Tribunal File Number: 17-009179/AABS
Case Name: 17-009179 v Certas Direct Insurance Company
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
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR: Christopher A. Ferguson
APPEARANCES:
Applicant’s Paralegal: Victoria Gorbenko
Respondent’s Counsel: Dana R. Spadafina
HEARD in Writing: August 16, 2018
OVERVIEW
1The applicant was involved in an automobile accident on September 16, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). He applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when Certas denied his claim.
2[The applicant] was operating a bicycle when he was struck by an automobile insured by Certas. He was thrown from the bicycle to the pavement in the collision.
3[The applicant] was employed at the time of the accident in construction as a finishing carpenter and installer. The physically demanding nature of his job – lifting and carrying heavy items, bending and twisting, maintaining focus -- is uncontested. He was also enrolled in a course to be certified as a home inspector.
ISSUES
4Is [the applicant] entitled to a medical and rehabilitation benefit in the amount of $10,033.92 for a chronic pain program recommended by Dr. Igor Wilderman in a treatment plan (“OCF-18”) dated March 16, 2017, and denied on December 9, 2017?2
5Is [the applicant] entitled to interest on any overdue payment of benefit?
RESULT
6[The applicant]’s appeal is allowed. Interest is due at the prescribed rate.
REASONS
7Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.3
8[The applicant] bases his claim on what he terms “overwhelming evidence” that he has sustained and suffers from chronic pain. This evidence includes:
i. an assessment report by Dr. Igor Wilderman, dated September 8, 2016, diagnosing chronic pain disorder;
ii. a disability certificate (“OCF-3”) by Dr. Akshaan Kaul, dated November 22, 2016, describing recurring daily headaches, right shoulder, neck and back pain, which had shown and noting that [the applicant] was unable to work, even on modified duties;
iii. a psychological report by Dr. Harsha Raghuraman, psychologist, dated March 8, 2016, noting [the applicant]’s “significant pain” that prevented him from such pre-accident activities as work, gym workouts, playing soccer and karate, based on interviews and a series of diagnostic tests;
iv. acknowledgement from Dr. Jonathan Siegel, psychologist, in an IE report dated March 21, 2016, of [the applicant]’s reports of pain preventing him from working, delaying his studies and inhibiting housework – and of sharply increased alcohol consumption, sometimes with prescription hydromorphone;
v. the report by Dr. Rod Day, psychologist, in an IE report dated November 15, 2017 that after resuming his job, [the applicant] took substantial time off of work due to pain and fatigue, including a full week off for a migraine headache – Dr. Day’s validity testing indicated no indication of exaggeration.
9Certas’s denial of [the applicant]’s claim, and its rebuttal to his submissions is based on:
i. IEs which failed to produce evidence of need for a chronic pain treatment:
a. Dr. Michael Boucher, physician, in an IE report dated September 15, 2017 found no evidence of musculoskeletal or neurological impairment, diagnosed soft tissue injuries with an excellent prognosis for recovery and opined that [the applicant] had reached maximal medical recovery with respect to his physical injuries. Dr. Boucher found the proposed OCF-18 to not be reasonable or necessary.
b. Dr. Rod Day, psychologist, in an IE report dated November 15, 2017 found that [the applicant] did not meet the diagnostic criteria for somatic symptom disorder with predominant physiological pain, based on “a battery of psychological tests”. He found the disputed OCF-18 to be not reasonable and necessary, and further opined that further psychological treatment was not indicated.
ii. Criticism of the assessment report and chronic pain diagnosis by Dr. Wilderman:
a. Certas states that Dr. Wilderman failed to “complete a comprehensive medical and file review when assessing [[the applicant]] and recommending the program, unlike the IE assessors who took into consideration all of the information provided to them at the time”. This is especially important as Dr. Wilderman is not a treating physician for [the applicant].
b. Dr. Wilderman’s analysis is inadequate to establish chronic pain conditions. Its weaknesses include a failure to identify the pre-accident activities limited by alleged chronic pain; reference to an irrelevant test for chronic pain4, and “very boilerplate statements with respect to Chronic Pain [sic] in general that he reproduced from his previously published materials.” Certas notes that Dr. Wilderman diagnosed TMJ5 dysfunction even though [the applicant] never raised any TMJ issues.
c. Dr. Wilderman is not a specialist. He is unqualified to draw conclusions about the psychological components of chronic pain conditions.
d. Certas impugns Dr. Wilderman’s report by characterizing it as “self-serving”, because [the applicant]’s chronic pain program would be delivered by Dr. Wilderman, who wrote the OCF-18 in dispute and because the report was obtained by [the applicant] on the advice of his legal counsel, rather than on referral by a treating physician.
iii. Certas asserts that [the applicant] produced no evidence of any pain-related complaint or chronic pain (psychological or physical symptoms) arising or continuing after October 2016. Records from [the applicant]’s family physician and walk-in clinics end in March 2016 – six months post-accident, considered the acute phase of recovery. Coupled with a return to most pre-accident activities and a return to work in December 2016, this evidence (or lack of it) contraindicates a finding of chronic pain requiring comprehensive treatment.
