Perry v. Aviva General Insurance, 2024 CanLII 97873

Licence Appeal Tribunal

Citation: Perry v. Aviva General Insurance, 2024 ONLAT 22-002786/AABS Licence Appeal Tribunal File Number: 22-002786/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:

Tameisha Perry Applicant

and

Aviva General Insurance Respondent

DECISION

Kevin Yarde

APPEARANCES:

For the Applicant: Tameisha Perry, Applicant Maria Papadopoulos, Paralegal

For the Respondent: Heena Kapoor, Counsel

HEARD: By way of written submissions

OVERVIEW

1Tameisha Perry, the applicant, was involved in an automobile accident on August 2, 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, 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 $2,496.85 for chiropractic services, proposed by Brampton Civic Care Centre, in a plan submitted August 26, 2020, and denied August 28, 2020?

ii. Is the applicant entitled to $2,455.55 for chiropractic services, proposed by Dr. Bedaj of Brampton Civic Care Centre, in a plan submitted January 7, 2021, and denied January 11, 2021?

iii. Is the applicant entitled to $2,737.69 for chiropractic services proposed by Dr. Bedaj of Brampton Civic Care Centre, in a plan submitted June 22, 2021, and denied June 23, 2021?

iv. Is the applicant entitled to $2,416.63 for chiropractic services, proposed by Dr. Bedaj of Brampton Civic Care Centre, in a plan submitted August 8, 2020, and denied August 28, 2020?

v. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Ontario Independent Assessment Centre in a plan submitted May 15, 2020, and denied May 20, 2020?

vi. Is the applicant entitled to $1,700.00 for a biopsychosocial assessment, proposed by Ontario Independent Assessment Centre in a plan submitted December 18, 2020, and denied June 24, 2021?

vii. Is the applicant entitled to $719.50 for cognitive devices, proposed by Ontario Independent Assessment Centre in a plan submitted January 14, 2021, and denied January 14, 2021?

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

RESULT

3The applicant is entitled to the amount of $2,200.00 for a chronic pain assessment (plan denied May 20, 2020), plus interest pursuant to s. 51 of the Schedule.

4The applicant is entitled to the amount of $1,700.00 for a biopsychosocial assessment (plan denied December 18, 2020), plus interest pursuant to s. 51 of the Schedule.

5The applicant is entitled to the amount of $719.95 for cognitive devices (plan denied January 14, 2021), plus interest pursuant to s. 51 of the Schedule.

6The applicant is not entitled to any other treatment plans in dispute.

ANALYSIS

7To receive payment of 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 is required to identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall cost of achieving them are reasonable.

Issues 1, 2, 3 and 4: Chiropractic Services

8The applicant is not entitled to these treatment plans.

9The treatment plans are for chiropractic services.

10The applicant submits that the plans are reasonable and necessary because of the extensive clinical notes and medical findings of the family doctor, Dr. Leonard Manacki.

11In respect of the subject OCF-18 the recommended treatment includes chiropractic manipulation/mobilization treatments 1-2 times per week for 7 weeks. Physiotherapy modalities that may include shockwave therapy, hydrotherapy, IFC, TENS and ultrasound to reduce muscle spasm, decrease pain and promote tissue healing 1-2 times a week for 7 weeks. Functional exercises for affected areas based on a rehabilitation program 1-2 times per week for 7 weeks. Co-treatment with M.D. for inflammation and pain management.

12The applicant cites the clinical notes and records of the doctor on August 12, 2019. These documents reveal cervical strain, thoracic strain, lumbar strain, bilateral knee contusions, bilateral elbow contusion and wrist strain on the left. Also, the applicant suffered from whiplash associated disorder (WAD2) and headaches on a regular basis.

13The applicant submits that these clinical notes and records lay a strong foundation for chiropractic services, because they highlight the persistent nature of the injuries, the ongoing physical discomfort, and the need for continued medical attention.

14The respondent submits that the applicant has failed to prove that the treatment plans in dispute are reasonable and necessary, and his claim should be dismissed. The respondent relies on the s. 44 report of physician Dr. Lawrence Todd. Dr. Todd concluded that the applicant’s diagnosis was consistent with whiplash associated disorder and lumbosacral strain and bilateral knee contusion. Dr. Todd found that the applicant has achieved maximum medical recovery.

15The respondent also submits that the report from physician Dr. Arta Bedaj of Brampton Civic Care Centre in January and June of 2021 showed the applicant sustained sprain, strain in the cervical spine, lumbar area, both shoulders and knees. There were no orthopaedic or neurological findings, and the applicant demonstrated full range of motion throughout with self-reported pain and good functional status. Dr. Bedaj opined the applicant has reached full maximal medical recovery from a musculoskeletal point of view.

