Date: 2017-03-15

Tribunal File Number: 16-001934/AABS

Case Name: 16-001934 v Aviva Insurance Canada

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:

A. T.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Chris Sewrattan

APPEARANCES:

Representative for the Applicant: Volha Vinahradava Counsel for the Respondent: Michal Baura

HEARD: Written Hearing: January 10, 2017

Overview

1The Applicant was injured in a motor vehicle accident on August May 4, 2014. He applied for benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). Aviva Insurance (“Aviva”) denied a claim for a medical benefit and the cost of an examination for a chronic pain assessment. The Applicant appeals to the Licence Appeal Tribunal on these issues.

Issues in Dispute:

2The following issues are in dispute before the Tribunal:

1. Is the Applicant entitled $2,554.27 for physiotherapy services recommended in a treatment plan dated January 29, 2016?
2. Is the Applicant entitled to $1,950.00 for a chronic pain assessment recommended in a treatment plan dated March 22, 2016?
3. Is the Applicant entitled to interest on outstanding benefits?
4. Is the Applicant entitled to costs under Rule 19.1?
5. Is Aviva entitled to costs under Rule 19.1?

Result:

3The applicant is entitled to $1,950 for a chronic pain assessment and interest in accordance with s. 51 of the Schedule. The treatment plan dated January 29, 2016 in the amount of $2,554.97 for physiotherapy services is not reasonable and necessary.

4Neither party is entitled to costs.

Facts:

5The Applicant is 22 years old. He was 19 at the time of the accident. On May 4, 2014 the applicant lost control of his vehicle and veered over the curb, through a fence, and into the brick wall of a residential home. He was under the influence of alcohol. He was taken to the police station that night. He was not taken to a hospital.

6Two months and two weeks later, on July 17, 2014, the applicant met with his family doctor, Dr. Bugada. The applicant was prescribed anti-inflammatory medication and advised to attend physiotherapy and massage therapy.

7A few weeks later, on August 11, 2014, the applicant met with Dr. Deswal at the Etobicoke Health and Wellness Centre. Dr. Deswal diagnosed the applicant with the following:

• sprain and strain of the cervical spine
• sprain and strain of the thoracic spine, lumbar spine, sacroiliac joint
• tension-type headache
• dizziness
• a number of psychological and sleep-related disorders

8In the first quarter of 2016 the applicant met with two psychologists. One was chosen by him and the other was retained by Aviva for the purpose of determining whether he should receive benefits for a possible psychological impairment.

Chiropractic treatment and massage therapy

9Reasonableness and necessity is the sole issue relating to the disputed treatment plans.

10On January 29, 2016 a Treatment and Assessment Plan was issued to Aviva for chiropractic treatment and massage therapy sessions for $2,554.27. Aviva required that the applicant attend an independent medical examination to help determine the reasonableness of the requested treatment. Dr. Hanna, a general practitioner, was retained by Aviva to conduct the examination. Dr. Hanna’s report, dated March 14, 2016, described the applicant with the following injuries:

• Myofascial sprain/strain of cervical spine
• Myofascial sprain/strain of the thoracic spine
• Myofacial sprain/strain of the lumbar spine

Dr. Hanna also described some of the applicant’s pain with reference to a Pain Analogue Scale. Significantly, the Scale was based on the applicant’s self-report of pain.

11Dr. Hanna stated that the chiropractic treatment and massage therapy sessions were not reasonable and necessary. In his view, at the applicant’s stage of recovery, “further facility based rehabilitation is unlikely to add any long term benefits from the accident related injuries”.

Chronic pain assessment

12On March 22, 2016, one of the applicant’s doctors submitted a Treatment and Assessment Plan to Aviva for a $1,950 chronic pain assessment. Aviva requested that Dr. Hanna conduct a paper review of the applicant to determine whether the chronic pain assessment was reasonable and necessary.

13Dr. Hanna issued a Paper Review Report dated April 14, 2016. The report concluded that the chronic pain assessment was not reasonable or necessary. Dr. Hanna opined that if the applicant suffered from chronic pain syndrome he would have complained to his family doctor about it and would have taken medication that chronic pain sufferers typically seek. The applicant had done neither. Dr. Hanna also noted that the applicant has visited his family doctor only once in the 2.5 years since the accident. He continues to work (albeit, in a less physically demanding job) and continues to perform activities of daily living.

