M.D. v. Aviva Insurance Canada, 2019 CanLII 72219

Tribunal File Number: 18-002535/AABS

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.D.

Applicant

And

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Agatha Dix, Counsel

For the Respondent: Pamela J. Quesnel, Counsel

In Writing: November 5, 2018 and April 26, 2019

OVERVIEW

1M.D. (the applicant) was injured in a motor vehicle accident on October 24, 2015. She applied for accident benefits to Aviva Insurance Canada (the “respondent”) under the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The respondent denied her claims for some medical benefits and examination expenses and she applied for dispute resolution to the Licence Appeal Tribunal – Automobile Accident Benefit Services.

2A case conference was held on June 25, 2018 and the parties were unable to resolve the issues in dispute. The matter proceeded to this written hearing.¹

ISSUES IN DISPUTE

3I have been asked to decide the following issues²:

(i) Is the applicant entitled to payment for a cost of examination in the amount of $2,460.00 for an in-home assessment recommended by Recovery Rehab in an OCF-18 dated November 12, 2015, denied by the respondent March 21, 2016?

(ii) Is the applicant entitled to payment for two prescription expenses for Vimovo in the amounts of $30.00 and $38.61, respectively, which were both denied by the respondent on February 7, 2017?

(iii) Is the applicant entitled to payment for a cost of examination in the amount of $2,460.00 for a chronic pain assessment recommended by Recovery Rehab in an OCF-18 denied by the respondent on January 22, 2018?

(iv) Is the applicant entitled to a medical benefit for chiropractic services in the amount of $4,638.00, as recommended by Islington North Chiropractic in an OCF-18 dated June 14, 2017, denied by the respondent on June 28, 2017?

RESULT

4For the reasons that follow, I order the following:

(i) The applicant is entitled to payment for the OCF-18s for the chronic pain assessment and chiropractic treatment including interest.

(ii) The applicant is not entitled to payment for the OCF-18 for the in-home assessment or the prescription expenses for Vimovo.

Is the applicant entitled to payment for the in-home assessment recommended by Recovery Rehab in the amount of $2,460.00?

5I find the applicant is not entitled to the in-home assessment.

6Section 15(1) of the Schedule provides that the insurer shall pay for “all reasonable and necessary” expenses incurred as a result of an accident.

7Section 25(1)3 of the Schedule provides that the insurer shall pay reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan, including any assessment necessary for that purpose. However, Section 25(1)5 provides that an insurer shall not pay more than $2,000.00 for conducting any one assessment.

8The applicant submitted the OCF-18 dated December 14, 2015 authored by Naomi Gallor, occupational therapist, in the amount of $2,460.00. Under Part 5: Activity Limitations it states “Since the MVA, the patient reports having issues with sitting, lying down, walking, standing, mopping, cooking, sweeping, washing dishes, cleaning windows & mirrors, showering, shopping, making her bed, doing laundry, changing clothes, blow drying her hair, washing dishes, scrubbing the bathtub, cleaning the toilet, packing away clothes, and prolonged activity of any kind. The goal of the OCF-18 was to address the applicant’s current issues with respect to activities of daily living.

9The applicant argues that she is entitled to the in-home assessment as she suffers from chronic pain to her back, neck, right knee and shoulder as a result of the accident which is preventing her from completing her daily activities. In addition, the insurer examination (IE) of Dr. Alikhan, dated January 16, 2016 was flawed as the doctor determined that she suffered soft tissue injuries which would be treatable under the Minor Injury Guideline (MIG) as a result of the accident. Further, the doctor failed to adequately address her entitlement to the assessment.

10The respondent argues that Dr. Alikhan properly assessed the applicant based on the clinical notes and records (CNRs) he had at the time of the assessment. Further, upon receipt of additional medical information Dr. Alikhan completed an addendum IE in March 2016 in which he determined the applicant’s pre-existing issues would prevent her from achieving maximum medical recovery within the MIG. Dr. Alikhan maintained his opinion with respect to the in-home assessment as he was not provided with any additional information by the applicant that she had any functional limitations. For the reasons that follow, I agree with the respondent and do not find the in-home assessment reasonable or necessary.

