N.D. v. Aviva Insurance, 2017 CanLII 81582

N.D. v. Aviva Insurance

Date: 2017-11-24 Tribunal File Number: 16-002568/AABS Case Name: 16-002568 v Aviva Insurance

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

and

Aviva Insurance

Respondent

DECISION

Adjudicator: Rupinder Hans

Appearances: For the Applicant: Loreto Scarola, Paralegal For the Respondent: Petros Yannakis, Counsel

Heard in writing: June 30, 2017

OVERVIEW

1On September 22, 2015, the applicant, N.D., was a driver of a motor vehicle that was struck while attempting to make a left turn.

2The applicant applied for and received benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”). The respondent, Aviva Insurance Company of Canada, initially paid for medical benefits. The applicant received heat/TENS, massage, physiotherapy, acupuncture, and chiropractic care. The applicant asserts that she continues to experience the effect of the sustained injuries, and her medical providers have recommended a chronic pain management program. The respondent has denied payment for the chronic pain program, and also the cost of examination for an orthopaedic assessment. The denials were based upon the respondent’s position that the treatment plans were not reasonable or necessary.

3The applicant appeals to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”), pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8 (the “Act”), seeking approval of the two treatment plans, and an award under O. Reg. 664 claiming the respondent unreasonably withheld or delayed payments.

4This matter was heard in writing with written submissions due by June 21, 2017. Accordingly, this decision is based upon my review of the parties’ written submissions.

ISSUES IN DISPUTE

5The following issues are in dispute:

(1) Is the applicant entitled to receive a medical benefit in the amount of $13,325.56 for a chronic pain program recommended by Dr. Inese Robertus in a treatment plan dated July 12, 2016?

(2) Is the applicant entitled to payments for cost of examination benefits in the amount of $2,460.00 for an orthopaedic assessment, recommended by Dr. Darrell J. Oglivie-Harris in a treatment plan dated May 10, 2016?

(3) Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

(4) Is the applicant entitled to interest for any overdue payment regarding the claimed benefits?

RESULT

6I find that the applicant is entitled to the medical benefits as set out in the treatment plan for the chronic pain program, and the cost of examination for an orthopaedic assessment. The applicant is also entitled to interest on any amounts incurred, but is not entitled to an award under Regulation 664.

DISCUSSION

Issue 1: The Medical Benefits for a Chronic Pain Program

7I find on a balance of probabilities that the treatment plan for chronic pain management program is reasonable and necessary.

8The goals of the treatment plan, prepared by Dr. Inese Robertus, are pain reduction, increased range of motion, return to activities of normal living, and return to pre-accident work activities. The description of services is extensive and includes: physical rehabilitation, laser therapy, stretching exercises, education, individual psychotherapy, and social work treatment sessions. The applicant’s injuries are listed as sprain and strain of cervical spine, sprain and strain of thoracic spine, sprain and strain of lumbar spine, sprain and strain of sacroiliac joint, sprain and strain of calcaneofibular ligament, tension-type headache, mixed anxiety and depressive disorder, sleep disorders, and other chronic pain.

(i) Applicant’s Medical Evidence

9In support of the treatment plan, the applicant relies on the Orthopaedic Assessment Report of Dr. Darrell J. Ogilvie-Harris, an orthopaedic surgeon, dated June 9, 2016 prepared after his examination of the applicant. The report lists the applicant’s symptoms as pain in her chest wall, right shoulder, left knee, right foot, neck, back and headaches, poor sleep, anxiety and depression. Dr. Ogilvie-Harris conducted a physical examination of the applicant, including her right foot, paracervical area, and thoracolumbar area. Dr. Ogilvie-Harris found that the applicant has sustained multiple soft tissues injuries to her neck and back as a result of the accident. He opines that this is probably due to damage to the discs, facet joints and other associated soft tissues. With regards to pain related behaviours, he found that she had positive Waddell’s signs, including tenderness, distraction, simulation, overreaching and regional pain. He felt these to be associated with a chronic pain syndrome with central sensitization.

10As part of her assessment, the applicant completed a pain disability questionnaire on which she scored 63/90 on the physical component, and 34/60 on the psychological component for a total score of 97/150. As a result, Dr. Ogilvie-Harris concluded that the applicant has moderate to severe pain-related functional limitations. She also completed the World Health Organization Disability Assessment Schedule in which she scored a moderate to severe disability in terms of mobility. Dr. Ogilvie-Harris concludes these scores point to a combination of physical as well as psychological issues as seen in a patient with a chronic pain syndrome with central sensitization. Based on his findings, he recommends a chronic pain management program in a multidisciplinary setting consisting of reconditioning of the spine and extremities, and non-impact cardiovascular and respiratory conditioning in a carefully supervised and progressive manner. He further recommends pain management and psychological support.

