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.B.]
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION AND ORDER
ADJUDICATOR: Claudette Leslie
Appearances:
For the Appellant: Amelio The, Counsel
For the Respondent: Ashley A. Shmukler, Counsel
Heard: In Writing Hearing: June 17, 2019
OVERVIEW
1The applicant was involved in an automobile accident on December 1, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).
2The applicant was denied certain benefits by the respondent insurer, Aviva Insurance Company. The appliant disagreed with the denial and submitted an application for dispute resolution to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”). The parties were unable to resolve their dispute at a case conference held on February 27, 2019, and consequently the matter proceeded to a written hearing.
ISSUES
3The following are the issues to be decided:
(i) Is the applicant entitled to payment for the cost of examination in the amount of $2,200.00 for a chronic pain assessment, recommended by Novo Medical Services Inc. in a treatment plan dated March 23, 2017, and denied by the respondent on March 23, 2017?
(ii) Is the applicant entitled to interest on any overdue payment of the benefit?
RESULT
4Considering all of the relevant evidence provided, I find that, on a balance of probabilities, the disputed assessment is reasonable and necessary. Thus, interest is payable in accordance with s. 51 of the Schedule.
BACKGROUND
5The applicant was driving at approximately 60 km per hour in the evening hours of December 2015, when a transport truck changed lanes and collided with the driver’s side of her vehicle. The truck dragged her vehicle in the process of continuing the merge, stopping only when the front portion of the applicant’s vehicle was partially under the truck. The air bags did not deploy. However, the car had to be towed from site and was later written off as irreparable.
6The applicant reported to her doctor that after the accident, she developed headaches, nausea and she began experiencing dizziness, as well as pain throughout her body, especially in her neck, shoulders and lower back areas. She immediately began consulting with her family physician, Dr. Jaya Chanchlani.
7On the doctor’s recommendation, two days after the accident, the applicant began treatment at Trillium Rehab Centre, where she received bi-weekly, physical-therapy, active conditioning treatments in the form of strengthening and stretching, chiropractic and massage, heat and electric muscle stimulation. The insurer denied further claims beyond April of 2017, including the one in question.
THE LAW, EVIDENCE AND ANALYSIS
Issue (i): Whether the applicant is entitled to the cost of examination for a chronic pain assessment.
8Sections 14 and 15 of the Schedule provide that the insurer shall pay for medical benefits to or on behalf of an applicant providing:
(i) The applicant sustains an impairment as a result of an accident; and
(ii) The medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
9Section 25(1)3 of the Schedule further provides that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose.
10The issue here is not whether the applicant suffered an impairment, but whether she is entitled to the cost charged by Novo Medical Services for conducting a chronic pain assessment. In determining this assessment cost, and in keeping with the provisions indicated above, the test I must apply is whether the assessment/cost is “reasonable and necessary”.
11In so doing, I am mindful of the fact that the purpose of an assessment is to investigate whether a condition exits, in this case whether the applicant has developed chronic pain as a result of the accident, and what the treatment should be. While the Schedule does not provide a definition of chronic pain, the applicant submits, and it is generally understood to be, pain that continues for an extended period of time and beyond the projected recovery period despite appropriate therapy and reasonable accommodations. Of note, while the clinic as a consequence of its assessment has found that the applicant has chronic pain and has recommended a treatment program, it is the assessment/cost itself that is the issue before me.
12The applicant submits that she is entitled to the cost of the chronic pain assessment, largely because she continued to experience ongoing pain, tenderness and muscle spasm more than two years following the accident, and even after more than a year’s worth of pain treatment.
13The respondent contends that the applicant does not suffer from chronic pain as a result of the accident, but rather as a result of complications of her Crohn’s disease. Relying to some extent on its insurer examinations conducted by physiatrist, Dr. Yuri Marchuk on May 19, 2017, and occupational medicine physician Dr. Charanjit Sandhu, on December 29, 2016, it is the insurer’s position that the claim was properly denied. Furthermore, the insurer submits that Dr. Wilderman’s chronic pain assessment should be viewed with skepticism because Dr. Wildeman has previously been reprimanded by his College on various ethical/practice contraventions.
