Tribunal File Number: 17-006622/AABS

In the matter of an Application for Dispute Resolution pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

E.M.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

APPEARANCES:

For the Appellant: Edgar Mosquera , Applicant

Kathryn McRae Hill, Paralegal

For the Respondent: Han Nguyen, Claims Representative

Alexander Hartwig, Counsel

HEARD In-Person Hearing on: May 23, 2018

I. OVERVIEW

1The applicant was involved in an automobile accident on August 15, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010. O. Reg. 34/10 (the ''Schedule'') from the respondent. In particular, he applied for certain medical benefits and payment for the cost of examinations, which the respondent denied. In response, he applied to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties agree that the applicant sustained soft tissues injuries and some psychological injuries as a result of the accident. The applicant submits that he sustained soft tissue injuries to his neck, back and knees, superimposed on asymptomatic osteoarthritis that has developed into a chronic pain syndrome. He claims that the cost of an orthopaedic/chronic pain assessment and a chronic pain treatment plan are reasonable and necessary because of his accident injuries. The respondent submits that the applicant’s pain complaints are not related to the injuries he sustained in the accident, but are caused by his pre-existing osteoarthritis.

II. ISSUES

3The issues that I must determine are as follows: ¹

a. Is the applicant entitled to a medical benefit in the amount of $12,397.95, for a chronic pain program recommended by Dr. G. of Hal Disability Management Inc. in a treatment plan dated August 16, 2017, denied by the respondent on September 14, 2017?²

b. Is the applicant entitled to payment for the cost of an examination in the amount of $2,200.00 for a chronic pain assessment conducted by Dr. T.G., orthopaedic specialist, recommended by Dr. D.H., chiropractor of Hal Disability Management Inc., in a treatment plan dated July 11, 2017, denied by the respondent on July 25, 2017?

c. Is the applicant entitled to interest on any overdue payment of benefits?

III. PROCEDURAL ISSUES

4The applicant relied on the evidence of Dr. T.G., orthopaedic surgeon. The respondent relied on the evidence of Dr. K., physiatrist. The respondent objected to Dr. G. critiquing Dr. K’s IE report on the basis that the applicant did not provide the respondent with notice under Rule 10.4 of the LAT Rules.³ Under LAT Rule 10.4, a party intending to challenge an expert’s qualifications, report, or witness statement shall give notice, with reasons, for the challenge to the other parties as soon as possible and no later than 10 days before the hearing. The respondent submitted that it did not receive the required notice.

5The applicant submitted that the respondent must have contemplated that Dr. G. would criticize Dr. K’s report. I allowed Dr. G’s testimony and advised it would be a matter of weight. My reasons for allowing Dr. G’s testimony is that Dr. K. was going to testify and he would have an opportunity to answer to any criticism of Dr. G.

6The applicant sought to introduce into evidence another treatment plan for a chronic pain program in the amount of $12,397.95, prepared by Dr. D.H. The respondent objected because it was not provided with the treatment plan before the hearing. The applicant was unable to provide any proof that the treatment plan was submitted to or served on the respondent before the hearing. He sought to introduce it after the respondent’s expert witnesses testified. I did not allow the treatment plan to be filed as an exhibit for the following reasons.

7The applicant submitted that the treatment plan was essentially a duplicate of the plan in issue, but contained information clarifying the recommendation for travel costs for one of the providers. The respondent submitted the treatment plan was different as it was prepared by someone other than Dr. G. I find that the applicant was seeking to introduce a new treatment plan that was not in issue and, therefore, not relevant to the issues in dispute. Further, because the applicant sought to introduce it after the respondent’s witnesses had already testified, the respondent would have been prejudiced because its experts were not able to comment on the treatment plan.

IV. RESULT

8I find the applicant is partially entitled to the chronic pain treatment plan.

9I find the applicant is entitled to the assessment by Dr. G.

10My decision on the applicant’s claim for interest is deferred until I receive written submissions on the issue if the parties are unable to reach an agreement on interest.

V. ANALYSIS

A. Causation

11The applicant must prove on a balance of probabilities that the benefits he is claiming are reasonable and necessary as a result of the motor vehicle accident. The parties dispute what has caused the applicant’s pain complaints. Therefore, in order to determine whether the benefits claimed are reasonable or necessary, I must first determine if they are claimed to treat impairments that the applicant sustained as a result of the accident. The parties agree that the test for causation is the “but for” test. In other words, but for the accident, would the applicant have the complaints and impairments that the chronic pain assessment and the chronic pain program are meant to address? The accident does not have to be the only cause of the applicant’s impairments, but it must be a cause to pass the “but for” test.