Discussion:

14The only issue in dispute is whether the two treatment plans are reasonable and necessary.

Chiropractic treatment and massage therapy

15The onus is on the applicant to prove that the requested chiropractic treatment and massage therapy is a reasonable and necessary expense. After considering all of the evidence, I find there is a lack of reliable information to conclude that the requested chiropractic treatment and massage therapy is reasonable and necessary for the physical injury from which the applicant suffers. There are three aspects to this information deficit: the applicant’s reliance on psychological reports, the applicant’s credibility as a witness, and the lack of objective information.

16Before the three aspects are discussed, it is important to make clear the physical injury / impairment from which the applicant suffers. I accept the diagnoses of Dr. Hanna, who concluded that the applicant is afflicted with myofascial sprains/strains of the cervical spine, thoracic spine, and lumbar spine. These injuries are consistent with the diagnoses of Dr. Deswal. Dr. Hanna’s specific diagnoses are preferred over Dr. Deswal’s more broad diagnoses because Dr. Hanna described the tests he used to arrive at his diagnoses. Furthermore, Dr. Deswal’s diagnoses are dated. They do not account for the rehabilitative effect, if any, of the 8-12 months of physical treatment that the applicant has already received.

17The first aspect of the lack of reliable information is the applicant’s reliance on psychological reports. The applicant provided descriptions of physical injuries from the psychologists who examined him. I question the ability of a psychologist to diagnose a physical impairment. In addition, many of the alleged physical injuries are reiterations of the applicant’s self-report to the psychologist.

18This dovetails with the second aspect. There are issues with the applicant’s credibility which cause me to place little weight on any of his self-reports. As submitted by Aviva, the applicant has made a number of inconsistent statements that undermine his credibility as a witness. He claims he lost consciousness as a result of the accident. However, he was not taken to the hospital that night nor is there any mention of a loss of consciousness in the notes of his family doctor, Dr. Bugada. The applicant also claims that Dr. Bugada prescribed him anti-depressants and recommended psychological therapy. Dr. Bugada’s notes only mention prescribing the applicant an anti-inflammatory medication. Dr. Bugada’s notes for this time period are quite detailed. If these significant events occurred, I would expect Dr. Bugada to have noted it.

19Similarly, the applicant submitted an affidavit to the Tribunal in which he swears that he “refuse[s] to take any pills or manufactured drugs” due to psychological issues. However, the applicant reported to Dr. Hanna that during his examination that was taking anti-inflammatory medication twice per day. This is corroborated by Dr. Bugada’s clinical note documenting a prescription for anti-inflammatory medication. While this could be an innocent oversight, or the applicant’s statement could refer to a specific class of drugs that do not include anti-inflammatory medication, it calls the applicant’s credibility into question when viewed alongside the other contradiction.

20The third aspect is the lack of objective information showing that the treatment plan is reasonable and necessary for the applicant’s specific physical injury. It is clear that the applicant suffers from myofascial sprains and strains. Since the applicant’s self-reports alone cannot be relied upon, there must be objective information indicating that the requested chiropractic treatment and massage therapy is a reasonable and necessary measure to address the myofascial sprains and strains.

21The information is reasonably obtainable. The applicant told Dr. Hanna that approximately three months following the accident he received some combination of physiotherapy, chiropractic care, massage therapy, stretches, electric therapy, heat therapy, and exercise therapy. He received this treatment for 8-12 months, twice a week, in one-hour sessions. The clinical notes and reports of the treatment providers were not submitted into evidence. There is no objective indication of how effective the treatment was. There is no objective evidence as to whether the requested chiropractic treatment and massage therapy is an effective remedy for the applicant’s physical injuries or whether his recovery has plateaued under this remedy.

22As a result, I find that the applicant’s claim for this medical benefit must fail.

23The applicant attempted to provide a number of submissions in relation to the chiropractic treatment and massage therapy that are not relevant to the analysis required by the Schedule. I will address them for completeness.