14There is no dispute that the applicant was diagnosed with Crohn’s disease in 2014 and was being monitored/treated by a gastroenterologist, Dr. El-Takli, on what appears to be an intermittent basis.
15Having considered the relevant evidence provided, I find that the applicant is entitled to payment of the chronic pain assessment. The evidence provided by the applicant demonstrates persistent complaints of pain for which she was receiving various on-going pain relief treatments for over a year after the accident. Consequently, based on the chronology of the applicant’s medical history, as follows, I find the applicant’s pursuit of a chronic pain assessment to explore her condition was reasonable and necessary:
(i) The applicant’s first post-accident examination for pain complaints was the day after the accident. She began consulting with her family physician, Dr. Jaya Chanchlani. At that time, the applicant primarily reported right-sided shoulder pain and lower back pain. She later reported headaches, mild nausea, and difficulty focusing, particularly in respect of her work. Dr. Chanchlani assessed the applicant with a mild concussion as well as neck/upper back strain. She recommended rest, pain killers, and physical treatment.
The encounter/progress notes of Dr. Chanchlani provided by the applicant confirm on-going consultations, including on December 16, 2015 up to and including October 23, 2018. For instance, on January 24, 2017, over a year after the accident, the doctor notes, “upper and lower back pain. attending physio 1/w.” In the July 19, 2018 record, the doctor references the “MVA 12/2015” and notes “Pain in lower back - Lumbar area X few years.” Likewise, in the October 23, 2018 record, just two months short of the three-year anniversary of the accident, the doctor again notes, “Pain in lower back - Lumbar area X few years”.
Two days after the accident, the applicant began treatment at Trillium Rehab Centre, where she received bi-weekly treatments in the form of physical therapy with active conditioning in the form of strengthening and stretching, chiropractic and massage, heat and electric muscle stimulation. The clinical notes and records (CNRs) of Trillium Rehab Centre reflect a total of 101 visits by the applicant, for the period of December 4, 2015 up to March 17, 2017.
(ii) Three days after the accident, the applicant consulted with Chiropractor, Peter Bassit. The chiropractor’s, diagnosis is as follows:
i. Sprain and strain of thoracic spine and lumbar spine
ii. Arthropathy in Crohn’s Disease
iii. Carpel tunnel syndrome
iv. Patellar tendinitis
v. Medial epicondylitis
vi. Nervousness, unhappiness, and other anxiety disorder
vii. Tension-type headache
viii. WAD2
ix. Injury of muscle and tendon at neck level5
He projected a recovery period of 9 – 12 weeks (3 months).
(iii) The applicant consulted with her Crohn’s disease specialist, Dr. El-Takli, on January 8, 2016, a month after the accident, as she was experiencing abdominal cramping as well other aches and pains at time. She indicated to the doctor that she was unsure whether these pains were related to the accident or whether some were related to her Crohn’s. The respondent submits that this uncertainty makes it doubtful that the applicant’s pain was due to the accident. While there may have been uncertainty as to the cause of her pain due to the possible intertwined nature of her Crohn’s disease complications, in my view, due to the fact that the pains, including abdominal pain, developed a month after the accident, leads me to believe it was likely triggered by the accident. There is no medical indication of any such pain prior to the accident. The applicant subsequently had an operation related to her Crohn’s disease on June 27, 2018, unrelated to the motor vehicle accident.
