17-004847 v Aviva General, 2018 CanLII 81912

17-004847 v Aviva General

Date: 2018-05-24

Tribunal File Number: 17-004847/AABS

Case Name: 17-004847 v Aviva General

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

and

Aviva General

Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce

APPEARANCES:

For the Applicant: Michael Ferrante

For the Respondent: Monica Pathak

Written Hearing on: March 27, 2018

OVERVIEW

1The applicant, was injured in an automobile accident on December 2, 2013 and sought benefits from his insurer, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2[The applicant] submitted multiple treatment and assessment plans that were denied by Aviva on the basis that it placed [the applicant] into the Minor Injury Guideline (the “MIG”). [The applicant] disagreed with this decision and submitted an Application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”). A Case Conference was conducted, but the parties were unable to resolve their dispute and proceeded to this hearing.

ISSUES

3The following are the issues to be decided, as per the case conference order of Adjudicator Bass, dated November 17, 2017:

i. Is the applicant entitled to receive a medical benefit of $2,087.68 for chiropractic services recommended by Complete Physiotherapy Centre Inc., submitted on October 24, 2016 and denied on April 19, 2017?

ii. Is the applicant entitled to receive a medical benefit of $10,849.05 for a multidisciplinary Comprehensive Rehabilitation Programme recommended by Excel Medical Diagnostics in a treatment plan submitted on January 31, 2017 and denied on April 19, 2017?

iii. Is the applicant entitled to receive a medical benefit of $2,460.00 for a chronic pain assessment recommended by Excel Medical Diagnostics in a treatment plan submitted on October 27, 2016 and denied on April 19, 2017?

iv. Are the applicant’s injuries predominantly minor in nature within the meaning of the Schedule?

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

RESULT

4I find [the applicant]’s injuries do not fall within the MIG due to his chronic pain. [The applicant] is entitled to the medical benefit for the chronic pain assessment and is partially approved for the medical benefit for the Comprehensive Rehabilitation Programme. [The applicant] is not entitled to the medical benefit for chiropractic services, as it is a duplication of services granted. Accordingly, interest is payable on the overdue benefits.

ANALYSIS

Did [the applicant] sustain a predominately minor injury?

5I find that the medical evidence before me indicates that [the applicant] sustained impairments that are not predominantly minor injuries due to chronic pain.

6The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3 of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500. [The applicant] must establish his entitlement to coverage beyond the $3,500 cap for minor injuries, on a balance of probabilities.

7[The applicant] submits that his injuries are not predominately minor, arguing that the chronic nature of his right wrist injury—an alleged tear of the volar band of the scapholunate ligament—and shoulder injury takes him out of the confines of the MIG.

8Complicating this analysis is a confusing sentence contained within the May 29, 2014 MRI Report² on [the applicant]’s right wrist:

There is no evidence of misalignment about the carpus, although there is likely a chronic appearing tear of the volar band of the scapholunate ligament.

[The applicant] argues that this sentence is not meant to describe the possibility of whether or not a tear exists, but rather whether or not the tear is chronic or acute. Aviva argues the opposite: that the sentence should be interpreted as an indication that there is no diagnosis of a complete tear and that the injury to [the applicant]’s right wrist is minor. I find the medical evidence available to be an indication, on a balance of probabilities, that [the applicant] has an impairment that cannot be treated sufficiently within the MIG, regardless of whether there is a complete tear.

[The applicant]’s chronic pain

9I find on the evidence that [the applicant] has ongoing pain in his right wrist, and to a lesser degree his right shoulder, since the accident that can be considered chronic and therefore outside of the MIG. Beginning in December 2013 with the notes of Dr. Ravi and continuing throughout the file, there is consistent reference to right hand and wrist pain, right hand/wrist problems, residual hand pain, chronic wrist pain and shoulder pain. [The applicant]’s self-reporting is consistent and credible. Further, Dr. Brown diagnosed [the applicant] with chronic pain in both his right wrist and right shoulder in his Chronic Pain Assessment Report.³ The Report indicates that [the applicant]’s pain is continuous, is accompanied by some functional impairment in both [the applicant]’s home and work life, and is severe enough to potentially hamper [the applicant] functionally in the future. Dr. Brown is an accomplished chronic pain specialist and I have no reason to question his credentials or validity testing methods.

10Aviva submits that Dr. Brown’s Report is predicated on the diagnosis of a complete tear and that there is no evidence in the record that [the applicant] suffered a complete tear to his volar band. Further, considering that [the applicant] continues to work, perform routine tasks, and participate in most of his pre-accident activities, Aviva argues that these impairments do not rise to the level of severity to cause suffering and distress accompanied by functional impairment. I disagree.

11Regardless of the basis for Dr. Brown’s diagnosis, I still find, based on [the applicant]’s self-reporting and the consistent referrals to and from various practitioners that his pain has persisted over four years and has gotten to the point where it is unbearable. [The applicant] reports that the pain can rise to 8/10 depending on his activity. [The applicant] treats his pain with pain relievers when needed. Although he performs most of his tasks to tolerance, his reports of pain are consistent enough to hamper his functionality, as his employment requires him to use his injured wrist and shoulder routinely. Simply put, while I find Dr. Brown’s diagnosis of chronic pain to be an important factor in my decision, it is not the only factor. Even if I were to discount Dr. Brown’s diagnosis, I find that [the applicant]’s pain causes enough functional impairment in his work and home life to remove him from the MIG and he should be entitled to seek treatment for maximal recovery beyond it.

