A. AH. v. Royal Sun Alliance Insurance, 2018 CanLII 132555

Licence Appeal Tribunal

Date: 2018-11-27 Tribunal File Number: 17-006850/AABS Case Name: 17-006850 v. Royal Sun Alliance 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:

A. AH. Applicant

and

Royal Sun Alliance Insurance (RSA) Respondent

DECISION

ADJUDICATOR: Matthew M. Létourneau

APPEARANCES:

For the Applicant: Frank E. McNally, Counsel

For the Respondent: Arthur R. Camporese, Counsel

HEARD IN WRITING: May 28, 2018

OVERVIEW

1The applicant, Mr. Abdel Hussein, was involved in an automobile accident on September 23, 2011. He sought benefits pursuant to Statutory Accident Benefits Schedule – Effective September 1, 2010, O Reg. 34/10 (“Schedule”).

2The respondent, Royal Sun Alliance Insurance, approved various benefits, but refused to pay prescription medication expenses requested and incurred by the applicant. Following this denial, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.

3The applicant’s position is that the claimed expenses for prescription medication are reasonable and necessary and incurred as a result of the accident. Further, the applicant claims interest for any overdue payment of benefits. The respondent submits, on the one hand, that the medication expenses were not incurred as a result of the accident, and, on the other hand, that the applicant has not met his onus of demonstrating that the incurred expenses for prescription medication are reasonable and necessary.

ISSUES

4The issues in dispute in this written hearing are:

i. Is the applicant entitled to payment in the amount of $6,430.23 for incurred medication expenses, as submitted by the applicant on November 17, 2016 and denied by the respondent on December 6, 2016?

ii. Is the applicant entitled to interest for any overdue payment of benefits?

RESULT

5The applicant is entitled to some, but not all of the claimed medical benefits for medication, as outlined in this decision.

6The applicant is entitled to interest on amounts of approved medical benefits for medication incurred to date, pursuant to section 51 of the Schedule.

FACTS

7On September 23, 2011, the applicant was involved in an accident on Highway 401. He was driving a rental vehicle and was rear-ended by an 18-wheeler tractor trailer.

8On May 27, 2013, the applicant was involved in another minor motor vehicle accident.

9An Application for Accident Benefits (“OCF-1”) was submitted to the insurer regarding the September 23, 2011 accident on May 26, 2014.

10A Disability Certificate (“OCF-3”) was completed in Ottawa by Dr. M. Saad, dated October 28, 2014, confirming that the applicant’s injuries included cervical whiplash, lower back pain, left leg pain, headaches, anxiety and depression. This OCF-3 notes that Dr. Saad prescribed Cymbalta (60mg) and Ibuprofen (600 mg) – as well as physiotherapy – for the injuries related to the accident of September 23, 2011. Dr. Saad also notes that the applicant was taking medications, including oxycodone and others, for prior conditions. Dr. Saad had previously treated the applicant for lower back pain arising from a workplace injury in 2001, but notes that the applicant had mostly recovered from that injury at the time of the accident.

11The applicant sought treatment and made various claims for medical benefits to the insurer, some of which were approved.

12On November 17, 2016, the applicant submitted six OCF-6 Expense Claim Forms to the insurer outlining 53 claimed prescription items. The grand total of all receipts is $6,430.43.

13An OCF-3 dated February 28, 2016 states that the applicant’s injuries include: Cervical whiplash, Spondylolisthesis – cervical, Syringomyelia (thoracic spine), chronic pain syndrome and reactive anxiety depression. Prescribed medication in this Disability Certificate included Fentanyl (150 mg), Oxycolet T-II, Cymbalto (60 mg), Sapentin (60 mg) for related injuries. Fentanyl was the only medication that had not been prescribed previously.

ANALYSIS

Framework for Assessing Claimed Prescription Medication

14The applicant claims entitlement to various prescription medications. He contends that the motor vehicle accident of September 23, 2011 caused impairment requiring medication and that this medication constitutes reasonable and necessary treatment.

