Tribunal File Number: 17-004828/AABS
Case Name: 17-004828 v Aviva Insurance Canada
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:
Applicant
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Samia Makhamra
For the Applicant: Frank McNally, counsel
For the Respondent: Odessa O’Dell, counsel
HEARD in writing: February 14, 2018
Overview:
1This decision arises from a dispute over payment of medical and rehabilitation benefits the applicant is seeking for injuries she sustained in a motor vehicle accident on January 8, 2016.
2The disputed issues are in respect of statutory accident benefits that are payable under the Statutory Accident Benefits Schedule – Effective September 1, 2010, Ontario Regulation 34/10, as amended (the “Schedule”).
3The respondent denied these benefits on the basis that they are not reasonable and necessary.
The issues in dispute:
4The issues in dispute are:
i. Is the applicant entitled to receive a medical benefit in the amount of $3,282.14 for lidocaine intravenous injections for chronic pain, recommended by Seekers Centre in a treatment plan dated March 14, 2017, denied by the respondent on May 15, 2017?
ii. Is the applicant entitled to payments for the cost of examinations in the amount of $1,998.35 for an EEG assessment, recommended by Seekers Centre in a treatment plan dated January 26, 2017, denied by the respondent on March 6, 2017?
iii. Is the applicant entitled to receive a medical benefit in the amount of $2,509.28 for physiotherapy services, recommended by Apollo Physical Therapy Centre in a treatment plan dated May 23, 2017, denied by the respondent on May 25, 2017?
iv. Is the applicant entitled to payments for the cost of examinations in the amount of $2,148.75 for a functional abilities evaluation, recommended by Vitality Assessments in a treatment plan dated January 16, 2017, denied by the respondent on April 10, 2017?
v. Is the applicant entitled to payments for the cost of examinations in the amount of $1,292.26 for a dietician assessment, recommended by Vitality Assessments in a treatment plan dated January 31, 2017, denied by the respondent on April 10, 2017?
vi. Is the applicant entitled to receive a medical benefit in the amount of $8,140.38 for assistive devices, recommended by Vitality Assessments in a treatment plan dated January 25, 2017, denied by the respondent on April 10, 2017?
vii. Is the applicant entitled to receive a medical benefit in the amount of $1,795.63 (claimed $5,137.14 - $3,341.51 approved by respondent) for psychological services, recommended by Capital Region Psychological Services in a treatment plan dated June 2, 2017, denied by the respondent on June 5, 2017?
viii. Is the respondent liable to pay an award under Ontario Regulation 664 because it unreasonably withheld or delayed the payments of benefits to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
Results:
5I find as follows:
a) The applicant is entitled to the following medical benefits: lidocaine injections, the EEG assessment, physiotherapy treatment, dietician assessment, assistive devices, psychological treatment, and interest on any overdue payment of benefits.
b) The applicant is not entitled to a functional abilities evaluation.
c) The respondent is not liable to pay an award under Regulation 664.
Background:
6The applicant was involved in a motor vehicle accident on January 8, 2016. She was a back seated passenger. The accident involved seven vehicles on a highway; the applicant’s vehicle was second in the line of vehicles involved.
7Following the impact, she felt pain in her head and neck. She developed pain in her neck, back, shoulders, limited range of motion in her arms, headaches, dizziness, and issues related to depression and anxiety.
8The applicant began physiotherapy treatment shortly after the accident. Dr. Wendy Pullan, her family physician, completed a disability certificate dated April 3, 2016, with a diagnosis of cervical strain, low back strain, and headaches related to whiplash from the accident. She indicated that the applicant could not return to her job as a seamstress because of the severity of her impairments. She prescribed amitriptyline (an antidepressant), naproxen, presumably to treat pain, and rabeprazole, for gastric problems.
9To date, the applicant has received a number of treatments, including physiotherapy, massage therapy, laser therapy, psychological treatment, and treatment for chronic pain with Dr. Richard Nahas at the Seekers Centre. Dr. Nahas is a family physician, and is identified as a chronic pain specialist.
10In August 2016, the applicant underwent an insurer’s examination by Dr. Alan Giachino, orthopaedic surgeon, for the purposes of assessing entitlement to income replacement benefits1. In a report dated October 6, 2016, Dr. Giachino diagnosed the applicant with a whiplash injury, and concluded that she suffered a substantial inability to return to work. He described some of her symptoms as: considerable pain in the neck and head region, and pain in the right shoulder with burning sensation.
