Guillen v. Aviva Insurance Canada
Licence Appeal Tribunal File Number: 23-003434/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:
Andres Guillen
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Elena Fetesko, Paralegal
For the Respondent:
Sadaf Shahzad, Counsel
HEARD:
In Writing
OVERVIEW
1Andres Guillen, the applicant, was involved in an automobile accident on October 30, 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:
Is the applicant entitled to $4,445.85 for physiotherapy services from HealthMax Etobicoke, proposed by Dr. Mohamededeq Kulane Hashi, chiropractor, in a treatment plan (OCF-18) dated December 6, 2022?
Is the applicant entitled to assessments at Imperial Medical Assessments Inc. as follows:
a. $2,045.88 for an attendant care assessment recommended by Elana Silverman, chiropractor, in a treatment plan dated December 9, 2021, and;
b. $2,486.00 for a chronic pain assessment recommended by Dr. Michael Gofeld, chronic pain specialist, in a treatment plan dated February 27, 2023?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is entitled to $3,786.76 for the treatment plan for physiotherapy services.
4The applicant is not entitled to $2,045.88 for an attendant care assessment or $2,486.00 for a chronic pain assessment.
5The applicant is entitled to interest for the physiotherapy treatment plan amount of $3,786.76, as per s. 51 of the Schedule.
ANALYSIS
Is the applicant entitled to physiotherapy benefits?
6The applicant is entitled to physiotherapy benefits, in part.
7To 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.
8The treatment plan dated December 6, 2022 is for 8 weeks with the goal of pain reduction, increased strength and range of motion and a general return to the activities of daily living.
9The applicant submitted clinical notes and records from Dr. Atwal, the applicant’s primary care physician. I find that the documentation shows the applicant has a history of neck, shoulder and back pain which was caused by the motor vehicle accident.
10The applicant visited Dr. Atwal multiple times in 2020 and early 2021 with consistent complaints of neck, shoulder and back pain. His most recent visit prior to the OCF-18 was in November 2022, when Dr. Atwal prescribed physiotherapy. The clinical notes and records from Dr. Atwal also indicate that the pain the respondent is suffering from is related to the motor vehicle accident.
11The respondent submitted that physiotherapy services were not necessary, and would not have provided any true benefit to the applicant. To support its submission, the respondent relies upon an Insurer Examination, completed in February 2023, by Dr. Pankaj Bansal, a family physician. In this report, it was noted that the applicant had “returned to work full-time in a physically demanding job, and was independent in his activities of daily living and self-care. He did not report a functional deficit.”
12While I am alive to the respondent’s submission that ongoing physiotherapy would have provided little benefit, I am persuaded by the applicant’s submission that physiotherapy is reasonable and necessary to reduce pain and improve his overall functionality because the applicant has submitted evidence of a clear pattern of physical pain, and his family doctor prescribed physiotherapy to treat him for accident-related injuries. In my opinion, the applicant has met his onus to establish the treatment plan is reasonable and necessary.
13In making this finding, I take note of the respondent’s submission that the OCF-18 had inflated amounts on lines 3 and 4 for laser and shockwave therapy treatments. The original OCF-18 denoted $150 and $200 per hour for those treatments, while the insurer submitted that $112.81 was more appropriate, as per the Professional Services Guideline. In the applicant’s reply submission, they conceded the issue regarding the amounts in question.
14Accordingly, I have reduced the amount payable to the applicant from $4,445.85 to a revised amount of $3,786.76. This revised amount reflects six sessions of laser treatment at $112.81 per session, instead of $150 per session. It also reflects five sessions of shockwave therapy at $112.81 per session, versus the original amount of $200 per session.
15I find on a balance of probabilities that the applicant is entitled to $3,786.76 for physiotherapy services, as per the treatment plan identified as issue 2.1 above.
Is the applicant entitled to an attendant care assessment?
16The applicant is not entitled to an attendant care assessment.
17The 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.