11Similarly, Dr. A. Kachooie, physiatrist and physical medicine specialist, in his report dated June 13, 2016, diagnosed the applicant with mild chronic denervation right C6 radiculopathy.

12The applicant submits that both Drs. Ogilvie-Harris and Kachooie came to the conclusion that the applicant requires pain management.

13The applicant further relies upon a MRI report dated August 25, 2016, which states: loss of normal cervical lordosis with straightening of the cervical spine, and multiple tiny to small disc herniations most pronounced at C6-7 where there is a small broad left eccentric disc herniation minimally abutting the anterior spinal cord.

14The applicant also relies on the progress report provided to the respondent by Dr. Judith Pilowsky, psychologist, dated September 21, 2016, after the applicant had completed all twelve psychological sessions in an approved treatment plan. Dr. Pilowsky diagnosed the applicant with persistent, moderate somatic symptom disorder with predominant pain, major depressive disorder, and posttraumatic stress disorder with in-vehicular anxiety.

15In further support, the applicant provides the Chronic Pain Assessment Report of Dr. Inese Robertus, physician, dated July 12, 2016, who concurrently prepared the treatment plan at issue. Dr. Robertus conducted a physical examination of the applicant, and found tenderness to palpation of the axial cervical spine, to the parathoracic and paralumbar regions, and to the shoulder joint. Dr. Robertus found that the applicant continues to experience headaches, suggestive of post-traumatic tension headaches, and cervicogenic headaches. The continued pain in her neck, shoulders and back is probably due to damage to the discs, facet joints and other associated soft tissues. She has significant residual pain in her right foot from a suspected avulsion fracture, and left knee pain. Dr. Robertus states that the applicant’s pain symptoms have become chronic. Similar to Dr. Ogilvie-Harris, she recommends a multidisciplinary treatment program to mitigate symptoms and improve functional abilities, including exercise, psychological, medical and rehabilitation services

(ii) Respondent’s Medical Report

16In response to the submission of the treatment plan, the respondent obtained a multi-disciplinary Insurer Examination, consisting of assessments by Dr. Parvesh Jugnundan, physician, dated August 11, 2016, and Dr. Godwin Lau, psychologist, dated August 16, 2016.

17Dr. Jugnundan reports that the applicant sustained soft tissue injuries to her chest, upper back, right shoulder girdle, low back, left knee and an avulsion fracture of her right foot navicular bone as a result of the accident. He notes her complaints as multiple areas of pain including upper back, low back, left knee, right shoulder, right foot and chest pain.

18During physical testing, Dr. Jugnundan found that her neck had full range of motion, however, at the left lateral rotation she complained of right-side pain, and she was tender to the right scapular region. Bilateral shoulder demonstrated full range of motion with no evidence of muscle wasting. Bilateral elbows, wrists and hands demonstrated full range of motion. He found that the radicular symptoms involving her right upper extremity was not supported by any objective clinical findings. He states that ongoing formal facility-based physical therapy would not have any significant benefit or improvement. Instead, he encouraged the applicant to be as physically active as possible and to engage in home self-directed exercise program.

19On January 9, 2017, Dr. Jugnundan also performed a paper review of the MRI scan report dated August 25, 2016. Upon review, he stated that he was not changing his previous medical opinion.

20Dr. Lau, a psychologist, conducted several tests including the Beck Depression Inventory which put the applicant within the moderately depressed range. The Beck Anxiety Inventory and Beck Hopelessness Scale put her within the mild range. Dr. Lau notes that the applicant is seeing a psychologist once a week for counselling. He diagnosed her with chronic adjustment disorder with mixed anxiety and depressed mood and specific phobia, situational type (driving/passenger anxiety), directly resulting from the accident. Dr. Lau states that there is no clear indication that psychological factors plays an important role in causing or maintaining her physical pain, thus, an interdisciplinary chronic pain management is not reasonable and necessary.

21The respondent also provided a surveillance report dated March 2, 2017, prepared by Kurt Wruck, together with the accompanying video. Commencing February 18, 2017, the surveillance was conducted on the applicant’s residence for a six days period. During those six days she was observed coming out of her home on one occasion. The report states that she drove her vehicle to a supermarket where she did some shopping. She exited the store and can be seen carrying several white plastic bags. She then drove to Walmart and a small plaza where she made no purchases. She is observed making two trips to her car to carry all items into the house. The report notes that she showed no apparent signs of disability or restrictions in her movements.

(iii) Analysis

22In evaluating the evidence, I prefer the expert reports of the applicant over those of the respondent for several reasons. Specifically, the reports of Drs. Ogilvie-Harris and Robertus are thorough in their analysis and recommendations. I note that the respondent’s experts, Drs. Jugnundan and Lau, found that the applicant sustained injuries, and continues to experience symptoms as a result of the accident. There is no ambiguity in this regard.