15The respondent claims that the medications are not reasonable or necessary, nor were they caused by the September 23, 2011 accident, given pre-existing injuries, a subsequent accident in 2013, and an application for benefits that was only filed on May 26, 2014.

16In assessing the applicant’s claims, paragraph 15(1)(c) of the Schedule provides that the insurer is liable to pay medical benefits for medication for all reasonable and necessary expenses incurred by the applicant as a result of the accident.

17The medical benefits for medication were submitted by OCF-6 and not by OCF-18. I agree with the applicant that an OCF-18 Treatment and Assessment Plan is not required for the prescription medication claimed in this matter by application of s. 38(2)(c)(i) of the Schedule.

18The parties correctly point to the factors outlined in 16-001809 v CUMIS General Insurance in assessing the applicant’s claim.¹ I can determine that the respondent is liable to pay prescription medication if:

(a) the motor vehicle accident caused the impairment that necessitates the prescription medication;

(b) the prescription medication is reasonable and necessary; and

(c) a regulated health professional provides the prescription.

19To resolve the issues in dispute, the applicant bears the onus of showing evidence to support his claim that the September 23, 2011 accident caused impairments which require the claimed prescription medications.²

The Applicant’s Claim for Entitlement

20The applicant relies on his family doctor, Dr. Saad’s report of June 25, 2015 to show how the accident of September 23, 2011 caused the impairments for which Dr. Saad prescribed medication. Dr. Saad has been the applicant’s family physician for 15 years. He has treated the applicant’s entire family and gave great detail about how he has approached treatment of the applicant in light of many factors, including his family’s health, social situation, physical history and otherwise.

21Dr. Saad’s clinical findings were that the applicant’s lower back pain was mostly resolved by the 2011 accident. This accident exacerbated the previous impairment of the applicant and caused pain in the neck, shoulders and spine, including internal lesions in or around the vertebrae. Dr. Saad noticed that depression and anxiety, along with chronic pain, became present for the first time and worsened from the 2011 accident onwards due to the severe nature of the impact trauma that would have been caused by such an accident. He also clarifies that the 2013 accident did not make a difference in the applicant’s condition, as it was a minor collision where the applicant fell asleep due to sleeping pills while driving approximately 25 km per hour.

22The applicant claims that all prescription medication at issue is related to the impairments that developed as a result of the 2011 accident. He asserts that the assessments and report of June 25, 2015 of Dr. Saad is the chief evidence of this claim.

The Respondent’s Denial of Entitlement

23The respondent argues that the need for prescription medications was not caused by the 2011 accident. In particular, the applicant points to Dr. Saad’s clinical notes that show that the oxycodone prescriptions commenced around March 18, 2008 and were renewed every month running up to the 2011 accident with no discernable increase in dosage until two years following the 2011 accident, or just after the second motor vehicle accident of 2013.

24Regarding the Fentanyl prescriptions incurred between September 22, 2015 and August 23, 2016, the respondent points to Dr. Saad having maintained the oxycodone prescription as late as May 21, 2013 and found the applicant to be stable on oxycodone, despite a request for fentanyl after the 2013 accident.

25The respondent states that either the pre-existing condition or the 2013 accident were the cause of the impairments for the oxycodone or the Fentanyl, but that the claimed prescriptions were simply not caused by the 2011 accident.

26Also, the respondent states that these treatments were not reasonable and necessary given the low level of impairment assessed by the Insurer Examiners, who viewed the applicant’s condition as consistent with minor strains and sprains.

Partial Entitlement to Medication Expenses

27In addition to Dr. Saad’s report of June 5, 2015 and the Respondent’s submissions and evidence, I have reviewed his letter of September 17, 2017 at tab 5 of the Applicant’s Submissions in order to understand the medications prescribed to the applicant.

28Dr. Saad states that the applicant suffers diagnoses of cervical pain, syringomyelia (post-traumatic thoracic spinal cord), chronic discogenic lumbar myofascial pain (pre-existing but worsened), chronic pain syndrome and reactive depression and anxiety. His report concludes that, due to the 2011 accident, the applicant suffered serious neck and lower back injuries, a chronic pain syndrome and a depressive illness.

