Licence Appeal Tribunal File Number: 22-005574/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:
Leonardo Bautista
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Naman Nanda, Counsel
For the Respondent: Yann Grand-Clement, Counsel
HEARD: By way of written submissions
OVERVIEW
1Leonardo Bautista, the applicant, was involved in an automobile accident on March 10, 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 Insurance Canada, 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 $3,130.77 for physiotherapy services, proposed by 101 Physiotherapy in a treatment plan ("OCF-18") denied November 26, 2020?
ii. Is the applicant entitled to $3,097.88 for physiotherapy services, proposed by 101 Physiotherapy in an OCF-18 denied April 20, 2021?
iii. Is the applicant entitled to $1,496.16 ($4,015.12 less $2,518.96 approved) for psychotherapy services, proposed by 101 Assessments in an OCF-18 denied December 29, 2020?
iv. Is the applicant entitled to the assessments proposed by 101 Assessments, as follows:
a. $2,158.51 for an attendant care assessment, in a treatment plan denied December 29, 2020;
b. $2,460 for a chronic pain assessment, in a treatment plan denied December 29, 2020;
c. $2,460 for a neurological assessment, in a treatment plan denied April 20, 2021;
d. $4,390.64 for a cognition and learning assessment, in a treatment plan denied April 19, 2022, and
e. $2,460.00 for an orthopaedic assessment, in a treatment plan denied March 29, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3In his submissions the applicant confirmed that the physiotherapy treatment plans identified in the Case Conference Report and Order as issues no. 1 and 2 are no longer in dispute.
RESULT
4The applicant is entitled to the outstanding balance of the treatment plan for psychotherapy services denied December 29, 2020, plus interest.
5The applicant is not entitled to the remaining treatment plans in dispute.
ANALYSIS
6Sections 14 and 15 of the Schedule set out 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.
7The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident. To meet this burden, the applicant should identify the goals of the plan, how the goals are being met to a reasonable degree and whether the time and cost expended to achieve these goals is proportional to the benefit of treatment.
OCF-18s for physiotherapy services denied November 26, 2020 and April 20, 2021 are not reasonable and necessary
8Two OCF-18s for physiotherapy services in the amounts of $3,130.77 and $3,097.88 were submitted by the applicant's chiropractor Dr. Dustin Yen. Both plans proposed a combination of physiotherapy, massage and acupuncture treatment. The stated goals of both plans were pain reduction, increase in strength and range of motion and a return to activities of normal living.
9The applicant submits that both OCF-18s are reasonable and necessary to address his chronic back, right hip, leg and knee pain. To establish his claim the applicant relies on a s. 25 chronic pain assessment report from Dr. Michael Gofeld dated March 19, 2021. The applicant also points to his pain reports to various assessors and his statement to his psychological assessor Dr. Peter Waxer, that physiotherapy has been beneficial. The applicant further relies on the OCF-18s themselves and the Disability Certificate ("OCF-3") also provided by Dr. Yen. Finally, the applicant submits that an MRI conducted on May 13, 2022 revealed minor disc bulges in the lower spine.
10The respondent submits that the applicant has not established that further physiotherapy treatment is reasonable and necessary. It relies on the s. 44 general practitioner's ("GP") report of Dr. Frank Loritz who did not find any objective musculoskeletal impairment. The respondent further argues that Dr. Gofeld's chronic pain assessment report should be given limited weight, as Dr. Gofeld did not review the applicant's medical records prior to drafting his report or provide a definitive diagnosis of chronic pain. Finally, the respondent argues that a negative inference should be drawn as the applicant has failed to submit any physician's records to substantiate his claims.
11I find that the applicant has not met his onus to prove that the two physiotherapy treatment plans are reasonable and necessary.
12The applicant has not provided any explanation as to why clinical notes and records ("CNRs") from his treating physician have not been submitted as evidence in this hearing. The applicant has included an OHIP summary, which shows that in the years pre- and post-accident he has sought treatment with various doctors. However, none of these records have been included or referenced in his submissions. The only diagnostic imaging submitted is the May 13, 2022 MRI which revealed minor disc bulges in the lower spine. However, no additional information or medical opinion has been led by the applicant to link this impairment to the accident. Although the applicant submits that he developed chronic pain as a result of the accident, no CNR entry has been provided to show that the applicant reported ongoing pain to his family physician, was prescribed prescription pain medication, or was referred to any specialists for further investigation.
