ii. establishing goals for return to meaningful activity;

iii. implementation of sleep hygiene strategies to improve the quantity and quality of sleep;

iv. implement compensatory strategies for cognitive deficits to improve the client’s independence with activities of daily living;

v. implement relaxation techniques and mindfulness/meditation to improve the client’s ability to relax and manage emotional dysregulation, among others.

20The applicant also submits a Projected Future Cost of Care Summary prepared by Shaynee Mehta, occupational therapist, dated February 17, 2023 which recommended ongoing rehabilitation services including physiotherapy, chiropractic services, massage therapy, and occupational therapy, among others.

21Aviva relies on the Section 44 in-person IE of Taylor Sanderson (occupational therapist), dated March 13, 2023. The opinion expressed was that additional OT treatment was not reasonable and necessary, as the applicant was functioning independently in all personal and domestic activities of daily living.

22I find the report of Ms. Sanderson to be more persuasive than letters from Ms. Baldwin and Ms. Mehta, particularly in the absence of other supporting evidence from the applicant. The applicant has not demonstrated why the additional occupational therapy treatments are reasonable and necessary approximately four years since the accident; she simply provided a letter from the provider who stands to benefit from her continued treatment.

23A review of clinical notes and records (CNRs) from the applicant’s family physician Dr. Mary Syty-Golda (from July 6, 2016 to July 23, 2021) does not provide corroborating evidence that the applicant continues to suffer from pain, sleep problems, cognitive deficits, nor lacks independence in activities of daily living as a result of the accident. No other CNRs were put before me as evidence.

24Additional CNRs from the Hamilton Health Sciences Acquired Brain Injury Program after October 26, 2020 were also not provided to support the need for additional and ongoing occupational therapy treatment as a result of the mild concussion sustained by the applicant. As a result, the applicant is not entitled to $4,948.16 for occupational therapy services, proposed by Innovative OT in a plan dated June 11, 2022.

The applicant is not entitled to $1,672.64 for assistive devices

25The applicant has not demonstrated that the treatment plan for $1,672.64 for assistive devices is reasonable and necessary for the following reasons.

26The applicant submits that the assistive devices were recommended by Bristol Baldwin, occupational therapist, in a report dated August 3, 2022 to address a variety of functional limitations and physical concerns such as comfort while sleeping, alleviating anxiety while sleeping, and working from home.

27Aviva relies on the Section 44 In-Person IE of Taylor Sanderson (Occupational Therapist), dated March 13, 2023. The opinion expressed was that the weighted blanket, body pillow, cervical pillow, and ergonomic desk chair were not reasonable and necessary. The respondent submits that at almost four years after the accident, the applicant already received extensive and adequate treatment for her soft tissue injuries, which were no longer preventing her from participating in her activities of normal living.

28A review of surveillance conducted on the applicant in February and March 2023, shows her functioning normally in activities such as driving, walking her dogs daily, shopping, and shoveling her driveway without difficulty. This confirms that the applicant’s prior soft tissue injuries are not preventing her from participating in daily activities. The applicant did not submit specific evidence to demonstrate why the weighted blanket, body pillow, cervical pillow, and ergonomic desk chair were reasonable and necessary as a result of the accident. I find that the applicant did not meet her burden of proof and has not demonstrated that the remaining portion of the treatment plan for assistive devices is payable.

The applicant is not entitled to interest

29Given there are no benefits owed or payments outstanding, the applicant is not entitled to interest pursuant to section 51 of the Schedule.

ORDER

30The applicant is not entitled to the disputed OCF-18s;

31The applicant is not entitled to interest pursuant to s. 51 of the Schedule.

Released: May 23, 2024