U.P. v. Aviva General Insurance Company, 2019 CanLII 58167

Citation: U.P. vs. Aviva General Insurance Company, 2019 ONLAT 18-007557/AABS

Date: May 31, 2019

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:

U.P.

Appellant

and

Aviva General Insurance Company

Respondent

DECISION

PANEL:

Tavlin Kaur, Adjudicator

APPEARANCES:

For the Applicant:

Victoria Tchilikova, Paralegal

For the Respondent:

Nisaa Khan, Counsel

HEARD:

In Writing on: March 18, 2019

OVERVIEW

1The applicant was involved in an accident on March 15, 2016. She was traveling north on Highway 410. It was raining and the car in front of her stopped suddenly. She went to the right shoulder of the road to avoid colliding with the stopped vehicle. The car behind her rear-impacted the vehicle in front of her. The vehicle then spun around and side-swiped the driver’s side of her vehicle.

2The applicant was 40 years old at the time of the accident. It is alleged that she was fully functioning, active and gainfully employed prior to the accident. As a result of the accident, she developed physical and psychological impairments. The areas affected were her neck, back, right shoulder, right arm and right foot. She was also diagnosed with adjustment order as well as a specific phobia with respect to travelling in a vehicle.

3Following the accident, the applicant sought benefits from the respondent under the Statutory Accident Benefits Schedule-Effective September 1, 2010 (the ‘Schedule’).

4A dispute arose with respect to medical benefits and a cost of examination. The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Services (the “Tribunal”) to resolve this dispute.

ISSUES IN DISPUTE

5The issues before the Tribunal are:

i. Is the applicant entitled to a medical benefit in the amount of $1,405.10 for physiotherapy recommended by Prime Healthcare in a treatment plan (“OCF-18”) submitted on February 1, 2017, and denied on February 13, 2017?

ii. Is the applicant entitled to payments for the cost of examination in the amount of $2,000.00 for a chronic pain assessment, recommended by Prime Healthcare in an OCF-18 submitted on February 16, 2017, and denied by the respondent on March 10, 2017?

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

iv. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

6The applicant is entitled to the medical benefit and cost of examination.

7The applicant is entitled to interest on any overdue payment of benefits, at the prescribed rate.

8The respondent is not liable to pay an award under Regulation 664.

REASONS

i. Is the applicant entitled to receive a medical benefit in the amount of $1,405.10 for physiotherapy treatment recommended by Prime Healthcare?

9In order to be entitled to a medical benefit under the Schedule, the onus is on the applicant to prove on a balance of probabilities that the expenses are reasonable and necessary (s.15)¹

10The applicant argues that due to the fact that she has continued to suffer from ongoing impairments, the treatment plan is reasonable and necessary because it identified pain reduction, increase in strength, increased range of motion, restore full spine flexibility, and return to activities of normal living as primary goals of the proposed treatment.²

11The respondent argues that the applicant has failed to provide sufficient evidence to establish, on a balance of probabilities, that the medical benefit and cost of examination in dispute are reasonable and necessary.

12I find that the applicant has met the onus on her to prove her entitlement to the disputed medical benefits for the following reasons:

(i) I find that the goals are reasonable and that the treatment will achieve the stated objectives. On January 20, 2017, Dr. Chad Hefford filled out the OCF-18 which states that the applicant reports that she is experiencing pain and discomfort with deep bending, heavy lifting, carry, stooping and overhead activities.³ In addition, prolonged sitting, standing and walking were reported to be provocative.⁴ The goals identified are pain reduction, increased range of motion, increase in strength, the restoration of full spine flexibility and the return to activities of normal living.⁵ Dr. Hefford is of the opinion that the maximal medical recovery has not been reached.⁶

13I find that the physiotherapy treatment is reasonable and necessary as it was reported that it helped the applicant. For example, she informed Dr. Lam that there had been 30% improvement post-accident and that the alleviating factors included the use of pain-relieving medication, rest and massage therapy. [Emphasis added]⁷