24The applicant submitted in various ways that the Minor Injury Guideline is inapplicable. As just one example, the applicant submits that he has the pre-existing condition of asthma, and Dr. Hanna neglected to address this in his report in which he concluded, ostensibly, that the applicant’s treatment falls within the Minor Injury Guideline.

25The applicant’s submission is a solution in search of a problem. The Minor Injury Guideline is not in dispute in this proceeding. Aviva concedes that it is inapplicable to the applicant. Moreover, asthma has no relation to the reasonableness and necessity of the requested chiropractic treatment and massage therapy. Dr. Hanna’s failure to address asthma is providing his conclusion does not weaken his credibility, in my view.

26The applicant several times referenced an alleged inability to carry on a normal life. This is a legal test under the Schedule. It is irrelevant because it does not inform whether a medical benefit is reasonable and necessary.

Chronic pain assessment

27The applicant has proven that the chronic pain assessment is a reasonable and necessary expense for the reasons that follow.

28The applicant has physical injuries: myofascial sprains/strains of the cervical spine, thoracic spine, and lumbar spine. Dr. Hanna’s initial and paper review reports establish this.

29I take Dr. Hanna’s point that the applicant has not exhibited behaviour indicative of a person with chronic pain syndrome. I assume without deciding that it is within Dr. Hanna’s expertise to provide an opinion on what steps a person with chronic pain syndrome would take for treatment. Even with all of this considered, Dr. Hanna’s initial report indicates that the applicant has degrees of physical pain about his spine. The nature of the applicant’s injuries indicates that there is a reasonable possibility that he may have chronic pain syndrome.

30When assessing the reasonableness and necessity of an assessment, as opposed to rehabilitative treatment, one must look at reasonable possibilities rather than probabilities. Otherwise, one risks assuming the answer to the question underlying the assessment. The purpose of the applicant’s assessment is to determine whether he has chronic pain syndrome. He should not be denied the opportunity to answer this inquiry simply because, with the information available to him at this point in time, chronic pain is not a probable answer.

Interest

31The applicant is entitled to interest on the outstanding payment of the chronic pain assessment only. Interest is to be calculated in accordance with s. 51 of the Schedule.

Costs

32Both parties claim for costs. Aviva claims for costs on the basis that the applicant attempted to add a third issue in dispute in his submissions. Aviva advises that in the Case Conference Report, the Tribunal specifically noted that psychological counselling was not to be an issue in dispute in this hearing.

33The applicant’s submissions state the following:

FACTUAL AND LEGAL ISSUES IN DISPUTE

1. Medical/Rehabilitation Benefit:

• The Applicant is entitled to have psychological treatment. OCF18 in the amount of $1,964.71 from Elite Assessments was submitted to the Insurer on Jan. 28, 2016 and partially approved for $1,696.10 on March 18, 2016 for 10 hours of psychological assessment activities, and $200 allocated to OCF18 completion;

The applicant went on to discuss his psychological issues and psychological reports in his submissions.

34The applicant submits that he did not attempt to add psychological treatment as an issue. He included the information about psychological treatment to shed light on the impact of the chronic pain. As the applicant puts it, “hurting bodies and suffering minds often require the same treatment. That’s why the Applicant was deeply addressing [the Applicant]’s psychological state.”

35The applicant also makes a claim for costs. He submits that Aviva unilaterally speculated that he was adding a new issue.

36Costs are available under Rule 19.1 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) for unreasonable, frivolous, vexatious, or bad faith conduct that occurs in a proceeding.

37I find that costs are not awarded to either party in this case. There has been a misunderstanding, and misunderstandings do not rise to the level of impugned conduct envisioned in Rule 19.1.

38The applicant provided unclear submissions with respect to the information about his psychological treatment. He did not attempt to unilaterally add psychological treatment as an issue though. Aviva’s speculation was not unreasonable, frivolous, vexatious, or in bad faith. It was a reasonable response to unclear submissions.

Conclusion

39The applicant is entitled to $1,950 for a chronic pain assessment and corresponding interest in accordance with section 51 of the Schedule. He is not entitled to the treatment plan dated January 29, 2016. No interest is payable on this treatment plan. Neither party is entitled to costs.