Tribunal File Number: 16-003921/AABS
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:
J.R.
Applicant
and
Certas Home and Auto Insurance Co.
Respondent
RE-HEARING DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
For the Applicant: Ashu Ismail, Counsel
For the Respondent: Stefania C. Sdao, Counsel
Combination Re-Hearing: September 12, 2018
OVERVIEW
1The procedural history leading to this re-hearing is lengthy but uncomplicated. [2] The applicant, J.R., was injured in an automobile accident on July 12, 2013,
suffering injuries to his neck, shoulders, chest, upper and lower back, as well as
psychological impairments and headaches. J.R. sought benefits from his insurer, Certas Home and Auto Insurance Co. (“Certas”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
3J.R. submitted multiple treatment and assessment plans that were denied by Certas on the basis that they were not reasonable and necessary. J.R. disagreed and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
4Adjudicator Paluch conducted a written hearing on the issues in dispute, releasing a decision to the parties on August 15, 2017, wherein he found that
J.R. was not entitled to the treatment plans dated January 30, 2016 and September 8, 2015, as there was a lack of information and insufficient evidence to support J.R.’s claim and that the medical evidence available supported the conclusion that J.R. had reached maximum medical recovery.2 J.R.’s appeal was dismissed.
5J.R. disagreed and requested a reconsideration of the May 15, 2017 Decision, arguing that the Tribunal committed multiple errors in its handling of J.R.’s evidence and its analysis of his chronic pain. A Reconsideration was granted, and in a decision released by the Executive Chair on February 26, 2018, the Tribunal ordered that the matter be reheard due to incomplete evidence and errors that would likely have resulted in a different outcome.3
6Accordingly, a case conference was convened to determine the procedure for the re-hearing. On consent and pursuant to the Order of Adjudicator Driesel dated August 1, 2018, the parties agreed that the re-hearing would proceed via written submissions, with the parties providing brief oral argument in-person with respect to the Reconsideration decision.
7No new evidence or medical documentation was submitted for this re-hearing. However, the Tribunal notes that, in filing his request for reconsideration, J.R. also submitted complete copies of both of the treatment plans that formed the basis of the Reconsideration decision to re-hear this matter.
ISSUES
8The issues to be decided in this re-hearing, narrowed by the Order of Executive Chair Lamoureux in her Reconsideration Decision and confirmed in the order of Adjudicator Driesel, dated August 1, 2018, are as follows:
i. Is the applicant entitled to payment in the amount of $9,464.40 in respect of chronic pain treatment including documentation, exercise, therapy, education, acupuncture, mental health therapy, assessment as recommended by All Health Medical Centre in a treatment plan dated January 30, 2015 and denied by the respondent on May 22, 2015?
ii. Is the applicant entitled to payment in the amount of $1,312.63 for physiotherapy treatment as recommended by CBI Physiotherapy Clinic in a treatment plan dated September 8, 2015, and denied by the respondent on September 24, 2015?
iii. Is the applicant entitled to interest for the overdue payment of benefits?
RESULT
9J.R. is entitled to payment for the treatment plans in dispute in the amounts of
$9,464.40 and $1,313.63, respectively, as I find that both are reasonable and necessary to treat his chronic pain. Accordingly, interest is payable on the overdue benefits.
ANALYSIS
J.R.’s chronic pain
10I find on the evidence that J.R. suffers from ongoing pain—both physically and psychologically—since the accident that is considered chronic in nature.
11Beginning in 2013, three days following the accident, and continuing throughout the file, I find there is consistent reference to physical pain in J.R.’s neck, upper and lower back and right shoulder, as well as ongoing headaches. J.R.’s self- reporting with regards to his physical pain is consistent and credible and I find this consistency reflected in the medical records and various reports.
12Similarly, I find that J.R.’s psychological complaints as they relate to his chronic pain are continuous and credible, as he began psychotherapy within one month of the accident and the reports consistently reference his post-accident anxiety, stress, depression and cervicogenic headaches. Further, although a diagnosis of chronic pain syndrome is not required to support a finding of chronic pain, Drs.
Tavazzani, Zatzman and Husnani all diagnose J.R. with chronic pain syndrome in their respective reports.
13Taken together, these reports indicate, in my view, that J.R.’s pain is continuous, is accompanied by some functional impairment in both his home and work life and is severe enough to potentially hamper J.R.’s livelihood in the future.
14In response, Certas offers the reports of Dr. Hines, psychiatrist, and Dr.
Muhlstock, physiatrist, who both found that J.R.’s self-reported symptoms were not, objectively, evidence of an injury that necessitates further treatment and that, in any event, that J.R.’s injuries were fully resolved by the time of assessment.
Specifically, Dr. Hines indicates that his adjustment disorder is in remission, that J.R.’s psychiatric prognosis was excellent and that there is no objective emotional distress. Dr. Hines does not explain his reasons for these findings, he simply dictates them, which on review, I find problematic because J.R. was later removed from the Minor Injury Guideline by Certas due to his psychological impairments. Similarly, I find Dr. Muhlstock’s reports to be generally absent of discussions of J.R.’s physical pain, despite consistent evidence to the contrary throughout the file. As a result, I afford both reports less weight than the reports of Drs. Tavazzani, Zatzman and Husnani. Certas further argues that the absence of an affidavit setting out J.R.’s injuries, combined with a dearth of treatment records indicating same, is evidence that J.R.’s chronic pain is insignificant. I respectfully disagree.
