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:
M.R.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Samia Makhamra
For the Appellant: James Armstrong, Counsel
For the Respondent: Suhasha Hewagama, Counsel
Heard IN writing: August 8, 2018
OVERVIEW
1The applicant was involved in an automobile accident on December 6, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). She applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”), when some of these claims were denied by the respondent.
2Specifically, the respondent denied the applicant’s claims for two benefits, a chronic pain assessment and a neurological assessment, on the basis that they were not reasonable and necessary.
3A case conference was held, but the parties were unable to resolve their dispute and agreed to proceed to a hearing.
ISSUES
4The issues to be decided are:
i. Is the applicant entitled to receive medical benefits in the following amounts:
a. $2,468.00 for a chronic pain assessment, recommended by Dr. Stephen Brown, and submitted on August 3, 2016?; and
b. $2,200.00 for a neurological assessment, recommended by Ms. Rhoda Breen, and submitted on June 29, 2016?
ii. Is the applicant entitled to interest on the overdue payment of benefits?
iii. Is the respondent liable to pay an award pursuant to O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
5I find that the applicant is entitled to both medical benefits; the chronic pain assessment, and the neurological assessment. She is entitled to interest on overdue payment of benefits. I also find that the respondent is not liable to pay an award under O. Reg. 664.
BACKGROUND
6The applicant was involved in the accident as the driver, when her vehicle was t-boned by a third party, and pushed into another vehicle as a result.
7Following the accident, the applicant saw her family physician, Dr. Diena, who provided a diagnosis of soft tissue injuries, recommended physiotherapy, and prescribed Tylenol no. 2 for pain. Dr. Diena completed a disability certificate dated April 1, 2014, wherein he identified the injuries as sprain and strain of lumbar spine and contusion of the lower leg.
8Relevant pre-existing medical history includes a genetic coagulation disorder called latent Factor V Leiden, a history of migraines, and two previous motor vehicle accidents in 2011 with injuries that were largely resolved by the time of the accident of December 2013.
ANALYSIS
The Chronic Pain Assessment
9I find there is compelling evidence that the applicant suffered from chronic pain as a result of the accident that warranted an assessment. The medical records indicate that she had pre-existing back pain, which persisted and became worse over time. Records from her family doctor include complaints of injuries from the accident, including back pain during a number of appointments in 2014, on March 24, September 23 and 29, and in 2016, beginning with a visit on February 16, 2016, a prescription for pain on June 28, pain noted on August 9, September 27, and January 2, 2017 and February 5, 2017.
10The applicant’s complaints of pain were also noted in a report by Tanja Jakovljevic, RN, in April 2016 for an in-home assessment. Ms. Jakovljevic noted continued complaints of headaches and migraines, light sensitivity, pain in lower back, waist, right knee and shoulders. Whether the final recommendations of Ms. Jakovljevic were reasonable and necessary does not change my view that the applicant suffered from pain during that time. Further, the fact that the applicant may not have been taking pain medication for some time after the accident doesn’t change my view of the medical records.
11Further, I find the treatment and assessment plan for chronic pain by Dr. Brown reasonable and necessary. Dr. Brown’s list of complaints and injuries is consistent with the disability certificate of Dr. Diena, and the ongoing complaints of pain in Dr. Diena’s medical records. Among others, Dr. Brown noted sprain and strain of the lumbar and thoracic spine and tension-type headaches, and indicated that a chronic pain assessment was necessary to identify impairments and help achieve maximal recovery. I see that he assessed the applicant, and I find the treatment goal valid given the injuries noted. In addition, under activity limitations, Dr. Brown indicated that pain and functional limitations interfered with the applicant’s activities of normal life before the accident, in result, contrary to the respondent’s position, I am not as concerned that he identified prior conditions as unknown.
12The respondent relies on Dr. Alikhan’s assessment report dated August 5, 2016 wherein he concluded that the applicant suffered minor injuries, and a paper review report dated August 11, 2016, by Dr. Alikhan, with the conclusion that the applicant sustained uncomplicated and minor soft tissue injuries, and had reached maximum medical improvement. There is also an addendum report dated November 7, 2016 which Dr. Alikhan prepared after reviewing additional medical information, including Dr. Brown’s chronic pain assessment. Dr. Alikhan’s conclusions remained unchanged.
13I accept Dr. Alikhan’s opinion on chronic pain as an expert in family medicine, but assign his reports limited weight compared to Dr. Brown’s recommendation. Dr. Alikhan is not a chronic pain specialist, he did not examine the applicant for chronic pain, and while he noted in his report that she complained of pain, he provided no opinion in the way of a remedy for her complaints.
The Neurological Assessment
14The basis for this assessment is the applicant’s headaches, a pre-existing condition which presumably became worse after the accident. On the evidence, I find this treatment plan reasonable and necessary. There are notes of headaches from the family physician before the accident for visits on April 16 and October 22, 2013. Post-accident, there are notes dated December 17, 2013, December 14, 2015, February 16 and August 9 2016, and a note about vertigo dated February 5, 2016. On April 23, 2014 she saw a neurologist, Dr. Baskind for headaches (I find this note relevant whether or not the referral pre-dates the accident). In addition, headaches were also noted during an in-home assessment in April 2016, and in the treatment plan for a chronic pain assessment by Dr. Brown in August 2016.
15Rhonda Breen, OT, prepared the treatment and assessment plan. She noted that the applicant continued to suffer from cervicalgia, and the assessment was necessary to optimize effective and efficient recovery. Under barriers to recovery and strategies to overcome barriers, Ms. Breen indicated that a neurological assessment was required to determine entitlement to additional benefits and provide immediate direction of care. While Ms. Breen didn’t elaborate extensively, in my view, she provided the necessary information for this assessment.
16The respondent relied on Dr. Alikhan’s assessment report. Following his examination of the applicant, his report of August 5, 2016 indicated that the applicant sustained the following injuries: cervical sprain/strain – consistent with a WAD I-II injury, bilateral trapezius muscle sprain/strain, paralumbar sprain/strain, and soft tissue injury/contusion. He concluded that his examination did not reveal any reliable objective evidence of a substantial accident-related musculoskeletal functional impairment/range of motion deficit or neurological sensory/motor deficit as a direct result of the accident.
17I prefer the recommendations of Ms. Breen over Dr. Alikhan’s. Ms. Breen directly addressed the concern with continued headaches, explaining the need for a neurological assessment. In summary, in considering the evidence and submissions, I find the treatment plan for a neurological assessment reasonable and necessary.
Is the respondent liable to pay an award?
18The respondent is not liable to pay an award. The applicant submits that the case is deserving of an award because the respondent failed to reassess the disputed treatment plans when she was removed from the Minor Injury Guideline, and chose to rely on Dr. Alikhan’s opinion. I disagree. I accept that the respondent properly considered the medical benefits in dispute, obtained section 44 insurer’s examination assessment reports, and properly provided its response to the claims. No award is warranted.
CONCLUSION
19For the reasons outlined above, the applicant is entitled to both assessments in dispute, the chronic pain assessment and the neurological assessment. Pursuant to section 51 of the Schedule, she is also entitled to interest on overdue benefits.
20The applicant is not entitled to an award under O. Regulation 664.
Released: May 27, 2019
Samia Makhamra
Adjudicator