11In September 2016, the applicant underwent an insurer’s psychological assessment completed by Dr. Paula Moncion, psychologist, for the purposes of assessing entitlement to income replacement benefits. In a report dated October 6, 2016, Dr. Moncion diagnosed the applicant with Adjustment Disorder with symptoms of anxiety, depression and pain symptoms, and, simply put, was of the opinion that the applicant was not well enough to return to work. Dr. Moncion recommended 12 sessions of psychotherapy to target symptoms of depression, anxiety and pain for one hour in length, every one to two weeks.
12In February 2017, Dr. Gary Moddel, neurologist, conducted an insurer’s neurological assessment by way of a paper review, to address the treatment plan for an EEG assessment. In a report dated March 2, 2017, he provided a diagnosis of tension-type headaches with soft tissue injury to the neck and shoulders. Dr. Moddel concluded that the applicant had no neurological sequelae from the accident, and the treatment plan for an EEG assessment was not reasonable and necessary.
13In March 2017, the applicant underwent an insurer’s orthopaedic assessment completed by Dr. Chris Raynor, orthopaedic surgeon, to address the treatment plans for the functional abilities evaluation, the dietary assessment, and the plan for assistive devices. In a report dated April 4, 2017, Dr. Raynor diagnosed the applicant with mechanical neck pain and scapular dyskinesis in both shoulders. He noted minor range of motion deficits affecting the neck and shoulders due to pain symptoms, non-localizable motor deficits affecting both upper extremities, but no focal neurologic findings. In short, he suggested that her symptoms were associated with pain behaviour and treatment based on passive modalities. He concluded none of the three treatment plans under assessment were reasonable and necessary. He recommended active treatment, a supervised strengthening and flexibility program, and gradual return to regular activities.
14In April 2017, the applicant underwent an insurer’s examination by Dr. Joshua Abiscott, family physician, to address the treatment plan for lidocaine injections as treatment for chronic pain. In a report dated May 11, 2017, he provided a diagnosis of whiplash associated disorder with grade 2 injuries, and indicated that the injuries were minor from a musculoskeletal perspective. Dr. Abiscott did not believe the lidocaine injections would provide long-term relief because the applicant had received one injection treatment where she felt better for one day, but was back to baseline the next day. He concluded this treatment was not reasonable and necessary and recommended an aggressive self-based home exercise program. Similar to Dr. Raynor, he did not believe the applicant would benefit from passive treatments.
15Dr. Nahas provided a rebuttal to Dr. Abiscott’s assessment. In a report dated July 19, 2017, Dr. Nahas indicated the applicant’s symptoms and injuries had features of post-concussion syndrome, mood disorder, and chronic pain. He indicated these were not minor or limited to the musculoskeletal system, but indicative of a dysfunction at the level of the central nervous system, for which lidocaine injections were recommended.
16A treating physiotherapist, Trina Ferrer, provided an opinion on Dr. Abiscott’s assessment as well. In a rebuttal dated August 6, 2017, Ms. Ferrer discussed the applicant’s limitations and offered that the applicant would not be able to pursue an aggressive self-based home exercise program because, among other reasons: she required supervision; such a program could exacerbate her symptoms; and she was an unlikely candidate given her diagnosis of depression. Dr. Nahas shared this opinion.
17At the end of March 2017, Dr. Moncion, who previously assessed the applicant (paragraph 11), conducted another psychological assessment for the purposes of income replacement benefits. In a report dated April 16, 2017, Dr. Moncion stated that the applicant met the diagnosis for Adjustment Disorder with symptoms of anxiety, depression and pain symptoms, and her condition had worsened since the first assessment. She recommended 12 sessions of psychotherapy to target symptoms of depression, anxiety and pain.
18Between March and May 2017, the applicant underwent a psychological assessment by Dr. Stewart Madon, a psychologist from a clinic where she was already receiving treatment. In a report dated June 2, 2017, Dr. Madon provided a diagnosis of somatic symptom disorder, with predominant pain. He noted the applicant was experiencing post-traumatic anxiety, which led to significant avoidance behaviours related to driving and crowds. This, coupled with pain, likely led to her decrease in social and recreational contact, feelings of guilt, and decreased mood. Dr. Madon recommended: 16 one-hour empirically-validated exposure-based psychotherapy sessions for the purpose of decreasing her trauma-based symptoms; and, 12 one- hour sessions of empirically-validated psychotherapy sessions for purposes of helping her cope with her pain.