23After review of the reports of Drs. Ogilvie-Harris and Robertus, I find that the applicant has provided compelling medical evidence that shows on a balance of probabilities, in fact, she does have chronic pain syndrome that requires a multidisciplinary treatment plan. I also rely on the objective evidence of the MRI report dated August 25, 2016 in making my decision. The opinions of the applicant’s medical experts persuade me that the applicant has valid and achievable treatment goals, specifically, pain reduction, increased range of motion and more generally a return to her normal pre-accident activities.

24The respondent states that there are inconsistencies in the applicant’s self-reporting and over-reporting of symptoms, pointing to the fact that the applicant stated to Dr. Lau that she goes grocery shopping, but does not carry any bags. It offered the surveillance video of the applicant carrying bags. I note that this video is a mere snap shot in time, and recorded about six months after the applicant’s assessment by Dr. Lau. I did not find it persuasive.

25The respondent also makes much of the fact that the applicant may not have lost consciousness in the accident, as she claims. I am not persuaded that this is a determining factor as to whether the chronic pain program sought is reasonable and necessary.

26The onus is on the applicant to prove that on a balance of probabilities that the chronic pain program is reasonable and necessary. I find that the applicant has met her burden.

Issue 2: The Cost of Examination for the Orthopaedic Examination

27I find that the treatment plan seeking payment for the cost of examination for an orthopaedic assessment is reasonable and necessary.

28On May 10, 2016, Dr. Ogilvie-Harris submitted an OCF-18 for an orthopaedic assessment which was denied. Nonetheless, the applicant underwent the orthopaedic assessment. The purpose of the assessment was to investigate the possibility of ongoing musculoskeletal injuries, and recommend an appropriate course of treatment.

29In denying the treatment plan, the respondent relies upon the reports of Dr. Paul Tepperman, physician, dated April 21, 2016 and July 7, 2016. After a physical examination of the applicant on April 21, 2016, Dr. Tepperman determined that the applicant sustained a soft tissue injury, and notes that she had ongoing pain in multiple areas and pain-related behaviours. However, he concludes that there is no evidence of any substantial musculoskeletal impairment. His July 7, 2016 report indicates the same. He further references a consultation note from fracture clinic from Dr. R. Kaminker, dated December 12, 2015, which opined that the pain is likely related to residual soft tissue healing. The respondent relies upon this note asserting that Dr. Kaminker had already conducted an orthopaedic assessment of the Applicant, and a further assessment is not warranted.

30The respondent’s argument is not persuasive. The fact that Dr. Kaminker may have conducted an orthopaedic assessment at the fracture clinic does not, in itself, render the applicant’s request moot or a duplicate. Furthermore, no compelling evidence has been provided demonstrating that Dr. Kaminker conducted an orthopaedic assessment of the type sought by the applicant.

31Contrary to the respondent’s suggestions, the end result of the assessment is not the determining factor in analyzing whether the assessment is reasonable and necessary, nor did the end result form a significant part of my analysis. Rather, the necessity of the assessment must be analysed at the time that it was made. The applicant is entitled to an assessment if it is reasonable and necessary. In this case, the medical evidence indicates that the applicant was experiencing ongoing pain, and the respondent’s own expert, Dr. Tepperman, acknowledged that the applicant is experiencing ongoing pain in multiple areas. Although the assessment ultimately turned out to be negative, it was reasonable on the part of the applicant to try to determine the source of the pain, and to possibly rule out any orthopaedic injuries.

32I find that the applicant’s submissions with respect to the orthopaedic assessment are persuasive. For all these reasons, I conclude that on a balance of probabilities, the orthopaedic assessment is reasonable and necessary.

Issue 3: The Applicant’s Entitlement to an Award under Regulation 664

33The applicant is not entitled to an award.

34If an insurer has unreasonably withheld or delayed payment, the Tribunal may award a lump sum of up to 50 per cent of the amount to which the person was entitled to plus interest. The applicant provides no convincing submissions as to why an award under Regulation 664 is warranted. The mere conclusory assertion that the respondent unreasonably denied the applicant treatment is not sufficient. There is nothing in the evidence that suggests that the respondent was unreasonable or dealing in bad faith.

35Under the circumstances, I deny the applicant’s request for an award.

Issue 4: Interest

36The applicant is entitled to interest on any incurred expenses related to the treatment plan for the chronic pain program, and the cost of examination for the orthopaedic assessment in accordance with the Schedule.

ORDER

37After considering the evidence, pursuant to the authority vested in this Tribunal under the provisions of the Act, I order that:

a. The applicant is entitled to the treatment plan in the amount of $13,325.56 for a chronic pain program.

b. The applicant is entitled to payment for the cost of examination for the orthopaedic examination.

c. The applicant is not entitled to an award under Regulation 664.

d. The applicant is entitled to interest on the unpaid incurred expenses in accordance with section 51 of the Schedule.