Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-008473/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:
Michael Norris
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Gordon W. Harris, Counsel
For the Respondent:
Kevin Griffiths, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Michael Norris, the applicant, was involved in an automobile accident on March 14, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company of 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 $6,200.00 for neuropsychological assessment, proposed by Kaplan and Levitt Psychologists in a treatment plan (“OCF-18”) dated April 8, 2020?
ii. Is the applicant entitled to $1,880.00 for physiotherapy services, proposed by Nova Spine Care in an OCF-18 dated December 8, 2021?
iii. Is the applicant entitled to $6,590.44 for neuropsychological assessment, proposed by Kaplan and Levitt Psychologists in an OCF-18 dated March 2, 2023?
iv. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3In his submissions the applicant confirmed that the issue of acupuncture treatment listed as issue 2(3) in the Case Conference Report and Order was withdrawn.
RESULT
4The applicant is entitled to partial payment in the amount of $2,200.00 plus HST, for the neuropsychological assessment proposed in the OCF-18 dated April 8, 2020, plus interest in accordance with s. 51 of the Schedule. The applicant is not entitled to the remaining balance of the OCF-18.
5The applicant is not entitled to the OCF-18 for physiotherapy services or the OCF-18 dated March 2, 2023 for an additional neuropsychological assessment.
6The respondent is not liable to pay an award.
PROCEDURAL ISSUES
7In his reply submissions the applicant raised the issue of the respondent’s improper reliance on transcript evidence. The applicant submits that in its responding submissions the respondent provided as evidence excerpts of transcripts from a prior oral hearing between the parties, held before the Tribunal in May 2021. That hearing related to unrelated issues including a non-earner benefit, attendant care benefits and various treatment plans. The applicant argues that it is improper for the respondent to submit such unrelated oral transcript evidence in this written hearing.
8I agree with the applicant and exclude the respondent’s transcript evidence from the parties’ oral hearing held in May 2021. The prior oral hearing considered issues including a non-earner benefit, attendant care benefits, an occupational therapy assessment and occupational therapy services. The issues being addressed in the present hearing, being physiotherapy services and neuropsychological assessments, were not issues in dispute in May 2021. I accept the applicant’s argument that he had specifically tailored his testimony in the prior oral hearing for those issues in dispute. Given the limited scope of a written hearing, I agree with the applicant that he is restricted in his ability to address any inconsistencies that may arise from the application of his prior testimony to the new issues in dispute.
9As such the respondent’s references to the transcript evidence from the oral hearing held in May 2021 are excluded as evidence in this written hearing.
BACKGROUND AND PARTIES’ POSITIONS
10The applicant was involved in an accident on March 14, 2016 when he was being transported from Pembrooke to Ottawa in the rear of a correctional vehicle. He was seated on a metal bench without seatbelts, with his hands and ankles restrained. When the vehicle hit a series of potholes, the applicant was thrown from the bench a number of times, causing him to hit his tailbone as he landed on the metal bench.
11The applicant submits that the impact of his tailbone on the metal bench caused immediate immense pain in his lumbar spine, which worsened during his period of incarceration, resulting in ongoing chronic pain. He argues that prior to the accident he had suffered from mild spinal stenosis and mild degenerative disc changes from L2 to L3. However, post-accident this progressed to severe spinal stenosis from L2 to L4. The applicant also submits that he hit his head on the roof of the vehicle when he was thrown from the metal bench, resulting in a traumatic brain injury and ongoing cognitive deficits. Finally, the applicant submits that as a result of the accident, he developed serious psychological impairments, including somatic symptom disorder with predominant pain, major depression and post-traumatic stress disorder (“PTSD”).
12The respondent submits that the applicant has not established ongoing impairments stemming from the accident. It argues that the applicant’s psychological symptoms, particularly his PTSD and depression, developed as a result of his incarceration as opposed to the accident. The respondent further submits that the applicant has not established that he hit his head on the ceiling of the vehicle during the accident. Rather, it argues that the applicant consistently requested treatment only for his lumbar injury during the nine months of incarceration, rather than any post-concussive or cognitive symptoms.
ANALYSIS
13Sections 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.
