Licence Appeal Tribunal File Number: 23-006396/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:
Vinod Kumar
Applicant
and
Aviva General Insurance
Respondent
DECISION
VICE-CHAIR:
Tyler Moore
APPEARANCES:
For the Applicant:
Cary Schneider, Counsel
For the Respondent:
Jennifer Cosentino, Counsel
HEARD:
In Writing
OVERVIEW
1Vinod Kumar, the applicant, was involved in an automobile accident on September 13, 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 $1,906.99 ($3,214.46 less $1,307.47 approved) for psychological services proposed by Dr. Peter Waxer in a treatment plan/OCF-18 (“plan”) dated May 28, 2021?
ii. Is the applicant entitled to $1,796.00 for physiotherapy services proposed by Northview in a treatment plan dated May 3, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3The applicant is not entitled to $1,906.99 for psychological services.
4The applicant is entitled to $1,796.00 for physiotherapy services, with interest.
5The applicant is not entitled to an award under s. 10 of Reg. 664.
PROCEDURAL ISSUES
6The parties disagree about the admissibility of transcripts from a previous Tribunal hearing that addressed the applicant’s entitlement to income replacement benefits into evidence for this hearing.
7The applicant seeks to have the transcripts considered as part of this hearing. The applicant submits that the previous hearing evidence is relevant. The applicant also submits that the respondent has not suffered any prejudice because counsel was the same and both parties and they questioned all of the same witnesses.
8The respondent submits that the transcripts are inadmissible and relies on rule 9(e) of the Common Rules of Practice and Procedure, s. 15.1(1) of the SPPA, and s. 30.1.01 of the Rules of Civil Procedure. The respondent argues that pursuant to rule 9(e) the transcripts are not relevant as the previous hearing dealt with entitlement to income replacement benefits which is a different test. Pursuant to s. 15.1(1), there was no consent from both parties to use transcripts from the prior proceeding for the purpose of this hearing. The respondent also argues that according to s. 30.1.01, the evidence the applicant wants to rely on was used in a different proceeding and was adduced in a matter to satisfy the test for that benefit in dispute. There was also no consent from the respondent to use the transcript from that hearing in this proceeding. The respondent argues further that it would be prejudicial if the Tribunal were to consider the transcripts as admissible evidence.
9The applicant argues that s. 30.1.01 of the Rules of Civil Procedure is not relevant and does not apply in this case because the parties are the same, the witnesses are the same, and the questions about the injuries and treatment are relevant.
10The applicant also argues that the respondent relies on s. 15.1(1) of the Statutory Powers Procedure Act (“SPPA”) but cites no case law to support its interpretation that the transcripts are inadmissible unless consent is provided. According to the applicant, relevance is the key consideration, and that parties must only minimally satisfy that threshold.
11I find that in accordance with s. 15.1 of the SPPA, the Tribunal may admit evidence from a prior proceeding if the parties to the proceeding consent. The respondent does not consent to admitting evidence from a prior Tribunal hearing. As a result, I decline to admit the transcripts from the applicant’s previous Tribunal hearing. Since the admissibility of prior evidence requires the parties’ consent, and the respondent has denied consent in this case, I do not need to address the respondent’s other arguments.
ANALYSIS
12I find, on a balance of probabilities, that the applicant is not entitled to $1,906.99 ($3,214.46 less $1,307.47 approved) for psychological services.
13To 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.
14The treatment plan proposed by Dr. Peter Waxer calls for 10 one-and-a-half hour sessions of psychological counseling in the amount of $2,244.20, one progress report in the amount of $523.64, $200.00 for the completion of an OCF-18, one-and-a-half hours of interpretation services at a cost of $135.00, and tax in the amount of $111.62. The goals of the proposed treatment are listed as pain reduction and a return to pre-accident level of psychological functioning. As part of Dr. Waxer’s treatment progress report dated May 27, 2021, Dr. Waxer noted that the applicant continued to experience persistent debilitating pain and rumination about that pain and the impact on his daily life. Dr. Waxer also noted that some of the therapeutic goals had been accomplished to a reasonable degree, but ongoing counseling was recommended with a focus on pain management.
15Following the respondent’s s. 44 assessment report recommendations of Dr. Jonathan Siegel, psychologist, the respondent approved $523.64 for the progress report, $200.00 for the completion of an OCF-18, and $135.00 for interpretation services. As a result, the only disputed portion is whether the applicant is entitled to 6 or 10 counseling sessions, and whether one-and-a-half hours as opposed to 20 to 30 minutes for the length of the sessions is reasonable and necessary.
