Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-013419/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:
David Santos
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Gary Marshall
APPEARANCES:
For the Applicant: Daniel Lee, Counsel
For the Respondent: Lauren Kolarek, Counsel
HEARD: By way of written submissions
OVERVIEW
1David Santos, the applicant, was involved in an automobile accident on November 17, 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 $1,417.70 for physiotherapy and massage services, proposed by Mackenzie Medical Rehabilitation Centre, in a treatment plan/OCF-18 (“plan”) submitted on November 28, 2022?
ii. Is the applicant entitled to $1,417.70 for physiotherapy and massage services, proposed by Mackenzie Medical Rehabilitation Centre, in a treatment plan submitted on January 9, 2023?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Prime Healthcare Inc., in a plan submitted on July 13, 2022?
iv. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Prime Healthcare Inc., in a plan submitted on June 6, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant is not entitled to the November 28, 2022, treatment plan for physiotherapy and massage services.
ii. The applicant is not entitled to the January 9, 2023, treatment plan for physiotherapy and massage services.
iii. The applicant is not entitled to the July 13, 2022, psychological assessment.
iv. The applicant is not entitled to the June 6, 2022, chronic pain assessment.
v. The applicant is not entitled to an award under s. 10 of Reg. 664.
vi. As there are no overdue payments, the applicant is not entitled to interest.
ANALYSIS
November 28, 2022, treatment plan for physiotherapy and massage
4I find that the applicant is not entitled to the November 28, 2022, treatment plan for physiotherapy and massage services.
5To 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 cost of achieving them is reasonable.
6The OCF-18 is for six sessions of massage and 18 sessions of physiotherapy. The treatment goals were pain reduction, increase in strength, increased range of motion, return to activities of normal living and a return to pre-accident work activities.
7The applicant submits he is entitled to the treatment plan because it is reasonable and necessary. He relies on various medical assessment reports, clinical notes, and records from family physician Dr. Manu Dhillon and Tribunal case law. The applicant submits that a December 8, 2020, report from Dr. Dhillon recommended further treatment to address sprains/strains to his cervical spine, thoracic spine, lumbar spine, and left shoulder. The applicant also maintains that during a subsequent visit to Dr. Dhillon on March 17, 2023, he complained to the family physician that he had pain in the lumbar spine. The applicant noted there is a long and consistent history of him attending medical intervention sessions with Dr. Dhillon about his back pain.
8In support of his submission that the treatment plan is reasonable and necessary for his ongoing back and neck pain, the applicant noted that his current complaints can be reduced by physiotherapy treatments. The applicant submits that on November 27, 2020, he went to Doug Freer & Associates Physiotherapy and Massage Therapy. It was determined throughout his sessions that the applicant's symptoms were consistent with WAD 2, sprain and strain of the thoracic and lumbar spine, left shoulder, and left knee, post-concussion, and headaches. The applicant further submits that on April 5, 2021, Monica Caton, the applicant’s physiotherapist, wrote a letter to the respondent and stated that the applicant is still limited in his ability to do heavier activities and identified back active range of motion and pain in the lower lumbar spine as significant issues.
9The applicant also submits that he commenced chiropractic, massage, and physiotherapy treatment at Mackenzie Medical Rehabilitation Centre Inc. (“Mackenzie Medical”) from October 20, 2021, to January 16, 2023. Following his initial consultation, the applicant followed up at Mackenzie Medical at least 36 times starting from November 17, 2021, to this day. During a re-examination on March 21, 2022, at Mackenzie Medical, despite extensive treatment, the applicant submitted there was a restricted range of motion of the cervical and lumbar spine and left shoulder and pain in the upper and lower back was still observed.
10The respondent submits that the treatment plan is not reasonable and necessary, and causation is at issue. The respondent relies on various medical assessment reports, clinical notes and records of Dr. Mohamed Khaled, physician, the Schedule, and previously reported decisions with the Tribunal.
11The respondent submits that despite the applicant consistently reporting that he had no significant medical history, the evidence indicates he had persistent back pain requiring massage therapy between August and November 2020. It submits that the applicant had sought massage as recently as six days before the accident and had requested further massage for back pain only five days before the accident. During an initial assessment with the massage therapist on April 27, 2016, the applicant reported a history of migraines and a “sore back/arm” as his reason for needing therapy. Finally, the respondent noted that the applicant re-injured his back post-accident in November 2021.