Analysis and reasons:
19The applicant submits that the treatment plans in dispute are reasonable and necessary. The plans were formulated to help her with pain management and improving functional levels, and the evidence from her treating practitioners supports her position.
20The respondent relies on the conclusions of the assessors to deny the benefits on the basis that they are not reasonable and necessary. Further, the respondent submits that pain management with no evidence of its efficacy is not enough for a treatment plan to be reasonable and necessary.
21Section 15(1) provides that medical benefits shall pay for all reasonable and necessary expenses incurred by an insured or on behalf of an insured person as a result of the accident, including chiropractic and psychological services. Section 38 provides that an insurer is not required to pay an expense in respect of a medical benefit until the insured submits a treatment and assessment plan that is reasonable and necessary for the insured’s treatment and rehabilitation.
22I considered the evidence and the parties’ submissions and find in the positive for each benefit, except for the functional abilities evaluation.
Issue i: Lidocaine intra-venous injections
23The parties agree that pain relief is a legitimate treatment goal; this is in line with General Accident Assurance Co. of Canada v. Violi, FSCO P99-00047, a case both parties relied upon.
24I prefer Dr. Nahas’ opinion in support of this benefit because he provided a more cohesive grasp of the applicant’s symptoms and functional limitations, and how the plan would reasonably provide relief. For example, he indicated that he would administer the injections via intravenous every 1-2 weeks with the intended goal of improving function, even if short-term, managing chronic pain and symptoms described as strong burning sensation, tingling and numbness; he described the applicant’s injuries as pain, reaction to severe stress and adjustment disorders, sleep disorders and post-concussion syndrome; he elaborated on the activities of daily living in which she was limited due to her symptoms, such as looking after her home, cooking, and interacting with family and friends; and he weighed in on the fact that she had tried different medications for pain without much success.
25The insurer’s assessor, Dr. Abiscott, did not recommend this treatment plan. He concluded the injuries were minor and the treatment was not cost effective in providing long-term relief. Specifically, because he noted the applicant had received injection treatment once, with only temporary relief that lasted one day, he did not believe the treatment plan would meet its goal at a cost that was reasonable. Citing Alves and Commercial Union Assurance Company, FSCO A96-000247 (“Alves”), the respondent submitted the applicant has failed to provide compelling evidence of the efficacy of the treatment. In Alves, the claimant had received almost continuous chiropractic treatment, and reported that the treatment reduced the frequency and intensity of his headache and reliance on medication. Despite this, the arbitrator found no compelling evidence that the treatment was effective.
26However, the facts in Alves can be distinguished: the claimant had in fact received the medical benefit in dispute (chiropractic treatment) for several months (emphasis added) with limited success. Unlike in Alves, the applicant in this case only received one treatment with temporary relief. I am not convinced that a single injection with limited success is sufficient to dismiss it as not reasonable or cost effective. It seems premature to draw this conclusion. Therefore, I find this treatment plan reasonable and necessary.
Issue ii: EEG assessment
27I prefer Dr. Nahas’ opinion in support of this benefit. He provided a detailed explanation of the benefit and its relevance in managing the applicant’s symptoms: the EEG is a measure of brain changes and can assist in assessing whether the applicant suffered a concussion by delineating the source of her functional impairments (chronic pain vs. concussion – or the intersection of both). He explained that chronic pain and concussion share similar symptoms, but create very different patterns of electrical activity in the brain. The assessment would assist treatment providers in making treatment recommendations. Relevant treatment goals noted were: to reduce pain and assist the applicant to return to her pre-accident activities of normal living and work.
28The neurological (paper review) examination by Dr. Moddel, wherein he did not recommend the EEG assessment, was brief. He did not examine the applicant, and he provided no explanation for his conclusion of no neurological sequelae from the accident. His report referred to symptoms such as tingling, burning sensation and pain from a previous orthopaedic assessment he had reviewed, but offered no explanation as to how these might be connected to his conclusion. In denying this treatment, the respondent also relied on the assessments of Dr. Abiscott and Dr. Raynor, who concluded that the applicant did not demonstrate neurologic findings. However, because their findings do not explain the persistence of the applicant’s symptoms, I am not inclined to accept them over the recommendations of Dr. Nahas. Therefore, I find this treatment plan reasonable and necessary
Issue iii: Physiotherapy treatment
29I rely on the opinions of the treating physiotherapist, Ms. Ferrer, and of Dr. Nahas regarding the applicant’s entitlement to physiotherapy treatment. Ms. Ferrer noted the goals of this treatment as: to improve exercise endurance, increase physical activity tolerance, and manage pain using therapeutic modalities and controlled movements. Specifically, the treatment plan proposed 12 sessions of therapy and 12 sessions of exercise wherein the applicant would undergo a gradual graded exercise program with supervision to ensure motivation and correct form.
