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. V.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

PANEL:

Lindsay Lake, Adjudicator

APPEARANCES:

For the Applicant:

R.V.

Victoria Tchilikova

For the Respondent:

Carmela Mallia, Senior Litigation Specialist

Ashley Vaillancourt, Adjuster

Michael McChesney, Counsel

HEARD In Writing on:

October 30, 2018

OVERVIEW

1R.V., the 41- year old applicant, was injured in an rear-end automobile accident on September 8, 2015 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) from the respondent, Aviva Insurance Canada (“Aviva”). Aviva denied R.V.’s claims and, as a result, R.V. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (AABS) (the “Tribunal”) on March 9, 2018.

2The parties were unable to resolve their dispute at a case conference held on June 22, 2018, and the matter proceeded to a combination hearing.

3As outlined at the case conference order, R.V.’s application to the Tribunal includes a claim for weekly income replacement benefits, several treatment plans, and payment for a chronic pain assessment. R.V. has also claimed interest on any overdue payment of benefits found owing to her and an award under Ontario Regulation 664 (the “Regulation”) because Aviva unreasonably withheld or delayed benefit payments to her.

4Based on the evidence before me, I find that:

1. R.V. is not entitled to IRBs for the period of October 29, 2016 to September 8, 2017 because she did not suffer a substantial inability to perform the essential tasks of her pre-accident employment for the period of October 29, 2016 to September 8, 2017;

2. R.V. is entitled to the March 14, 2016 and May 27, 2016 treatment plans for physiotherapy, electrotherapy, massage therapy and acupuncture, and any interest owed on any overdue payments of benefits for these treatment plans in accordance with section 51 of the Schedule, as they are reasonable and necessary;

3. R.V. is not entitled to the following treatment plans because they are not reasonable and necessary:

(a) the January 25, 2017 treatment plan for Drive Counselling Sessions, Therapy Report and Psychoeducational Material;

(b) the May 11, 2017 treatment plan for the pain management and relaxation CD set and related education and instruction; and

(c) the August 2, 2017 treatment plan for a treadmill; and

4. R.V. is not entitled to an award under the Regulation as R.V. failed to make any submissions to persuade me that Aviva unreasonably withheld and/or delayed payments of benefits to her.

ISSUES IN DISPUTE

5The following issues are to be decided:

1. As a result of both physical and psychological impairments sustained from the accident, did R.V. suffer a substantial inability to perform the essential tasks of her pre-accident employment for the period of October 29, 2016 to September 8, 2017, thereby entitling her to receive a weekly income replacement benefit in the amount of $333.22 per week?

2. Are the following medical benefits recommended by [Healthcare Clinic] reasonable and necessary:

(a) $1,296.40 for a physiotherapy, electrotherapy, massage therapy and acupuncture as detailed in a treatment plan dated March 14, 2016, and submitted on March 22, 2016;

(b) $1,111.20 for a physiotherapy, electrotherapy, massage therapy and laser acupuncture as detailed in a treatment plan dated May 27, 2016, and submitted on June 2, 2016;

(c) $3,335.98 for Drive Counselling Sessions, Therapy Report and Psychoeducational Material as detailed in a treatment plan dated January 25, 2017, and submitted on February 7, 2017;

(d) $740.13 for a pain management and relaxation CD set and patient education and instruction as detailed in a treatment plan dated May 11, 2017, and submitted on May 12, 2017; and

(e) $1,323.78 for a treadmill as detailed in a treatment plan dated August 2, 2017, and submitted on August 3, 2017?

3. Is R.V. entitled to payments for the cost of examinations in the amount of $2,000.00 for a chronic pain assessment, recommended by [Healthcare Clinic] in a treatment plan dated September 30, 2016 and submitted on November 9, 2016?

4. Is R.V. entitled to interest on any overdue payment of benefits?

5. Is R.V. entitled to an award under the Regulation because Aviva unreasonably withheld or delayed benefit payments to R.V.?

ANALYSIS

1. Income Replacement Benefits (IRBs)

6R.V. is not entitled to weekly IRBs for the period of October 29, 2016 to September 8, 2017.

a) Test for eligibility – within 104 weeks of the accident

7An insured person is eligible to receive IRBs if, as a result of the accident, he or he suffers a substantial inability to perform the essential tasks of his or her pre-accident employment within 104 weeks after the accident, as set out in section 5(1) of the Schedule.