11First, the applicant’s submissions focussed on what she perceived as flaws in Dr. Alikhan’s IE reports in support of her entitlement to the assessment. In the first assessment completed by Dr. Alikhan he did not have the applicant’s pre-accident medical records and she reported to the doctor that she did not have any significant pre-existing medical issues. Further, a review of Dr. Alikhan’s IE demonstrates that the applicant reported being independent with her personal care, hygiene and was able to complete her housekeeping tasks with frequent breaks due to back pain. The applicant’s reports of being independent with her daily activities is also reflected in the other IE reports.³ The applicant did not allege that Dr. Alikhan’s IE contained errors based on what she reported to him regarding her activities of daily living.

12In her submissions, the applicant argues that despite Dr. Alikhan noting on physical examination “tightness and spasm of the left upper trapezius muscle” he concluded that her accident related impairments fell within the MIG and denied the in-home assessment. I did not find this compelling evidence in support of the in-home assessment nor does that notation address any accident-related functional limitations.

13Second, the applicant’s family doctor’s CNRs did not support that she had any accident-related functional limitations that would necessitate an in-home assessment. For example, a CNR of Dr. Khan dated February 1, 2017 notes that the applicant attended the office to contest the OCF-3 completed by the doctor. The note goes on to state “Having difficulty at home – managing with pain – not the same pre-accident. Walking with cane – cannot do household chores.” Dr. Khan responded by advising the applicant that if she wants another OCF-3 completed to have her lawyer contact the office as her request is based on her subjective reports regarding being unable to complete tasks.⁴ I found this entry problematic as the applicant’s own family doctor did not support that she had any objective impairments or accident related functional limitations. While Dr. Khan’s CNRs demonstrate that the applicant visited on several occasions with complaints of pain Dr. Khan references the accident on very few occasions.

14Finally, I did not find the report of Dr. Wilderman dated February 14, 2018 submitted by the applicant persuasive. Dr. Wilderman concluded that the applicant suffers from a chronic pain disorder (among many other diagnoses) as a result of the accident which prevents her from completing her daily activities. I agree with the respondent that Dr. Wilderman’s report should be read with caution as the doctor did not review any of the applicant’s pre-accident medical records and based his opinion solely on the applicant’s subjective reports. The only record Dr. Wilderman relied on was an in-home assessment which was not submitted in support of this application or referred to in the applicant’s submissions.

15The pre-accident CNRs submitted by the respondent demonstrate that the applicant had significant health issues and suffered from chronic pain prior to the accident. The applicant maintained that she suffered an injury to her right knee as a result of the accident. However, the applicant did not make any complaints about her right knee until June 2016 (8 months following the accident). Further, a report of Dr. Czok, physiatrist dated December 5, 2016, diagnosed the applicant’s knee impairment as “osteoarthritis of the knee and a meniscal tear based on degenerative changes”. The applicant underwent arthroscopic surgery, which more than likely led to her use of the cane. Had Dr. Wilderman had these records he may not have come to the conclusion that the applicant’s knee pain or other complaints were accident related. Therefore, I give Dr. Wilderman’s report little weight and in light of all of the evidence submitted.

16In addition, I do not find the OCF-18 in itself compelling evidence when compared to the other inconsistencies in the records before me.

17For all of the above reasons, I find the applicant has not met her onus in proving on a balance of probabilities that the OCF-18 for the in-home assessment is reasonable or necessary as a result of her accident related impairments.

Is the applicant entitled to payment for the two prescriptions for Vimovo?

18The applicant is not entitled to either of the prescription expenses for Vimovo.

19Section 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities that any claimed medical expenses are reasonable and necessary.

20The applicant maintains that due to the chronic nature of her accident related shoulder pain, her family doctor referred her to see Dr. Czok. The applicant submitted an ultrasound and report of Dr. Czok dated November 1, 2016 in support of the prescription expenses for Vimovo. Vimovo is an anti-infammatory drug which the applicant maintains was prescribed to manage her accident related shoulder pain.

21In response to the applicant’s submission of the prescription expenses the respondent requested further particulars from a doctor that the prescriptions for Vimovo were to treat the applicant’s accident related impairments. These records were not submitted to the respondent or the Tribunal in support of this dispute. For the reasons that follow, I agree with the respondent.