12The respondent further submits that on August 10, 2022, the respondent scheduled an s. 44 IE by Dr. Mohamed Khaled, Physician, at which time Dr. Khaled provided the opinion that there was no objective evidence of ongoing permanent accident-related impairment, and the insured had a good prognosis for a complete functional recovery. The respondent submits that the applicant returned to work on modified duties on January 4, 2021, and has been working full hours and duties since at least August 2022. Additionally, the respondent submits that the applicant has repeatedly reported that he shovels snow, paints, plays baseball, runs, toboggans, lifts to 40 pounds, and enjoys golfing weekly. The respondent submits that any back pain experienced by the applicant is likely related to his highly physical lifestyle, and not a minor collision that happened more than three years earlier.
13I agree with the respondent that no doctor has recommended that the applicant continue physiotherapy since December 8, 2020 – two years before the submission of these plans. On November 17, 2020, the day of the accident, Mr. Santos attended his message therapist, Ms. Maset and requested treatment as he stated that he was feeling a bit “shaken up”. Mr. Santos attended Stevenson Memorial Hospital on November 18, 2020, complaining of left shoulder and knee pain and a headache. Back and neck pain were not mentioned. On March 20, 2021, more than three months after the accident, Mr. Santos visited his family doctor, Dr. Manu Dhillon, who recommended home exercises, instead of physiotherapy. Nearly eight months later, on November 10, 2021, Mr. Santos returned to his family physician, stating that he had strained his back and went to the hospital. During the hospital visit on November 10, 2021, there was no mention of the accident, and the lumbar spine x-ray taken the following day was completely unremarkable. Following a review of the evidence before me, I have not been satisfied that the applicant has provided corroborating medical evidence to establish that the treatment plans are reasonable and necessary.
14Further, I find that the clinical notes of Dr. Mohamed Khaled demonstrate that the ongoing physiotherapy and massage services are not reasonable and necessary. The s. 44 IE report of Dr. Mohamed Khaled on August 10, 2022, reported that there was no medical evidence of ongoing permanent accident-related impairment. I find that this is consistent with the clinical notes and records of, Doug Freer & Associates from November 17, 2017, to June 17, 2022, where it was reported by Mr. Santos that he had returned to work on modified duties on January 4, 2021, and has been working full hours and duties since at least August 2022. This is also consistent with the fact that the applicant had reported to Ms. Caton that he shovels snow, paints, plays baseball, runs, toboggans, lifts to 40 pounds, and enjoys golfing weekly. I find Dr. Khaled’s opinion more consistent with the rest of the evidence before me. In my view, this is strong evidence that the applicant does not suffer from any ongoing physical impairment that requires additional massage or physiotherapy treatments.
15I find on a balance of probabilities that the applicant has not established that the treatment plan dated November 28, 2022, is reasonable and necessary.
January 9, 2023, treatment plan for physiotherapy and massage
16I find that the applicant is not entitled to the January 9, 2023, treatment plan for physiotherapy and massage services.
17The OCF-18 is for six sessions of massage and 18 sessions of physiotherapy. The treatment goals were pain reduction, increase in strength, increased range of motion, return to activities of normal living and a return to pre-accident work activities.
18The applicant relies on the same evidence as for the treatment plan dated November 2022 set out above.
19The respondent submits that the treatment plan is not reasonable and necessary. The respondent relies on various medical assessment reports, clinical notes and records of Dr. Mohamed Khaled and previously reported decisions with the Tribunal.
20As noted above, I find that the applicant’s evidence shows that his family doctor did not recommend physiotherapy or massage for the applicant’s accident-related injuries between December 2020 and March 2023. It is well established that a treatment plan, without corroborating medical evidence, is not sufficient to establish that the treatment plan is reasonable and necessary.
21I find on a balance of probabilities that the applicant has not established that the treatment plan dated January 9, 2023, is reasonable and necessary.
July 13, 2022, treatment plan for a psychological assessment
22I find that the applicant is not entitled to the July 13, 2022, treatment plan for a psychological assessment.
23The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
24The goals of the Psychological Assessment Plan were to evaluate the client's psychological and emotional repercussions following the motor vehicle accident. The functional goal(s) of this assessment and treatment plan are to return to the activities of normal living.
25The applicant submits he was interviewed by Psychotherapist, Laiba Imran, under the direct supervision of Clinical Psychologist, Anna Kozina on June 16, 2022, for his OCF-18 application. During his interview, the applicant complained of irritability, sleep irregularities, fatigue, vehicular anxiety, concentration and memory difficulties, diminished appetite, nightmares, and flashbacks. Ms. Imran opined that there is a rationale for a complete psychological assessment. The applicant also submits that he complained to physiotherapist Monica Canton that he was experiencing driving anxiety and expressed worry about his injuries and mood changes. Finally, the applicant submits that he repeatedly expressed to occupational therapist Shannon Bottrell that he was experiencing ongoing sleep difficulties, stress, anxiety, and feeling nervous while driving.