16I have reviewed the applicant’s assessment reports and the insurer examination reports, and I agree with the applicant’s submissions that the applicant suffers from a persistent pain in back/knees and headaches. The applicant has undergone medical assessments and specialists’ consultations. However, I am not satisfied that these treatment plans are reasonable and necessary as the applicant is not getting better.

17The applicant has not proven that ongoing treatment will assist in pain reduction, increasing range of motion or improving her quality of life by improving function. These treatment plans have not shown any prognosis for the applicant getting improvement.

18I have reviewed the chiropractic treatment plans and I find that the overall cost of the plans in seeking to achieve the goals is not reasonable and necessary. The applicant has not met their onus to demonstrate entitlement to the plans entitled to payment in respect of the services recommended in those plans.

19The applicant is not entitled to these treatment plans in issue 1, 2, 3 and 4.

Issue 5: Chronic Pain Assessment

20The applicant is entitled to this assessment plan.

21The assessment plan is for chronic pain.

22The applicant submits that the assessment plan is reasonable and necessary because of the extensive clinical notes and medical findings of the family doctor Dr. Manaki and physiatrist Dr. Joseph Wong.

23In respect of the subject OCF-18 the recommended treatment includes a chronic pain assessment. Ms. Perry experience’s functional ability limitations and difficulties to perform activities of daily living. The clinical notes and records show she has multiple injuries with pain in her back and knees which has become worse. She has cervical strain, thoracic strain, lumbar strain, bilateral knee contusions, bilateral elbow contusions, wrist strain on left. Complaining of left wrist/arm, left elbow, left knee, right ankle pain. Right ankle pain described in the bimalleolar region. Left knee pain described in the patellar region. She has a limited ability to bend, lift and sit for prolonged periods of time. The purpose of the assessment is to establish accident-related benefits and any diagnostic or treatment recommendations.

24The applicant cites the clinical notes and records of Dr. Wong from August 22, 2022. These documents reveal chronic pain and chronic pain syndrome. Dr. Wong also submitted that the applicant meets all 6 of the AMA criteria. In May 2022 a phone consultation with Dr. Manacki the applicant described significant neck pain, low back pain, bilateral knee pain continued headaches despite continued physiotherapy, chiropractic and massage therapy treatment at Brampton Civic Care Centre for three years after the subject accident. And therefore, provides evidence that the applicant suffers from chronic pain.

25The respondent submits that the applicant has failed to prove the assessment plan in dispute is reasonable and necessary. The respondent relies on the February 21, 2020, in person examination report from physician Dr. M. Hanna from Ontario Independent Assessment Centre. Dr. Hanna opined that the applicant has soft tissue injuries due to the motor vehicle accident. The applicant has sustained no more than sprain/stain type injury to neck, back shoulders and knees. Dr. Hanna went on to submit there was no evidence of radiculopathy, myelopathy or neuropathy and no evidence of permanent impairment. And the applicant does not meet the diagnosis of chronic pain.

26I have reviewed the record including the applicant’s assessment reports and the insurer examination reports, and I agree with the applicant’s submissions that the applicant suffers from chronic pain and chronic pain syndrome. The injuries have not resolved within the normal one-year healing time. Chronic pain assessment is reasonable as the applicant is exhibiting enough signs to warrant this claim.

27Different pain medications and dosage have also been provided to the applicant over the years without any benefit. I am persuaded by the applicant’s assessment for the need to determine if a further diagnosis or treatment to relieve the applicant’s pain is needed. Therefore, I find a chronic pain assessment reasonable and necessary.

Issue 6: Biopsychosocial Assessment

28The applicant is entitled to this assessment plan.

29The assessment plan is for biopsychosocial assessment.

30The applicant submits that the assessment plan is reasonable and necessary because of the extensive clinical notes and medical findings of the family doctor Dr. Manacki; psychologist Dr. John Lee; psychologist Dr. Marco Chiodo and psychologist Dr. Konstantinos Papazoglou.

31In respect of the subject OCF-18 the recommended treatment includes a biopsychosocial assessment. The estimated duration of the treatment and assessment is one week. The biopsychosocial assessment was recommended to help Ms. Perry emotionally and to reintegrate into and strengthen her family, social and community networks. The goal is to help Ms. Perry develop the skills and resources she needs to enhance social functioning and provide counselling therapy and referral to other supportive social services.

32The applicant cites the clinical notes and records of these doctors in October 2020, January 2021, October 2022, January 2023, and March 2023. These documents reveal the applicant has met the DSM-5 criteria for adjustment disorder, mixed anxiety and depressed mood, specific phobia, situational type, driving/vehicular travel and features of a somatic symptom disorder.

33The applicant submits that these clinical notes and medical records lay a strong foundation for a biopsychosocial assessment claim because they highlight the persistent nature of the injuries, the ongoing complaints in regard to social isolation, problems with interpersonal relationships and academic limitations since the motor vehicle accident.