22First, I find that Dr. Khan’s referral to Dr. Czok does not refer to any accident related impairment as a reason for the referral. Second, Dr. Czok’s report dated November 1, 2016 makes no reference to the accident, nor does the doctor indicate that the prescription for Vimovo was to treat the applicant’s accident related shoulder pain. Further, I did not find the ultrasound submitted along with Dr. Czok’s note helpful in linking the prescription expenses to her accident related impairments. In my view, the evidence does not establish a link between the prescription for Vimovo and the applicant’s accident related impairment.

23I find the applicant has not met her onus in proving that the expenses for Vimovo are reasonable and necessary as a result the accident.

Is the applicant entitled to payment for the chronic pain assessment recommended by Recovery Rehab in the amount of $2,460.00?

24I find that the applicant is entitled to the chronic pain assessment in the amount of $2,460.00.

25The OCF-18 authored by Kathryn Monaghan, chiropractor noted that the goal of the chronic pain assessment was to determine the exact nature of the applicant’s symptoms which could assist in speeding up her recovery. Further, the OCF-18 states that treatment for chronic pain may prevent the chronic pain from becoming permanent.

26The applicant argues that she is entitled to the chronic pain assessment as she suffers from chronic pain to her back, neck, right shoulder and right knee as a result of the accident.

27The respondent argues that the chronic pain assessment is not reasonable and necessary as a result of the applicant’s accident related impairments. It relies on the IE assessment of Dr. Ismail, physiatrist. Following a physical examination, Dr. Ismail concluded that there was no evidence of any ongoing accident-related musculoskeletal or neurological impairment. For the following reasons, I find the applicant is entitled to the chronic pain assessment.

28First, the pre-accident records of Dr. Khan support that the applicant suffered from chronic pain to her neck, back and arm in the years prior to the accident. Further, after receiving the applicant’s pre-accident CNRs, Dr. Alikhan in his Addendum IE changed his opinion with respect to whether the applicant’s accident related impairments fell within the MIG. Dr. Alikhan opined that there was sufficient and compelling evidence of pre-existing chronic and reoccurring neck pain revealed in MRIs conducted in September 2013 and March 2015. Further, the doctor opined that the chronic neck pain may have been exacerbated by the accident or complicate recovery and the MIG does not apply.

29While I did not find Dr. Wilderman’s assessment compelling, I do find that a chronic pain assessment was reasonable at the time to investigate to what degree the applicant’s chronic pain was exacerbated by the accident and to devise treatment to address any accident related chronic pain.

30Second, I did not find Dr. Ismael’s IE dated February 23, 2018 persuasive as he overlooked important pre-accident medical records in coming to his conclusion that the chronic pain assessment is not reasonable and necessary. For example, the documents he highlights as being of particular relevance omit any reference to Dr. Khan’s CNRs which reference that the applicant suffered from chronic pain pre-accident. He also failed to consider the conclusions in Dr. Alikhan’s addendum IE that the applicant’s pre-existing chronic neck pain may have been exacerbated by the accident. Further, that the applicant’s pre-existing issues would complicate her recovery from her soft-tissue injuries.

31In my view, Dr. Ismail did not properly assess and analyze the applicant’s pre-accident medical records relating to chronic pain in coming to the conclusion that the assessment was not reasonable or necessary. Based on these factors Dr. Ismail’s IE did not provide a fulsome picture with respect to the analysis of the information he had at his disposal in rendering an opinion.

32For the above-noted reasons, the applicant is entitled to the chronic pain assessment in the amount of $2,460.00 as I find it reasonable and necessary.

Is the applicant entitled to the OCF-18 for chiropractic treatment recommended by Islington North in the amount of $4,638.00?

33I find the OCF-18 for chiropractic treatment reasonable and necessary.

34The applicant submitted the OCF-18 dated June 14, 2017, authored by Dr. Ageyemang, chiropractor. Under Part 5: Activity Limitations it indicates that the applicant has difficulty with repetitive bending and above the shoulder tasks. The goals of the treatment plan were pain reduction and increase range of motion to return the applicant to her activities of daily living. Dr. Ageyemang refers to the treatment as a chronic pain management program. The treatment recommended consists of chiropractic, physiotherapy and massage treatment at a frequency of one to two times a week for a 14 week period.

