Licence Appeal Tribunal File Number: 23-006877/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:
Pauline Manderson
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Aric Bhargava
APPEARANCES:
For the Applicant:
Dean Trinetti, Counsel
For the Respondent:
Nicholas Maida, Counsel
HEARD:
By way of written hearing
OVERVIEW
1Pauline Manderson, the applicant, was involved in an automobile accident on April 21, 2021, 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 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 $1,345.88 for chiropractic services in a treatment plan/OCF-18 (“plan”) submitted July 30, 2021?
ii. Is the applicant entitled to $2,862.98 for chiropractic services in a plan submitted September 28, 2021?
iii. Is the applicant entitled to $2,200 for psychological services in a plan submitted September 27, 2021?
iv. Is the applicant entitled to $2,200 for a chronic pains assessment in a plan submitted April 5, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant is entitled to $645.88 ($1,345.88 less the approved $700.00), plus interest, for chiropractic services as the respondent has approved the disputed balance.
4I find the applicant is entitled to $632.40 ($2,862.98 less the approved $2,230.58), plus interest, for chiropractic services.
5I find the applicant is not entitled to $2,200.00 for psychological services.
6I find the applicant is entitled to $2,200.00 for a chronic pain assessment, plus interest.
PROCEDURAL ISSUES
7In its written hearing submissions, the respondent asked for a portion of the applicant’s submissions to be excluded, specifically, the family doctor’s clinical notes and records (“CNRs”) for the period of December 9, 2022 to April 11, 2024. The respondent states the applicant failed to produce the CNRs in accordance with Rule 9.3 of the Licence and Appeal Tribunal Rules, and the timeline set in the Case Conference Report and Order (“CCRO”). The CNRs were due March 17, 2024. However, the respondent received the CNRs on August 19, 2024. The respondent argues the late production prejudiced the respondent by depriving the respondent of the opportunity to review and consider the materials before filing submissions. The respondent’s submissions were due September 13, 2024.
8The applicant provided reply submissions stating she had attempted to comply with the deadline. The applicant issued a letter to the family doctor on August 2, 2023 requesting the files, with additional letters issued on January 17, 2024, and February 5, 2024. The family doctor issued an invoice on March 21, 2024 which the applicant paid April 4, 2024 and she issued a follow up letter on July 22, 2024 again requesting the files.
9Despite the respondent’s request, I find if I excluded the applicable CNRs the prejudice to the applicant would outweigh any prejudice to the respondent by allowing them. The family doctor’s CNRs are relevant to the issues in this proceeding. Further, on review of the respondent’s submissions, I find the respondent was able to respond fulsomely. Accordingly, I decline the respondent’s request to exclude the applicable CNRs from the hearing and although I am allowing the CNRs in full.
ANALYSIS
Is the outstanding balance of $645.88 for chiropractic services reasonable and necessary?
10I find the applicant is entitled to $645.88 ($1,345.88 less the approved $700.00) for chiropractic services. In the written hearing submissions, the respondent stated that it had approved the disputed balance. Accordingly, no further analysis is required.
Is the outstanding balance of $632.40 for chiropractic services reasonable and necessary?
11I find the applicant has demonstrated, on a balance of probabilities, that the chiropractic services are reasonable and necessary. The applicant is entitled to the outstanding balance of the disputed treatment plan.
12To receive payment for an OCF-18 under sections 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.
13The chiropractic treatment plan submitted by Dr. Kyle Simpson, chiropractor, is meant to address the applicant’s injuries including sprain and strain of the cervical spine, thoracic spine, sleep disorders, nervousness, problems related to lifestyle, and limitation of activities due to disability. The provider proposed 18 physical rehabilitation sessions and 8 therapeutic interventions over a period of 16 weeks. The goals for this plan are pain reduction, increased range of motion, increase in strength, increased tolerance to regular activities of daily living, and return to activities of normal living. The treatment plan was submitted for $2,862.99 and partially approved for $2,230.58, leaving $632.40 in dispute. The $632.40 in dispute is for 2 sessions of physical rehabilitation and 8 sessions of passive modalities such as massage therapy.
14The applicant states the treatment provides her with benefit in recovering from her injuries. The applicant argues the orthopaedic surgery assessment report, dated November 17, 2021, prepared by Dr. Gilbert Yee did not provide an explanation of the denial. Dr. Dunraj’s CNRs corroborate the applicant’s ongoing pain symptoms as noted over the period of April 2021 to June 2021. The applicant was administered injections for pain management during this time and the doctor also recommended physiotherapy.
15The respondent states the treatment plan was partially approved and the passive modality treatment such as massage therapy is not reasonable or necessary based on the orthopaedic surgery assessment report prepared by Dr. Yee.
