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:
M.H.
Applicant
and
Aviva General Insurance
Respondent
DECISION
PANEL:
Samia Makhamra, Adjudicator
APPEARANCES:
For the Applicant:
Ilan Liebner,
For the Respondent:
Kathleen Mertes
HEARD:
In Writing on August 20, 2018.
OVERVIEW
1The applicant was involved in an automobile accident on September 30, 2015, 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 (the “Tribunal”), when some of these benefits were denied by the respondent.
2A case conference was held, but the parties were unable to resolve their dispute and agreed to proceed to a hearing. The parties subsequently resolved most of the issues, except for what is in dispute in this hearing.
ISSUES
3The issues to be decided are:
a. Is the applicant entitled to receive a medical benefit in the amount of $9,024.34 for occupational therapy, physician, chiropractic and chronic condition services recommend by Prime Health Care Inc. in a treatment plan submitted July 18, 2016?
b. Is the applicant entitled to interest on the overdue payment of benefits?
c. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4I find the applicant is entitled to the medical benefit for occupational therapy, physician, chiropractic and chronic condition services in the amount of $9,024.34. Interest is payable on overdue benefits as a result. The respondent is not liable to pay an award under Regulation 664.
ANALYSIS
5I find on the evidence that the applicant has suffered from ongoing pain since the accident that can be considered chronic. The earliest medical records related to the accident are from Dr. Gnanatissa dated October 11 and 23, 2015, noting complaints of neck, shoulder and lower back pain. The applicant consistently received treatment with a chiropractor, beginning at Faulhaber Chiropractic in early October 2015; I note that she was already receiving treatment from a previous accident on May 7, 2015, which resulted in minor injuries. She continued treatment at the Prime Health Care clinic on a regular basis until early May 2016. She received heat massage, laser acupuncture therapies, and stretching, among others.
6Further, the applicant was assessed by Dr. Karmy, a chronic pain specialist. He noted the applicant complained of feeling fatigued, depressed, anxious, with mood problems, and sleep difficulties. In his report of June 24, 2016, Dr. Karmy noted chronic bilateral shoulder pain, headaches, and worsening of previous neck, back and bilateral knee pain; these relate to the previous motor vehicle accident of May 2015. Dr. Karmy diagnosed the applicant with chronic post-traumatic headache, chronic left and right shoulder pain, sacroiliac joint dysfunction, myofascial pain syndrome, caused by the subject accident, and chronic back pain, chronic bilateral knee pain, sleep disorder and mood disorder, aggravated by the accident. He also diagnosed her with a mild traumatic brain injury.
7The respondent relies on two section 44 insurer’s examinations to deny the benefit as not reasonable and necessary. One examination is a physiatry assessment report by Dr. Oshidari dated October 18, 2016. In his report, Dr. Oshidari noted that the applicant sustained sprain/strain of the spine, contusion of the left shoulder and knee, and tension headaches, with an unremarkable physical assessment with no specific neuro-musculoskeletal abnormalities, and concluded that she had reached maximal medical recovery. Among other documents, he reviewed the chronic pain report of Dr. Karmy, and two psychological assessments, one by Dr. Shaul, a treating psychologist, and another by Dr. McCutcheon, an insurer’s examiner. Dr. Oshidari noted no evidence that the applicant suffered from a pain disorder associated with psychological and general medical conditions.
8The second examination is a psychological assessment report by Dr. Mor dated October 18, 2016. Dr. Mor concluded that he was unable to comment on the applicant’s emotional condition related to the accident because the psychometric results were largely invalid due to elevated response patterns that were not consistent with her narrative or presentation during the assessment. In addition, even if scores were taken at face value, he noted that the applicant did not require psychological intervention through a pain program because she denied being depressed, she reported 80% improvement in her physical condition, and she was receiving psychological counselling at the time of the assessment - she began psychological counselling following a section 44 assessment report dated March 9, 2016 by Dr. McCutcheon, wherein he diagnosed her with adjustment disorder with mixed anxiety and depressed mood. Dr. Mor was also concerned that the applicant failed to disclose her involvement in the previous accident of May 2015.