Are the treatment plans in dispute reasonable and necessary?

12As I have determined that [the applicant]’s injuries are not predominately minor injuries due to his chronic wrist and shoulder pain, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary, pursuant to ss. 14-17 of the Schedule, is required.

Medical benefit in the amount $2,460.00 for a chronic pain assessment recommended by Excel Medical Diagnostics in a treatment plan submitted on October 27, 2016 and denied on April 19, 2017.

13I find that the medical benefit in the amount of $2460.00 for a chronic pain assessment is reasonable and necessary. As I have found that [the applicant] suffers from pain in his right wrist and shoulder four years post-accident and that his reporting of these injuries has been consistent and credible, I consider it necessary that he be afforded the opportunity to have the extent of his injuries assessed by a practitioner in order to determine how to address his functional impairments. The cost of the assessment is in line with both the Schedule and Superintendent’s Guideline 03/14, which includes the preparation of the OCF-18 and HST. I therefore find it to be reasonable.

Medical benefit in the amount of $10,849.05 for a multidisciplinary Comprehensive Rehabilitation Programme recommended by Excel Medical Diagnostics in a treatment plan submitted on January 31, 2017 and denied on April 19, 2017.

14I find that portions of the medical benefit for a Comprehensive Rehabilitation Programme are reasonable and necessary and partially grant this benefit in the amount of $7,382.39. Having already determined that [the applicant]’s injuries are outside of the MIG and that his pain is chronic, I am convinced that the portions of this program that will allow [the applicant] to explore alternative treatment options relating to his chronic pain will be beneficial to achieving maximal recovery.

15However, in reviewing the OCF-18 completed by Dr. Brown, I find that the Comprehensive Rehabilitation Programme includes treatments and services for psychological issues that are not reasonable and necessary to treat [the applicant]’s wrist and shoulder issues. On the submissions and evidence, I find [the applicant]’s pain to be a physical impairment and I am not swayed by the psychological evidence provided by the parties or the suggestion by Dr. Brown that it applies and needs to be treated. Further, the parties seem to agree that there is no significant psychological impairment linked to [the applicant]’s chronic pain. Aviva argues that there is no significant neuropathy based on the reports of Dr. Nikkhou and Dr. Angel, while [the applicant] openly admits in his reply that his chronic pain is entirely physical and does not have a psychological component. I agree with the parties and find that [the applicant] does not have a psychological impairment—linked to chronic pain or otherwise—that requires treatment. As a result, I have discounted the amounts reserved for psychological treatment in the OCF-18, listed as a “B” provider,⁴ as I find that these amounts are not reasonable and necessary.

16Accordingly, I find the medical benefit for a Comprehensive Rehabilitation Programme to be partially reasonable and necessary in the amount of $7,382.39. I arrive at this figure by taking the original claim for $10,849.05 and subtracting the $3,466.66 reserved for psychological treatments.

Medical benefit in the amount of $2,087.68 for chiropractic services recommended by Complete Physiotherapy Centre Inc., submitted on October 24, 2016 and denied on April 19, 2017?

17I find that this medical benefit for chiropractic services is not reasonable and necessary in order for [the applicant] to achieve maximal recovery, as it is a duplication of services outlined in the Comprehensive Rehabilitation Programme, which I have already determined to be reasonable and necessary. This OCF-18 in the amount of $2,087.68 predates the OCF-18 detailing the Comprehensive Rehabilitation Programme, which I find includes a more detailed breakdown of the various chiropractic services that will be available to [the applicant] As a result, I find that it is not reasonable or necessary to approve additional chiropractic services when the partially approved Comprehensive Rehabilitation Programme already contains 16 sessions of chiropractic treatment and related services available to [the applicant]

Interest

18Having determined that [the applicant] is entitled to medical benefits, he is entitled to any interest on overdue benefits pursuant to s. 51 of the Schedule.

CONCLUSION

19For the reasons outlined above, I find that [the applicant] sustained injuries that are not predominately minor injuries due to chronic pain and he is out of the MIG.

20[The applicant] is entitled to the medical benefit in the amount $2,460.00 for a chronic pain assessment, as recommended by Excel Medical Diagnostics in a treatment plan submitted on October 27, 2016 and denied on April 19, 2017, as it is reasonable and necessary.

21[The applicant] is partially entitled to the medical benefit for the multidisciplinary Comprehensive Rehabilitation Programme recommended by Excel Medical Diagnostics in a treatment plan submitted on January 31, 2017 and denied on April 19, 2017 in the amount of $7,382.39, as this portion is reasonable and necessary.

22[The applicant] is not entitled to the medical benefit in the amount of $2,087.68 for chiropractic services recommended by Complete Physiotherapy Centre Inc., submitted on October 24, 2016 and denied on April 19, 2017, as it is not reasonable and necessary.

23[The applicant] is entitled to interest pursuant to s. 51 of the Schedule, as benefits are overdue.

Footnotes

1. 1O. Reg. 34/10.
2. 2Applicant’s Written Submissions, page 9: MRI Report of Dr. Tang, May 29, 2014.
3. 3Applicant’s Written Submissions: Tab 13, page 135-143.
4. 4OCF-18 prepared by Dr. Brown, dated January 31, 2017, at pages 9-10.