Khil-Filatova v. Aviva Insurance Canada, 2024 CanLII 70371

Khil-Filatova v. Aviva Insurance Canada

Citation: Khil-Filatova v. Aviva Insurance Canada, 2024 ONLAT 22-003444/AABS

Licence Appeal Tribunal File Number: 22-003444/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:

Liliya Khil-Filatova

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Kateryna Vlada, Counsel

For the Respondent: Aimee Draper, Counsel

HEARD: By way of written submissions

OVERVIEW

1Liliya Khil-Filatova (the “applicant”) was involved in an automobile accident on June 14, 2017, 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 Aviva Insurance Canada (the “respondent”) 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 $4,217.71 for chiropractic and massage services¹, proposed by Inline Rehabilitation Centre Inc., in a treatment plan (“OCF-18”) submitted on November 3, 2021 and denied on November 16, 2021?

ii. Is the applicant entitled to $3,416.68 for psychotherapy services, proposed by Inline Rehabilitation Centre Inc., in an OCF-18 submitted on February 16, 2022 and denied on March 1, 2022?

iii. Is the applicant entitled to $8,946.00 for catastrophic (“CAT”) determination assessments, proposed by GLA Rehabilitation in an OCF-18 submitted on April 8, 2022 and denied on April 26, 2022?

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

RESULT

3I find that:

i. The applicant is not entitled to any of the OCF-18s in dispute, nor interest. This application is dismissed.

ANALYSIS

The Treatment Plans

4To 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.

The applicant is not entitled to the OCF-18 for chiropractic and massage therapy services, in the amount of $4,217.71, submitted on November 3, 2021

5I find that the applicant has not met her evidentiary onus to establish that the proposed chiropractic and massage therapy services are reasonable and necessary.

6The disputed services in the OCF-18 pertains to 14 sessions each of: physical rehabilitation, exercise, and massage therapy to be provided by Dr. Kevin Bar, chiropractor and Ms. Natalya Kravzov, massage therapist.

7The applicant argues that she has sustained trauma to her: neck, head, shoulders, right elbow, arms, and back as a result of the accident. The applicant submits that the physiotherapy services are reasonable and necessary as they provide short-term pain relief and increase her ability to participate in her activities of daily living. To this end, she relies upon the records of Dr. Arthur Staroselsky, her family physician, Dr. Sev Perelman, orthopaedic surgeon, dated October 4, 2021, and a s. 25 Chronic Pain Report, of Dr. Mohamed Abounaja, physician, dated November 12, 2020.

8The respondent submits that the OCF-18 is not reasonable and necessary and relies upon the s. 44 report of Dr. Jamie Rusen, orthopaedic surgeon, dated December 29, 2021.

9The applicant has fallen short of meeting her onus to establish entitlement to the proposed chiropractic and massage services.

10First, the applicant incorrectly identified this OCF-18 was for physiotherapy services and did not provide any submissions on why massage and chiropractic services are reasonable and necessary. The respondent in its submissions noted that this OCF-18 is for chiropractic and massage services. Despite having an opportunity to provide reply submissions to clarify this issue, the applicant chose to forgo her reply submissions. This alone makes it challenging for the applicant to meet her burden.

11Second, aside from one CNR from Dr. Perelman, and the s. 25 report by Dr. Abounaja (which will be discussed below), the applicant has not directed me to other corroborating medical evidence that supports or recommends the treatment proposed.

12For example, on June 19, 2017, April 23, 2018, June 27, 2018, February 5, 2020, November 3, 2020, November 12, 2020, April 4, 2021, August 23, 2021, and September 13, 2021, when the applicant sought medical attention from Dr. Staroselsky, he did not recommend either chiropractic or massage treatment. Instead, physiotherapy and a home exercise program was recommended. Significantly, in the entries contemporaneous to this OCF-18 (August 23 and September 13, 2021), Dr. Staroselsky did not recommend these services.

13Notably, on June 19, 2017, the applicant self-reported to Dr. Staroselsky that she had seen a chiropractor and had treatment done but was not sure how much it helped. I further note that the treatment records from the treating clinic are largely illegible and the applicant has not directed me to specific entries that support the efficacy of the proposed treatment. While I accept that pain relief is a legitimate goal of therapy, the applicant has not provided sufficient evidence that this treatment goal is being met to a reasonable degree with the proposed services.