12If it is impossible to say which of multiple potential causes was in fact responsible for the injury, then I may apply a material contribution to the risk test. This means that I must find that the accident materially contributed to the applicant’s injuries in more than a de minimus or minor manner.

13The applicant’s evidence was that he injured his back, neck, and knees in the accident. Dr. G. testified on behalf of the applicant. Dr. K. and Dr. J.A., orthopaedic surgeon, testified on behalf of the respondent. The evidence is consistent that the applicant suffered a cervical spine strain.⁴ The applicant testified that his neck complaints resolved and his main pain complaints concern his knees and back. Therefore, I must determine whether the accident caused the applicant’s knee and back complaints.

14The experts have different views on whether the applicant sustained a lumbar spine strain and whether his initial injuries have developed into chronic pain syndrome. Both Dr. K. and Dr. A. disagree with Dr. G. that the applicant’s present knee complaints are caused by the accident.

1. Knees

15The applicant testified that he was able to drive his vehicle from the accident scene to the collision reporting center. Later that day, his brother drove him to the hospital. He reported to a number of assessors that he started experiencing knee pain by the time he left the collision reporting centre. The respondent submits that the applicant did not have any knee pain or complaints of knee pain until at least two months later.

16Dr. G. and Dr. K. diagnosed the applicant with bilateral knee strain as a result of the accident. Although Dr. A. testified that she agreed with Dr. K’s opinion, she stated in her report that the applicant’s knee and back conditions were not caused by the accident. The respondent submits that the lack of a temporal relation between the applicant’s knee pain and the accident supports its submission that the applicant’s knee impairments were not caused by the accident.

17I find that based on the medical records and the testimony of all three doctors – Dr. K., Dr. A. and Dr. G. – the applicant’s present knee complaints were not caused by the accident, but are caused by the degeneration of his knees that existed prior to the accident. My reasons for finding the applicant’s knee complaints were not caused by the accident are as follows.

18The applicant is self-employed as a vehicle upholsterer, which is a very physically demanding job as it requires a great deal of bending and twisting. He testified that, before the accident, he was engaging in his work, sports, self-care activities, housekeeping and home maintenance responsibilities. He told all the assessors that he did not have any pre-accident medical issues. However, his records show that saw a doctor on June 4, 2014 with complaints of pain in the back of his left knee when sitting for long periods. The applicant testified that he went to the doctor in June 2014 because he had a fall while rollerblading about two to three weeks before and injured his knee.⁵ He testified that x-rays taken at the time were normal. Contrary to the applicant’s testimony, an ultrasound taken at the time disclosed moderate to severe medial compartment changes in his left knee.⁶ The applicant testified that the doctor prescribed home exercises. The applicant performed the prescribed exercises and he testified that his knee pain resolved. His testimony is supported by the OHIP summary, which indicates that he did not see any physicians for more than two years after. Despite that, Dr. G. testified that the degeneration or osteoarthritis in the applicant’s knees would not have gone away. I accept Dr. G’s testimony in conjunction with the diagnostic reports, and find that the applicant had pre-existing bilateral knee degeneration for the reasons explained below.

19The applicant testified that he struck his knees on the dashboard of his vehicle. He did not tell anyone before the hearing that he struck his knees. I found the applicant was credible, but a poor historian.⁷ Where his testimony was not supported by or conflicted with the medical records, I give more weight to the medical records as I find that they are more reliable than the applicant’s memory for the following reasons:

i. He did not tell any of the hospital staff that he hurt his knees or had any knee pain.⁸ The applicant testified that he did not mention his knee pain to the hospital staff because he did not remember to do so.

ii. He did not mention any knee injury on the description on his accident benefit application in 2017 when his knee complaints were already apparent for eight months and getting worse.

iii. There was no mention of the applicant striking his knees on the dash in any of the records, despite his testimony that he told this to his family physician, Dr. M., when he first started experiencing knee pain. The applicant did not have any explanation for why Dr. M. did not record the information.

iv. The applicant did not tell Dr. G. that he struck his knees on the dashboard. Dr. G. testified that, if it were reported, this fact would have been significant and he would have reported on it.

v. The applicant testified that he did not tell anyone he struck his knees because no-one asked him. However, Dr. A’s report indicates that she asked the applicant whether he struck any body parts in the accident. Likewise, Dr. K. testified that he asked the applicant if he struck anything in the vehicle and he reported that he did not.

vi. The applicant told Dr. G. that he saw his family doctor a week after the accident, which was not the case. The applicant’s explanation was that he could not remember.