16The applicant submits that the respondent’s s. 44 assessor Dr. Jonathan Siegel, psychologist, did not have the benefit of reviewing the applicant’s complete medical records. For example, Dr. Siegel did not review Dr. Jagtaran Dhaliwal’s psychiatric report dated November 4, 2019, Dr. Waxer’s psychological progress reports for the 42 counselling the applicant attended, or the clinical notes and records of Dr. Khin Myat, family physician, and Dr. Farhan Siddiqui, chronic pain specialist. The applicant also submits that his treating psychologist, treating psychiatrist, family physician, and chronic pain specialist all believed that ongoing psychotherapy was justified, and that their corroborating opinions should carry more weight than Dr. Siegel alone.
17The applicant argues that despite not having those medical reports and records to review, Dr. Siegel found that part of the proposed psychological counseling was reasonable and necessary. Dr. Siegel diagnosed the applicant with ongoing mental health impairments, including somatic symptom disorder with predominant pain, which again supports that ongoing treatment was required. According to the applicant, Dr. Siegel found that the proposed treatment was reasonable and necessary, but only six further sessions limited to 20-30 minutes per session.
18The respondent submits that it has already approved multiple treatment plans for psychological counseling. According to the progress reports of Dr. Waxer, the applicant had no psychological improvement despite counseling. The respondent relies on the s. 44 assessment reports of Dr. Siegel dated September 2, 2020 and August 4, 2021 which note that the applicant’s psychiatric condition was attributed to his severe perception of his level of disability that was connected to pain. Dr. Siegel found that there was a lack of change between the test scores administered during his initial assessment and subsequent assessment, confirming the applicant’s lack of improvement.
19The respondent argues that Dr. Siegel provided thoughtful reasons with respect to his finding that six sessions of psychological counseling were reasonable and necessary. Dr. Siegel was of the opinion that only six sessions were reasonable and necessary to properly taper off the course of treatment that was not providing any lasting benefit before ending it altogether, and because the applicant had already completed 42 approved sessions. Dr. Siegel also provided a rationale for reducing each session to 30 minutes to just focus on hurt versus harm and self-management strategies for functional recovery, and the reduced session length was actually the same as what the applicant reported he had previously been receiving.
20The respondent further submits that the Tribunal should rely on the clinical notes of Dr. Myat which only reflect one documented note of a psychological complaint on May 23, 2019.
21I have given equal weight to the applicant’s treating health practitioners and to Dr. Siegel as they have all had the opportunity to assess the applicant’s condition on multiple occasions. For example, I find that Dr. Siegel has had the benefit of assessing the applicant both before and after he participated in 42 sessions of psychological counseling.
22I disagree, however, with the respondent’s comment that Dr. Myat has only documented psychological complaints on one occasion in his clinical notes. Dr. Myat referenced counseling on November 11, November 16, December 18, 2018, and February 25, 2019. On April 27, 2019, Dr. Myat recommended a referral to a psychiatrist and for psychological counseling, and then on August 11, 2021, he once again noted “counseling”.
23I accept that the applicant’s self-reporting has been consistent as far as psychological counseling providing him with a temporary distraction from his pain. Based on the evidence presented, I also accept that there has been limited lasting improvement despite his participation in 42 sessions of psychological counseling. I am also mindful that the applicant reported to Dr. Siegel that the 42 psychological counseling sessions he participated in were a maximum of 20 to 30 minutes per session, and that this formed the basis for Dr. Siegel’s recommendations.
24I find that the applicant has not met his onus of establishing on a balance of probabilities that one-and-a-half hour counseling sessions are reasonable and necessary as opposed to the 20-to-30-minute sessions that the applicant was already receiving. I also find that Dr. Siegel provided strong rationale for why only 6 counseling sessions were warranted, to taper off a course of treatment that was not providing any lasting benefit, without ending this form of treatment abruptly.
25I am not persuaded by the applicant’s submissions and find that the disputed portion of the treatment plan for psychological services is not reasonable and necessary.
26I find, on a balance of probabilities, that the proposed physiotherapy treatment is reasonable and necessary.
27The treatment plan proposed by Northview calls for $200.00 for documentation, 8 one-hour sessions of physiotherapy, and 8 one-hour sessions of active physiotherapy, for a total of $1,796.00. The goals of the plan are pain reduction, increased endurance, increased strength, increased ranges of motion, and a return to activities of normal living. Northview noted that the applicant’s recovery has been slow due to osteoarthritis and a compression fracture at T11 and recommended continuing with an active physiotherapy program as proposed. Northview also indicated that the applicant was awaiting a chronic pain clinic appointment that had been scheduled for January 2021 but was cancelled due to COVID.