8R.V. is seeking IRBs within 104 weeks of the accident. Therefore, R.V. must prove on a balance of probabilities that she is entitled to IRBs for the period of October 29, 2016 to September 8, 2017 (104 weeks post-accident).

b) The essential tasks of R.V.’s employment

9At the time of the accident, R.V. was unemployed but had worked full-time as a Process Operator at Teva Manufacturing on contract from October 1, 2014 to December 31, 2014.¹ In this role, R.V. operated machinery to press and package tablets of medication² and submitted that the essential tasks of her employment were as follows:

(i) constant dynamic standing and walking;

(ii) constant gross handling/dexterity and fine motor dexterity; and

(iii) frequent neck rotation, back twisting/rotating, standing, stooping, squatting, kneeling, forward reaching, below waist reaching, crouching, lifting, carrying and pushing and pulling.

10In a Job Site Evaluation Report dated, January 27, 2016, Mr. Jordan Duffy, Physiotherapist, classified R.V.’s job at Teva Manufacturing as “heavy strength demands level” and found that R.V. would be required to handle loads of 10 kilograms on a frequent basis and up to 85 kilograms on a rare/occasional basis.³

11Having reviewed Mr. Duffy’s January 27, 2016 Job Site Evaluation Report, R.V.’s sworn affidavit and other self-reports in various documents, and having received no submissions from Aviva disputing the essential tasks of R.V.’s employment, I accept the essential tasks as set out by R.V. of her employment at Teva Manufacturing and that her position was one of a heavy strength demands level.

c) No substantial inability to perform the essential tasks of her pre-accident employment

12On a balance of probabilities, I find that R.V. did not sustain a substantial inability to perform the essential tasks of her pre-accident employment at Teva Manufacturing as a result of physical and/or psychological impairments that she sustained from the accident.

d) Physical Injuries

13R.V. submits that she was substantially unable to complete the essential tasks of her pre-accident employment during the period in dispute as a result of the physical impairments that she sustained from the accident.

14R.V. relies upon several documents that are outside of the period in dispute to support her argument regarding her physical injuries which are, therefore, of little assistance to her. For example, R.V. relies upon a Disability Certificate (OCF-3) completed by Dr. Domenic Minnella, Chiropractor, which indicates that R.V. was substantially unable to perform the essential tasks of her employment.⁴ This OCF-3, however, is dated December 8, 2015, well before the period in dispute and there is no indication beyond “more than 12 weeks” for R.V.’s anticipated duration of injuries.

15R.V. also relies upon the following two documents by Dr. Howard Jacobs, which are both dated well outside of the period in dispute: a Chronic Pain Report dated June 19, 2018;⁵ and an Addendum dated August 9, 2018. In addition to being completed outside of the period in dispute, I give little weight to these documents in determining R.V.’s entitlement to IRBs as Dr. Jacobs’ report does not make any findings or opinions as to R.V.’s ability to carry out the essential tasks of her pre-accident employment and the addendum is incomplete.⁶

16R.V. also relies upon several Insurance Examinations (IEs). First, R.V. relies upon Mr. Duffy’s October 12, 2016 Functional Abilities Evaluation Report⁷ in which Mr. Duffy concludes that R.V.’s, “overall strength demands level does not match the requirement of her previous position.”⁸ R.V., however, fails to include the entire context of this statement as Mr. Duffy continues by reporting, “this being said, she [R.V.] did not demonstrate objective signs consistent with limitation during left testing and her results are deemed to be submaximal.”⁹ Given Mr. Duffy’s concerns about R.V.’s submaximal results, I give little weight to Mr. Duffy’s conclusion that R.V.’s strength demand levels do not match her previous employment at Teva Manufacturing.

17R.V. also relies upon two Physician IE Assessment Reports by Dr. Neetan Alikhan. In his first report dated April 22, 2016,¹⁰ Dr. Alikhan concluded that R.V. suffered a substantial inability to perform the essential tasks of her pre-accident employment.¹¹ This report, however, was completed well before the period in dispute.