20I find that applicant’s explanations for why there is no medical record that he struck his knees or had knee pain shortly after the accident do not make sense. According to the applicant, his knees and back pain were the worst injuries that he had from the accident. Therefore, his pain would have been a reminder when he was at all of his assessments or when he was being treated. The applicant’s explanation that he could not remember that he was experiencing pain is not a satisfactory explanation of why one would not disclose a complaint one is experiencing at the moment. For this reason, I find that the applicant’s explanation of poor memory means that his present memory is not reliable. I find that more reliable are the medical notes taken contemporaneously by Dr. M. and all the other assessors and treatment providers.

21For these reasons, I find the applicant did not complain of knee pain at the hospital because his knees were not hurting him at the time. I find that the applicant did not disclose to anyone prior to the hearing that he struck his knees on the dash because he did not strike them on the dash.

22After attending at the hospital, the applicant did not see a doctor again until September 10, 2016. The applicant explained that it was because he did not have a family doctor and I accept this explanation. He also testified that he did not have any knee pain in September 2016, which is supported by the medical records. The medical records disclose that the applicant did not complain of any knee pain until December 19, 2016, at which time he complained of bilateral knee pain, worse on the left than the right, that had been bothering him for two months, or since October 2016. The note is silent about the accident.

23The applicant relies on the evidence and testimony of Dr. G. as support that his knee complaints were caused by the accident. The applicant sought to have Dr. G. qualified as a chronic pain specialist. The respondent objected because there was nothing in Dr. G’s curriculum vitae (“CV”) that indicated he had a focus on treating pain. I agreed with the respondent for this reason and the following reasons. Dr. G’s evidence was that the College of Physicians and Surgeons does not recognise a specialty in “chronic pain.” Dr. G. testified that any physician can diagnose chronic pain (not necessarily chronic pain syndrome), but it is the treatment of the chronic pain that takes expertise. He refers his chronic pain patients to other physicians whose practices focus on treating chronic pain syndrome. I accepted that Dr. G. is an expert in orthopaedic surgery. His focus is on knee and hip complaints.

24Dr. G. diagnosed the applicant with left knee contusive injury, aggravation of pre-existing osteoarthritis, and right knee patellofemoral syndrome as a result of the accident. He examined the applicant in August 2017. Dr. G’s opinion was based on the following:

a. diagnostic films that showed the applicant had osteoarthritis of his knees that pre-existed the accident;

b. the applicant’s advice that he developed left knee pain shortly after attending at the collision reporting center and that he had no knee complaints prior to the accident; and

c. Dr. G’s misunderstanding that Dr. M’s December 19, 2016 note stated that the applicant had been experiencing knee pain for more than two months (rather than for two months).

25Dr. G. testified that it is not common for trauma to aggravate a pre-existing condition such as osteoarthritis and not be painful until two months after the trauma, but it can happen. He also testified that that it is not common to receive an injury but have no pain. While it does happen, usually a pain complaint shows up right away when there is trauma to a degenerative condition.

26Dr. G. agreed with Dr. K. that the applicant’s osteoarthritis was not caused by the accident. Dr. K’s opinion was that the applicant sustained a sprain/ strain of his knees in the accident, but at the time of his examination, the applicant had no impairment as a result of the accident and no organic pathology related to the accident. Like Dr. G., he did not have the applicant’s pre-accident records. He did have the applicant’s hospital records and was also advised by the applicant that he had knee pain when he went to the hospital. Dr. K. disagreed with Dr. G’s diagnosis of chronic pain and patellar femoral syndrome caused by the accident.