28The applicant submits that Dr. Jacqueline Auguste, orthopaedic surgeon, did not have the complete medical records when preparing her June 14, 2021 report. Specifically, Dr. Auguste did not review the clinical notes of Dr. Myat, Dr. Siddiqui, or the February 5, 2021 addendum opinion of Dr. Joseph Wong, physiatrist, which drew a causal connection between the fracture at T11 and the accident.
29The applicant relies on the physiatry report of Dr. Wong dated September 18, 2020, which recommended ongoing physiotherapy for the applicant’s chronic pain and post-traumatic headaches as well as Dr. Wong’s addendum report dated February 5, 2021, which found that the applicant’s T11 wedge compression fracture was expected to worsen over time and compromise his ability to recover from the accident. The applicant also relies on the medical report of Dr. Myat dated February 12, 2023, which notes that the applicant’s prognosis depends on his physiotherapy management and pain control by the pain clinic. Specifically, Dr. Myat notes that the applicant “has to continue physiotherapy”.
30The respondent submits that Dr. Auguste initially assessed the applicant on July 15, 2020 and again on June 2, 2021. Dr. Auguste found that the applicant sustained a lumbar sprain/strain with underlying pre-existing degenerative changes as well as a wedge compression fracture at T11 as a result of the accident. The respondent relies on Dr. Auguste’s finding that the applicant had reached maximum medical recovery and that further facility-based care would not be beneficial. The respondent also submits that an individual attending physiotherapy treatment for the simple purpose of finding temporary symptom relief does not correlate with a chronic pain condition.
31The respondent argues that the clinical notes of Dr. Myat, which the applicant submits would have changed Dr. Auguste’s opinion, do not reveal any extraordinary circumstances. The respondent also argues that it has already funded extensive physiotherapy.
32I find that multiple assessors and treating practitioners have corroborated the applicant’s chronic pain and have recommended ongoing physiotherapy. This includes the applicant’s treating chronic pain physician, Dr. Siddiqui, whose clinical notes and reports I have placed significant weight as a specialist in chronic pain the applicant was referred to by his family physician.
33Specifically, on November 21, 2021, Dr. Siddiqui recommended a combination of chronic pain therapies, including physiotherapy and active exercise. This was after the proposed treatment plan was denied. On March 3, 2021, Dr. Myat also noted tenderness and reduced ranges of motion of the applicant’s back and recommended regular exercises for chronic low back pain. On August 11, 2021, Dr. Myat again recommended regular back exercises and a referral to a pain clinic. Dr. Wong has made similar findings and recommendations for ongoing physiotherapy.
34For these reasons, I find on a balance of probabilities that the proposed physiotherapy treatment plan is reasonable and necessary.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest related to physiotherapy services.
Award
36The applicant sought an award under s. 10 of Reg. 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, or that there was conduct that was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate in addressing the issues in dispute.
37The applicant submits that the respondent relied on an assessment from an orthopaedic surgeon who has no expertise in chronic pain even though the applicant is under the care of a treating chronic pain specialist. The applicant submits that it ought to have known that Dr. Auguste’s report was deficient when denying benefits because she was provided incomplete records.
38The applicant also argues that Dr. Siegel arbitrarily limited the need for psychological treatment without justification, and rendered an opinion based on incomplete information without being asked for an addendum. According to the applicant, the respondent’s failure to fund ongoing counseling has resulted in a deterioration of his mental health. The applicant also submits that the respondent withheld log notes.
39The respondent argues that it has actively responded to submitted treatment plans and funded treatment without s. 44 assessments. The treatment plans in dispute were assessed, and the medical opinions of the assessors were relied upon.
40The respondent also argues that on January 10, 2024, redacted log notes were provided to the applicant from October 19, 2018 to March 20, 2023. According to the respondent, those log notes address the two treatment plans in dispute. In response to the applicant’s further request, the respondent provided the applicant with additional log notes from August 19, 2021 to December 13, 2023 on February 1, 2024. The respondent submits that December 13, 2023 was the date of the case conference.
41I am not persuaded by the applicant’s submissions that the respondent unreasonably withheld or delayed the payment of benefits. The respondent relied on the s. 44 assessment reports of Dr. Auguste and Dr. Siegel to support its position, but the applicant has not pointed me to any of the respondent’s actions that would constitute excessive or unyielding behaviour. I am also satisfied, based on the respondent’s timeline, that the log notes were not withheld. As such, the applicant has not met the high threshold for entitlement to an award under s. 10 of Reg. 664.
ORDER
42The applicant is not entitled to $1,906.99 for psychological services.
43The applicant is entitled to $1,796.00 for physiotherapy services, with interest.
44The applicant is not entitled to an award under s. 10 of Reg. 664.
Released: February 21, 2025
Tyler Moore
Vice-Chair