Licence Appeal Tribunal
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:
A. M. S.
Appellant(s)
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Avvy Go
APPEARANCES:
For the Applicant: Elena Steinberg, counsel
For the Respondent: Amanda Fowler, counsel
Hearing in Writing: October 29, 2018
Overview
1The applicant, A.S., was injured in a motor vehicle accident on November 7, 2015.
2The applicant sought certain benefits pursuant to the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the "Schedule"). Some of the benefits were partially granted, while others were denied by the respondent insurer. The applicant submitted an application for dispute resolution services to the Licence Appeal Tribunal (the Tribunal).
3A number of issues were withdrawn at the case conference. The remaining issue in dispute is as follow:
i. Is the applicant entitled to payment for the Cost of Examinations in the amount of $2,200 for a Chronic Pain Assessment, recommended by Dr. Nayya Razvi in a Treatment Plan dated February 20, 2018, and denied by the Respondent on April 17, 2018?
RESULT
4For reasons set out below, I find that the applicant is not entitled to the payment claimed.
Analysis
Preliminary Motion: Should the New Documents Submitted by the Applicant be Excluded?
5The respondent raised a preliminary issue to prevent the appellant from relying on new documents that he produced after the case conference held on June 18, 2018. The Case Conference order states that the applicant must serve any new evidence on the respondent by no later than September 21, 2018 otherwise it will be excluded from the hearing record.
6As part of his submission for this hearing, the applicant submitted two new documents, namely, a) Report of Imraan Alibhai, a chiropractor, dated August 15, 2018, and b) updated clinical notes and records of the applicant's family physician, Dr. Sanipan Saha. Both of these documents were served on the respondent and filed with the tribunal when the applicant filed his written submission on September 28, 2018.
7The respondent had initially brought a motion to exclude the evidence. The motion was withdrawn for reasons unknown. However, the respondent reserved its right to make further submissions and subsequently requested the Tribunal exclude the new evidence as the applicant was in clear breach of the Case Conference order to produce new evidence. The respondent argued that the late filing blocked the respondent's right to evaluate the new evidence.
8I note first of all that the applicant did not provide any explanation as to why he had not submitted the documents sooner, and did not submit any reply to the respondent's submission. I also note that the chiropractor's report submitted was dated August 15, 2018, which was before the deadline for filing new evidence.
9The applicant's submission on the substantial issue is equally scant, with a single sentence stating that "the applicant relies on the Report of Dr. Imraan Alibhai, dated August 15, 2018" and with no further analysis or submission.
10Notwithstanding its claim that the late filing had blocked its right to evaluate the new evidence, the respondent did in fact provide a detailed analysis of Dr. Alibhai's report, his credentials, and the relevance of his opinion on the benefit claimed. The respondent's submission would suggest that its right to reply had not been prejudiced by the 7 day delay of the applicant in filing the evidence.
11Having said that, a breach of the Tribunal's order is something that should not be condoned, especially since no explanation has been provided. However, I must also examine the nature and relevance of the document in question in relation to any potential prejudice to the respondent. In this case, the document in question, Dr. Alibhai's report is clearly relevant to the only issue in dispute in this case. Balancing the rights of both parties to have a fair adjudication of their dispute, while taking into account the purpose of the Schedule to provide benefits to individuals that are injured in motor vehicle accident, I have therefore decided to allow the new evidence submitted by the applicant, and I will consider the new evidence in my deliberation of his claim.
12The applicant's late filing does constitute a breach of the Case Conference Order, and is unfair to the opposing party as it shortens the time with which they could respond to the new evidence. As such, I will make an issue of cost order against the applicant.
Is the applicant entitled to payment for the Cost of Examinations in the amount of $2,200 for a Chronic Pain Assessment, recommended by Dr. Nayya Razvi in a Treatment Plan dated February 20, 2018, and denied by the Respondent on April 17, 2018?
13As noted above, other than stating that he is relying on Dr. Alibhai's report, the applicant has made no submission whatsoever as to why he should be entitled to the cost of examination claimed.
14The respondent, on the other hand, has provided a fulsome analysis of Dr. Alibhai's report and submitted, for various reasons, why the report does not support the applicant's claim for a chronic pain assessment.
15I find much of the respondent's arguments persuasive.
16To start, the respondent questioned the expertise of Dr. Alibhai, a chiropractor, to make a chronic pain assessment. The respondent retained Dr. Sangita Sharma, a general practitioner to conduct an in-person Independent Medical Examination (IME) of the applicant in order to opine on the chronic pain assessment claimed. Dr. Sharma noted that a Chronic Pain Syndrome (CPS) can be described as "pain that continues beyond the normal healing time for the patient's diagnosis, and includes significant psychosocial dysfunction". Dr. Sharma also noted that the definition does not include any specific timeframe as some conditions are expected to resolve in days, while others in years. Regardless of the timeframe, CPS is "a condition that ultimately and adversely affects the patient's well-being, level of function, and quality of life".