14The 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-18 dated April 8, 2020 for neuropsychological assessment is partially payable
15In the disputed OCF-18, the applicant is requesting $2,000.00 for a foundational psychological assessment and report, $2,000.00 for a neuropsychological assessment and report, $2,000.00 for neuropsychometric testing and $200.00 for completion of the OCF-18 form. The applicant subsequently incurred this OCF-18, and a neuropsychological assessment report dated November 30, 2020 was prepared by Dr. Ronald Kaplan, neuropsychologist.
16I find that the applicant is entitled to partial payment in the amount of $2,200.00 plus HST, for the neuropsychological assessment.
17In denying the applicant’s OCF-18, the respondent submits that the applicant has failed to establish that he sustained a brain injury during the accident. I agree with the respondent that the applicant did not consistently report symptoms relating to a head injury in the months post accident, unlike his consistent reports of severe back pain. The applicant’s assessor Dr. Kaplan noted in his initial November 30, 2020 assessment report that whether or not the applicant sustained a head injury during the accident “remains equivocal”. Dr. Kaplan noted that there were inconsistencies in the medical evidence with respect to whether the applicant had hit his head. Although the applicant submits a subsequent neuropsychological assessment report dated July 21, 2023 and a biomechanical assessment report dated December 12, 2022 stating that it was likely that he had hit his head in the accident, resulting in ongoing cognitive impairments, I agree with Dr. Kaplan’s initial finding that the evidence is equivocal.
18However, I further agree with the applicant that cognitive issues necessitating a neuropsychological assessment could stem from other causes, not solely from a head injury. The applicant has led sufficient evidence to establish that he developed chronic back pain as a result of the accident. In his November 30, 2020 report, Dr. Kaplan diagnosed the applicant with somatic symptom disorder with predominant pain, major depression, moderate and PTSD. In terms of the applicant’s ongoing cognitive complaints, Dr. Kaplan noted that the cause of the applicant’s cognitive symptoms is likely multi-factorial, including the above-mentioned diagnoses “as well as his significant and ongoing pain are likely the primary factors accounting for his cognitive difficulties”.
19The respondent denied the April 8, 2020 OCF-18 on the basis of a December 18, 2017 psychological assessment report and a September 2, 2020 paper review report from Dr. Susan Mackenzie, psychologist. Dr. Mackenzie found that while the applicant did complain of cognitive difficulties and was suffering from symptoms of major depressive disorder and PTSD, these diagnoses did not relate to the accident, but rather, were due to the applicant’s overall correctional experience and time in the military. However, Dr. Mackenzie did note that pain was a “contributing factor” to the applicant’s mental state. The effect of the applicant’s ongoing chronic pain on both his psychological and cognitive symptoms has been echoed by numerous assessors.
20In 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. I find that the applicant has led sufficient evidence to establish that there is a reasonable possibility of cognitive impairment stemming from his ongoing chronic pain. However, I do not find that the applicant has established entitlement to the full $6,200.00 requested in the OCF-18.
21Section 25(2)(a) of the Schedule states that insurers shall not pay “more than a total of $2,000… in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it”. The applicant argues that the OCF-18 in dispute does not encompass one assessment, but rather, three distinct assessments - a foundational psychological assessment and report, the neuropsychological assessment and report, and neuropsychometric testing.
22I find that the applicant is limited to $2,000.00 limit under s. 25(5)(a), as I am satisfied that this neuropsychological assessment constitutes a single assessment.
23Although the applicant submits that the OCF-18 related to multiple assessments, only one assessor was proposed in the OCF-18, Dr. Kaplan. I further note that the applicant has incurred the OCF-18 in full and has submitted only one report in connection with the treatment plan, the neuropsychological assessment report dated November 30, 2020. This gives credence to the respondent’s position that the neuropsychological assessment is properly understood as a single assessment for the purpose of s. 25(5)(a) of the Schedule. I further am persuaded by the decisions cited by the respondent, M.G. v. Echelon, 2020 CanLII 87929 (ONLAT) and Applicant v. Allstate, 2017 CANLII 39580 (ONLAT) that the $2,000.00 limit in s. 25(5)(a) prohibits subdividing assessments and includes testing and report writing.
24As such, the applicant is entitled to $2,000.00 for the neuropsychological assessment, $200.00 for the OCF-18 preparation, and HST. The applicant is not entitled to the remaining portion of the OCF-18.