(iv) On May 19, 2017, one year and five months after the accident, the applicant saw chronic pain specialist, Dr. Wilderman, on the basis that the she was experiencing dizziness, headaches and significant pain all over her body. He reports that she was “still complaining of lower back pain, neck pain, upper back pain, bilateral shoulder pain, bilateral knee pain, bilateral hip pain, bilateral wrist pain, dizziness.” He conducted a full body examination. Among other things, he observed that the applicant demonstrated tenderness in her neck, shoulders, upper and lower back, and she demonstrated limited range of motion due to neck and back pain. His diagnosis was that the applicant, as a result of the accident, suffered chronic pain disorder and other impairments including:
i. Fibromyalgia, chronic whiplash associated disorder (WAD) Type II, Mechanical lower back pain pattern…sacroiliac joint dysfunction, bilaterally, bilateral rotator cuff syndrome, right more severe than the left, bilateral subacromial bursitis, post-traumatic osteoarthritis of thoracic spine, myofascial pain syndrome of bilateral rhomboid regions, etc.
As a result of his findings, Dr. Wilderman recommended a multi-disciplinary pain relief program. I acknowledge the respondent’s submissions that Dr. Wilderman was reprimanded by the College of Physicians on the basis of ethical and practice deficiencies, and because he had included “allergist” as part of his credentials. The submission is that he has since removed this reference from his stationary. Notwithstanding, and considering there is no indication that the College’s intervention discredited the doctor’s ability to practice as a pain/chronic pain specialist, or that his practice was terminated or suspended as a result, I have considered the findings in his report as being relevant and I find them credible.
(v) Due to continued pain complaints and observations, Dr. Chanchlani referred the applicant to CannaWay Clinic for cannabis, pain, and medication treatment. On January 7, 2019, over three years post-accident, the applicant consulted with Dr. Anne De Silva. In addition to her Crohn’s disease, the applicant indicated that she started experiencing pain to the neck, back, shoulder, following the accident of December 2015. Dr. De Silva noted that the applicant reported the severity of pain as 7/10. As a result of her assessment, the doctor prescribed a high dosage of cannabis oil to treat her pain.
(vi) In a letter dated May 16, 2019, Dr. Chanchlani confirms that she started seeing the applicant on the day of the accident, December 1, 2015; the applicant complained of neck, shoulder, upper and lower pain, vertigo since the accident; and that the applicant has Crohn’s disease. The doctor notes that there was no pre-existing pain condition in the applicant’s medical history; she accepts Dr. Wilderman’s chronic pain diagnosis and agrees with his recommendations, although she observes the applicant had improved slightly under physiotherapy treatments which were denied by the insurer in April of 2017.
The respondent submits that this letter should be excluded, or alternatively given little or no weight, because the applicant failed to provide it to the insurer by the production exchange date they had agreed to at the case conference of February 27, 2019. The applicant provided the letter on May 17, 2019. Firstly, considering the nature of the letter, which mostly confirms evidence provided in other formats, I find nothing turns on this letter with regards to the reasonableness and necessity of the chronic pain assessment/costs. Secondly, for the following reasons, I find no issue of procedural unfairness that should lead to the exclusion of the family doctor’s letter as the respondent argues.
In response to the applicant’s motion subsequent to the case conference, the Tribunal issued an order extending the production exchange date to May 1, 2019 due to circumstances outside of the parties’ control. At the same time, dates for written submissions and evidence were also extended. The submissions date for the applicant was changed to May 17; the respondent’s to May 31; and reply submissions to June 13, 2019. The extensions clearly were in keeping with the interest of natural justice, whereby the insurer had ample time after receipt of the applicant’s submissions, including the family doctor’s letter of overview, to respond as it saw fit, given that its submissions were due on May 31, 2019, 14 days after the applicant’s submissions.
16Furthermore, the respondent’s IE assessor Dr. Marchuk, a specialist in physical medicine and rehabilitation, conducted an IE on June 3, 2016 with regards to the applicability of the MIG. The applicant again reported pain in her lower back, left side, finger joints, knees, ankles, shoulder and wrists, neck, and mid/upper back, as well as sever dizziness. The doctor reported, “Based on my file review, my interview and physical exam of the claimant the following injuries are as a result of the motor vehicle accident on December 1, 2015:
Cervicothoracic/Bilateral shoulder myofascial dysfunction.