18In his second report dated October 12, 2016, Dr. Alikhan concluded that R.V., “does not currently suffer a substantial inability to perform the essential tasks of her pre-MVA employment.” ¹² R.V., however, submits that little weight, if any, should be given to Dr. Alikhan’s conclusion in this report.¹³ I find this request from R.V. to be inconsistent with her reliance upon Dr. Alikhan’s findings throughout the remainder of her submissions. Also, R.V. does not provide me with any medical evidence to support her request that Dr. Alikhan’s conclusion be given little weight. In my opinion, Dr. Alikhan provides clarification of the differences between his findings in his two reports and opines that the claimant’s clinical presentation at the assessment was, “largely attributable to exaggerated pain-focused behaviour related to non-organic factors, as opposed to an ongoing, organic-based accident related impairment.”¹⁴ In his October 12, 2016 report, Dr. Alikhan also noted improvement of the left plantar fasciitis and no trigger points were identified of the left trapezius muscle. I place weight on Dr. Alikhan’s opinion because he explains the differences in his observations of R.V. between his two reports.

19R.V. also relies upon CNRs from [the Medical Centre].¹⁵ The CNRs cover the period in dispute but there is no determination contained in them that R.V. is substantially unable to perform the essential tasks of her employment. In addition, there was no evidence in the CNRs of a lack of functionality to such extent that would lead me to conclude that R.V. suffers a substantial inability to perform the essential tasks of her pre-accident employment.

e) Psychological Injuries

20R.V. also submits that she was substantially unable to complete the essential tasks of her employment during the period in dispute as a result of her psychological impairments of anxiety and depression as a result of the accident.

21R.V. relies upon two reports by Dr. Andrew Shaul, Psychologist, but Dr. Shaul’s first report dated January 16, 2016¹⁶ does not opine that R.V. is substantially unable to complete the essential tasks of her pre-accident employment.

22Dr. Shaul’s second report is a Driver/Passenger Rehabilitation Evaluation Report dated December 26, 2016.¹⁷ In this report, Dr. Shaul opines that R.V.’s phobia of travelling in a vehicle affects her ability to travel to her employment. It is only in reply submissions that R.V. submits that in order for her to perform the essential tasks of her pre-accident employment, it was necessary for her to travel to her employer’s location, which was a drive of 30 minutes.¹⁸ Unfortunately, this submission is not evidence and the information on how long the commute is to her pre-accident employer is not in any evidence before me. Accordingly, I do not give any weight to this argument.

23I also place little weight on Dr. Shaul’s conclusions in his December 26, 2016 report for the following reasons:

(i) This report was based on a clinical interview completed by a Psychotherapist who was working under the supervision of Dr. Shaul,¹⁹ and the administration of three psychological self-reports to R.V. R.V. reports never having met Dr. Shaul;

(ii) R.V. self-reports as only driving a vehicle “a few times since the accident” and “does not drive regularly;”²⁰

(iii) Surveillance of R.V. that was conducted over the course of three days in November 2016, just before Dr. Shaul’s report, reported that R.V. operated a motor vehicle on each of the three days that she was under surveillance;²¹

(iv) This evidence from the surveillance directly contradicts R.V.’s self-reporting of the amount and frequency of her driving to Dr. Shaul;

(v) As a result of this contradiction, I place little weight on Dr. Shaul’s conclusions as they were largely based on R.V.’s self-reporting which I find contradictory to the surveillance in evidence.

24In her reply submissions, R.V. asks me to place little weight on the surveillance report because it was not provided to any of the medical professionals for an opinion and because the surveillance does not accurately depict R.V.’s physical and mental capacity while engaging in the observed activities. While I agree with R.V.’s submissions, I am placing weight on the surveillance solely for the purpose of recording R.V.’s driving frequency over the course of three days and not for the purpose of determining R.V.’s physical and mental capacity while driving.

25R.V. also relies upon the CNRs from [the Medical Centre] regarding her ongoing psychological impairments; however, there is neither evidence that R.V. lacks functionality to such an extent that would lead me to conclude that she suffers a substantial inability to perform the essential tasks of her employment nor a statement that she is substantially unable to complete the essential tasks of her employment at Teva Manufacturing as a result of her psychological impairments contained in the CNRs.

