E.M. v. Aviva Insurance Company
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:
E.M.
Appellant
and
Aviva Insurance Company
Respondent
DECISION
PANEL:
Derek Grant, Adjudicator
APPEARANCES:
For the Applicant:
Sam Elbassiouni, Paralegal
For the Respondent:
Nisaa Khan, Counsel
HEARD:
In Writing on: February 5, 2019
OVERVIEW
1The applicant ("E.M.") was involved in an automobile accident on December 14, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). E.M. was denied certain benefits by the respondent ("Aviva") and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service ("the Tribunal").
2E.M. applied for and received some benefits from the respondent ("Aviva"). With respect to other benefits which were denied, E.M. applied to the Licence Appeal Tribunal (the "Tribunal").
PROCEDURAL ISSUE
3In its submissions, Aviva requested that I only consider E.M.'s submissions up to the first ten pages, pursuant to the order of Adjudicator Msosa dated October 17, 2018. Aviva argued that the sixteen pages of E.M.'s submissions did not comply with the Tribunal's Order. Aviva cited a prior decision of the Tribunal1 in support of its position.
The prior decision of the Tribunal is distinguishable from the subject proceeding in that the adjudicator was asked to put a limit on reply (my emphasis) submissions. The Tribunal's decision is further distinguishable based on the content (my emphasis) of the reply submissions. The subject proceeding contains no reply submissions.
4As the parties are aware, procedural issues (i.e. page lengths) in Tribunal hearings are subject to the discretion of the hearing adjudicator. Aviva made no submissions on how it may have been prejudiced by the number of pages in E.M.'s submissions, nor was an issue raised on the content of E.M.'s submissions; for these reasons, I will accept and consider the entirety of E.M.'s submissions.
ISSUES
5The following issues are to be decided:
(I) Is E.M.'s claim for the treatment plan in the amount of $2,454.35 for a chronic pain assessment, recommended by Healthmax Phyisotherapy Clinic – Scarborough, submitted in a treatment plan dated May 23, 2017, and denied on September 28, 2017, reasonable and necessary?
(II) Is E.M. entitled to interest on any overdue payment of benefits?
RESULT
6This decision is based upon my review of the parties' evidence and written submissions. E.M. did not provide reply submissions. For the reasons that follow, I find that E.M. is not entitled to the chronic pain assessment or interest on any outstanding payment of benefits.
ANALYSIS
7Sections 25 of the Schedule provide that an insurer shall pay for reasonable fees charged for preparing a disability certificate for an assessment or examination necessary for that purpose. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.2
Chronic Pain Assessment
8To support her claim, E.M. relies on the following medical evidence:
(i) The clinical notes and records (CNRs) of her family physician, Dr. Gloria Meneses, specifically a note dated January 6, 2016, which include E.M.'s initial pain complaints. Several additional visits to Dr. Meneses over a twenty-two-month period which note right shoulder pain. Dr. Meneses also recommended physiotherapy and referrals to a rheumatologist and orthopaedic surgeon.
(ii) The psychological evaluation by Dr. Leanne Wagner, psychologist, dated July 29, 2016, in which E.M. is diagnosed with adjustment disorder with mixed anxiety and depressed mood (chronic), somatic symptom disorder with predominant pain (mild, persistent).
(iii) A chronic pain assessment by Dr. Tajedin Getahun, orthopedic surgeon, dated October 7, 2018 in which the physician opines that E.M.'s complaints fit the diagnosis for chronic pain and recommends, among other things, a multidisciplinary program including physiotherapy.
9To rebut E.M.'s evidence, Aviva relies on:
(i) The insurer examination ("IE") by Dr. Steven Baker, physiatrist, dated October 27, 2017, which also included Dr. Michael Boucher's finding from his in-person examination of E.M. on February 15, 2017 in response to the claim. Dr. Baker found no objective evidence to support an assessment but opined that the shoulder injury required further treatment. As a result, Dr. Baker advised E.M. that a chronic pain assessment was not reasonable and necessary.
(ii) The IE paper review by Dr. Baker, dated February 16, 2018 in which the physician:
a. noted E.M.'s continued complaints of right shoulder pain;
b. recommended that E.M. should continue with progressive stretching and strengthening exercises with the rotator cuff, specifically, active physiotherapy;
c. opined that E.M. will likely improve with surgical intervention and post-surgical intervention; and
d. again, opined that a chronic pain assessment would not be reasonable and necessary.
10Based on the evidence, I find that:
(i) Aviva's evidence regarding the need for a chronic pain assessment is more persuasive than E.M.'s case for the assessment, because:
a. Both Dr. Getahun and Dr. Baker recommend the same type of treatment. Their respective reports note E.M.'s continued right shoulder pain, which the Drs. opined is best treated with continued active physiotherapy and/or surgery.
b. E.M. has failed to show me why, after a chronic pain assessment by Dr. Getahun in 2018, yet another chronic pain assessment is reasonable and necessary. My reading of E.M.'s medical evidence is that her practitioners were focused on her need for treatment and not on further assessment. I find that a further chronic pain assessment would not be reasonable and necessary at this time.
c. The recommendation for orthopaedic surgery which has not yet been undertaken by E.M., I find, is a reasonable means of treatment which both Drs. Getahun and Baker agreed with. Without an update from the results of the surgery, I am unable to find the treatment plan reasonable and necessary, when the surgery may resolve E.M.'s right shoulder pain.
11For the reasons stated above, I find that E.M. is not entitled to a chronic pain assessment.
CONCLUSION
12E.M. is not entitled to payment for the treatment plan or interest claimed in this application. Her application is dismissed.
Released: July 17, 2019
___________________________
Derek Grant
Adjudicator
Footnotes
- 17-003735 v Certas Direct Insurance Company, 2018 CanLII 39445 (ON LAT)
- Scarlett v. Belair, 2015 ONSC 3635