The applicant is not entitled to the subsequent OCF-18 dated March 2, 2023 in the amount of $6,590.44 for a neuropsychological assessment
25The applicant submitted a subsequent OCF-18 dated March 2, 2023 for an additional neuropsychological assessment. He incurred this OCF-18 and submitted an additional neuropsychological assessment report from Dr. Kaplan dated July 21, 2023. The applicant submits that the second assessment was needed 2.5 years after the initial assessment, as he continued to struggle with ongoing psychological and cognitive concerns.
26The applicant has not met his onus to prove that the March 2, 2023 OCF-18 is reasonable and necessary.
27The applicant submits that a follow-up assessment was required due to his ongoing psychological and cognitive impairments. He argues that he has continued to attend psychological treatment following his 2020 neuropsychological assessment. However, no treatment records from his psychological treatment providers have been provided in support of his claim. To the extent that the applicant was still suffering from ongoing accident-related psychological and cognitive issues seven years post-accident, psychotherapy records or progress reports would have established his claim. No such evidence has been led by the applicant, other than the incurred assessment report. As such, I do not find that the applicant has established a basis for a second neuropsychological assessment.
The applicant is not entitled to the OCF-18 dated December 8, 2021 for physiotherapy services
28The applicant submitted an OCF-18 in the amount of $1,880.00 for physiotherapy and chiropractic services. He submits that he has suffered from significant accident-related ongoing back pain for years post-accident, necessitating ongoing treatment. The applicant relies on treatment records from various clinics including Nova Spine Care, Barnes Massage Therapy, Physiotherapy Alternatives and Qing Li Chinese Therapy Ltd., showing that he has attended regular chiropractic, physiotherapy, and massage treatment for years post-accident.
29I do not find that the applicant has led sufficient evidence to prove that the proposed treatment is reasonable and necessary.
30I find that the applicant has led sufficient evidence to establish that he was suffering from ongoing back pain in the years post-accident. However, 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 where treatment is being proposed five years post-accident, 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.
31The applicant has not provided any specific submissions on the treatment goals of the OCF-18 and whether they are being met by the ongoing treatment. Although he has submitted treatment records from Nova Spine Care, who submitted the OCF-18, no progress reports have been provided to show that treatment has been beneficial in the five years between the accident and submission of the OCF-18. Moreover, the treatment records from Nova indicate that the applicant reported mixed results over the years. Despite attending for regular treatment for years, on August 26, 2021 the applicant reported that while walking he “felt a hammer” and numbness in his lower back after which he could not raise his right hip. On October 21, 2021 he reported that he felt he had “really deteriorated” over the past six months. Although the applicant states in his submissions that his pain and abilities have improved with treatment, I note that submissions are not evidence. The applicant does not direct me to specific evidence that he has sustained ongoing benefits from treatment.
32Further, the applicant does not direct me to a medical opinion that ongoing physiotherapy treatment was recommended more than five years post-accident. He points to the November 30, 2020 neuropsychological report and his self-reports that that chiropractic, physiotherapy and acupuncture treatment have been beneficial. Dr. Kaplan further noted in the report that stopping these treatments would be “detrimental”. However, I find that the November 30, 2020 neuropsychological report is of limited persuasive value with respect to physiotherapy treatment. Firstly, the report was prepared more than a year prior to the OCF-18 in dispute. Further, Dr. Kaplan was assessing the applicant with respect to cognitive and psychological impairments, not physical impairments.
33As such, I find that the applicant has not established the reasonableness and necessity of the OCF-18 for physiotherapy 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 $2,200.00 for the neuropsychological assessment proposed in the OCF-18 dated April 8, 2020.
Award
35The applicant sought 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.
36The applicant has not established a basis for an award. The threshold for an award is high. Although I have found that the applicant is entitled to partial payment of one treatment plan, I note that an award is not necessarily warranted simply because the respondent came to an incorrect determination. I do not find the respondent’s behaviour to be excessively impudent, stubborn, unyielding or immoderate. As such, the applicant is not entitled to an award.
ORDER
37I find that:
i. The applicant is entitled to partial payment in the amount of $2,200.00 plus HST, for the neuropsychological assessment proposed in the OCF-18 dated April 8, 2020, plus interest in accordance with s. 51 of the Schedule.
ii. The applicant is not entitled to the remaining OCF-18s in dispute.
iii. The respondent is not liable to pay an award.
Released: September 17, 2024
Ulana Pahuta
Adjudicator