18The applicant submitted an OCF-18 from Dr. Elana Silverman, a Chiropractor, and Natalya Khramtsova, a registered nurse, requesting approval to conduct an attendant care assessment in December 2021. The goals of the assessment are listed as a return to pre-work activities and a return to daily living.
19I was not directed to supporting medical evidence that would support the applicant’s claim that attendant care was reasonable and necessary. I was not directed to a claim or notation from Dr. Atwal or any other medical professional.
20Furthermore, in the clinical notes and records that were submitted from Dr. Atwal, there is a gap for the time period surrounding this OCF-18. Clinical notes and records for Dr. Atwal were submitted to the Tribunal from October 2017 to January 28, 2021, and from October 19, 2022 to August 24, 2023. There was no evidence submitted from February 2021 to October 2022, the time period of the OCF-18 at issue.
21The respondent has submitted that the applicant has failed his onus of proving entitlement to the proposed assessment, as his submissions make no reference to the necessity of the assessment.
22I agree with the respondent that the applicant has not submitted sufficient evidence to meet the onus that an attendant care assessment is reasonable or necessary.
23Accordingly, on a balance of probabilities I find that the applicant is not entitled to an attendant care assessment, identified as issue 2.2.a in the issues above.
Is the applicant entitled to a chronic pain assessment?
24The applicant is not entitled to a chronic pain assessment.
25I find that the applicant has not submitted sufficient evidence to meet his onus of proving that a chronic pain assessment is reasonable or necessary.
26The 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.
27The respondent submitted that an OCF-18 itself is not evidence that the proposed chronic pain assessment is reasonable or necessary. It noted that the applicant was already receiving psychological treatment to address his concerns, and that a chronic pain assessment was redundant.
28I note that the applicant has a history of consistent complaints regarding neck, shoulder and back pain. However, the existence of pain alone is not sufficient to warrant a chronic pain assessment.
29I carefully reviewed the applicant’s submission, seeking objective medical evidence that a chronic pain assessment was warranted or even recommended.
30I note that the applicant did not submit independent medical evidence, from either his family physician, Dr. Atwal, or other medical professionals, which suggested a chronic pain assessment was necessary. Furthermore, as noted in paragraph 20 above, there is a significant gap in coverage for Dr. Atwal’s clinical notes and records.
31The OCF-18 for a chronic pain assessment was submitted on October 21, 2022. There was no medical evidence submitted for the period of January 28, 2021 to October 19, 2022 – a gap of nearly 22 months.
32I do note that the applicant’s submission referenced ‘fear & constant pain’ complaints made to the applicant’s psychologist in December of 2021. The applicant submitted a psychological assessment, dated December 28, 2021 conducted by Sarvin Sabet Ghadam to support this claim.
33However, after carefully reviewing the psychological assessment, I note that the recommendations include psychotherapy and physical treatment, but do not mention the need for a chronic pain assessment.
34While I accept that the applicant has a history of complaints about pain, I was not directed to evidence that those complaints were timely at the time of the creation of the OCF-18. The applicant submitted a reference to pain in his psychological assessment, which was ten months prior. The last complaint to the applicant’s family physician was 22 months earlier.
35It is my opinion that complaints about pain made to the applicant’s primary care physician 22 months prior do not meet the onus to indicate a chronic pain assessment is necessary.
36For these reasons, the applicant has not met the onus to prove that a chronic pain assessment is reasonable or necessary.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Therefore, interest applies to the treatment plan in the amount of $3,786.76.
ORDER
38The application is granted in part:
a. The applicant is entitled to $3,786.76 for physiotherapy services from HealthMax Etobicoke, proposed by Dr. Mohamededeq Kulane Hashi, chiropractor, in a treatment plan (OCF-18) dated December 6, 2022?
b. The applicant is not entitled to an attendant care assessment or a chronic pain assessment.
c. The applicant entitled to interest in accordance with s. 51 of the Schedule.
Released: January 20, 2025
Jeff Chatterton
Adjudicator