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:
[The Applicant]
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Melody Maleki-Yazdi
APPEARANCES:
Paralegal for the Applicant:
Loreto Scarola
Counsel for the Respondent:
Patrick Sinclair
Held in writing:
June 4, 2018
OVERVIEW
1[The applicant] was involved in an automobile accident on April 3, 2016 and sought and received benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the "Schedule").
2The respondent, however, refused to pay for one of the treatment plans requested by the applicant. As a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of that dispute.
3A case conference held on February 9, 2018 failed to fully resolve the issues disputed by the parties. As a result, a written hearing was ordered to be conducted in this matter, which is now before me. This decision is based upon my review of the parties' evidence and written submissions.
ISSUES
4The following are the issues to be decided:
(1) Is the applicant entitled to receive a medical benefit in the amount of $10,600.00 for chronic pain treatment recommended by All Health Medical Centre in a treatment plan dated May 19, 2017, and denied on July 19, 2017?
(2) Is the applicant entitled to interest on any overdue payment of benefits?
(3) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
5Based on the totality of evidence before me, I find that the applicant is entitled to the medical benefit as set out in the treatment plan for the chronic pain treatment. The applicant is also entitled to interest on any overdue amounts incurred to date, but is not entitled to an award under Regulation 664.
ANALYSIS
Is the applicant entitled to a chronic pain treatment program?
6The applicant bears the onus of proving on a balance of probabilities that the treatment plan for chronic pain treatment is reasonable and necessary.
7The treatment plan, prepared by Dr. Inese Robertus (general practitioner who focuses on chronic pain assessments), lists the applicant's injuries as: whiplash associated disorder [WAD 2] with complaint of neck pain with musculoskeletal signs; sprain and strain of shoulder joint; sprain and strain of cervical spine; low back pain; pain in thoracic spine; sprain and strain of lumbar spine; irritability and anger; nervousness; other sleep disorders; mixed anxiety and depressive disorder; other headache syndromes and other chronic pain.
8The goals of the treatment plan are: pain reduction; increased range of motion; return to activities of normal living and return to pre-accident work activities. The description of services includes: physical rehabilitation sessions; IFC, TENS, microcurrent; laser therapy; stretching exercises; ultrasound; education; individual psychotherapy; progress report – psychology; social work treatment sessions; MD visit and OCF-18 claim form.
9To establish her chronic pain, the applicant relies on the following:
(a) The applicant was diagnosed as having chronic pain by Dr. Robertus and the examination has yielded treatment recommendations. The applicant was assessed by Dr. Robertus on May 19, 2017 and the corresponding report is dated June 9, 2017. Dr. Robertus concurrently prepared the treatment plan at issue. Dr. Robertus states that the applicant has had disabling pain for 13 months such that she has shifted from an acute pain state to a chronic pain state. The report also states that the applicant's prognosis for global improvement is guarded to poor. She recommends a multidisciplinary treatment program to mitigate symptoms and improve functional abilities, including exercise, psychological, medical and rehabilitation services.
(b) The accident has had a detrimental impact on the applicant's pre-accident lifestyle activities as described by both Dr. Robertus and Dr. Judith Pilowsky (psychologist). These accounts confirm that the applicant was quite active in many aspects of her life prior to the accident. She now relies on her daughter to maintain and clean her home. She is unable to care for her granddaughter and has placed the majority of this responsibility once again on her daughter. She has withdrawn from virtually all of her social activities due to her pain and physical limitations. She rarely attends religious services to her pre-accident levels and has withdrawn from post-church activities and volunteering.
(c) There are no medical opinions from any insurer's examination ("IE") assessors addressing the treatment plan for chronic pain treatment. The denial of the treatment plan in dispute was based on the findings of Dr. Louis Weisleder's (orthopaedic surgeon) IE report dated before the report by Dr. Robertus and before the treatment plan. The purpose of the IE was to determine whether treatment plans for physical treatment by Dr. Oscar Sodhi (chiropractor) were reasonable and necessary. Dr. Weisleder did not conduct his examination of the applicant to determine whether chronic pain treatment was reasonable and necessary. When reviewing Dr. Weisleder's CV, there is no mention of any particular focus on the diagnosis or treatment of chronic pain. Furthermore, there is no evidence to suggest that the chronic pain assessment and treatment plan for chronic pain treatment were ever reviewed by Dr. Weisleder. There is no addendum to his report commenting on Dr. Robertus' report.