30The respondent relies on Dr. Abiscott’s conclusion that the applicant should pursue an aggressive self-based exercise program at home, and that of Dr. Raynor, who noted the benefits of the physiotherapy sessions were short-lived. Citing Alves and Violi, the respondent submits that the effectiveness of a treatment is an important consideration, which, when applied in this case, meant that this treatment was not effective: the applicant had received physiotherapy from three different clinics with limited progress, with no evidence of its effectiveness.
31I respectfully disagree. This case is analogous to Violi in that pain relief can be a legitimate treatment goal, and therefore reasonable and necessary even if it does not promote recovery. Further, this case has strengths that distinguish it from Alves: the functional goal of treatment has been consistently to return the applicant to work and activities of daily living, and treatment is designed based on needs. For example, it combined 12 sessions of body therapy with an equal amount of exercise sessions with supervision. In addition, I am mindful of the opinion of the treatment providers that the severity of the applicant’s depression made her an unlikely candidate for a self-based home exercise. Accordingly, I find this treatment plan reasonable and necessary.
Issue iv: Cost of functional abilities evaluation
32The functional abilities evaluation plan was a recommendation in a final report dated January 23, 2017, prepared by Ms. Pooja Vyas, occupational therapist. The rationale was to provide objective information about the applicant’s ability to return to work with changes to workload, modifications and accommodations as necessary. Ms. Vyas’ report contained notes of six treatment sessions between November 2016 and January 2017, wherein she noted the applicant had made some progress in treatment. For example, the applicant learned progressive muscle relaxation and breathing techniques for improved mental health, pain reduction and fatigue levels; there was improved range of motion, strength and functional ability in upper extremities; and she was beginning to implement energy conservation techniques into her routine.
33The applicant was assessed by Dr. Raynor a few weeks after Ms. Vyas’ report. He reviewed Ms. Vyas’ report and examined the applicant. His examination revealed that the applicant’s self-limiting pain-focused behavior had not improved enough to render the assessment accurate; this formed the basis of the respondent’s denial of this treatment plan. Notably, while Ms. Vyas noted in her sessions that the applicant reported high levels of pain, rated as 8, 9 or 10 (10 being the most severe), Ms. Vyas did not note or address any pain-focused, self-limiting behavior.
34However, given the reported high levels of pain, which is not disputed, I am inclined to agree with Dr. Raynor that a functional abilities assessment may not be accurate, or of any benefit because of self-limiting and pain-focused behavior. Accordingly, I find that this treatment plan is not reasonable and necessary.
Issue v: Cost of dietary assessment
35This relates to concerns with the applicant’s nutritional status, the quality and quantity of foods she was consuming, her inability to prepare her own meals, fatigue levels and lack of strength. Ms. Vyas and Ms. Stephanie Aboueid, dietician, submitted a treatment plan to address these concerns by way of education and meals preparation sessions, with the goal of identifying barriers to treatment.
36The respondent relied on the orthopaedic assessment by Dr. Raynor to deny this treatment. To Dr. Raynor, the applicant appeared well-nourished with no signs of malnutrition, anorexia or malaise. He did not believe the applicant’s diet caused her symptoms, and did not believe the assessment was necessary for her rehabilitation.
37It is not clear why an orthopaedic surgeon whose practice appears to be primarily in orthopaedic surgery and sports medicine would provide an opinion on a dietary assessment. That said, I have two concerns with Dr. Raynor’s opinion: first, the suggestion that the applicant’s diet did not cause her symptoms is not enough to conclude the assessment is not reasonable and necessary; and, second, he did not address the purpose of the assessment.
38The respondent submits that Dr. Raynor’s opinion is to be taken in the context of the entire report, with less emphasis on his use of the word “cause”, and to mean he did not believe the assessment would play any role in advancing recovery. This submission does not change my opinion.
39I see no reason to prefer Dr. Raynor’s opinion over that of the dietician who recommended the assessment and would be completing the work set out in the treatment plan. Accordingly, I find this assessment reasonable and necessary.
