17-003450 v Aviva Insurance Canada, 2018 CanLII 95564

17-003450 v Aviva Insurance Canada

Date: 2018-07-24 Tribunal File Number: 17-003450/AABS Case Name: 17-003450 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

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: George Diplas

APPEARANCES:

Counsel for the Applicant: Nader Fathi

Counsel for the Respondent: Amanda R.M. Faulkner

Written Hearing on: December 12, 2017

OVERVIEW

1The applicant was injured in an automobile accident on July 20, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The respondent denied a claim for the cost of an examination for a chronic pain assessment. The applicant filed an appeal with the Licence Appeal Tribunal and the matter proceeded by way of written hearing.

ISSUES

2The following issues are in dispute before the Tribunal:

(i) Is the applicant entitled to the cost of examination in the amount of $1,765.20 for a chronic pain assessment pursuant to a Treatment and Assessment Plan (OCF18) completed by ProMed Rehab Clinic, submitted on February 2, 2017 and denied on February 24, 2017?

3The applicant requests interest on any overdue payment of benefits.

4The applicant requests costs and expenses.

RESULT

5I find the applicant has demonstrated that the cost of examination for a chronic pain assessment is reasonable and necessary. In accordance with s. 51 of the Schedule, the applicant is entitled to interest for the overdue payment of benefits.

6The applicant is not entitled to costs and expenses.

ANALYSIS

Chronic Pain Assessment

7The applicant argues that he has various ailments which have not resolved after the subject accident, including but not limited to joint pain, low back pain, Whiplash Associate Disorder, headaches, sprain and strain of the sacroiliac joint and spine. As such, the applicant and his health practitioner Rajanikant Patel, a physiotherapist, completed an OCF-18 for a chronic pain assessment.

8Upon receiving the noted OCF-18, the respondent requested and scheduled an Insurer Examination as per Section 44 of the Schedule. This examination took the form of a Physiatry Paper Review completed by Dr. Oshidari, and which the insurer relies on to counter the applicant’s argument that a chronic pain assessment is reasonable and necessary.

9I reviewed all of the evidence before me and took note of the fact that both parties agree that the applicant’s ongoing impairments and injuries have a psychological component. However, the parties differ in their views of the need for a physical assessment of the chronic nature of these complaints.

10The evidence of the applicant was focused on the clinical notes and records from Pearl Medical as well as Total Care Management. The applicant also incurred the chronic pain assessment disputed in this hearing, and provided the report from the same dated October 5, 2017.

11Via these records, the applicant’s evidence illustrates ongoing physical issues and complaints dating back to a motor vehicle accident that occurred in 2013 and, more significantly a more complete illustration of the applicant’s injuries and complaints from the 2015 accident in question.

12I find the evidence compelling, specifically the notes and records of Dr. Tejinderpaul Dhotar, a chiropractor at Total Care Management. From these records it becomes clear that Dr. Dhotar has assessed the applicant’s physical issues and complaints from the 2013 accident as well as soon after the 2015 subject accident. In doing so, Dr. Dhotar recommended treatment, with one of the stated goals of said treatment being chronicity prevention due to injuries sustained in the 2015 accident. He also notes that the applicant’s unresolved pain could affect treatment for the 2015 injuries, and in the OCF-18 of October 3, 2016, outlines barriers to recovery that include concern regarding long term prognosis and functional limitations persisting. Dr. Dhotar assessed and treated the applicant for a significant period of time, was fully aware of the applicant’s injuries and complaints after the 2013 accident, continued to treat and assess the applicant directly after the subject 2015 accident, including the day after the 2015 accident, and as such I place significant weight on this evidence as it relates to the history and chronicity of the physical pain which brought this dispute before me.

13I also find the OCF-18 completed by the applicant’s health practitioner Rajanikant Patel, a physiotherapist, for the subject chronic pain assessment is in line with the previous findings of Dr. Dhotar. The findings of Dr. Dhotar, noted above, outline concerns regarding the long term prognosis of the applicant’s injuries, his functional limitations, his unresolved pain, and thus the recommendations of Mr. Patel logically follow. I take at face value that Mr. Patel assessed the applicant in person, and came to these conclusions on his own volition based on his objective evaluation of the applicant. I find this persuasive in terms of logically following from the history of pain, barriers to recovery, and functional limitations outlined in Dr. Dhotar’s above noted assessments.

14Furthermore, the applicant has provided the chronic pain assessment report completed by Dr. Harry Grigoropoulos, a chiropractor at ProMed Rehabilitation Clinic on October 5, 2017. Dr. Grigoropoulos outlines that the 2002 publication of the College of Physicians & Surgeons of Ontario on Guidelines for Treatment of Chronic Non-Malignant Pain, describes chronic pain syndrome “as a complex physical and psychological ailment, which does not directly correlate with the objective physical findings”. I point this out to highlight a key part of the disagreement between the applicant and respondent in regards to the reasonableness and necessity of the chronic pain assessment.

15As outlined above, both parties agree that the applicant has a psychological component to his injuries and agree that there are physical injuries which occurred as a result of the 2015 accident. The applicant and his health care providers believe the chronicity has a physical component and thus requires a chronic pain assessment. The respondent states that continuing with psychological treatment alone will suffice. I refer back to the paragraph directly above where Dr. Grigoropoulos highlights a reference from the noted 2002 publication. I find this reference persuasive insofar as deciding whether or not a physical exploration, via a chronic pain assessment, is reasonable and necessary in the applicant’s circumstances. Seeing how the medical profession agrees that such an ailment is complex and involves both physical and psychological components, and in the absence of persuasive medical references from the respondent, I am persuaded by this reference by Dr. Grigoropoulos, and accept that assessing the physical component of a possible chronic pain ailment is reasonable and necessary in this case.

