R.S. v. Aviva Canada Inc., 2019 CanLII 119733

Citation: R.S. vs. Aviva Canada Inc., 2019 ONLAT 18-003440/AABS

Tribunal File Number: 18-003440/AABS

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:

[R.S.]

Applicant

and

Aviva Canada Inc.

Respondent

DECISION

ADJUDICATOR: Asad Ali Moten

APPEARANCES:

For the Applicant: Dinesh Shan, Paralegal

For the Respondent: Aimee Draper, Counsel

HEARD IN WRITING: December 10, 2018

OVERVIEW

1The applicant was involved in an automobile accident on February 19, 2016. She sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (“Schedule”).

2The respondent, Aviva Canada Inc., refused to pay for chronic pain treatment which was recommended in a treatment plan (OCF-18) submitted on March 6, 2017. Following the denial, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the Tribunal) for resolution of this dispute.

3The applicant’s position is that the treatment is reasonable and necessary to reduce her chronic pain and help resume her daily activities to pre-accident levels. The respondent argues that there are no objective signs of impairment and that the applicant would not experience any further improvement through this treatment. Therefore, according to the respondent, the benefit claimed is not reasonable and necessary, and not payable.

ISSUES

4The issues in dispute in this written hearing are:

i. Is the applicant entitled to a medical benefit in the amount of $8,738.06 for chronic pain treatment recommended pursuant to a treatment plan (OCF-18) submitted March 6, 2017?

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

5The applicant withdrew her claim for an award under O. Reg. 664 following receipt of the respondent’s log notes.

RESULT

6The applicant is entitled to treatment claimed in her application.

7The applicant is entitled to interest on any amounts incurred to-date pursuant to section 51 of the Schedule.

BACKGROUND

8The applicant was involved in an accident in Toronto, Ontario on February 19, 2016. She was 24-years-old at the time and worked part-time assisting residents of a head injury facility with day-to-day tasks. She was also training to be a professional dancer. On the night of the accident, the applicant was driving north on Highway 404. A car cut her off and she swerved to avoid it. The applicant lost control and her vehicle collided with one guardrail, bounced off, and collided with the guardrail on the other side.

9Following the accident, the applicant was taken to the emergency department at [the Hospital]. She suffered a broken nose and was asked by health care professionals to follow head trauma protocols.

10The applicant submitted an application for accident benefits (OCF-1) on March 1, 2016. On the OCF-1, she described her injuries as “fractured nose, bruises, and a very sore body, resulting in limitations to regular movement.” She was off work as a result of the accident for approximately one week. Subsequently, she was approved for three treatment plans for physical therapy, and three treatment plans for psychological assessment.

11The applicant reported that she continued to experience significant pain. She attended the Karmy Chronic Pain Medical Clinic on December 30, 2016, where Dr. Karmy assessed the applicant and completed the disputed OCF-18 for treatment in the amount of $8,738.06. The respondent referred the applicant for an insurer examination on March 17, 2017, and, after an examination by Dr. Gelman, denied the OCF-18 on May 23, 2017.

ANALYSIS

Issue (i) – Is the Applicant entitled to the claimed medical benefit?

12The applicant claims a single treatment plan. The plan consists of the standard form as well as an attached Chronic Pain Assessment.

13To succeed, the applicant must demonstrate, on a balance of probabilities, that the treatment in dispute is reasonable and necessary.¹ An applicant must show ongoing impairment and adequate medical reasons to support the proposed treatment in the form of objective medical evidence.²

14Having considered the evidence and submissions of the parties, I find that the applicant is entitled to the claimed medical benefits. The evidence sufficiently demonstrates the nature of the applicant’s impairments, the treatment proposed, and that the treatment is reasonable and necessary in mitigating the applicant’s impairment.

15The applicant submitted a chronic pain assessment as part of her OCF-18, completed by Dr. Karmy on December 30, 2016. Dr. Karmy is a specialist in pain medicine. His report lists him as certified by the relevant professional bodies and as having practiced in the field for 10 years. In short, Dr. Karmy found that the applicant suffered from physical and psychological effects of chronic pain, and that physical and psychological therapy would help the applicant mitigate her pain and improve her function.

16The respondent submitted assessments by Dr. Abuzgaya (an orthopaedic specialist) completed January 2017, Dr. Syed (psychologist) completed January 2017, and Dr. Gelman (family physician) completed May 2017. The respondent relies on the findings in these assessments for its position that the applicant is not entitled to further benefits.

17With respect to assessing the applicant’s chronic pain, I prefer the assessment of Dr. Karmy for the following reasons. First, none of the respondent’s assessors are pain medicine specialists, whereas Dr. Karmy is.

18Second, there is consistency in the psychological findings about the applicant. Both Dr. Syed and Dr. Karmy found that the accident psychologically impaired an already vulnerable applicant. Both report that the applicant has been attending psychotherapy and finding benefit. Additionally, Dr. Karmy indicates that the applicant’s physical rehabilitation is tied to her psychological rehabilitation.