27Dr. A had the applicant’s pre-accident medical records and his hospital records. She examined the applicant in December 2017. Her opinion was that the applicant’s knee complaints were caused by his pre-existing osteoarthritis. Dr. A testified that when there is an exacerbation of degeneration from osteoarthritis after a trauma, it would present in hours or days. Her opinion about the timing of pain was supported by both Dr. K and Dr. G. In the applicant’s case, there is no mention of any knee complaints in the medical records until December 2016, at which time it was recorded that the applicant had been complaining of knee pain for two months.⁹ Dr. A. testified that to see knee complaints this far down the road suggests a flare of osteoarthritis from weather changes. The longer the delay of the presentation of a symptom, such as the applicant’s knee pain, the less likely the complaint arose from the trauma.

28Where Dr. A’s opinion conflicts with Dr. G’s or Dr. K’s, I give more weight to Dr. A. Dr. A. had all the medical records when she saw the applicant, whereas Dr. G. and Dr. K. did not. Dr. G. accepted that the applicant’s history of knee pain starting on the day of the accident and that he had no muskulo-skeletal problems before the accident. Dr. G. also understood that, as of December 16, 2016, the applicant had been complaining of knee pain for longer than two months. He did not ask the applicant about his ability to do his personal care. Dr. G admitted he was not as specific about the applicant’s social activities as he could have been. For these reasons, where Dr. G’s opinion conflicts with that of Dr. A and Dr. K, I give less weight to Dr. G’s opinion.

29The applicant submitted that Dr. K’s opinion should be given little weight because he was biased. The applicant submitted the bias arises from Dr. K’s failure to find that the osteoarthritis would affect the applicant’s recovery. However, Dr. K’s opinion was based on his assumption that the applicant did not sustain any direct trauma to his knees in the accident. In fact, Dr. G. testified that he essentially agreed with Dr. K’s opinion. Accordingly, I cannot give much weight to the allegation of bias.

30I accept that the applicant had pre-existing bilateral knee degeneration consisting of osteoarthritis that was symptomatic in June 2014 but asymptomatic at the time of the accident. I accept Dr. A’s opinion and find that the applicant’s knee complaints are due to his osteoarthritis and would have occurred regardless of the accident.

31The applicant also testified that he has foot pain. He believes that his foot pain is caused by the accident. An ultrasound taken on December 21, 2017 disclosed a diagnosis of Plantar Fasciitis with a recommendation that the applicant obtain orthotics.¹⁰ There was no evidence that the plantar Fasciitis was caused by the accident.¹¹ Dr. K’s evidence was that there was no relation between the accident and the right foot pain and I accept his evidence.

2. Back

32There is no dispute among the experts that the applicant had a pre-existing degenerative lumber spine problem. Dr. G. testified that the applicant has degenerative disc disease and a congenital condition consisting of short pedicles in the lumbar spine, which means he is predisposed to a small spinal canal. This means there is a higher risk that the applicant will develop spinal stenosis, with a resulting impingement on his spinal nerve. Dr. G’s opinion was that the applicant sustained a chronic lumbar strain in the accident superimposed on his pre-existing degenerative disc disease and spinal stenosis of the lumbar spine.

33The respondent relied on Dr. A’s opinion that the applicant’s back complaints are caused by his pre-existing degenerative condition. I find that the accident exacerbated the applicant’s pre-existing degenerative disc disease and that the applicant’s back complaints have developed into a chronic pain syndrome for the following reasons.

34Dr. A’s evidence was that she could find no clear support in the records that the applicant’s pre-existing lumbar spine condition was exacerbated by the accident. However, she believed that the records indicated that the applicant did not complain of back pain until months after the accident. The hospital records indicate otherwise. They record that the applicant complained immediately of tenderness to the c-spine and both his shoulders. He was released from the hospital with a final diagnosis of “MVC/back pain.” I find that, if the applicant had only complained of neck and shoulder pain, the hospital would not have added in the diagnosis of “back pain.” Therefore, Dr. A’s determination that the applicant’s symptoms were related to only to his shoulders and cervical spine and not his lumbar spine is incorrect.

35Dr. A. testified that the applicant’s complaints of back pain shortly after the accident were in keeping with the exacerbation of degenerative disc disease from the accident. She, however, could not separate out which of the applicant’s symptoms are from his pre-existing degeneration or from the exacerbation of his pre-existing back problems.

36The applicant testified that, as of September 10, 2016, he did not have any low back pain as a result of the accident. However, Dr. M’s clinical notes state that the applicant’s complaints on September 10, 2016 included back pain. I prefer the medical records to the applicant’s testimony as, again, I find them more reliable than the applicant’s memory. Therefore, I find that, although the applicant’s back pain is intermittent, the medical records support my finding that the applicant has continued to experience back pain since the accident.