14This is further supported by the applicant’s visits to Prime Healthcare. The clinical notes submitted show that the applicant attended forty-two times from March 17, 2016 to March 3, 2017. During these visits, she underwent physical therapy, massage therapy, acupuncture and a functional exercise program for her neck, back, shoulders and right elbow.⁸ The medical evidence confirms that the applicant reported to multiple medical practitioners that she was continuing to experience pain and that the treatments provided her with some form of relief.⁹

15I agree with Adjudicator Sewrattan in L.W. v. Cooperators General Insurance Company, 2016 CanLII 93133 that “care which relieves physical pain, and therefore improves function, is a legitimate medical and rehabilitative goal in the applicant’s case.”¹⁰ This decision is not binding on me, but I find it persuasive and adopt its reasoning on this issue. Further treatment may help her achieve the goals identified in the treatment plan.

16I find that applicant has not reached maximum medical recovery.

17The respondent is of the opinion that the applicant has failed to provide any evidence that the treatment plan for the physiotherapy treatment is reasonable and necessary. The respondent is relying on the findings of Dr. Lam. Dr. Lam is of the opinion that the treatment plan is not reasonable and necessary. Dr. Lam believes that the maximal medical recovery has been reached from the accident-related soft tissue injuries sustained.¹¹ He did not identify an accident-related physical injury or impairment that necessitates continued formal facility-based treatment.¹²

18However, the evidence supports that the pain has continued to persist for over a year from the date of the accident and additional treatment has been recommended. On August 16, 2017, the applicant was assessed by Mr. Kamran Roshan, who is a physiotherapist at the Brampton Health and Wellness Centre (‘Centre’). Although many portions of the Physio Initial Assessment Sheet are illegible, it was noted that the goal is to decrease back pain.¹³ One of the suggested treatments are modalities on the lower and upper back.¹⁴ Shortly thereafter, the applicant started receiving treatment from the physiotherapist, chiropractor and acupuncturist.¹⁵ The evidence illustrates that the applicant has not completely recovered and requires further treatment.

19Therefore, I find that the physiotherapy treatment is reasonable and necessary. The evidence supports that the applicant continues to suffer from ongoing impairments and has not reached maximal medical recovery. I find that the applicant will benefit further from the recommended facility-based treatment. The cost of the medical benefit is in line with the Schedule and is reasonable and necessary.

ii. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a chronic pain assessment recommended by Prime Healthcare Inc.?

20On February 10, 2017, Dr. Karmy reviewed and confirmed the treatment plan that was completed by Dr. Hefford. The goal of this assessment was to (a) evaluate the extent of the patient’s chronic injuries and psychological complaints and (b) provide a prognosis and recommendations for recovery.¹⁶ It was stated that “the assessment conducted by a Chronic Pain Physician will focus on determining a tissue specific diagnosis, the nature of the chronic pain and the extent of the injuries.”¹⁷ It was stated “that clinical guidelines report that the injuries sustained by this patient should have resolved, but it is clear that maximum medical improvement has not been achieved.”¹⁸

21The respondent argues that (a) the applicant did not provide enough evidence to establish that the chronic pain assessment is reasonable and necessary and (b) the chronic pain assessment is not reasonable and necessary based on the findings of the Dr. Lam. Dr. Lam found that the applicant had reached maximal medical recovery from the accident-related soft tissue injuries sustained. He opined that there was no identified accident-related physical injury or impairment that would necessitate continued formal facility-based treatment or provision of a formal Chronic Pain Assessment.¹⁹

22I find that the applicant’s evidence in support of the need for the chronic pain assessment is more persuasive than the respondent’s case against the assessment because:

i. I assign more persuasive value to the opinion of Dr. Karmy and Dr. Hefford than I do to Dr. Lam. Dr. Hefford is a chiropractor and both Dr. Karmy and Dr. Lam are specialists in Chronic Pain Management. The applicant’s history shows a consistent pattern of pain over time, observed by medical practitioners with more opportunity than Dr. Lam to observe and assess her. Her pain, while improving 30% post-accident, has clearly not resolved within the normal timeframes expected of her injuries-an essential component of chronic pain findings. Based on the evidence, it appears that the applicant has continued to experience pain.