35The applicant argues that she requires continued chiropractic treatment as it helps her manage her pain. On the advice of Dr. Khan, her family doctor, she attended Islington North clinic for physiotherapy up until November 2017. The applicant contends she received relief from the treatent and since the respondent's termination of benefits, her condition has worsened. In addition, her family doctor supports ongoing treatment. Further, she has not yet returned to her pre-accident activities.

36The respondent argues that the applicant has obtained maximum medical recovery and will achieve no benefit from continued treatment. Further, she suffered from minor soft tissue injuries as a result of the accident. I agree with the applicant and find the OCF-18 reasonable and necessary for the following reasons.

37First, I find that the applicant suffered from chronic pain prior to the accident and post-accident she continued to consistently report her pain to Dr. Khan. In addition, in a CNR dated June 5, 2017 Dr. Khan opines that the applicant requires further facility based treatment as a result of her accident related impairment to manage pain and encourage range of motion and strengthening. Further, CNRs of North Islington reflect that at different points the applicant reported improvement after receiving treatment. Dr. Agyemang notes that her symptoms had improved by 40% in his progress notes.

38Second, the applicant’s pre-accident medical history is significant in that she suffered from chronic neck, shoulder and back pain in the years prior to the accident. This is reflected in the CNRs of Dr. Khan. I find the goals of the OCF-18 and treatment proposed to be reasonable. Even the respondent’s IE assessor Dr. Alikhan notes that the applicant’s pre-existing chronic pain may have been exacerbated and is a barrier to recovery. The applicant submitted case law that supports that ongoing treatment is justified if it reduces an individual’s symptoms of pain.⁵

39The respondent also submitted case law which provided guidance with respect to the factors to consider when determining whether a benefit is reasonable and necessary.⁶ That criteria includes subjective and objective evidence in the form of CNRs, periodic progress notes and results of formal testing from functional capacity evaluations, and observations from medical experts and family and friends. Based on Dr. Khan’s CNRs, the progress notes of the applicant’s treating clinic as well as what the applicant reported to IE assessors I accept that she still suffers from accident related pain. Further, I find the goal that continued treatment will alleviate her pain to be an acceptable objective.

40Third, the respondent relied on the IE report of Dr. Ismail, physiatrist dated August 24, 2017 who determined that the OCF-18 was not reasonable and necessary. For the reasons highlighted above, I did not find the IE of Dr. Ismail persuasive. I found the deficiencies in this report similar to the flaws in his February 2018 report in that he omitted certain records provided to him in coming to the conclusion that the applicant reached maximum medical recovery from her soft tissue injuries.

41For all of the above reasons, I find the applicant is entitled to the treatment plan for chiropractic treatment in the amount of $4,638.00.

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

42The applicant is not entitled to interest on the in-home assessment or the Vimovo prescription expenses as I have determined that they are not reasonable and necessary.

43The applicant is entitled to interest on the OCF-18s for the chronic pain assessment and chiropractic treatment as the expenses have been incurred and I have determined that they are reasonable and necessary.

Footnotes

1. 1There was a procedural delay in rendering a decision on this matter as the Tribunal requested additional submissions with respect to whether or not the applicant should be allowed to submit the OCF-18s in relation to the issues in dispute. As per my order issued on May 3, 2019, I allowed the OCF-18s to be admitted into evidence.
2. 2Prior to a decision being rendered on this written hearing the Tribunal was informed that issues I, VI and VII as outlined in the Order of Adjudicator Boyce dated July 23, 2018 were resolved and withdrawn by the applicant.
3. 3Applicant’s Brief, Tab J, Dr. Macarenhas, GP IE dated December 7, 2016, page 4. Applicant’s Brief, Tab K, Dr. Ismael, Physiatrist IE dated August 24, 2017, pages 4 and 5.
4. 4Applicant’s Brief, Tab D1, Dr. Khan’s CNRs, page 15.
5. 5Cubello v. Guidolin, [2000] O.J. No. 1468 (Ont. SCJ); 16-002951 v. Primmum Insurance Company, 2017 CanLII 33672 (ON LAT)
6. 6Chan v. CAA Insurance Company (Ontario), (2004) FSCO A02-001228, pg 13; N.H. v. Aviva Insurance Canada 17-001309/AABS (LAT).