Lumbar musculoligamentous dysfunction.”
17On May 19, 2017, Dr. Yuri Marchuk conducted another examination at the insurer’s request to determine whether the applicant’s injuries were predominantly minor as defined in the Schedule. The following were among the complaints reported to him by the applicant: low, upper back pain, shoulder, bilateral knee, wrist and hip pain, headaches and brain/memory fog. His physical examination revealed, among other things, “diffused/tenderness to palpation” in various areas, cervical, lumbar, thoracic spine; some discomfort was demonstrated in the bilateral shoulders, and “tenderness to palpation” in the bilateral wrists and knees. His diagnosis was that as a direct result of the accident the applicant had sustained, cervicothoracic bilateral shoulder myofascial dysfunction and Lumbar musculoligamentous dysfunction.
18Dr. Charanjit Sandhu, Occupational Medicine Physician, also conducted an IE on December 28, 2016. The doctor reports then current complaints of the applicant, similar to those reported to Dr. Marchuk including ongoing headaches, neck, shoulders, low back, knee and ankle pain. She reports that the applicant’s “predominant accident-related injuries are myofascial sprains to her cervical spine, shoulders and thoracolumbar spine and right knee, along with posttraumatic headaches.” Notwithstanding finding this accident-related diagnosis, and while the doctor acknowledges the applicant’s history of Crohn’s disease, she observes that “It is possible that…ongoing symptomatology is potentially driven by her Crohn's disease.” I find the doctor’s diagnosis, based on her physical examination of the applicant, to be more compelling than what appears to be speculation, on the doctor’s part, that the applicant’s complaints could possibly be created by her Crohn’s disease, especially in light of the fact there has been no medical evidence of such complaints prior to the accident.
Is the chronic pain assessment/cost reasonable and necessary?
19I find convincing evidence throughout the applicant’s medical records that the assessment was reasonable and necessary for the applicant to investigate the nature of, and the reason she was experiencing, persistent body pain long after the accident occurred. For example:
i. Immediately following the accident, which in my view does not appear to have been minor (the collision involved a truck and the applicant’s car was written off), the applicant started complaining about pain, in particular in the areas including her neck, shoulders, upper and lower back. Her family doctor and Chiropractor, Peter Bassit, in completing the disability certificate three days later, after examining the applicant confirmed the existence of pain in these areas.
ii. There is no evidence that the applicant had experienced this type of pain in these specific areas prior to the accident. Therefore, the only reasonable inference to be drawn is that the accident was the direct cause of the pain reported by both the applicant’s family doctor, chiropractor, as well as the insurer’s IE assessors in their assessments, more than a year later.
iii. The applicant participated in over 100 sessions of pain relief treatment. It is unlikely that the applicant would have consistently consulted with her family doctor as the CNRs indicate, and pursued pain treatment for such an extended period or up to three years post-accident, if she had not been experiencing pain.
iv. In fact, even after the respondent had denied further claims beyond April 2017, the applicant was led to investigate further pain relief treatment as demonstrated by the chronic pain assessment conducted by Dr. Wilderman on May 19, 2017, nearly one and half years after the accident, well beyond the 3-month recovery period initially proposed by the chiropractor in the disability certificate, completed 3 days after the accident.
Issue (ii): Whether the applicant is entitled to interest
20The applicant is entitled to interest for the cost of examination for her chronic pain assessment. Interest is payable in accordance with section 51 of the Schedule.
CONCLUSION/ORDER
21I order that:
(i) The applicant is entitled to payment for the cost of examination in the amount of $2,200.00 for a chronic pain assessment and treatment plan dated March 23, 2017; and
(ii) The applicant is entitled to interest on any overdue payment of the benefit.
Released: January 14, 2018
Claudette Leslie
Adjudicator