19Third, the reports of Drs. Abuzgaya and Dr. Gelman do not specifically address chronic pain. Both physicians found range of motion to be within normal range and no objective medical evidence of ongoing pain. Both, however, reported that that applicant continued to experience pain, and did not explicitly rule out the possibility of chronic pain. Their findings remain consistent with Dr. Karmy’s finding of chronic pain and fibromyalgia, which can manifest despite there being no impingement on range of motion or other objective impairment.

20I find that the treatment proposed by Dr. Karmy in the subject OCF-18 is reasonable and necessary for the applicant’s recovery from the accident. Dr. Karmy examined the applicant in December 2016 following the applicant’s complaints about ongoing pain. The applicant reported to Dr. Karmy that, as a result of the accident in February 2016, she had her work hours and responsibilities reduced, experienced some difficulty with household responsibilities, and had not danced or done yoga. Dr. Karmy summarized her limitations as a “complete inability to resume her usual day-to-day activities at her pre-accident level”.

21According to Dr. Karmy, chronic pain is defined as pain that persists beyond the normal tissue healing time (more than six months). It is associated with psychological problems as well, such as anxiety, depression, and sleep disturbance. Evidence-based recommendations support a multi-disciplinary approach for patients who suffer from chronic pain.

22Upon examination, Dr. Karmy diagnosed the applicant with the following relevant diagnoses: post-traumatic fibromyalgia; chronic mechanical neck, shoulder and back pain; sacroiliac joint disfunction; sleep disorder; and, adjustment disorder. Dr. Karmy expressed a guarded prognosis about the applicant’s full recovery but did state that “despite the permanent nature of the claimant’s impairments, certain treatments would be beneficial for her functional improvement, management of her pain, and improvement in the quality of her life.”

23Dr. Karmy also states that the applicant has been undergoing some physical rehabilitation through physiotherapy, massage, and exercise. The applicant reported this as being partially helpful. She has also been receiving psychological treatment, which she reported as beneficial.

24As a result, Dr. Karmy recommended the following goods and services as treatment in the OCF-18, to be utilized over a period of 20 weeks:

a. Assessments by Dr. Karmy, the chiropractor and the massage therapist;

b. Eight (8) counselling sessions and eight (8) mental health and addictions therapy sessions;

c. Sixteen (16) chiropractic therapy sessions on multiple body sites;

d. Sixteen (16) massage therapy sessions; and,

e. One (1) TENS unit.

25The treatment plan laid out in the OCF-18 addresses the physical chronic pain that the applicant is experiencing, as well as the psychological impairment that often accompanies and exacerbates chronic pain recovery. In addition, the treatment plan addresses the applicant’s reduced functionality in household duties. Most importantly, and as confirmed by every assessment available to me, the applicant has been unable due to pain to resume her training as a dancer or her yoga practice. As dance is a vocation that the applicant was practicing prior to the accident, the purpose of the treatment is to assist her to return as much as possible to pre-accident levels. All of the treatments prescribed are linked to the symptoms or the effects of chronic pain. As of the date of the subject OCF-18, the applicant had experienced some improvement through similar treatments. Therefore, I find that the treatment plan is necessary.

26In addition, the treatment plan is targeted, concise, and for a proportionate amount of time. It is also, in my opinion, achievable in that amount of time. Therefore, I find that the treatment plan is reasonable.

27I put no weight in the respondent’s argument that the finding of chronic pain is premature, as more than six months had passed between the accident and the date of Dr. Karmy’s assessment. I also find that there is no requirement that the applicant have consumed all of her previous treatment plans, or the goods and services proposed in the subject OCF-18, in order for the benefits claimed to be reasonable and necessary.

28Lastly, I do not find any inconsistency with respect to the applicant’s reported work hours and responsibilities in each of the assessments. Chronologically, the earliest assessment reports the greatest level of impairment, and by the time she saw Dr. Gelman, the applicant had resumed work at nearly pre-accident levels. She had not, however, resumed her training and vocational dance practice whatsoever. Rather than demonstrating inconsistency this shows that the applicant has made progress over several months, and if this progress is connected to her previously granted treatment plans, only further supports the argument that the subject OCF-18 is reasonable and necessary, particularly with respect to assisting the applicant in resuming her dance and yoga training.

29In sum, I find that the treatment plan proposed in the OCF-18 submitted to the respondent on March 6, 2016 is, on a balance of probabilities, reasonable and necessary. The applicant is entitled to the medical benefits claimed therein.

Issue (ii) – Is the Applicant entitled to interest on the claimed benefit?

30As I find that the applicant is entitled to the treatment plans claimed in this application, the applicant is entitled to interest for the overdue payment of any benefits pursuant to section 51 of the Schedule.

CONCLUSION

31For the reasons above, I find that the applicant is entitled to the benefits claimed in her application, along with interest.

32The applicant’s appeal is granted.

Footnotes

1. 116-004348 v. Allstate Canada, 2018 CanLII 39464 (ON LAT).
2. 217-002689 v. Aviva Canada Inc., 2018 CanLII 2311 (ON LAT). 17-00208 v. The Personal Insurance Company, CarswellOnt, 1160, para 24.