14Lastly, I place little weight on the one CNR entry from Dr. Perelman and the s. 25 report by Dr. Abounaja for the following three reasons. First, I acknowledge that Dr. Perelman recommended massage treatment for the applicant, however he was also incorrectly advised by the applicant that this had not been tried previously. This self-reporting by the applicant to Dr. Perelman is a contradiction to her submissions, wherein she argued that she has received massage treatment to date. Therefore, I place less weight on Dr. Perelman’s recommendation, as in my view, he was not aware that the applicant has already tried massage treatment.

15Second, Dr. Perelman did not recommend chiropractic treatment, and his entry is the most contemporaneous to the disputed OCF-18.

16Third, while I acknowledge that Dr. Abounaja recommended chiropractic care and massage treatment, his report is outdated, as it was completed one year before this OCF-18 was submitted.

17Finally, the onus is on the applicant to prove that the disputed OCF-18 is reasonable and necessary on a balance of probabilities and not on the respondent to disprove. While I acknowledge that the applicant states that the s. 44 assessment completed by Dr. Rusen is deficient, the applicant must still point me to her own evidence and argument that is then potentially further supported by the alleged failings of the respondent. Relying on alleged weaknesses in the respondent’s evidence alone is insufficient.

18In conclusion, I find that the applicant has not demonstrated that the OCF-18 for chiropractic and massage therapy services are reasonable and necessary.

The applicant is not entitled to an OCF-18 in the amount of $3,416.68 for psychotherapy services, submitted on February 16, 2022

19I find that the applicant has not established that the proposed psychotherapy services, are reasonable and necessary.

20The applicant submits that as a result of the accident, she has: a persistent sense of depression, emotional distress, recurring nightmares, sleep deprivation, post-traumatic stress disorder (“PTSD”), nervousness, and that her pre-existing anxiety/depression have worsened following the accident. The applicant further submits that Dr. Staroselsky, Dr. Perelman, and Dr. Valery Kleiman, psychologist, have all consistently recommended ongoing psychological counselling. In this regard, she relies upon the CNRs of Dr. Staroselsky, Dr. Perelman, and a s. 25 report completed by Ms. Noga Luztsky-Cohen, psychometrist, and Dr. Kleiman, dated October 30, 2017.

21In response, the respondent argues that the proposed services are not reasonable and necessary and relies upon the s. 44 report completed by Dr. Terra Seon, psychologist, dated April 20, 2022.

22First, Drs. Staroselsky, Perelman, and Kleiman did not consistently recommend the proposed services for the past six years. I acknowledge that this is the applicant’s position, however it is not supported by the medical evidence before me.

23For instance, on September 13, 2018, November 18, 2019, and November 12, 2020, Dr. Staroselsky did not make a recommendation for the proposed services as argued. Rather, he provided supportive counselling for the applicant’s psychological complaints. Thus, against the applicant’s submissions, Dr. Staroselsky has not recommended the proposed services for the past six years, as he has not even recommended it once.

24Next, I find the one CNR entry of Dr. Perelman to be underwhelming. First, while the applicant self-reported that she had depression, anxiety, and sleeping difficulties, she did not advise Dr. Perelman of her pre-existing issues, nor of her previous abusive relationship. Significantly, in the CNRs from Dr. Staroselsky’s office, there is no discussion of whether this accident has exacerbated the applicant’s pre-existing psychological conditions. Second, as noted above, Dr. Staroselsky has not recommended the proposed services. I place more weight on his opinion, as he is the applicant’s family physician so he would have more intimate knowledge regarding the applicant and treatment needs, than an orthopaedic specialist that saw the applicant once. Third, Dr. Perelman vaguely recommended psychological support for the applicant, however he did not provide details of what services this entailed, nor the cost or duration.

25Likewise, Ms. Cohen and Dr. Kleiman, made one recommendation for psychotherapy services in October of 2017, which does not amount to consistent recommendations as argued by the applicant.

26To summarize, none of these doctors made consistent recommendations for the proposed services for the past six years as submitted by the applicant. Rather, no recommendations were made or one recommendation was made.

27Second, the applicant did not produce a copy of the progress notes or treatment records from her treatment provider. The applicant self-reported to Dr. Seon on April 20, 2022, that she had received psychotherapy previously in 2018. Despite this, the applicant did not include psychological progress reports or treatment records to establish what progress she had made and why additional therapy was required. Without such evidence, I am unable to assess whether the applicant sustained any benefit from the proposed treatment or whether her symptoms fully resolved. Particularly when the recommendations are not supported by an objective referral from a family physician, no evidence has been provided as to the efficacy of such previous treatment and she denied to Dr. Seon that she had any significant psychological impairment.