(d) The applicant also relies on Dr. Pilowsky's psychological re-assessment report dated November 29, 2017. The applicant was seen on November 16, 2017. The report outlines that after attending a number of psychological counselling sessions, the applicant's Major Depressive Disorder, Recurrent Episode is now moderate in nature while the Post-Traumatic Stress Disorder and Persistent, Severe Somatic Symptom Disorder with Predominant Pain remain unchanged. Dr. Pilowsky opines that it appears that the psychological counselling sessions, although helpful in reducing some of the applicant's psychological impairments, have not improved the applicant's ongoing chronic pain.
(e) Throughout the claim, the applicant has maintained regular attendance with her family physician, Dr. John MacLeod. On June 23, 2017, Dr. MacLeod's clinical notes and records indicate the applicant has chronic pain since the accident and prescribes pain medication. On August 31, 2017, Dr. MacLeod reiterated his diagnosis of chronic pain and prescribes pain medication. On November 14, 2017, there is a notation about the applicant being on morphine for chronic pain. On March 13, 2018, there is a reference to the applicant's chronic pain and there is a notation that she continues to follow up at the pain clinic monthly and was given a prescription that is too expensive.
10To rebut the applicant's claim, the respondent relies on the following:
(a) The applicant did not complain of any accident-related symptoms until June 1, 2016, two months after the April 3, 2016 accident. She reported feeling dizzy on the day of the accident and developed pain over the next week. The medical records provided indicate that the first post-accident attendance was with Dr. MacLeod on April 12, 2016 and the applicant did not mention that accident or complain of any of her current symptoms at this appointment.
(b) The denial of the treatment plan in dispute was based on the findings of Dr. Weisleder's IE report dated May 18, 2017. Dr. Weisleder assessed the applicant on May 8, 2017 and concluded that she suffered only from cervical, thoracic, lumbar, right knee and right foot strain injuries. In addition to Dr. Weisleder's report, the respondent has a multidisciplinary IE assessment addressing the applicant's non-earner benefits claim (not at issue in this hearing). In regard to the applicant's physical injuries, Dr. Hashmat Khan (general practitioner) assessed the applicant on November 24, 2016 and diagnosed her with Whiplash Associated Disorder II, thoracic spine sprain/strain, lumbar spine sprain/strain, right knee sprain/strain, right plantar fasciitis and post-traumatic tension headaches. Ms. Marlene Levy (occupational therapist) assessed the applicant on November 11, 2016 and found her to have grossly normal ranges of motion in her neck, low back and bilateral shoulders.
(c) Dr. Robertus' recommendations have ambiguous wording. One interpretation recommends that entire series of treatment modalities as a single course of treatment encompassing all recommendations with the chronic pain program. If the first interpretation is correct, then Dr. Robertus appears to have recommended overlapping treatments. The applicant fails to show why these seemingly overlapping modalities are reasonable and necessary. The second interpretation indicates that the chronic pain program should be performed first and that it will then be followed by the various other non-chronic pain treatment modalities. If this second interpretation is correct, then it seems that Dr. Robertus does not anticipate the chronic pain treatment plan to resolve the chronic pain and the applicant will have to return to the modalities she has been on for 2 years regardless of these recommendations, and these recommendations do not appear reasonable and necessary.
(d) There are possible diagnoses that have been left uninvestigated by the applicant. Dr. Robertus opined in her report that it is important to rule out spinal stenosis, disc herniation or a more diffuse process for the applicant's low back pain. She recommended a MRI of the lumbar spine and ultrasound of the bilateral shoulder. Dr. Robertus did not submit a treatment plan for either the lumbar spine MRI or the ultrasound for the shoulders.
(e) The chronic pain treatment plan is not reasonable and necessary as it represents a duplication of the treatment the applicant is already receiving from various healthcare providers. The treatment plan does not indicate how any of the treatments recommended are different from those the applicant has already been receiving. The applicant is already receiving extensive psychological treatment from her psychiatrists, physical therapy multiple times a week and a recommended exercise program.
11In evaluating the evidence, I prefer the applicant's expert reports over those of the respondent's expert reports. The applicant was assessed by Dr. Robertus on May 19, 2017, 13 months after the accident. Dr. Robertus' report is thorough in the analysis and recommendations.