10In considering my decision, I noted that neither party provided me with any submissions on how to determine whether an applicant suffers from chronic pain. Although both sides cited facts about [the applicant]’s condition in support of their respective positions on the necessity of treatment, neither side provided me with any systematic criteria for determining the chronicity of [the applicant]’s pain or the validity of diagnostic conclusions, which in turn would have assisted me in assessing the merits of the OCF-18.
11The medical reports in Certas’s submissions included no such criteria or guidance. Most particularly, they did not provide me with any sense of how severe a symptom or how complete an impairment must be to support a finding of chronic pain. For example, with respect to employment function, is total inability to work the threshold? Or does significant impairment as evidenced by increased or frequent pain-related absences or by the need for modified work duties count? Certas’s submissions provide no guidance.
12However, I found in Dr. Wilderman’s report a series of criteria – backed with cited medical sources – for diagnosing chronic pain. He relied on them in making his diagnosis and recommendations for treatment. They include pain that:
i. persists for 3-6 months or that lasts longer than expected after an injury;
ii. causes functional impairment that occurs in the absence of, or exceeds what would be expected from medical or physical findings6;
iii. responds inadequately to appropriate medical, physical and psychological care;
iv. involves “yellow flags” such as fear of movement, pain catastrophizing, mood disturbance, psychosocial problems and employment issues.
13On the basis of the evidence before me, I conclude that the proposed chronic pain program is reasonable and necessary. My reasons are:
i. There is ample evidence from the reports adduced by both sides that [the applicant] suffers pain continuing beyond six months post-accident, is causing functional impairment exceeding anything indicated by medico-physical signs of injury, and demonstrates pain catastrophization in medical examinations.
ii. There is uncontroverted evidence from reports on both sides that [the applicant] experiences significant impairment of pre-accident recreational (sports) activities that were important to him. I further deem [the applicant]’s increased absenteeism and modified work duties to represent significant impairment warranting treatment. I note that these impacts are uncontroverted7 and reinforced by [the applicant]’s score on the General Pain Disability Index Questionnaire administered by Dr. Wilderman, which indicated a “severe” rating for impairment of recreational and academic/occupational functions.
iii. The psychological portion of the proposed plan is consistent with my reading of the evidence. Dr. Day’s opinion on [the applicant]’s lack of need for further psychological treatment is less persuasive that Dr. Raghuraman’s recommendation to the contrary. Dr. Raghuraman’s report was thorough, included testing and noted [the applicant]’s ongoing psychological difficulties and [the applicant]’s engagement with treatment providers. Dr. Day’s report seemed to assess [the applicant]’s psychological complaints as resistant to treatment – which conflicts with other medical reports -- and tellingly, was nebulous on whether [the applicant] has achieved maximum medical recovery (MMR) psychologically. In my view, Dr. Day’s opinion that [the applicant] is “approaching” MMR leaves room for further treatment options. I also share [the applicant]’s view that that Dr. Day’s observation that [the applicant] is not “pain focussed” conflicts with the medical reports of several assessors on both sides, with [the applicant]’s own reporting to Dr. Day, and is therefore unconvincing.
iv. I reject Certas’s arguments impugning Dr. Wilderman’s report. Because his recommendations on psychological treatment are consistent with those of psychological specialists such as Dr. Raghuraman, his lack of specialist credentials in this area is not fatal to his proposal. I found Dr. Wilderman’s use of specific, defined and cited criteria in assessing [the applicant]’s condition to be particularly helpful and persuasive.
14As the result of the forgoing analysis, I find that on a balance of probabilities, the chronic pain program sought by [the applicant] is reasonable and necessary.
Interest
15Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
16Section 51(4) provides that interest on benefits in dispute is payable for the period that begins on the date on which an application is brought to the Tribunal and ends on the date a settlement is reached or a decision is issued.
17Having found for [the applicant], I find that interest is due on overdue benefits payments and must be paid at the prescribed rate.
CONCLUSION
18[The applicant]’s appeal is allowed.
19Interest is due on overdue benefits payments and must be paid at the prescribed rate.
Released: September 20, 2018
___________________________
Christopher A. Ferguson
Adjudicator
Footnotes
- O.Reg. 34/10
- [The applicant]’s appeal initially included a claim for income replacement benefits (IRBs). The claim was withdrawn before the hearing date as noted in an Order from the Tribunal in this matter dated July 17, 2018.
- Scarlett v. Belair, 2015 ONSC 3635
- Namely a “serious impairment of an important physical, mental or psychological function”.
- “TMJ” is the acronym for “temporomandibular joint”. TMJ dysfunction is an umbrella term covering pain and dysfunction of the muscles that move the jaw and the joints which connect the jaw-bone to the skull.
- Dr. Wilderman notes, with citation: “Dismissing pain due to lack of objective evidence is no longer acceptable”.
- There was some controversy about when [the applicant] progressed from part-time to full-time working hours, but his claims about absences and modified work duties were unchallenged. There is no indication that Certas probed these claims by requesting employment records.