26R.V. has failed to submit evidence that speaks to her substantial inability, both physical and psychological, to perform the essential tasks of her pre-accident employment during the period in dispute or, in the event that she has, is not evidence that I am able to assign any weight to for the reasons outlined above. As such, I find that R.V. has failed to prove on a balance of probabilities that she is entitled to IRBs for the period from October 29, 2016 to September 8, 2017.

2. Medical Benefits

27Sections 14 and 15 of the Schedule provide that the insurer shall pay for medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

28R.V. bears the onus of proving her entitlement to the claimed physiotherapy, electrotherapy, massage therapy, acupuncture treatment, relaxation CD set and treadmill are reasonable and necessary on a balance of probabilities.²²

a) Physiotherapy, electrotherapy, massage and acupuncture treatment plans

29I find that R.V. has met her onus in proving on a balance of probabilities that the treatment plans dated March 14, 2016 and May 27, 2016 are both reasonable and necessary.

30The March 14, 2016 treatment plan in dispute was completed by Dr. Domenic Minnella, Chiropractor, and was for a functional exercise program, electrotherapy, massage therapy and acupuncture.²³ The goals of the treatment plan are pain reduction, increase in strength, increase in range of motion, return to activities or normal living and patient education. Dr. Minnella lists the following under “injury and sequelae information:” chronic lumbar spine sprain/strain (left); lumbar spine – radiculopathy (left); headache – post traumatic; chronic cervical spine sprain/strain with radiculopathy (left); chronic thoracic spine sprain/strain; chronic shoulder sprain/strain (left); chronic foot and/or ankle sprain/strain (left); and behavioural – symptoms and signs involving emotional state.

31The May 27, 2016 treatment plan in dispute was also completed by Dr. Minnella and is for substantially similar treatment as set out in the March 14, 2016 treatment plan.²⁴ The injuries and sequelae information and the goals of the treatment place are the exact same as the March 14, 2016 treatment plan as well.

32R.V. argues that these two treatment plans are reasonable and necessary because despite the denials, R.V. participated in the recommended treatment because it was providing her with pain relief.²⁵ The CNRs from [Healthcare Clinic] show that R.V. attended for treatment fifteen times for the period of March 14, 2016 to November 4, 2016.²⁶ R.V.’s assertion that this treatment was providing her with pain relief is consistent with the CNRs from [the Medical Centre] as the entry dated March 18, 2016 notes, “under physiotherapy with partial improvement.”²⁷ R.V.’s claims of improvement are corroborated by the improvements noted by Dr. Alikhan’s between his February 2016 and October 2016 reports discussed above. R.V. also relies upon Mr. Duffy’s October 12, 2016 findings of an increased range of motion in R.V.’s cervical and lumbar spine from his earlier assessment.²⁸

33Aviva relies upon Dr. Alikhan’s June 18, 2016 Physician Assessment Report wherein Dr. Alikhan opined that the two treatment plans were neither reasonable nor necessary.²⁹ Dr. Alikhan opined that the treatment plans should be denied because similar previous treatment had not translated into “any sustained or appreciable therapeutic gains.”³⁰

34I find that R.V. has met her onus of proving that the proposed treatment plans are both reasonable and necessary on a balance of probabilities because R.V.’s continued treatment, despite the denials, met two goals of the treatment plan – pain reduction and increased range of motion in two areas of injury listed on the treatment plans, R.V.’s cervical and lumbar spine. R.V. affirmed in her affidavit that she was receiving pain relief following this treatment and was not cross-examined on this issue. Furthermore, the increases in range of motion noted by Dr. Alikhan and Mr. Duffy were not disputed by Aviva in its submissions and directly contradict Dr. Alikhan’s sole reason for denying the treatment plans.

b) Drive Counselling Sessions, Therapy Report and Psychoeducational Material

35I find that R.V. has not met her onus in proving on a balance of probabilities that the treatment plan dated January 25, 2017 is both reasonable and necessary.

36The January 25, 2017 treatment plan in dispute was completed by Dr. Saranjit Khaira, Chiropractor.³¹ The treatment plan is for drive counselling sessions, drive therapy progress report and psychoeducational material. The goals of the treatment plan are to provide driver/passenger rehabilitation counselling to help R.V. manage her emotional response to the difficulties she is experiencing, including travelling in a vehicle. The information listed in the “injury and sequelae information” portion is: behaviour – specific phobia; behaviour – adjustment disorder with anxiety; and behaviour – depressive episode.

