Tribunal File Number: 16-001934/AABS
Case Name: 16-001934 v Aviva Insurance Company of 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:
Applicant
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Chris Sewrattan
APPEARANCES:
For the Applicant: Volha Vinahradava, paralegal
For the Respondent: Michal Baura, counsel
HEARD: Written Hearing: August 21, 2017
Overview
1This is a reconsideration of a decision made on March 15, 2017.1 In that decision, I decided five issues in dispute. The wrong legal test was applied in considering one of the issues. I return to that issue in this decision to apply the correct legal test.
Issues in Dispute
2The following issue is reconsidered:
- Is the applicant entitled to $1,950.00 for a chronic pain assessment recommended in a treatment plan dated March 22, 2016?
Result
3The applicant is entitled to $1,950 for a chronic pain assessment and interest in accordance with s. 51 of the Schedule.
Facts
4The facts relating to the issue in dispute are unchanged from my March 15, 2017 decision and so the following facts are extensively quoted from that decision.
5The accident occurred on May 4, 2014. The applicant sought, among other benefits, payment for a chronic pain assessment. Payment was sought from Aviva Insurance Company of Canada (“Aviva”) under the power of the Statutory Accidents Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
6The applicant 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.
7Two 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.
8A 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
9In 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.
10On March 22, 2016, one of the applicant’s doctors submitted a Treatment and Assessment Plan to Aviva for a $1,950 chronic pain assessment.
11Prior to the treatment plan for the chronic pain assessment, Aviva had required that the applicant attend an independent medical examination to help determine the reasonableness of a different benefit that was being sought at the time. The independent medical examination was conducted by Dr. Hanna, a general practitioner. Dr. Hanna issued a report following his examination, dated March 14, 2016, in which he described the applicant as sustaining 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. The Scale was based on the applicant’s self-report of pain. When Aviva received the treatment plan for the $1,950 chronic pain assessment, it requested that Dr. Hanna conduct a paper review of the applicant to determine whether the chronic pain assessment was reasonable and necessary.
12Dr. 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
13The only issue currently in dispute before me is whether the chronic pain assessment is a reasonable and necessary expense.
14I initially decided the issue in the March 15, 2017 decision by considering whether it is reasonably possible that the applicant suffered from chronic pain syndrome. I answered the question in the affirmative. This was only half of the question that I needed to answer, however. I now consider the other half of the question: whether the chronic pain assessment for which the applicant seeks payment is reasonable and necessary. To answer this question, I must consider the applicant’s spinal injury and the rest of the evidence submitted in this hearing.
15It is more likely than not that the chronic pain assessment is reasonable and necessary for several reasons.
16The assessment is reasonable because the medical evidence sufficiently establishes that the applicant suffers from injuries about his spine. Dr. Hanna’s report dated April 14, 2016 shows that the applicant suffers from myofascial sprains/strains of the cervical spine, thoracic spine, and lumbar spine. I accept this diagnosis. From these injuries one can reasonably infer, as I do, that the applicant suffers pain. Dr. Hanna’s report is especially significant because I have difficulty assigning weight to the applicant’s evidence. As described in the March 15, 2017 decision, I found that the applicant personally suffers from credibility issues, he relies too strongly on a psychologist’s conclusion about his physical condition, and he failed to adduce readily available medical documentation that could corroborate his claim. The relative objectivity of Dr. Hanna’s report, together with the applicant’s own evidence, convinces me that the applicant suffers from pain from his spinal injury to such a degree that it is reasonable for him to explore whether he suffers from chronic pain through a chronic pain assessment in dispute.
17My conclusion on reasonableness is fundamentally based on Dr. Hanna’s April 14, 2016 report. However, I also rely on Dr. Deswal’s diagnoses. Approximately three-months after the accident, Dr. Deswal diagnosed the applicant with strains and strains of the cervical spine, thoracic spine, lumbar spine, and sacroiliac joint. Dr. Deswal and Dr. Hannah provide similar diagnoses at different times, August 2014 and April 2016. The substance of these diagnoses and their consistency convinces me that it is reasonable to explore whether the pain arising from these injuries can be characterized as chronic pain or chronic pain syndrome.
18The chronic pain assessment is necessary. It is the only way to determine whether the applicant suffers from chronic pain or chronic pain syndrome, and if further treatment is reasonable and necessary.
19Although I have only reconsidered one issue formally in this decision, I have considered the issue in light of all of the evidence in the hearing. For clarity, I emphasize that I am satisfied that the applicant has proven his entitlement to payment for the chronic pain assessment even though he failed to prove entitlement for payment to physiotherapy services. The evidentiary defects that hindered the applicant’s physiotherapy claim do not have the same effect on his chronic pain assessment claim. This is because the applicant does not have to prove that he probably suffers from chronic pain syndrome to receive entitlement to his assessment. The applicant only has to prove that, on a balance of probabilities, it is reasonable and necessary to assess whether he suffers from chronic pain syndrome. The applicant has successfully proven his case, notwithstanding Aviva’s evidence and able argument.
20I have also taken a fresh look at the applicant’s claim for costs in light of my reconsideration of his claim for a chronic pain assessment. My decision is unchanged. The fundamental breach between the parties in this proceeding is a misunderstanding. As I noted in the March 15, 2017 decision, misunderstandings do not rise to the level of impugned conduct envisioned in Rule 19.1.
Conclusion
21The applicant is entitled to $1,950 for a chronic pain assessment and corresponding interest in accordance with section 51 of the Schedule.
Released: October 13, 2017
______________________________
Chris Sewrattan, Adjudicator