17The respondent submitted that as a chiropractor, Dr. Alibhai, cannot be considered an expert in this regard. This is so in particular given Dr. Alibhai did not provide his contact information, a formal curriculum vitae, or a signed acknowledgment of expert's duty in accordance with Rule 10 of the Tribunal Rules. The report by Dr. Alibhai is also unsigned. I agree with the respondent and find that Dr. Alibhai lacks the expertise to opine on the applicant's chronic pain condition.
18Even if I am wrong in that regard, I find Dr. Alibhai's report lacking in many respects, for instance:
i. It does not indicate that Dr. Alibhai had reviewed any of the applicant's medical documentation when preparing his report and recommendations; and
ii. It did not specifically state that the applicant's lumbar spine tear and current pain complaints are the result of the accident.
19I also note that Dr. Alibhai's report was conducted six months after the treatment plan was proposed. It calls further into question its relevance in considering the treatment plan as proposed.
20Putting aside the issues with Dr. Alibhai's report, I also find that there is little medical evidence to support the applicant's claim that he has chronic pain, or that his chronic pain is a result of the accident in question.
21Dr. Shama explained in his IME that there are a number of major characteristics associated with CPS, namely:
i. the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances,
ii. excessive dependence on healthcare providers, family or spouse,
iii. secondary physical deconditioning due to disuse and/or fear avoidance of physical activity due to pain,
iv. withdrawal from social milieu, including work, recreation, or other social contacts,
v. failure to restore pre-injury function after a period of disability, such that physical capacity is insufficient to pursue work, family, or recreational needs, and
vi. development of psychological sequelae after the initial incident, including anxiety, fear avoidance, depression, or non-organic illness behaviour.
22In this case, almost none of these characteristics were present. Specifically, there is no evidence that the applicant is administering any prescribed medication or excessively depends on others for care. The applicant reported to Dr. Sharma that he continues to engage in his pre-accident social activities, albeit less frequently. The applicant has returned to his pre-accident employment and reported that he has resumed his pre-accident home care tasks. The applicant also has not been diagnosed with any psychological disorder.
23The only indication of pain is with respect to the applicant's back, which Dr. Sharma described as "mild bilateral back tenderness in L3-L4, L4-L5, and L5-S1.
24Dr. Sharma thus concluded that the applicant has not developed a CPS.
25I also reviewed the clinical notes of the applicant's family physician, Dr. Saha. According to Dr. Saha's notes, the applicant was seen on April 16, 2012 for low back pain and was recommended massage therapy. Then on July 5, 2013, the applicant was involved in an accident where he sustained whiplash and lower back pain. Two months before the accident, the applicant attended at Dr. Saha's office again for lumber spine pain complaints. However, as Dr. Saha noted on December 8, 2015, about a month after the accident that the applicant's neck and lumbar spine was no longer tender. Indeed, the applicant returned to work full time as an automobile technician about two months after the accident, without any modified duties.
26An MRI of the applicant's lumbar spine two and half years after the accident revealed degenerative changes in the form of a tear. Even Dr. Alibhai, whose report the applicant relies on exclusively, did not opine that the tender lumbar spine was a result of the accident.
27The respondent submitted that the applicant has a well-documented history of back pain dating three years before the accident and that the ongoing back pain supports the probability of degenerative changes, as opposed to a CPS developed as a result of the accident.
28In light of the evidence before me, I find the respondent's submission persuasive. I find that the applicant has not established that he has developed chronic pain. While the applicant may have ongoing back pain, he has not established that the back pain is a result of the accident, in light of his pre-accident history of low back pain.
29For the applicant to succeed, he needs to prove on a balance of probabilities that the Treatment Plan in dispute is reasonable and necessary as a result of the injuries sustained in the accident. Given my finding above, I conclude that the applicant has not proven that the treatment plan is reasonable and necessary.
Cost
30As noted above, the applicant has breached the Case Conference order with regard to the filing of additional evidence. Pursuant to 17.1 (1) of the Statutory Powers Procedure Act, R.S.O. 1990, C. S.22, a tribunal may, order a party to pay all or part of another party's costs in a proceeding.
31Rule 19.5 of the Tribunal Rules set out all the relevant factors in deciding whether to order costs and the amount of costs to be ordered. These factors include the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal; and prejudice to other parties. In this case, the applicant's conduct was in direct breach of an order issued by the Tribunal. As I have found that the respondent has not been seriously prejudiced by the applicant's conduct, I find a cost of $300 is appropriate under the circumstances.
FINDING & ORDER
32I find the applicant is not entitled to payment for the Cost of Examinations in the amount of $2,200 for a Chronic Pain Assessment, recommended by Dr. Nayya Razvi in a Treatment Plan dated February 20, 2018.
33I order the applicant to pay cost to the respondent in the amount of $300.00.
Released: February 25, 2019
Avvy Go
Adjudicator