37The applicant was assessed by Dr. A.S., neuropsychologist, at the respondent’s request on October 16, 2017 and her report was filed as part of the exhibits.¹² Dr. S. reported that pain is a significant feature in the applicant’s presentation given the nature of his injuries. The results of her evaluation indicated that the applicant presented with minor maladaptive beliefs surrounding his experience of pain, but she considered this to be subclinical. She ruled out a Somatic Symptom Disorder (essentially a chronic pain disorder). I find that she ruled out a Somatic Symptom Disorder because she believed the applicant experienced pain complaints before the accident. She reported that it appeared that the applicant’s psychological difficulties were secondary to his pain, which appeared to be pre-existing and degenerative in nature. Although the applicant’s degeneration of the spine and knees pre-existed the accident, there is no mention of pre-existing back pain in his medical records. Further, Dr. S. appears to rely on Dr. K’s report as the source for her determination that the applicant’s pain was pre-existing. However, Dr. K did not make any such finding. In fact, he diagnosed the applicant with a thoracolumbar sprain/strain as a result of the accident.

38Dr. K. testified that, to him, impairment means a disruption of physiology. Where there is no disruption that can be discerned, but the person complains of pain to the point that causes an inability to do an activity, then he refers to it as a sprain injury. In this case, Dr. K’s opinion was that the applicant’s sprain injury had not resolved when Dr. K. assessed him.

39For these reasons, I find that the applicant has chronic back pain that has developed into a chronic pain syndrome that, on a balance of probabilities, was caused by trauma from the accident.

40The respondent relies on the fact that the applicant did not submit an application for accident benefits or submit a treatment plan for his accident injuries until almost a year after the accident. The respondent submits that the reason for this delay was because the applicant’s injuries were only to his neck and shoulder and those injuries resolved. I accept the applicant’s testimony that the late application was because he initially did not have a family physician and he was uncertain of the process for applying for treatment.

B. Chronic Pain Treatment Program

41Under s. 14 of the Schedule, the respondent is liable to pay for all reasonable and necessary expenses incurred by or on behalf of the applicant as a result of the accident for medication, chiropractic, psychological, occupational therapy and physiotherapy services. The respondent is not liable to pay medical benefits for goods or services that exceed the maximum rate established under the Professional Services Guideline.¹³ The treatment plan in dispute is for a chronic pain program that included the following:

a. a one hour counselling session by a psychologist, Dr. P., at a cost of $2,000.00;

b. a further twelve counselling sessions at $149.61 per session for an undisclosed time period by Dr. P.;

c. two assessments by a chiropractor, Dr. Dahir Hashi, at a cost of $149.61 for one assessment and $200.00 for one hour respectively;

d. twelve one hour chiropractic treatments by Dr. H. at $112.81 per hour;

e. twelve one hour acupuncture sessions by Dr. H. at $112.81 per hour;

f. twelve massage therapy sessions;

g. twelve one hour therapeutic interventions of the head and neck by Dr. H. at $125.00 per hour;

h. eight pharmacotherapy sessions of the muscles of the head and neck by Dr. G at $68.00 each;

i. $1,000.00 for the cost of Dr. H. to travel to treatment.

42Dr. G. signed the treatment plan, but testified that he did not prepare it. He had recommended a chronic pain program in his report that focussed on stretching and strengthening, physiotherapy and cognitive and behavioural therapies. He testified that, usually, a chronic pain program is done over a period of months and in tandem with other providers. Dr. K. testified that, although his experience is that chronic pain programs with his patients have not been effective, the literature suggests they are. Based on both doctor’s evidence, I find that portions of the treatment plan are reasonable and necessary to treat the applicant’s chronic back pain. My reasons are as follows.

43The cognitive and behavioural therapies Dr. G. recommended are usually provided by a psychologist. The portion of the treatment plan that recommends a one hour session with a psychologist at $2000 far exceeds the maximum allowed under the Professional Services Guideline of $149.61 per hour. I therefore find the recommendation is not reasonable.

44The applicant testified that he is receiving psychological treatment that helps him a lot. He sees Dr. R.H., psychologist. The recommendation for twelve sessions with a new or different psychologist, Dr. P., is a duplication of services. The applicant has not proven on a balance of probabilities that treatment with Dr. P. is different from treatment with Dr. R.H. and, therefore, necessary.