12Dr. Dinesh Kumbhare (physiatrist) also diagnosed the applicant with chronic pain. The applicant saw Dr. Kumbhare on November 23, 2016, 7 months after the accident, and his diagnostic impression was that the applicant likely sustained soft tissue injuries at the time of the accident and now has chronic widespread pain with reduced range of motion.
13Dr. Pilowsky also confirmed that the applicant has ongoing issues with chronic pain when she assessed the applicant on November 16, 2017, 19 months after the accident. Dr. Pilowsky concluded that the applicant's Persistent, Severe Somatic Symptom Disorder with Predominant Pain remain unchanged.
14I agree with the applicant that the respondent has not provided an IE report from an assessor who has assessed the applicant for whether she has chronic pain. There is also no evidence submitted by the respondent from a treating chronic pain specialist. I therefore do not have a report or notes from an expert of the same qualifications as Dr. Robertus, Dr. Kumbhare or as Dr. Pilowsky, to contest their opinions that the applicant has chronic pain.
15The respondent's view is that the chronic pain program treatment plan represents a duplication of the treatment the applicant is already receiving from various healthcare providers. I do not agree because the chronic pain treatment program has been designed by Dr. Robertus with knowledge that the applicant is currently involved in a number of modalities. The applicant has continued pain complaints and the treatment she has been receiving has only minimally assisted in her recovery.
16I find that the applicant has provided compelling medical evidence that shows that she does have chronic pain that requires the chronic pain treatment plan. The opinions of the applicant's medical experts persuade me that the objectives of the treatment plan, specifically, pain reduction, increased range of motion and a return to her pre-accident activities, are reasonable and necessary.
17I find that the chronic pain treatment plan is reasonable and necessary.
The respondent's letters dated May 23, 2018 and May 24, 2018 relating to the applicant's reply submissions.
18The respondent wrote to the Tribunal requesting that I exclude from consideration paragraphs 2 and 15 of the applicant's reply, or alternatively, that the respondent have the opportunity to file submissions to address the applicant's arguments at these paragraphs: (1) the allegation that the respondent has failed to meet its disclosure and production obligations under Rules 9.1, 9.2 and 9.3; and, (2) the applicant for the first time provides submissions with respect to an award, despite not indicating it was an issue in dispute or addressing it in their submissions prior to the reply.
19I will first address paragraph 2 of the applicant's reply which included submissions that the respondent has failed to meet its disclosure and production obligations under Rules 9.1, 9.2 and 9.3. Specifically, the applicant submitted that while the applicant was in strict adherence of these Rules, the respondent was not, and the applicant seeks that all of the respondent's evidence referred to in their response not be considered. The parties may address the Tribunal's Common Rules of Practice and Procedure at any point in their submissions. Therefore, it was proper for the applicant to include this information in her reply submissions and I give consideration to the submissions in this paragraph; however, I will not strike out the respondent's evidence because the Tribunal shall consider all relevant and best evidence available when making a decision. In this matter, this includes considering the respondent's evidence that is referred to in its response.
20Secondly, I will address paragraph 15 of the applicant's reply which included submissions with respect to an award. Although the applicant was rightfully allowed to raise the issue of the award, as it was a live issue in this matter from the time of the case conference, I consider this paragraph to be an improper reply. The applicant did not provide particulars regarding the award in her initial submissions and to provide it so late in the reply is not appropriate because the respondent has not had an opportunity to respond. Therefore, I give no consideration to the applicant's reply submissions with respect to an award.
Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payment?
21Pursuant to section 10 of Ontario Regulation 664, if an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50 percent of the amount to which the insured was entitled at the time of the award, together with interest on all amounts then owing.
22As set out above, the applicant has not provided proper submissions as to why an award under Regulation 664 is warranted. There is nothing in the evidence that suggests that the respondent was unreasonably withholding payment or delaying payment. I deny the applicant's request for an award.
CONCLUSION
23For the reasons above, the applicant is entitled to the medical benefit as set out in the treatment plan for the chronic pain treatment. The applicant is also entitled to interest on any overdue amounts incurred to date, but is not entitled to an award under Regulation 664.
Released: December 6, 2018
Melody Maleki-Yazdi
Adjudicator