16For reasons that will become clear below, I will not analyze the actual assessment completed by Dr. Grigoropoulos in depth. The reasons for this are that the respondent suggests the assessment itself should not be weighted heavily in my decision as it happened after this issue came before the Tribunal and does not go to the reasonableness and necessity of the need for the assessment. I find that relevance trumps any other concerns, and as such did review Dr. Grigoropoulos’ assessment. I found his conclusions that the applicant does have a legitimate claim to a chronic pain condition logical and persuasive.

17The reason I will not engage in an in depth analysis of the assessment itself is because I find that even without the objective conclusions presented by Dr. Grigoropoulos, I find that the applicant has persuaded me that a chronic pain assessment is reasonable and necessary. Dr. Grigoropoulos’ findings simply bolster my findings further.

18Turning to the respondent’s evidence, I begin by noting that it did not dissuade me from my findings. The respondent’s evidence focuses on the paper review of Dr. Oshidari, a physiatrist. As a whole, I find Dr. Oshidari’s report does note the various physical issues and complaints similarly to the applicant’s submissions and evidence. When taken in its entirety, I find the report further outlines the physical injuries the applicant suffered or that were exacerbated from the previous motor vehicle accident. However, where Dr. Oshidari differs is in his views of the most reasonable path forward. He does not believe a physical assessment for the chronic nature of these issues and complaints is reasonable and necessary, but rather that further psychological treatment alone can resolve said issues.

19I give less weight to the report of Dr. Oshidari because he clearly states that without a direct assessment he is unable to answer some key questions which I feel go directly to the dispute. For instance, Dr. Oshidari was unable to answer whether or not the applicant sustained impairment as a direct result of the subject motor vehicle accident. I find that being able to address this amongst other questions would have added weight to the opinions and conclusions of Dr. Oshidari. The report, when compared to the previously noted evidence of the applicant, does not persuade me on a balance of probabilities that a chronic pain assessment is not a reasonable and necessary course of action to ascertain the nature of the applicant’s lingering pains and complaints.

20When arriving at his conclusion, Dr. Oshidari focuses on evidence that portrays the applicant as someone who can return to his previous level of activity and employment. Namely, he highlights a functional assessment evaluation completed in 2016 which notes that the applicant does not suffer a complete inability to return to previous activities including employment. I find Dr. Oshidari’s honing in on the need to find a complete inability to return to previous activities illogical and misplaced. The dispute before me is in regards to ascertaining whether or not a chronic pain assessment is a reasonable and necessary exploration of potential treatment protocols to deal with the chronicity of the ailments and complaints of the applicant, not whether the applicant has a complete, or substantial, inability to return to previous activities including employment. I also note that Dr. Oshidari did not physically assess the applicant. For these reasons, I give his conclusion little weight.

21To that end, and for the reasons noted above, I agree with the applicant that the conclusions reached in the paper review completed by Dr. Oshidari should not be given as much weight as the assessment of Dr. Dhotar, the chiropractor who has assessed the applicant since the 2013 accident and following the subject 2015 accident, and Rajanikant Patel, the physiotherapist who saw the applicant and completed the subject OCF-18.

22Furthermore, and as noted above, the respondent submits that I should not take the evidence presented in the actual chronic pain assessment report dated October 5, 2017 into consideration for the reasonableness and necessity of the same, but rather should base my decision on the merits of the dispute when it was commenced at the Tribunal. To clarify, the respondent is asking me to ignore all the evidence presented in the chronic pain assessment report submitted by the applicant when deciding the issue in dispute. As noted above, I acknowledge this position, accept that relevance trumps it, and find that even when disregarding Dr. Grigoropoulos’ conclusion, I still find for the applicant on a balance of probabilities.

23I am satisfied that, on a balance of probabilities, the subject chronic pain assessment is reasonable and necessary.

Procedural Defence

24The respondent has raised a procedural defence in regards to the failure of the applicant to provide a signed copy of the subject OCF-18 to the insurer. I agree with the respondent that the relevant provisions of the Schedule, namely 38(3), are intended to confirm that the applicant is aware of intends to use the goods/services that the Insurer will be asked to fund. As such, and seeing how the applicant was aware of the chronic pain assessment, and in fact incurred the same, I disregard this defence.

25Furthermore, I agree with the applicant’s submissions that the respondent has, for all intents and purposes, waived the requirements outlined in the relevant section of the Schedule when replying to the unsigned OCF-18 by scheduling a Section 44 examination. Subsequently to the scheduling of the insurer’s examination, the respondent failed to raise the issue of the unsigned OCF-18 again when denying the reasonableness and necessity of the assessment based on Dr. Oshidari’s report, further implying that the signing requirement had been waived and the OCF-18 was accepted as submitted. For me to agree to the validity of such a defence at this stage after the insurer had taken the above noted actions when replying to the subject OCF-18 would run counter to the consumer protection nature of the legislation.

CONCLUSION

26I find the applicant has demonstrated that the cost of examination for a chronic pain assessment is reasonable and necessary.

27In accordance with s. 51 of the Schedule, the applicant is entitled to interest for the overdue payment of benefits.

28The applicant is not entitled to costs and expenses.