Issue vi: Plan for assistive devices
40This treatment plan identified assistive devices believed to help the applicant with pain management, improved sleep, and improved functional level. The specific items claimed are:
A posturepedic mattress and foam pillow for back support and increased quality of sleep;
Massage balls to independently self-massage in order to decrease pain;
Perch stool for when preparing meals to conserve energy while cooking;
Combination cutting board to allow client to independently prepare meals (cutting vegetables, fruits, meats) and to assist with decreased strength and range of motion (“ROM”) in her arms;
Rocker knife to assist client with cutting meat and other foods during meal preparation with limited strength/ROM in arms;
Angled lightweight knife to assist with cutting foods during a meal with limited strength/ROM in arms; and,
Bed tray for elevating plates, utensils and cups at the table during meals to help decrease the amount of movement needed by her arms while the applicant is feeding herself.
41Given the medical evidence regarding the applicant’s pain, difficulties with pain management, decreased strength and ROM in her arms, and observed functional limitations, I am persuaded that these devices are reasonable and necessary. I place less weight on Dr. Raynor’s opinion; he was of the opinion that the devices could allow the applicant to function with her current impairments, reinforce pain behavior, and be detrimental to recovery, but offered no specific explanation as to why. Accordingly, I find that this treatment plan is reasonable and necessary.
Issue vii: Psychological treatment
42Both psychologists who assessed the applicant, Dr. Madon from a treating clinic, and Dr. Moncion, the insurer’s assessor, agreed that she required psychological treatment. The dispute is over the number of sessions: Dr. Madon recommended 28 while Dr. Moncion recommended 12 sessions; the respondent approved 16 sessions.
43The respondent submits that 28 sessions is excessive; no evidence has been adduced to indicate that 16 sessions would not yield significant improvement; it suggests the applicant avail herself of 12 sessions that remain unused, and then submit another treatment plan, if additional sessions are necessary.
44I disagree. There is no explanation why 12 or 16 sessions would be reasonable, and I see no reason to prefer those over a well-reasoned recommendation offered by Dr. Madon: (16) psychotherapy sessions for the purpose of decreasing her trauma-based symptoms, and (12) psychotherapy sessions to help her cope with pain. This is in line with the diagnosis of depression and anxiety with pain symptoms.
45I give less weight to Dr. Moncion’s recommendation. In her second assessment of April 2017, Dr. Moncion reported severe levels of anxiety and depression that were previously found in the moderate range. Symptoms noted in the severe range included feeling hot, unable to relax, hands trembling, sadness, loss of pleasure, indecisiveness, irritability, and difficulty concentrating. Symptoms noted in the moderate range are feeling dizzy, shaky, faint, changes in sleep patterns, loss of energy, and loss of interest and self-dislike. Notably, and problematic in my view, while Dr. Moncion found the applicant’s symptoms had worsened since the first assessment (of September 2016), her treatment recommendation remained unchanged: 12 sessions of psychotherapy to target depression, anxiety and pain. Therefore, I find this treatment plan reasonable and necessary.
Issue viii: Award under Regulation 664
46The applicant made no submissions on this issue. The respondent submits that its position with respect to each of the benefits in dispute was supported by independent insurer examination reports, and there is no basis for a finding against it.
47With no submissions from the applicant, I accept the respondent’s position. There is no indication that the respondent unreasonably withheld or delayed payments. This issue is dismissed.
Order:
48For the reasons provided above, I order the following:
- The applicant is entitled to:
a) $3,282.14 for lidocaine intravenous injections for chronic pain, recommended by Seekers Centre in a treatment plan dated March 14, 2017;
b) $1,998.35 for an EEG assessment, recommended by Seekers Centre in a treatment plan dated January 26, 2017;
c) $2,509.28 for physiotherapy services, recommended by Apollo Physical Therapy Centre in a treatment plan dated May 23, 2017;
d) $1,292.26 for a dietician assessment, recommended by Vitality Assessments in a treatment plan dated January 31, 2017;
e) $8,140.38 for assistive devices, recommended by Vitality Assessments in a treatment plan dated January 25, 2017; and,
f) $1,795.63 (claimed $5,137.14 - $3,341.51 approved by respondent) for psychological services, recommended by Capital Region Psychological Services in a treatment plan dated June 2, 2017.
The respondent shall pay to the applicant interest on any overdue payment in accordance with section 51 of the Schedule.
The applicant is not entitled to $2,148.75 for a functional abilities evaluation, recommended by Vitality Assessments in a treatment plan dated January 16, 2017, or an award under Regulation 664.
Released: May 23, 2018
___________________________
Samia Makhamra, Adjudicator