37R.V. relies upon two reports by Dr. Shaul. In Dr. Shaul’s first report dated January 19, 2016, he opined that R.V. suffers from adjustment disorder with anxiety, major depressive disorder, and travelling in a vehicle phobia.³² R.V. submits that Dr. Shaul recommended sixteen counselling sessions, psycho-educational material and a driver/passenger rehabilitation evaluation.³³ This report, however, pre-dates the treatment plan in dispute by a year.

38R.V. also relies upon Dr. Shaul’s second Driver/Passenger Rehabilitation Evaluation Report dated December 26, 2016, which I give little weight to the conclusions contained therein for the reasons that I have discussed in detail above.

39Aviva relies upon Dr. Marc Mandel’s Psychological Assessment Report dated June 29, 2017³⁴ wherein Dr. Mandel notes that R.V. reports symptoms consistent with adjustment disorder with mixed anxiety and depressed mood and somatic symptom disorder with predominant pain; however, Dr. Mandel calls into question the accuracy of R.V.’s claims of dysfunction because of a lack of consistent objective valid support for R.V.’s self-reported symptoms of psychological disability.³⁵ Dr. Mandel ultimately opines that from a psychological perspective, R.V. does not meet the threshold for a psychological diagnosis related to the accident.³⁶ Dr. Mandel concludes that additional psychological services are not reasonable and necessary at this time because R.V. had not exhausted approved treatment under a previous OCF-18³⁷ and that the utility of additional psychological services had not been demonstrated by R.V.

40Given my concerns about R.V.’s self-reporting as set out above which formed the basis of Dr. Shaul’s conclusions in his December 26, 2016 report, I prefer the opinion of Dr. Mandel’s report which also notes concerns about the accuracy of R.V.’s self-reporting. I also find that Dr. Shaul’s January 19, 2016 report is of little assistance in determining the reasonableness and necessity of a treatment plan that was dated over one year after the completion of the report. Therefore, I find that R.V. has not proven on a balance of probabilities that the treatment plan for Drive Counselling Sessions, Therapy Report and Psychoeducational Material is reasonable and necessary.

c) Pain Management and Relaxation CD Set

41I find that R.V. has not met her onus of proving on a balance of probabilities that the treatment plan for pain management and relaxation CD set and instruction dated May 11, 2017 is both reasonable and necessary as R.V. made no submissions about the reasonableness and necessity of this treatment plan.

d) Treadmill

42I find that R.V. has not met her onus in proving on a balance of probabilities that the treatment plan for a treadmill dated August 2, 2017 is both reasonable and necessary.

43The August 2, 2017 treatment plan was completed by Dr. Saranjit Khaira, Chiropractor, and was for completion of the OCF-18, a treadmill, a review of medical documentation and delivery/installation/explanation.³⁸ The goals of this treatment plan are pain reduction, increased range of motion, increased strength, improved endurance, to return to activities of normal living and to promote self-directed physical activity.

44R.V. submits that the treatment plan for the treadmill is reasonable and necessary because:

(i) it was recommended by Dr. Minnella on January 25, 2017 to help maintain the gains made to date and to allow her to improve her ROM, endurance and overall strength and function;³⁹

(ii) Dr. Khaira concurred with the opinion of Dr. Minnella and submitted the treatment plan for the treadmill which noted, “limitations persist with respect to lifting, carrying, overhead activity, walking, prolonged sitting/standing;”⁴⁰

(iii) Dr. Jacobs’ report opines, “the OCF-18’s that I have reviewed were reasonable and necessary considering her [R.V.’s] injuries. In my opinion, the treatments that have been provided to date have been appropriate. At this time, she [R.V.] requires additional treatments that have been described above;”⁴¹ and

(iv) R.V. affirms in her affidavit that she requires the treadmill to continue with her home exercises for her left leg numbness and was advised to continue walking to prevent worsening of her left leg injury.⁴² R.V. also affirms that due to her ongoing dizziness and lack of funding for physiotherapy, her family doctor advised it would be best to complete her exercises at home.⁴³