15An affidavit from the injured is not required to prove injury, especially so given the scope of a written hearing. Chronic pain should not be treated differently than other injuries. Just because the pain cannot be objectively seen like other injuries, it does not mean that the applicant is feigning or that the pain is insignificant. As the Supreme Court held in Martin, chronic pain is a condition which, by its very nature, cannot be supported by objective findings.4 On the evidence available, I am in no position to disagree and, as such, follow the opinions of Drs. Tavazzani, Zatzman and Husnani in finding that J.R. suffers from chronic pain syndrome.
Are the treatment plans in dispute reasonable and necessary?
16As I have determined that J.R. suffers from chronic pain, an analysis of whether the treatment plans in dispute are reasonable and necessary is required, pursuant to ss. 14-17 of the Schedule.
i. Treatment Plan in the amount of $9,464.40, as recommended by All Health Medical Centre in an OCF-18 dated January 30, 2015.
17I find that the medical benefit in the amount of $9,464.40 for comprehensive chronic pain treatment is reasonable and necessary. As I have found that J.R. suffers from pain several years post-accident, that his reporting of these injuries has been consistent and credible and that he has been diagnosed with chronic pain syndrome, I consider it necessary that he be afforded the opportunity to have his pain assessed and monitored by a team of practitioners in order to determine how to address his current and future functional impairments and to have this pain treated through the various modalities outlined in the plan.
18First, it is well settled that pain reduction is a legitimate goal for treatment. In reviewing the treatment plan, Part 9 indicates that the goals of the plan are pain reduction while increasing strength, range of motion and stability. The functional goals outlined in the plan include, amongst other things, decreasing J.R.’s headaches, increasing his sleep quality and decreasing his use of pain medication. In my view, these goals are rather humble, achievable and certainly proportional to the injuries, symptoms and complaints that recur throughout the file. Given J.R.’s consistent complaints of pain—combined with the chronic pain syndrome diagnosis—a treatment goal of reducing pain, on its own, would likely have been sufficient grounds for this treatment plan to be reasonable and necessary.
19Second, although I find the 15 week timeline for recovery (granted, recovery is expected at a “manageable pain level”) to be ambitious with regards to J.R.’s recurring psychological impairments, I find that the plan is evidence-based, goal- oriented, patient-centred and comprehensive in its scope. In my view, and contrary to the submissions of Certas, the strategy of the treatment plan is tied directly to J.R.’s specific impairments and goals, which are outlined in Parts 6, 9 and 12. On this basis, I see great benefit to J.R.
20For these reasons, I find the treatment plan in the amount of $9,464.40, as recommended by All Health Medical Centre in an OCF-18 dated January 30, 2015 to be reasonable and necessary.
ii. Treatment plan in the amount of $1,312.63, as recommended by CBI Physiotherapy Clinic in an OCF-18 dated September 8, 2015.
21Having determined that J.R.’s physical pain is chronic in nature, I am convinced that the treatment program recommended by CBI will allow J.R. to explore further physiotherapy treatment relating to his chronic pain and will be beneficial to achieving his maximal recovery.
22On review of the OCF-18, I find that the goals and treatment outlined in the plan are an appropriate continuation, rather than a duplication, of the treatments outlined in the January 30, 2018 plan. For example, Part 6 narrows and specifies the impairments that are causing J.R. the most persistent pain: his neck pain and tension headaches, his anxiety disorders, low back pain and shoulder pain. I find that this is an appropriate and reasonable strategy to address and treat any lingering pain following the more comprehensive treatment plan. While the treatments outlined in Part 12 do not include modalities for J.R.’s psychological impairments, I find the goal of increasing J.R.’s functional tolerances is necessary to help him overcome his chronic pain over time. Further, I find the cost of the plan and the plan’s duration, which ramps the therapy down to 16 total sessions over the course of 12 weeks, to be reasonable.
23Accordingly, I find the treatment plan to be reasonable and necessary, as it is likely to help J.R. overcome his pain and is a reasonable reflection of the cost and time that it will take to do so, given the nature of J.R.’s self-reporting, the duration of his post-accident pain and the medical reports provided.
iii. Interest
24As J.R. is entitled to the treatment plans in dispute, he is also entitled to any interest on overdue benefits, pursuant to s. 51 of the Schedule.
CONCLUSION
25J.R. is entitled to the medical benefit in the amount $9,464.40 in respect of chronic pain treatment, as recommended by All Health Medical Centre in the treatment plan dated January 30, 2015, as it is reasonable and necessary.
26J.R. is entitled to the medical benefit in the amount of $1,312.63 for physiotherapy treatment, as recommended by CBI Physiotherapy Clinic in the treatment plan dated September 8, 2015, as it is reasonable and necessary.
27J.R. is entitled to interest pursuant to s. 51 of the Schedule, as benefits are overdue.
Released: September 28, 2018
______________________
Jesse A. Boyce
Adjudicator
Footnotes
- O. Reg. 34/10.
- 16-003921 v. Certas Home and Auto Insurance Company, 2017 CanLII 59503 (ON LAT).
- J.R. v. Certas Home and Auto Insurance Co. (ON LAT Reconsideration), February 26, 2018.
- Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54.