29Dr. Saad states that he prescribed medication post-accident to help alleviate pain and allow relief from muscle spasms and other impairments. This included Ansaid (50 mg, twice daily), Ibuprofen (400-600 mg, every 4-6 hours), Arthrotec (50-75 mg, twice daily), Oxycodone (5 mg), Acetaminophen (325 mg every 4-6 hours), and Gabapentin (400 mg every 12 hours. Dose to be increased), Baclofen (10 mg every 12 hours) and, Cymbalta (60 mg before bed every night).

30Dr. Saad provides a breakdown in three parts of his drug protocol at pages 11 and 12 of his report of June 25, 2015. First, he explains that the Ansaid, Ibuprofen and Arthrotec were prescribed as anti-inflammatory and to reduce pain stimuli in the nerves, but should not be taken all at once and were rotated to avoid dependency. Second, the Oxycodone, Acetaminophen, Gabapentin and Baclofen were prescribed to work as a narcotic analgesic on the brain and medication to reduce muscle spasm, stiffness and cramps. Finally, Cymbalta is an anti-depressant and was prescribed by Dr. Saad to help with depression, anxiety, chronic pain, melancholia and accident related mood disorders.

31Dr. Saad outlined in his letter of September 17, 2017 that, contrary to the respondent’s submissions, the applicant does not have an opioid addiction. I accept Dr. Saad’s evidence on this point, given that he has treated the applicant and his entire family for 15 years or more and provided detailed explanations of his findings in his report and letter.

32In this letter, Dr. Saad further explains his prescriptions. He states that he has on occasion reduced the Oxycodone protocol for the applicant, who has always complied. He provided detailed context for his prescription of Fentanyl and that it was a progression of his opioid treatment. He also explained that several of the prescriptions were due to a reduction in Oxycodone use. This reduction would have added to the pain experience and to compensate, he prescribed increasing the non-narcotic medications of Cymbalta/Duloxetine at 90 mg a day (an antidepressant effective in relieving chronic pain), Abilify/Aripiprazole at 2 mg a day (atypical antipsychotic to help with sleep and reduced ruminations and catastrophization), Trazodone at 50 mg, (an antidepressant used to help sleep), Tecta/Pantoprazole (a proton pump inhibitor to reduce acid reflux), Ibruprofen at 600 mg and Gabapentin at 400 mg twice daily. Dr. Saad discontinued several other medications.

33On the basis of the applicant’s evidence, I accept that the applicant had some level of normal functionality before the 2011 accident and that his lower back issues had resolved to some degree. After the 2011 accident, the family doctor’s evidence leads me to conclude that it is more probable than not that his level of impairment significantly worsened overall. In addition to worsening impairments, he experienced new impairments, such as the neck and shoulder pain, possible lesions around the vertebrae, chronic pain syndrome and depression.

34The prescription for Oxycodone was renewed shortly after the motor vehicle accident in 2011. While it was being prescribed prior to the 2011 accident for the lower back impairment of the applicant, I accept Dr. Saad’s evidence that it was being reduced due to normal functioning being reached prior to the 2011 accident. The 2011 accident clearly exacerbated his condition or added to the impairments and establishes causation. The goal of pain treatment using the oxycodone is reasonable and necessary. Therefore, I find that the applicant is entitled to the Oxycodone prescriptions claimed.

35I also find that the applicant is entitled to the prescription for Fentanyl. I accept the family doctor’s evidence that this was introduced as a progression from Oxycodone due to the applicant’s worsening condition following other treatment strategies required due to the 2011 accident. The pain relief needs were evident in Dr. Saad’s evidence and he had no opioid dependency concerns (which he says he would have addressed in his notes or through treatment, for example, with Methadone). The price of the Fentanyl was expensive and I accept this – as well as the late realization that he could file for accident benefits - as the reasons for the delay in filling the prescriptions.

