Tribunal File Number: 18-000456/AABS
Case Name: 18-000456 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:
ES
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Marisa Victor
APPEARANCES:
For the Applicant:
Humberto Geovo, counsel for the Applicant
For the Respondent:
Patrick Sinclair, counsel for the Respondent
Held in writing:
July 23, 2018
I. OVERVIEW
1This is an application to the Licence Appeal Tribunal (the Tribunal) with respect to the applicant’s entitlement to statutory accident benefits.
2On January 18, 2016, the applicant was driving when a vehicle made a left turn in front of his vehicle causing an accident (the 2016 Accident). As a result of the Accident, he sought statutory accident benefits from the respondent, Aviva Insurance Canada (Aviva) under the Statutory Accident Benefit Schedule - Effective September 1, 2010 (the Schedule).
3Specifically, on November 15, 2017, the applicant requested funding for a chronic pain treatment program recommended by Dr. Brown in the amount of $13,095.27 (the Treatment Plan). Aviva denied this request on December 4, 2017. Subsequently, the applicant was required to attend two Insurer’s Examinations (IEs). Aviva then partially approved the Treatment Plan in the amount of $3,666.60 for psychological treatment only. The applicant appeals the remainder.
4As a result of the case conference held on June 4, 2018, the issues to be determined in this appeal were identified and a written hearing ordered.
II. ISSUES
5The issues are:
(a) Is the applicant entitled to receive the denied medical benefit in the amount of $13,095.27 (less $3,666.60 already approved) for chronic pain treatment program recommended by Excel Medical Diagnostics Inc. in a treatment plan (OCF-18) submitted on November 15, 2017, denied by the respondent in December 4, 2017?
(b) Is the applicant entitled to interest on any overdue payment of benefits?
III. RESULT
6Based on a review of the evidence presented, I find that:
(a) The applicant is entitled to receive a medical benefit in the amount of $9,428.67, less the claimed transportation expenses, for the cost of the chronic pain Treatment Plan;
(b) The applicant is entitled to overdue payment of benefits and corresponding interest.
IV. ISSUE A: IS THE APPLICANT ENTITLED TO RECEIVE THE DENIED MEDICAL BENEFIT?
EVIDENCE & ANALYSIS
7The onus is on the applicant to prove that the claimed medical benefits are reasonable and necessary on a balance of probabilities.
8The applicant applied for funding of a Treatment Plan that was partially approved by the respondent in relation to psychological treatment only. The remaining amount ($9,428.67) for the rest of the chronic pain treatment plan, including physical therapy, was denied.
9I find that the applicant suffers from chronic pain related to the 2016 Accident as evidenced by his medical documents and the dramatic changes to his lifestyle, and therefore the entire Treatment Plan proposed, save for the transportation expenses, is reasonable and necessary.
10In reviewing the evidence, I considered the following aspects important:
(a) The credibility of the applicant;
(b) The diagnosis of chronic pain;
(c) The IEs were not helpful as evidence; and
(d) The entitlement to transportation expenses.
The applicant was credible
11The applicant was credible. He supplied thorough documentation from his medical and rehabilitation practitioners about his ongoing treatments and complaints both prior to and after the 2016 Accident.1
12The applicant reports being in two prior motor vehicle accidents (MVAs) in 2007 and 2011. The applicant reports that the accident in 2007 resulted in lower back pain from which he never fully recovered. These pre-existing injuries were well documented by his family doctor, Dr. Fagbemigun.
13The applicant states that in addition to his pre-existing conditions of lower back pain, the 2016 Accident aggravated his lower back pain and caused pain to his neck, shoulders, middle back area, headaches, stress and anxiety. The aggravation to his pre-existing conditions is supported by the medical documentation including Dr. Wong and Dr. Brown who diagnosed him with chronic pain, a condition he did not have prior to the 2016 Accident.
The applicant was diagnosed with chronic pain
14I find the evidence supports the applicant’s position that he suffers from chronic pain syndrome. He has consistently complained of the same issues, has seen multiple medical practitioners, and has been diagnosed at least twice with chronic pain as a consequence of the 2016 Accident. Furthermore, the dramatic changes to his normal lifestyle and the effect on his job and career since the 2016 Accident, show that the chronic pain was caused by the accident and is not a pre-existing condition. I am also persuaded by the goals of the plan which are to reduce or manage the applicant’s chronic pain.
15The applicant reported suffering dramatic changes to his lifestyle after the 2016 Accident. First he took six weeks off of work. Then, although he returned to work full time in shipping, receiving, and forklift driving, he was terminated approximately six months later as a result of his inability to handle the heavy physical demands of his employment. The applicant found alternative work but it was at a job with lighter physical requirements.
16On March 24, 2017, the applicant underwent a physiatry assessment by Dr. Wong. Dr. Wong diagnosed the applicant with chronic pain syndrome among other conditions. Dr. Wong also found that his pre-existing injuries made it harder for him to heal from the current injuries. He also noted that in addition to a job change, the applicant’s normal life activities had changed in that he has to avoid activities that require bending and lifting, prolonged standing and household chores.
17On November 13, 2017, the applicant underwent a chronic pain assessment by Dr. Brown. Dr. Brown concluded the applicant suffers from a chronic pain condition directly caused by the 2016 Accident. He recommended a chronic pain treatment program including physiotherapy, a multidisciplinary rehabilitation program and medication.