45Aviva submits that R.V. has not demonstrated the reasonableness and necessity of the treatment plan for the treadmill and relies upon the October 13, 2017 Chiropractic Assessment Report by Dr. Dimitrois Polyvos, Chiropractor. Dr. Polyvos opined that from a musculoskeletal perspective, R.V.’s sprain/strain injuries had resolved and encouraged R.V. to focus on her self-directed exercises which included, “frequent brisk walking, stretching and core strengthening and endurance exercises.”⁴⁴ Dr. Polyvos reported that “these exercises can be easily performed without the provision of the treadmill.”⁴⁵

46The surveillance report by Xpera Investigation dated November 30, 2016, reported observing R.V. walking outdoors on three days in November 2016 without utilizing any visible form of medical devices or displaying any obvious signs of restrictions.⁴⁶

47I find that R.V. has not met her onus of proving that the proposed treatment plan for the treadmill is reasonable and necessary on a balance of probabilities for the following reasons:

(i) Neither Dr. Minnella nor Dr. Khaira provide any information as to why a treadmill is required for R.V. to complete her home exercises;

(ii) Dr. Jacobs only lists, “OCF-18’s various dates from [Healthcare Clinic] recommending treatment”⁴⁷ as the documents that he has reviewed and, therefore, it is unclear if this specific treatment plan was reviewed by Dr. Jacob. Also, Dr. Jacobs does not mention a treadmill anywhere in his report;

(iii) This treatment plan was submitted over six months after Dr. Minnella authored his two paragraph note recommending the treadmill and R.V. provided no explanation for this delay;

(iv) Dr. Minnella recommended other home exercise equipment which was not sought by R.V. in the treatment plan and I was not provided with any reason why R.V. was not seeking to follow Dr. Minnella’s recommendations in full;

(v) R.V. also affirmed that her family doctor advised it would be best for her to complete her exercises at home but I was not directed to any documentary evidence to support this information;

(vi) R.V. affirms that the treadmill is required to complete her exercises at home because of her ongoing dizziness and lack of funding for physiotherapy but yet R.V. is observed on three days in November 2016 walking outdoors without restrictions; and

(vii) No explanation was provided to me as to why R.V. could not continue to walk outdoors or at a gym and why a treadmill was necessary.

3. Chronic Pain Assessment

48Based on the evidence before me, I am not convinced, on a balance of probabilities that the treatment plan for a chronic pain assessment was reasonable and necessary.

49The November 9, 2016 treatment plan for a chronic pain physical examination, a review of medical documentation and the formation and completion of a report in dispute was completed by Dr. Howard Jacobs and Dr. Minnella.⁴⁸ The goal of this treatment plan is to evaluate the extent of R.V.’s chronic injuries and psychological complaints, to provide a prognosis and recommendations for recovery and to return R.V. to her activities of normal living.

50R.V. argues that the treatment plan for the chronic pain assessment is reasonable and necessary because:

(i) R.V. was diagnosed by her family doctor with chronic pain as early as February 26, 2016, and again in March and April 2016 in various areas of her back and neck;

(ii) Dr. Minnella noted that R.V.’s injuries were becoming chronic in the March 14, 2016 and May 11, 2016 OCF-18s;

(iii) Dr. Minnella referred R.V. to a chronic pain specialist to evaluate the extent of her chronic injuries and psychological complaints, and to provide a prognosis and recommendation for recovery as well as recommendations to return to activities of normal living;

(iv) R.V. had a reasonable possibility of suffering from chronic injuries and that the referral for a chronic pain assessment was reasonable and necessary to investigate this possibility; and

(v) R.V. was diagnosed with chronic pain, cervical zygapophyseal joint pain, probable cervical discogenic pain involving the left cervical spine and lumbar zygapophyseal joint pain following a chronic pain examination by Dr. Jacobs on June 19, 2018.