36The prescriptions for Cymbalta and Duloxetine were addressed by Dr. Saad and I accept that they were introduced due to the 2011 accident and were reasonable and necessary given their intended effect of alleviating pain and treating the applicant’s psychological disorders.

37I find that the Pantroporazole Magnesium was addressed in Dr. Saad’s evidence as it is similar to the Tecta/Pantoprazole and is reasonable and necessary for treating acid reflux that would arise from the prescription of multiple non-steroidal anti-inflammatory medications.

38I also find that the applicant is entitled to the Pregablin prescription as it treats nerve damage, which Dr. Saad explained in detail that he was treating as part of the chronic pain syndrome. I also find that it is similar to Gabapentin and is reasonable and necessary given that it would have the same intended effect.

39I accept that the applicant has the burden of evidence to show that the above medications were part of an overarching treatment plan addressing the applicant’s impairments from the 2011 accident and helped to rotate drug use, maximize pain treatment and provide for rotation of drugs and minimizing of side effects. The prescriptions of Dr. Saad, a qualified physician, were due to the impairments arising from the 2011 accident and were reasonable and necessary in treating the applicant.

40In summary, I award entitlement for the following medical benefits for medication:

(a) Oxycodone (items no 1, 4-7, 13, 18, 23, 30, 32, 34, 36, 39, 41, 45, 47-48 and 52 on the OCF-6);

(b) Fentanyl (items no 9, 10, 19, 24, 28, 29, 33, 25, 37-38, 40, 42-44, 46, 49 and 51 on the OCF-6);

(c) Cymbalta/Duloxetine (items no 2, 12 and 53 on the OCF-6);

(d) Pantroporazole Magnesium (items no 15 and 22 on the OCF-6);

(e) PMS-Gabapentin (item no 16 and 50 on the OCF-6); and

(f) PMS-Pregablin (item no 20 on the OCF-6).

41I deny the remaining medication claims on the basis of a lack of evidence showing that the accident caused the impairment for which they were prescribed. The respondent raised specific concerns with each of these prescriptions in its submissions. I find that for the following prescriptions, the applicant has not shown that the impairments treated by this medication are as a result of the 2011 accident or are not reasonable and necessary:

(a) Unnamed prescriptions (items no 3, 8, 27 on the OCF-6);

i. The applicant has not specified the nature of these prescriptions and they are denied due to a lack of evidence;

(b) Prednisone (item no 11 on the OCF-6);

i. The respondent argues that this medication is to treat the immune system, inflammation or allergic reactions. The applicant did not point to any evidence that would allow me to grant this prescription;

(c) AAP-Erythro S 500 mg (item no 14 on the OCF-6);

i. The respondent argues that this medication treats infections. The applicant did not provide any evidence that would allow me to grant this prescription;

(d) Fucithalmic (item no 17 on the OCF-6); Tobradex (item no 21 on the OCF-6); Cromolyn (item no 25 on the OCF-6); Act-Olopatadine (item no 26 on the OCF-6);

i. The respondent submits that these medications treat eye infections. The applicant did not provide any evidence that would allow me to grant these prescriptions;

(e) APP-Acetazglamide (item no 31 on the OCF-6)

i. The respondent submits that these medications treat altitude sickness. The applicant did not provide any evidence that would allow me to grant this prescription.

The Applicant is entitled to Interest

42As I find that the applicant is partially entitled to benefits claimed in this application, and the applicant is entitled to interest for the overdue payment of any benefits pursuant to section 51 of the Schedule.

CONCLUSION

43The applicant’s application is partially granted on the benefits detailed above.

44Interest is awarded on the benefits granted.

Released: November 27, 2018

Matthew M. Létourneau, Adjudicator

Footnotes

1. 116-001809/AABS v CUMIS General Insurance, 2017 CanLII 19204 (ON LAT), para 29.
2. 216-0002858/AABS v Wawanesa Mutual Insurance Company, 2017 CanLII 9809 (ON LAT), para 40.