13Although the applicant relies in large part on the chronic pain assessment report of Dr. Gofeld, I agree with the respondent that the report is of limited persuasive value. Dr. Gofeld did not review the applicant's medical file, and as part of his assessment deferred examination of the applicant's hips, knees, feet, wrist, hands and shoulder, without explanation. However, Dr. Gofeld still diagnosed the applicant with chronic right leg pain, along with chronic lower back pain, without the benefit of examining the applicant's right leg. In contrast, the respondent's GP assessor Dr. Loritz found that the applicant had normal ranges of motion in the hips, knees and ankles. Despite reported tenderness with palpation above the right knee, strength testing on the right leg was normal. When comparing the assessment reports of Dr. Gofeld and Dr. Loritz, I prefer the assessment report of the respondent. Dr. Loritz conducted a fulsome examination of the applicant prior to his finding that there was no objective impairment of a musculoskeletal nature.
14Finally, I note that to establish the reasonableness and necessity of proposed treatment, it is not sufficient to simply lead evidence of a physical impairment or ongoing pain. Rather, particularly in the case of ongoing, multiple treatment plans, there must be sufficient evidence that the goals of treatment are being met to a reasonable degree and that the overall costs of achieving them are reasonable. The applicant does not direct me to any evidence that such previous treatment has been effective in reducing his pain, increasing his range of motion or strength other than his self-report to his psychological assessor. Although the applicant stated to multiple assessors that he had been attending physiotherapy treatment twice a week, no records have been provided from such a treating clinic to establish progress with treatment.
OCF-18 for chronic pain assessment denied December 29, 2020
OCF-18 for orthopaedic assessment denied March 29, 2022
OCF-18 for attendant care assessment denied December 29, 2020
15I find that the applicant has not established that the proposed assessments are reasonable and necessary.
16To establish his claim, the applicant relies on the s. 25 chronic pain assessment report of Dr. Gofeld, the s. 25 psychological report of Dr. Waxer and the neuropsychological report of Dr. Gladshteyn. The applicant points to his reports to his assessors of constant pain in his right leg, knee and lower back and that his ability to engage in pre-accident activities has been restricted. The applicant reported to his assessors that he no longer played soccer or socialized with friends, and reduced his household chores such as vacuuming, mopping, snow shovelling and mowing due to pain. The applicant also relies on the OCF-18 forms themselves in support of his claim.
17In determining whether an assessment is reasonable and necessary, I note that assessments are, by their nature, speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. In terms of the evidence submitted by the applicant, I agree with the respondent and its cited decision YFTL v The Co-operators General Insurance Company, 2020 CanLII 27398 (ON LAT), that treatment plans on their own do not establish entitlement to proposed treatment or assessments.
18The only additional evidence led by the applicant are the three s. 25 reports. However, as previously noted, I have found Dr. Gofeld's chronic pain report to be of limited persuasive value. Further, the s. 25 psychological report of Dr. Waxer and the neuropsychological report of Dr. Gladshteyn speak more to the applicant's psychological and cognitive symptoms. In terms of functional restrictions, although the applicant reported to Dr. Gladshteyn restrictions such as requiring a specialized chair due to difficulties showering, no evidence was provided as to the purchase of the chair, who recommended it and why.
19Although the applicant reported restrictions in his activities in daily living to his s. 25 assessors, he also reported to the respondent's s. 44 GP assessor Dr. Loritz that he was independent with self-care and participated in household chores. After a clinical examination Dr. Loritz found that the applicant's demonstrated functional capabilities did not support the need for attendant care support. No CNRs from treating physicians or treatment records from the applicant's physiotherapy clinic have been provided to corroborate the applicant's claims of functional restrictions.
20Although the applicant cites the Tribunal decision B.D.W. v Aviva General Insurance Company, 2019 CanLII 76975 (ON LAT) in support of his claim that a treatment plan is sufficient evidence to find entitlement, I find that this decision is distinguishable. In B.D.W., while the Tribunal did reference the treatment plan as evidence, it also noted the applicant's consistent reports to her family doctor of ongoing pain and subsequent referral to specialists. No such evidence has been led in the matter at hand.
21As such, I do not find that the applicant has met his onus to prove that the proposed chronic pain, orthopaedic and attendant care assessments are reasonable and necessary.
OCF-18 for neurological assessment denied April 20, 2021
OCF-18 for cognition learning program denied April 19, 2022
22The applicant submits that a neurological assessment and cognition program are reasonable and necessary as a result of his concussion and post-accident cognitive symptoms. The applicant reported to multiple assessors that he had lost consciousness at the time of the accident and post-accident suffered from issues with concentration, memory, sleep initiation, headaches, dizziness and fatigue. He relies on the s. 25 neuropsychological report of Dr. Gladshteyn dated December 27, 2021, who opined that the applicant sustained a minor neurocognitive disorder following the accident. Dr. Gladshteyn recommended a cognitive rehabilitation training program to address the applicant's post-concussion syndrome and mild cognitive disorder.