51Aviva denied funding for R.V.’s chronic pain assessment based on Dr. Alikhan’s November 21, 2016 IE physician paper review report.⁴⁹ Aviva relies upon Dr. Alikhan’s conclusion that the medical evidence neither supported a diagnosis of chronic pain syndrome, nor objectively supported a diagnosis of chronic myofascial pain syndrome. Dr. Alikhan also found that R.V.’s presentation did not support the presence of any objective, ongoing accident-related impairments which would confer the extent of the functional limitations of level of reported discomfort described by R.V. Aviva also highlighted the report’s questioning of the reliability of R.V.’s clinical presentation and notes previous observations of exaggerated non-organic pain behaviour by R.V.

52I agree with R.V. that the consideration when determining whether or not the treatment plan for a chronic pain assessment is reasonable and necessary involves the consideration of whether or not it is reasonably possible that the applicant may have chronic pain syndrome.⁵⁰ R.V.’s family physician notes indicate “chronic pain” as early as February 26, 2016 and again in March and April 2016 but R.V.’s family doctor does not refer her to a chronic pain specialist or make any notes that R.V. suffers from chronic pain syndrome. Further, the only evidence concretely before me from Dr. Minnella is his note dated January 25, 2017 which states that R.V., “continues to suffer from chronic pain as a result of the accident.”⁵¹ Without any further notes, reports or any attachment to the OCF-18 at issue supporting Dr. Minnella’s recommendation for the chronic pain assessment, it is difficult to place weight on his recommendation as there is little to no documentation from him supporting his position.

53Dr. Jacob’s report is also of little assistance in determining whether or not the treatment plan for a chronic pain assessment was reasonable and necessary because it was completed over a year and a half after the treatment plan was submitted to Aviva. Further, the purpose of a chronic pain assessment is, typically, to determine if an injured person has chronic pain syndrome.⁵² However, the purpose of Dr. Jacob’s report is to outline R.V’s complaints and to make suggestion for appropriate treatment, if any.⁵³ I accept Dr. Jacobs as an expert in chronic pain management and he has confirmed this expertise on the acknowledgement of expert’s duty form, but even after the chronic pain assessment is carried out, Dr. Jacobs does not diagnose R.V. with chronic pain syndrome – Dr. Jacob only diagnoses R.V. with, among other illnesses, “chronic pain.”⁵⁴

54I also place little weight on Dr. Alikhan’s report for the purposes of determining whether or not the treatment plan was reasonable and necessary because Dr. Alikhan has no expertise, training or certification in chronic pain. I also do not have an acknowledgement of expert’s duty form from Dr. Alikhan. Furthermore, Dr. Alikhan’s paper review focuses on findings from his own previous in-person assessments of R.V. and his own statements from his previous reports. Despite Dr. Alikhan listing 45 documents that were reviewed as part of the assessment and his “comprehensive review of the file,”⁵⁵ his report is essentially a statement that he agrees with himself and offers little to no comments on any of the other medical documentation reviewed.

55As a result of the reasons listed above, I find that R.V. has failed to prove on a balance of probabilities that the treatment plan for a chronic pain assessment was reasonable and necessary when it was submitted to Aviva in November 2016 and also when it was carried out in June 2018 by Dr. Jacobs.

4. Interest

56R.V. is entitled to interest for the cost of the OCF-18s dated March 14, 2016 and May 27, 2016 for physiotherapy, electrotherapy, massage therapy and acupuncture. Interest is payable in accordance with section 51 of the Schedule.

5. Award

57Since R.V. made no submissions regarding her claim for an award under section 10 of the Regulation, I find that R.V. has not met her burden of proving on a balance of probabilities that Aviva unreasonably withheld or delayed payments and, therefore, R.V. is not entitled to an award.

CONCLUSION

58For all of the above reasons, I find:

(i) R.V. is not entitled to IRBs for the period of October 29, 2016 to September 8, 2017;

(ii) R.V. is entitled to the March 14, 2016 and May 27, 2016 treatment plans and any interest owed on any overdue payments of benefits for these treatment plans in accordance with section 51 of the Schedule;

(iii) R.V. is not entitled to the following:

(a) the January 25, 2017 treatment plan for Drive Counselling Sessions, Therapy Report and Psychoeducational Material;

(b) the May 11, 2017 treatment plan for the pain management and relaxation CD set and related education and instruction; and

(c) the August 2, 2017 treatment plan for a treadmill; and

(iv) R.V. is not entitled to an award.