26The respondent submits that the applicant did not meet the criteria for a mental health diagnosis in relation to the accident. The respondent scheduled an s.44 IE with Psychologist Dr. Rakesh Ratti on November 18, 2022, to address both the psychological and chronic pain treatment plans. The respondent further submits that Dr. Ratti administered psychological tests, the Beck Depression Inventory-II and the Beck Anxiety Inventory, where the applicant scored within the low-mild and mild ranges respectively. Dr. Ratti found that the applicant did not meet the criteria for a mental health diagnosis in relation to the accident. The respondent further submits that the OCF-18s in dispute were both completed by Dr. Hefford, a chiropractor and submitted nearly two years post-accident. The respondent indicated that both treatment plans listed several injuries that are corroborated by a chiropractor, physiotherapist and occupational therapist.
27Diagnosing psychological disorders is outside of the scope of practice of a chiropractor, physiotherapist, and occupational therapist and, therefore, I give the June 16, 2022, by Ms. Imran and the May 30, 2022, assessment by Dr. Hefford little weight in determining whether the psychological assessment is reasonable and necessary.
28I find that the applicant has not established that he has a psychological condition that warrants further investigation. Although psychotherapist Ms. Imran is identified as the clinical interviewer, the pre-screen interview was based solely on the subjective complaints of Mr. Santos. I put more weight on the evidence of Dr. Ratti because he is a psychologist, and he examined the applicant before forming his opinion. He opined that the applicant does not have a mental health condition. Furthermore, the report is not linked to any objective medical evidence provided by the applicant’s primary care physician.
29I find that the clinical notes of Dr. Khaled and Dr. Ratti do not include references to any psychological concerns.
30In sum, I find that the OCF-18 is not supported by the weight of the medical evidence before me. Therefore, I find on a balance or probabilities that the applicant has failed to prove that he has suffered a psychological condition requiring further investigation and treatment.
June 6, 2022, treatment plan for a chronic pain assessment
31I find that the applicant is not entitled to the June 6, 2022, treatment plan for a chronic pain assessment.
32The goals of the Chronic Pain Assessment Plan are to evaluate the extent of the patient's chronic injuries and psychological complaints. The functional goal of this assessment and treatment plan is to return to the activities of normal living.
33The applicant submits that the respondent’s denial of the proposed chronic pain assessment relies solely on the insurer's examination report of Dr. Rakesh Ratti. The applicant argues that the respondent denied the claim for the chronic pain assessment solely on a psychological assessment and did not include a physical examination. Furthermore, the applicant stated that the treatment plan of Dr. Karmy identified injuries in the spine, shoulder and left knee that are chronic in nature.
34The respondent submits that the applicant’s sole reliance on a psychological assessment to deny the chronic pain assessment is untrue. The respondent noted that a physical assessment conducted by Dr. Khaled on August 10, 2022, assessed the need for a chronic pain assessment. The respondent also referenced a subsequent paper review of Dr. Khaled on September 9, 2022, outlined the six criteria for chronic pain syndrome as stated in the 6th edition of the AMA Guides, and concluded that Mr. Santos does not demonstrate any three of the criteria, where he is not taking prescription medication, has returned to the vast majority his pre-loss functions and activities (such as painting, golfing, housework, etc.), has returned to full-time work, and is independent with his personal care and housekeeping/home maintenance. Finally, the respondent submits that given that chronic pain syndrome may include psychosocial symptoms, it was completely proper for the respondent to rely on both a physician (Dr. Khaled) and a psychologist (Dr. Ratti) to address the reasonableness and necessity of a chronic pain assessment.
35I find the applicant relies primarily on the OCF-18 which is not corroborated by the medical evidence before me. I agree with the respondent that treatment plans by themselves do not prove that the proposed treatments are reasonable and necessary. Furthermore, I am persuaded by the respondent’s argument that Dr. Dhillon did not make a chronic pain or referral to a chronic pain clinic during the many visits with the applicant. Again, I give the chronic pain assessment little weight as a chiropractor, physiotherapist, and occupational therapist are not qualified to diagnose chronic pain.
36I find on a balance of probabilities that the applicant has failed to prove that he has suffered a chronic pain condition requiring further investigation and treatment.
Interest
37As no benefits are owing, no interest is payable.
Award
38The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since the applicant did not establish entitlement to the OCF-18s in dispute for physiotherapy and massage services as well as psychological and chronic pain assessments, no benefits are owed, and an award is not granted.
ORDER
39The applicant is not entitled to the disputed OCF-18s.
40The applicant is not entitled to interest pursuant to s. 51 of the Schedule.
41The applicant is not entitled to an award under s. 10 of Reg. 664 of the Schedule.
Released: April 17, 2025
Gary Marshall
Adjudicator