23I find that the applicant has not met his onus to prove that the proposed neurological assessment and cognition program are reasonable and necessary.
24Both the OCF-18s for the neurological assessment and cognitive rehabilitation program were submitted by the applicant more than a year post-accident. However, other than the s. 25 assessment of Dr. Gladshteyn and his self-reports to assessors, the applicant has not led any other corroborating objective medical evidence to establish ongoing concussion-related or cognitive symptoms post-accident. I further note the respondent's submissions that with respect to the neuropsychological report, Dr. Gladshteyn, psychologist, did not conduct the assessment but rather, it was conducted by Shira Moalem, social worker and psychometrist. The respondent argues that neither a psychologist nor a social worker would be qualified to provide an opinion on neurological issues.
25The respondent conducted a s. 44 neurology assessment with Dr. Verity John. In a report dated August 11, 2021, Dr. John found that given the applicant's self-report of loss of consciousness, "he may have suffered a mild concussion". However, Dr. John concluded that this had resolved given the applicant's reports that his symptoms had substantially improved, and that the applicant's headaches were tension type and not post-concussive. When comparing the s. 44 report of Dr. John to the s. 25 neuropsychological report, I prefer the report of Dr. John given that it was conducted by a neurologist.
26Further I note the respondent's submissions that the applicant has not led any evidence that a neurological consultation had been requested by his family physician. The respondent submits that pursuant to s. 47(2) of the Schedule, such assessments are routinely ordered by family physicians through OHIP and as such, would be "reasonably available" under a different plan or law. The applicant did not address the respondent's s. 47(2) argument in reply.
27I agree with the respondent that the applicant has not led any evidence that a neurological referral was pursued through his family physician. Further, the applicant has not led any evidence from a treating physician to substantiate head trauma or cognitive symptoms post-accident.
28As such, I find that the applicant has not led sufficient evidence to prove that the neurological assessment and cognition learning program are reasonable and necessary.
Outstanding balance of $1,496.16 ($4,015.12 less $2,518.96 approved) for psychotherapy services is reasonable and necessary
29The applicant submitted an OCF-18 in the amount of $4,015.12 for 12 sessions of psychological counselling. The OCF-18 also proposed psychological testing, evaluation and a progress report. By way of Explanation of Benefits ("EOB") dated December 29, 2020, the respondent partially approved the treatment plan in the amount of $2,518.96. The EOB specified the differing rates that would be applicable to a psychologist, psychotherapist, social worker or counsellor, and noted that prior to an invoice being paid, the respondent required confirmation as to which practitioner completed the psychotherapy.
30The respondent does not dispute the reasonableness and necessity of the proposed treatment. Rather, it submits that the amount specified in the OCF-18 exceeds the rates specified in the Professional Services Guideline, as services were proposed to be provided by a psychologist but there was no evidence that the treatment was being conducted by a psychologist. It further argues that 1.5 hr sessions are not warranted, but that only 1 hr sessions should be approved. I am not persuaded by the respondent's argument.
31I agree with the applicant that the OCF-18 is clear that the services were being proposed by Dr. Waxer, a psychologist. The health practitioner submitting the OCF-18 was identified as Dr. Waxer, it was submitted pursuant to his s. 25 assessment, and he was the only health practitioner listed as the treatment provider. I do not see any ambiguity as to who would be providing the treatment.
32Further, I do not find that the recommended 1.5 hr sessions are excessive. In his s. 25 psychological assessment report Dr. Waxer recommended 12-16 sessions of psychotherapy. He did not specify that such sessions were limited to only one hour, and given that only 12 sessions were proposed in the OCF-18 rather than 16, I do not find that the 1.5 hrs are unreasonable. I agree with the applicant that as Dr. Waxer both conducted the assessment and submitted the OCF-18, he was best suited to select the length of the treatment sessions. The respondent has not provided any opinion by a medical practitioner as to why 1 hr sessions should be preferred. Moreover, the respondent has not provided any information as to how the approved amount of $2,518.96 was calculated - whether a different rate other than that of a psychologist was used and if so, which rate was used, or whether the progress report and testing were approved. The EOB similarly did not provide any details as to what portion of the plan had been denied.
33As such, I find that the applicant has established entitlement to the outstanding balance of the OCF-18 for psychotherapy services.
Interest
34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the outstanding balance of $1,496.16 for psychotherapy services.
ORDER
35For the foregoing reasons I find that:
i. The applicant is entitled to the outstanding balance of the treatment plan for psychotherapy services denied December 29, 2020, plus interest.
ii. The applicant is not entitled to the remaining treatment plans in dispute.
Released: September 12, 2024
Ulana Pahuta Adjudicator