9The respondent submits that Dr. Karmy’s report is deficient because he did not review any relevant pre-accident or post-accident medical documentation but the disability certificate, he offered a diagnosis of a mild traumatic brain injury with no evidence, did not consider the return to work in January 2016, and relied entirely on the applicant’s own subjective complaints. Except for Dr. Karmy’s diagnosis of a mild traumatic brain injury, for which I see no evidence, I disagree with the respondent.
10In addition, the respondent is concerned about extended periods without medical records. The first period is from May to December 2016, where there is only an x-ray report dated December 8, 2016 indicating degenerative disc disease. However, I note that Dr. Karmy’s assessment and the section 44 assessments occurred between June and October 2016, so in fact there is information during the first period. The second period the respondent is concerned about is from December 2016 to September 14, 2017. I do not find this gap significant enough to change my view that the applicant was suffering from chronic pain. In particular because there are clinical records in September and October, noting complaints of pain: a note from Dr. Pantazis dated September 14, 2017 indicates back pain for three days; and a note from Dr. Pinto dated October 11, 2017 indicates pain in the left arm.
11I prefer Dr. Karmy’s report over the reports of the insurer’s examiners. Dr. Karmy examined the applicant, noted her complaints of pain, and provided a treatment plan that addresses her complaints. While he only reviewed the disability certificate (and a treatment plan for passive therapies), his findings are supported by the medical records from the Prime Health Care clinic where she was receiving treatment, and the early notes from the family physician. In contrast, despite having the records from the Prime Health Care clinic noting regular visits for treatment, in the absence of any specific neuromuscular abnormality, Dr. Oshidari attributed her restricted range of motion to a perception of causing harm or expectation of experiencing pain, but not actual pain. Further, despite having reviewed Dr. Karmy’s report, Dr. Oshidari does not refer to it or comment on it in his conclusions.
12Similarly, I assign limited weight to Dr. Mor’s recommendations. The applicant’s scores on the anxiety and pain profile tests, for example, were in the severe range for depression, and above average on the depression and anxiety scales, and average on the somatization scales. I also note that the applicant reported a number of pain complaints, headaches, difficulty sleeping, and denied any overall improvement in her emotional state. While mindful that results are to be interpreted with caution, I find it difficult to reconcile the above with the conclusion that he could not comment on the applicant’s emotional state, because the results were not aligned with her presentation and narrative during the assessment. In addition, because the applicant was receiving psychological counselling at the time, which Dr. Mor noted, I am not persuaded that she would not benefit from further psychological treatment.
13Further, based on the applicant’s notes from the family physician, the consistent treatment sessions well into May 2016, the continued pain into the fall of 2017, taken together, I find that her pain persisted from the time of the accident. In other words, while I find Dr. Karmy’s assessment of chronic pain to be an important factor, it is not the only factor in my decision.
14Given my determination that the applicant suffered from chronic pain, I must assess whether the treatment and assessment plan in dispute is reasonable and necessary, pursuant to sections 14 to 17 of the Schedule.
15The services described in this treatment plan are for psychological treatment, chiropractic rehabilitation, functional exercise program, spinal decompression therapy, acupuncture, and include initial consultations. On the submissions and evidence, I find the applicant’s pain to be of a physical nature, but do not discard her need for psychological treatment. I am persuaded that the services described will provide the applicant with treatment options for chronic pain that will be beneficial in achieving reasonable maximal medical recovery. In summary, given the ongoing pain as well as psychological impairment, I find the treatment plan reasonable and necessary.
Is the respondent liable to pay an award?
16The respondent is not liable to pay an award. The applicant submits the denials were unreasonable given the strong medical evidence. I disagree. I accept that the respondent properly considered the medical benefit in dispute, obtained two section 44 insurer’s examination assessment reports, and properly provided its response to the claim. No award is warranted.
CONCLUSION/ORDER
17For the reasons outlined above, I find that the applicant is entitled to the medical benefit in the amount of $9,204.99, for occupational therapy, physician, chiropractic and chronic condition services recommend by Prime Health Care Inc. Pursuant to section 51 of the Schedule, she is also entitled to interest on overdue benefits.
18The applicant is not entitled to an award under Regulation 664.
Released: May 24, 2019
___________________________
Samia Makhamra
Adjudicator