ii. On June 23, 2016, the applicant met with the respondent’s assessor, Dr. J.E. Siegel, for an independent psychology assessment. He found that the applicant’s raw score of 28 on the Pain Catastrophizing Scale suggests a moderate to significant tendency for her to catastrophize pain problems.²⁰ According to Dr. Siegal, “while this score appears elevated relative to her behavioral presentation, it points to ongoing concerns regarding pain.”²¹ Pain catastrophizing can be a predictor of chronic pain. Although the report was written months prior to date of the treatment plan in dispute, I find this report to be persuasive because it lends support to the possibility that the applicant might be suffering from chronic pain. This justifies the need to further investigate her pain-related complaints and determine the appropriate course of action with respect to treatment.

iii. The applicant was referred to Psychologist Dr. Andrew Shaul and Ms. Helen Ilios for the purposes of a psychological assessment. In a report completed approximately a month prior to the treatment plan in dispute, Dr. Shaul and Ms. Ilios found that the psychological and emotional difficulties are in large part a direct consequence of her physical condition.²² Dr. Shaul and Ms. Ilios opined that as long as her physical condition, along with its pain and restrictions remain present, it is likely that the applicant will experience significant distress.²³ They suggested that the applicant receive the appropriate care to address her physical conditions, which will continue to be a barrier to recovery if left untreated.²⁴ I find this report persuasive because it is a more recent account of the applicant’s condition and demonstrates that she continued to experience pain, which was impacting her recovery.

23I find that the chronic pain assessment is reasonable and necessary. The evidence has demonstrated that there are enough signs and symptoms to warrant further investigation into why the applicant continues to experience pain.

iii. Is the respondent liable to pay a special Award under s. 10 O. Reg 664?

24The applicant seeks a special award under s. 10 of the Ontario Regulation 664 on the basis that the respondent unreasonably withheld or delayed payments to the applicant.

25The applicant has not provided any submissions or evidence that proves that the respondent unreasonably withheld or delayed payments to her. Hence, I find that the applicant is not entitled to an award under s. 10 of the Ontario Regulation 664.

iv. Interest

26Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.²⁵

27Having found for the applicant, I find that interest is due on overdue benefits payments and must be paid at the prescribed rate in accordance with the Schedule.

ORDER

28I find that the medical benefit and cost of examination are reasonable and necessary and that the applicant is entitled to payment of these benefits and any interest on overdue benefits at the prescribed rate.

Footnotes

1. 1Statutory Accident Benefits Schedule — Effective September 1, 2010. O. Reg. 34/10, s. 15
2. 2OCF-18 filled out by Dr. Chad Hefford dated January 20, 2017
3. 3Ibid.
4. 4Supra note 3 at 3
5. 5Ibid.
6. 6Ibid.
7. 7Physician Assessment Report by Dr. Roger Lam dated March 31, 2017
8. 8Clinical notes from Prime Healthcare date March 17, 2016 to March 3, 2017
9. 9Orthopedic assessment report by Dr. Behzad Taromi dated July 19, 2016 at p. 51; Psychological Assessment by Dr. Jonathan E. Siegel dated July 19, 2016 at p. 82; Psychological Report by Dr. Andrew Shaul and Helen Ilios dated January 14, 2017 at p. 42
10. 10L.W. v. Cooperators General Insurance Company, 2016 CanLII 93133
11. 11Supra note 7 at 4
12. 12Ibid.
13. 13Physio Initial Assessment Sheet filled out by Kamran Roshan dated August 16, 2017
14. 14Ibid.
15. 15Green Shield Subscriber Claim History and Brampton Health and Wellness Clinical Notes and Records
16. 16OCF-18 filled out by Dr. Hefford and Dr. Karmy dated February 10th, 2017
17. 17Supra note 13 at 5
18. 18Ibid.
19. 19Supra note 7 at 4
20. 20Psychological Assessment by Dr. Jonathan E. Siegel dated July 19, 2016
21. 21Ibid
22. 22Psychological Report by Dr. Andrew Shaul and Helen Ilios dated January 14, 2017
23. 23Ibid.
24. 24Ibid.
25. 25O. Reg. 34/10, s. 51```