16Dr. Yee approved 16 physical therapy sessions out of the proposed 18 and stated, “I do not feel any further passive modalities such as message therapy … would provide any long-lasting clinical benefit”. However, Dr. Yee’s report is consistent with Dr. Dunraj’s CNRs and the recommendation for continued physiotherapy for her pain management. I find the remaining treatment including the 2 physical therapy sessions and the 8 massage therapy sessions is reasonable and necessary.
17I find the applicant has satisfied the onus, on a balance of probabilities, to demonstrate the $632.40 remaining in the treatment plan is reasonable and necessary.
Is the treatment plan for $2,200.00 for psychological services reasonable and necessary?
18I find the applicant has not demonstrated, on a balance of probabilities, that the psychological assessment is reasonable and necessary.
19The psychological assessment proposed by Dr. Zubina Ladak, psychologist, is meant to assess the applicant’s psychological functioning and address her reaction to severe stress, adjustment disorders, and specific phobias. The provider proposed an assessment with a goal of pain reduction, returning to pre-accident level of psychological functioning and a return to normal living. The treatment plan was submitted for $2,200.00.
20The applicant states the assessment was denied due to the s. 44 psychological report dated November 17, 2021, prepared by Dr. Godwin Lau, psychologist. In his report Dr. Lau noted the applicant’s psychological impairment was subclinical. The applicant argues the psychological assessment is to assist her with her return to activities of daily living. The applicant did not submit evidence in support of this argument.
21I have reviewed Dr. Lau’s report in which he noted “there was no sign of psychotic psychopathology” and the applicant stated “she is improving” when asked about her psychological progress. Dr. Lau noted “[The applicant] does not see any need for any mental health intervention.” Dr. Lau’s report included a paper-review of the proposed treatment plan and noted “There is no clear and reliable indicator of a psychological impairment as a result of the accident. At most, she may be experiencing chronic adjustment difficulty at a subclinical level.”
22I have also reviewed the CNRs of the family physician. Dr. Dunraj makes no mention of any psychological impairments.
23I find Dr. Lau’s report establishes that the applicant does not suffer from a psychological impairment and suggests the applicant has no psychological difficulty that requires treatment.
24I find, the applicant has not met the burden of demonstrating the psychological assessment is reasonable or necessary because she has not submitted evidence in support of this argument.
Is the treatment plan for $2,200.00 for a chronic pain assessment reasonable and necessary?
25I find the applicant has demonstrated, on a balance of probabilities, that the chronic pain assessment is reasonable and necessary.
26The chronic pain assessment proposed by Altaf Khimji, physiotherapist, is meant to identify barriers to recovery and treatment options for the applicant. The treatment plan was submitted for $2,200.00.
27The applicant states the treatment plan was denied based on the s. 44 physical medicine and rehabilitation specialist assessment prepared by Dr. Alborz Oshidari, dated June 1, 2022 which included a paper-review of the disputed treatment plan, the family doctor’s CNRs, and Dr. Yee’s report. The applicant has not submitted evidence in support of this argument.
28The respondent states the applicant has not provided a clear reason for the assessment and there are no complaints of pain from December 7, 2021 and June 28, 2023. However, in review of all of the family doctor’s CNRs the applicant attended her doctor’s office with consistent and ongoing complaints of back pain, left shoulder pain, right elbow pain, reduced range of motion, and right knee pain to the date of September 23, 2023.
29Dr. Oshidari assessed the applicant again in a report dated January 3, 2023 and his opinion was unchanged based on updated information including a progress report from the family doctor, x-ray of the lumbar spine and x-ray and ultrasound of the right shoulder. Dr. Oshidari noted “an assessment by a chronic pain specialist is not going to assist this individual.” I am not persuaded by Dr. Oshidari’s reasoning that an orthopaedic assessment may be an alternative because the objectives and targeted outcomes of an orthopaedic assessment are different from a chronic pain assessment. I find a chronic pain assessment may assist the applicant with developing a suitable treatment plan for relief from her accident-related pain.
30I have reviewed the CNRs of Dr. Dunraj, family physician. The applicant’s ultrasound of her left shoulder in September 2017 noted “a calcification within the subscapularis tendon” and the applicant’s ultrasound of her right shoulder in May 2019 noted no abnormality and “partial thickness tear in subscapularis tendon”. I find the accident aggravated her pre-existing condition and a chronic pain assessment is reasonable and necessary.
Interest
31The applicant is entitled to interest on the payment of $645.80 for chiropractic services and $2,200.00 for a chronic pain assessment pursuant to s. 51 of the Schedule.
ORDER
32The applicant has demonstrated, on a balance of probabilities, she is entitled to:
i. $645.88 for chiropractic services.
ii. $632.40 for chiropractic services.
iii. $2,200.00 for a chronic pain assessment.
33The applicant is entitled to interest on the overdue payments for the treatment plans for chiropractic services and the chronic pain assessment.
34The applicant is not entitled to:
i. $2,200.00 for psychological services.
Released: May 7, 2025
Aric Bhargava
Adjudicator