45There was no explanation or evidence as to why two assessments by Dr. H. are necessary rather than just one. I find the one hour assessment at a cost of $200.00 exceeds the Professional Services Guideline limit of $112.81 per hour and is therefore not reasonable. A reasonable amount for the one hour assessment is $112.81. Accordingly, I find a one hour assessment at a cost of $112.81 is reasonable and necessary. There is no breakdown of how much time is required for the $149.61 assessment. Accordingly I am unable to find that the proposed fee is reasonable. As it also appears to be duplication, I do not find it is necessary either.

46The applicant testified that chiropractic and physiotherapy treatment helped, but not to the same extent as his psychological treatment because he still has pain. He also testified that his back and knees became worse with treatment. There was no physiotherapy component to the treatment plan, despite Dr. G’s recommendation. There were, however, passive modalities consisting of shockwave therapy and laser therapy to be provided by Dr. H., which appear to make up the chiropractic component of the treatment plan. Dr. K. testified that he has recommended shockwave therapy for his patients. He also testified that specific modalities such as massage therapy or chiropractic treatment can be provided separately, without being part of a multidisciplinary chronic pain program. Accordingly, I find that the twelve sessions of chiropractic treatment are reasonable and necessary to address the applicant’s back complaints.

47The massage therapy is also a passive treatment. Dr. G. did not recommend massage therapy or acupuncture in his report. The only evidence in support of massage therapy and acupuncture was set out in the treatment plan. It stated that pain relief is a goal of chronic pain treatment, which makes sense. It also stated that acupuncture and massage therapy may provide pain relief. Given that the applicant has not experienced a great deal of pain relief with physiotherapy and chiropractic treatment, I find that it is worthwhile to see if the massage therapy and acupuncture ease the applicant’s pain complaints. For these reasons, I find both are necessary for the treatment of the applicant’s chronic back pain.

48I find the eight pharmacotherapy sessions of the muscles of the head and neck by Dr. G. were to be paravertebral nerve injections. The applicant’s neck complaints have resolved and there is no indication he has any injuries or issues with his head. Dr. G. did not recommend nerve injections in his report. He recommended knee injections, which I find are not necessary as a result of the accident. Therefore, I do not find the eight pharmacotherapy/ paravertebral nerve injections are necessary.

49The therapeutic interventions of the head and neck by Dr. H. at $125.00 per hour exceed the maximum payable for a chiropractor of $112.51per hour and are, therefore, not reasonable. Moreover, since the applicant’s neck complaints resolved and he has no issues with his head, the treatment is not necessary.

50The travel time for Dr. H. at $1,000.00 is neither reasonable nor necessary. Dr. G. could not explain why travel time for Dr. H. was required and knew of no reason why the applicant could not drive to the treatment facility.

51I find the applicant has proven on a balance of probabilities that the following portions of the chronic pain treatment plan are reasonable and necessary as a result of the accident for treating the applicant’s chronic back pain:

c

A one hour assessment by a chiropractor, Dr. H.

$112.81

d

twelve one hour chiropractic treatments by Dr. H. at $112.81 per hour;

$1,353.72

e

twelve one hour acupuncture sessions by Dr. H. at $112.81 per hour;

$1,353.72

f

twelve one hour massage therapy sessions at $58.19 per hour

$698.28

Documentation and preparation of the claim form

$200.00

Total

$3,718.53

C. Chronic Pain Assessment

52The respondent initially denied the applicant was entitled to payment for the cost of a chronic pain assessment by Dr. G. on the basis that the applicant had reached the maximum policy limits of $3,500 allowed for such an expense for insured persons who sustain minor injuries¹⁴. The respondent later accepted that the applicant sustained more than a minor injury and, accordingly, his policy limits for medical benefits and payments for cost of examinations is $50,000. Under s. 25 of the Schedule, the respondent is required to pay for reasonable fees charged by a health practitioner for reviewing and approving a treatment and assessment plan, including any assessment or examination necessary for that purpose, if any one or more of the goods, services, assessments or examinations described in the treatment and assessment plan have been approved by the respondent, are deemed to be payable under the Schedule or determined by the Tribunal to be payable.