34According to the assessment of Dr. Chiodo in October 2020 and the reassessment on January 21, 2021, he submitted the applicant’s mood and anxiety had intensified a major depressive episode is current. Dr. Chiodo recommended ongoing mental health treatment.

35According to Dr. Papazoglou assessment of October 28, 2022, and May 2, 2023, the applicant continues to meet the SDM criteria for a diagnosis of adjustment disorder and recommended an additional 12 one-hour sessions.

36According to the insurer assessor Dr. Lee he determined the applicant had not reached maximum medical recovery and continues to experience ongoing residual psychological symptoms due to the motor vehicle accident. The applicants doctor Dr. Manacki also submitted that the applicant suffers from psychological impairments.

37The respondent submits that the applicant has failed to prove that the treatment plan in dispute is reasonable and necessary, and this claim should be dismissed. The respondent relies on s.44 report of psychologist Mr. Fabio Salerno of May 29, 2021, concluding that the applicant has DSM-5 diagnosis of adjustment disorder with mixed anxiety and depressed mood, specific phobia, situational type, vehicular.

38Mr. Salerno submits that the applicant has already undergone psychological assessment and the biopsychosocial assessment will not yield any substantive clinical information with what has already been provided in the psychological assessment which were approved. And therefore, the goals of the treatment plan are already being met.

39I have reviewed the record including the applicant’s assessment reports and the insurer examination reports, and I agree with the applicant’s submissions. I am persuaded by Dr. Lee report that the applicant has not reached maximum medical recovery and continues to experience ongoing residual psychological symptoms due to the motor vehicle accident. The applicant continues to have issues with social interactions supported by medical documentation. I, therefore, find that this assessment plan is reasonable and necessary.

Issue 7: Cognitive Devices

40The applicant is entitled to this treatment plan.

41The plan is for cognitive devices.

42The applicant submits that the plan is reasonable and necessary because of the extensive clinical notes and medical findings of his doctor Dr. Manacki, occupational therapist Julian Amchislavsky and psychologist Dr. Lee.

43In respect of the subject OCF-18 a Cognitive Assessment Report was completed. The recommended treatment includes a cognitive exercise with her occupational therapist and emphasize specifically on memory, attention and concentration involving visual scanning functions. Ongoing treatment sessions are required to provide education with functional strategies such as use of mnemonics or mind mapping. Further techniques such as meditation, relaxations, and proper breathing techniques. Proper use of assistive devices that she may possess and benefit from such as calendars, smartphone, and diaries.

44The applicant cites the clinical notes and records of these doctors from December 5, 2020, and January 12, 2023. These documents reveal that a tablet is necessary and will aid in the applicant’s recovery.

45The applicant has complained of cognitive difficulties since the motor vehicle accident. The report from Dr. Manacki and Dr. Lee of January 12, 2023, confirm the reasonableness of this tablet as it will improve the overall function with memory, attention and problem solving. Dr. Lee also submits that the applicant suffers from ongoing lack of motivation and drive.

46The occupational therapist Julian Amchislavsky submitted on December 5, 2020, that a tablet computer and a cognitive training program would aid in increasing the applicant’s memory, attention, and concentration function. She submitted the applicant demonstrated moderate-severe difficulties in attention, verbal memory, and visual memory all of which a tablet would be beneficial in assisting.

47The respondent submits that the applicant has failed to prove that the cognitive device is reasonable and necessary, and that this claim should be dismissed. The respondent relies on Dr. Salerno review of May 2021, concluding that the applicants report provides little to no recommendation of cognitive devices providing any benefit to the applicant. The respondent also submits that the applicant is already receiving counselling for concentration and memory issues at Brampton Civic Centre which includes cognitive behavioural therapy so is not reasonable or necessary to have the tablet.

48I have reviewed the record including the applicant’s assessment reports and the insurer examination reports, and I agree with the applicant’s submissions that there is a need for cognitive devices. I am persuaded by the occupational therapist’s diagnosis of the applicant having moderate-severe difficulties in attention, verbal memory, and visual memory all of which a tablet would be beneficial in assisting. The applicant struggled in university after the motor vehicle accident failing some courses, so all this also leads me to believe a tablet is reasonable and necessary.

Interest

49The applicant is entitled to interest pursuant to s. 51 of the Schedule for Chronic Pain Assessment in issue 5; Biopsychosocial Assessment in issue 6 and Cognitive Device in issue 7.

ORDER

50I find:

i. The applicant is not entitled to chiropractic services in the treatment plans listed as issues 1, 2, 3 and 4.

ii. The applicant is entitled to chronic pain assessment in the treatment plan listed as issue 5 and interest.

iii. The applicant is entitled to biopsychosocial assessment in the treatment plan listed as issue 6 and interest.

iv. The applicant is entitled to cognitive device in the treatment plan listed as issue 7 and interest.