Footnotes

1. 1Document Brief of the Respondent, tab I, page 54.
2. 2Job Site Evaluation Report dated January 27, 2016 by Mr. Jordan Duffy, Submissions of the Applicant, tab 11, page 2.
3. 3Ibid. at page 6.
4. 4Submissions of the Applicant, tab 7.
5. 5Chronic Pain Report by Dr. Howard Jacobs, dated June 19, 2018, Submissions of the Applicant, tab 10.
6. 6I requested the missing pages from R.V.’s representative at the in-person portion of the hearing and was told that they would be submitted to the Tribunal “in due course,” but they were never received.
7. 7Functional Abilities Evaluation Report dated October 12, 2016 by Mr. Jordan Duffy, Submissions of the Applicant, tab 12.
8. 8Ibid. at page 7.
9. 9Ibid.
10. 10Physician Assessment Report by Dr. Neetan Alikhan dated April 22, 2016, Submissions of the Applicant, tab 18.
11. 11Ibid. at page 10.
12. 12Physician Assessment Report by Dr. Neetan Alikkhan dated October 12, 2016, Submissions of the Applicant, tab 19, pages 13-14.
13. 13Submissions of the Applicant, page 6, para. 19.
14. 14Ibid. at page 13.
15. 15Submissions of the Applicant, tabs 9 and 16.
16. 16Psychological Report by Dr. Andrew Shaul dated January 19, 2016, Submissions of the Applicant, tab 20.
17. 17Submissions of the Applicant, tab 21.
18. 18Reply Submissions of the Applicant, page 2, para. 1(c).
19. 19Ibid. at page 2.
20. 20Supra note 16 at page 10.
21. 21Xpera Investigations Report dated November 30, 2016, Document Brief of the Respondent, tab G.
22. 22Scarlett v. Belair Ins. Co., supra note 10, paras. 20-24.
23. 23Submissions of the Applicant tab 1.
24. 24Submissions of the Applicant tab 2.
25. 25Submissions of the Applicant, page 9, para. 29 and Affidavit of R.V. dated September 26, 2018, para. 11.
26. 26CNRs of [Healthcare Clinic], Submissions of the Applicant, tab 9.
27. 27CNRs of [the Medical Centre], Submissions of the Applicant, tab 16.
28. 28Supra note 7 at page 4 and Functional Abilities Evaluation Report by Mr. Jordan Duffy dated April 22, 2016, Submissions of the Applicant, tab 23, page 4.
29. 29Physician Assessment Report by Dr. Neetan Alikhan dated June 18, 2016, Document Brief of the Respondent, tab V, page 12.
30. 30Ibid.
31. 31Submissions of the Applicant, tab 4.
32. 32Submissions of the Applicant, page 12, para. 42.
33. 33Ibid.
34. 34Psychological Assessment Report by Dr. Marc Mandel dated June 29, 2017, Document Brief of the Respondent, tab X.
35. 35Ibid. at page 10.
36. 36Ibid. at page 9.
37. 37Ibid. at pages 9 and 10.
38. 38Submissions of the Applicant, tab 6.
39. 39Submissions of the Applicant, pages 9-10, para. 33.
40. 40Submissions of the Applicant, page 10, para. 33.
41. 41Chronic Pain Report by Dr. Howard Jacobs dated June 19, 2018, Submissions of the Applicant, tab 10, page 10.
42. 42Affidavit of R.V., sworn September 26, 2018, at page 3, para. 12.
43. 43Ibid.
44. 44Chiropractic Assessment Report by Dr. Dimitirios Polyvos dated October 13, 2017, Document Brief of the Respondent, tab AA, page 8.
45. 45Ibid. at pages 8-9.
46. 46Supra note 21 at page 2.
47. 47Ibid. at page 3.
48. 48Submissions of the Applicant, tab 3.
49. 49Document Brief of the Respondent, tab CC.
50. 5016-001934 v Aviva Insurance Canada, 2017 CanLII 19197 (ON LAT) (“16-001934”).
51. 51Medical Note, Dr. D. Minnella, Submissions of the Applicant, tab 25.
52. 52Supra note 50.
53. 53Supra note 41 at page 1.
54. 54Ibid. at page 9.
55. 55Supra note 49 at page 5.