18Dr. Brown’s assessment supports the applicant’s assertion that he requires the chronic pain Treatment Program for the following reasons:
(a) The applicant complained of the same injuries and pain consistent with his previous medical records following the 2016 Accident;
(b) The applicant reported consistent changes to his lifestyle after the 2016 Accident including:
i. The applicant adopted a more sedentary life style;
ii. He had diminished ability to work and loss of competitive advantage;
iii. He has to avoid activities that require bending and lifting, prolonged standing and household chores; and
iv. He had negatively affected psychological well-being including dramatically reduced social engagements and withdrawal from intimate relationships; and
v. He was unable to go to the gym, play soccer, or engage in physical play with his young son, all things he was able to do before the 2016 Accident.
19Aviva states in its submissions at paragraph 39 that Dr. Brown makes it clear that in his expert opinion, the applicant does not suffer from chronic pain disorder or chronic lumbar spine as a result of the Accident. I find this statement to be completed false. Dr. Brown makes a clear finding of chronic pain and ties it directly to the 2016 Accident in question on page 9 of his report.
20I accept the applicant’s position that he is suffering from chronic pain.
The Insurers Examinations were not helpful as evidence
21Aviva conducted two IEs. Neither of the IEs were helpful in terms of evidence that the applicant was not entitled to the Treatment Plan in dispute.
22The psychological IE by Dr. Kanagaratnam resulted in the partial approval of the Treatment Plan to treat the applicant’s psychological conditions including a pain disorder. This supports the applicant’s assertion that he continues to suffer from chronic pain as a result of the accident.
23Dr. Oshidari conducted the other IE and drafted a multidisciplinary report dated March 6, 2018. He found the applicant had reached maximal medical recovery from a physical standpoint in relation to the 2016 Accident related injuries. Dr. Oshidari found that the applicant’s recent weight gain was the cause of the back issues and nerve issues. He recommended an exercise program to address the applicant’s weight. In addition, Dr. Oshidari found that the applicant no longer had any impairment related to the 2016 Accident.
24I give little weight to Dr. Oshidari’s report as it relates to the applicant’s entitlement to a chronic pain Treatment Plan. Dr. Oshidari’s report was mostly a copy and paste of an earlier report on June 20, 2017. It was light on details and not well developed. For example, he notes that applicant has gained weight and puts in brackets “(not related to Accident)”. Dr. Oshidari does not explain why he believes the weight gain is not related to the applicant’s symptoms nor what information he relied on to reach that conclusion. Dr. Oshidari also suggested the applicant simply needs a gym membership to address his weight which would presumably address his ongoing pain symptoms. However, the applicant had already stated to Dr. Brown that he was unable to go to the gym as a result of his chronic pain caused by the 2016 Accident.
25I prefer the report of Dr. Brown which is more detailed, thorough and provides explanation for the findings made over the report of Dr. Oshidari.
26Aviva states that the parts of the Treatment Plan it denied are a repeat of treatments the applicant has already received and has found to be largely unhelpful. These include chiropractic treatment, TENS treatments and physical therapy. However, none of these treatments were part of a chronic pain treatment plan, they were aimed at different treatment goals. I therefore disagree with Aviva’s position and find these to be reasonable and necessary modalities within this Treatment Plan.
Conclusion regarding chronic pain treatment program entitlement
27I therefore find that it is reasonable and necessary that the applicant be provided with the Treatment Plan which is specifically for treating his chronic pain.
Transportation expenses
28Aviva also states that the Treatment Plan is unreasonable as it relates to transportation expenses as the applicant has not suffered a catastrophic injury and is less than 25 km away from the offices of Dr. Brown.
29I agree with the respondent that the transportation expenses are not authorized under s. 15(2)(c). of the Schedule. The applicant has not provided evidence that he qualifies for “authorized transportation expenses,” as defined in s. 3 of the Schedule, which are expenses incurred only after the first 50 km of his trip for treatment sessions. Therefore, he is not entitled to the transportation expenses claimed.
30In conclusion, the cost of the Treatment Plan proposed is reasonable and necessary save for the transportation expenses claimed.
V. ISSUE B: IS THE APPLICANT ENTITLED TO INTEREST ON ANY OVERDUE PAYMENT OF BENEFITS?
31Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.
32Having allowed the applicant’s appeal, the respondent is liable to pay interest on overdue payments at the prescribed rate.
VI. CONCLUSION
33For the reasons outlined above, I find the applicant is entitled to the cost of the chronic pain Treatment Program except for the transportation expenses. The applicant is further entitled to interest on the overdue payment of benefits in accordance with the Schedule.
Released: October 29, 2018
Marisa Victor, Adjudicator
Footnotes
- The applicant supplied the following supportive documentation from his medical and rehabilitation practitioners including; a) his family doctor, Dr. Fagbemigun, whom he saw the day after the accident and continued to see on a regular basis; b) physiotherapy, chiropractic and massage treatments for post 2016 accident for 16 months as recommended by his family doctor; c) a psychological assessment by Dr. Bodner on July 23, 2016; and d) an orthopedic surgeon assessment by Dr. Seligman on May 24, 2017, resulting in a right L4 nerve block injection to treat his lower back and right leg pain. Dr. Seligman noted that the applicant’s pain increased following the 2016 MVA.