28Third, the s. 25 report completed by Ms. Cohen and Dr. Kleiman have little evidentiary value, and I prefer the report of Dr. Seon. First, the s. 25 report was completed in 2017, nearly five years before this OCF-18 was submitted. Meanwhile, Dr. Seon’s report was completed in April of 2022. Had Ms. Cohen/Dr. Kleiman’s report been more current, it would have greater influence, as it would have provided a clear picture of the applicant’s current psychological condition.

29Furthermore, Ms. Cohen/Dr. Kleiman did not review any records in arriving at their conclusions. In comparison, Dr. Seon reviewed a number of records when preparing her report.

30Finally, a translator was not used for the psychological assessment conducted by Ms. Cohen/Dr. Kleiman and they noted “…she was unable to fully express herself, her thoughts, and her functional limitations. She used a Google translator on her smart phone several times to try to convey what she feels. Her language proficiency did not allow her to complete any of the written assessment tools.” As such, it is unclear how accurate this s. 25 report is.

31In short, the proposed services were not recommended consistently as alleged, she has not produced a copy of the progress notes/reports, and the s. 25 report has little evidentiary value. Therefore, I find that she has not met her onus.

The applicant is not entitled to an OCF-18 in the amount of $8,946.00 for CAT determination assessments, submitted on April 8, 2022

32I find that the applicant has fallen well short of establishing the proposed CAT determination assessments are reasonable and necessary.

33The applicant’s submissions are somewhat unclear, but she appears to be arguing that this OCF-18 is payable under s. 25(1)(5) of the Schedule. Critically, the applicant provided no submissions on why each of the proposed assessments, and the other costs outlined in the OCF-18 are reasonable and necessary. To support her position, she relies upon the authority of 17-007215 v. Aviva General Insurance, 2018 CanLII 141011 (ON LAT).

34In reply, the respondent argues that entitlement to CAT assessments are governed by s. 15 of the Schedule, and the correct test is whether each constituent element is reasonable and necessary. It relies upon, the authorities of C.A. v. Intact Insurance Company, 2018 CanLII 130861 (ON LAT), H.S.H. v. Aviva Insurance Company, 2020 CanLII 30441, and K.H. v. The Personal Insurance Company, 2020 CanLII 40334.

35I agree with the respondent that the correct test to be applied is whether each constituent element of the OCF-18 is reasonable and necessary. I am persuaded by the authorities cited by the respondent and agree in their analysis that s. 25(1)(5) obligates the insurer to pay for the cost of the completed OCF-19, not the CAT assessments themselves. In order for the CAT assessments to be payable, the applicant has to demonstrate that each assessment is reasonable and necessary. In any event, the authority cited by the applicant also supports this interpretation, as Adjudicator Grant determined that the applicant had to demonstrate whether the assessments are reasonable and necessary (see paragraphs 19 to 27).

36As noted above, the applicant made no submissions on why or how the proposed assessments are reasonable and necessary. The applicant must direct the Tribunal to the relevant evidence in support of her case and explain why it establishes that the proposed assessments are reasonable and necessary. The applicant cannot submit evidence and leave it up to the Tribunal to connect the dots and make her case. Doing so inappropriately places the Tribunal in the role of her advocate. Moreover, the applicant has not produced a copy of the completed OCF-19, nor has she clarified whether one has been completed. I also agree with the respondent that the applicant’s claim that she is entitled to the CAT assessments because she requires continued treatment but is unable to access same as the five-year period has expired, is not the proper test. Consequently, I find that the applicant has not established, on a balance of probabilities, that the proposed OCF-18 is reasonable and necessary.

Interest is not payable

37As there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

ORDER

38For the reasons outlined above, I find that:

i. The applicant is not entitled to any of the OCF-18s in dispute, nor interest. This application is dismissed.

Footnotes

1. 1Both the Case Conference Report and Order, released on March 6, 2022, and the applicant’s submissions incorrectly identified that this OCF-18 is for physiotherapy services. The respondent submitted that the proposed services are for chiropractic and massage therapy. Upon review of the subject OCF-18, I note that the proposed services are for chiropractic and massage treatment.