53The undisputed evidence is that chronic pain exists when an injury continues to cause pain for longer than six months. I find that, because of the ongoing nature of the applicant’s back complaints, the chronic pain assessment was necessary. According to Dr. G., the applicant was only getting temporary relief from physiotherapy. The applicant testified that his knees and back were getting worse with physiotherapy. Although I did not qualify Dr. G. as a chronic pain expert, I did qualify him as an orthopaedic specialist. I find that an assessment by Dr. G. was necessary for determining why the applicant still had back pain and for determining what type of treatment would address his accident related injuries.

54I received no submissions on whether the fees charged for the assessment were reasonable. Nor was there any evidence on the fees charged for the assessment other than the treatment plan simply indicates the fee charge for one session is $2,000.00. There was no breakdown of the number of hours involved. The Superintendent’s Professional Fee Guidelines do not contain any limit on doctors’ fees. The fees claimed by for Dr. G. for his assessment are at the maximum $2,000.00 allowed for the cost of an examination under s. 25(5)(a) of the Schedule. I take notice of the fact that expert’s fees for orthopaedic specialists to conduct an assessment and prepare a report generally exceed $2,000.00. For this reason, I find the fees recommended in Dr. H’s treatment plan were reasonable.

VI. ORDER

55The applicant is entitled to a total of $3,718.53 (plus the applicable tax) of the $12,397.95 recommended by Dr. G. in the chronic pain treatment plan dated August 16, 2017 for one chiropractic assessment, chiropractic treatment, acupuncture, massage therapy services and preparation of the treatment plan.

56The applicant is entitled to payment for the cost of examinations in the amount of $2,200.00 for the assessment conducted by Dr. T.G., orthopaedic specialist, recommended by Dr. H. in the treatment plan dated July 11, 2017.

57If the parties are unable to reach an agreement on interest within 30 days of the release of this decision, the parties may serve and file their evidence and written submissions on the claim for interest as follows:

Applicant’s submissions and evidence due

45 days following the release of this decision

Respondent’s submissions and evidence due

60 days following the release of this decision

Applicant’s reply submissions due

70 days following the release of this decision

Footnotes

1. 1At the hearing, the applicant withdrew his claim for $2,200.00 for an in-home assessment recommended in a treatment plan dated August 16, 2017
2. 2The Case Conference Adjudicator’s order states that one of the issues in dispute was payment for the cost of a chronic pain assessment in the amount of $12,397.95. The applicant clarified at the hearing that the issue was entitlement to a medical benefit of $12,397.95 for a chronic pain treatment program. The treatment plan filed as Tab 21 of Exhibit 1, Joint Hearing Brief, confirms that the treatment plan is for a chronic pain treatment program.
3. 3Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) [the “LAT Rules”]
4. 4Exhibit 1, Tab11: Dr. G. report dated August 12, 2017; Tab 24: Dr. K. report dated September 11, 2017;and Tab28: Dr. A. report dated December 20, 2017.
5. 5Dr. G. testified that based on the knee degeneration displayed in the applicant’s post-accident knee x-rays, the applicant likely had a fall, which is common where there is no issue before a motor vehicle accident. Dr. G. did not have the applicant’s pre-accident records.
6. 6Exhibit 1, Tab 16: Dr. Basil AI-Saigh’s clinical notes and records, ultrasound report of Dr. S. Young of the knees dated June 5, 2014
7. 7Exhibit 1, Tab 26, insurer’s examination report of Dr. S., neuropsychologist supports my finding of credibility as the applicant gave a valid effort on neuropsychological testing.
8. 8Exhibit 1, Tab 15: Humber River Hospital records
9. 9Exhibit 1 Tab 9: Dr. M. clinical notes and records, note of December 18, 2016
10. 10Exhibit 1, Tab 9, Dr. M’s records.
11. 11Exhibit 1, Tab 13, Healthmax records, treatment plan (OCF-18) dated June 21, 2017 of Dr. Hassan records that a barrier to the applicant’s recovery is his right foot Plantar Fasciitis. Plantar Fasciitis is not listed as an injury the applicant sustained in any of the treatment plans prepared by the health practitioners at Healthmax, nor in any disability certificate (OCF-3).
12. 12Exhibit 1, Tab 26. report of Dr. S. dated October 25, 2017
13. 13Superintendent’s Guideline No. 03/14
14. 14Letter from the respondent to the applicant dated September 14, 2017, attached to the applicant’s appeal.