Pauvif v. Aviva General Insurance, 2020 CanLII 122614

Citation: Pauvif v. Aviva General Insurance, 2021 ONLAT 20-007549/AABS

Licence Appeal Tribunal File Number: 20-007549/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:

Sandra Pauvif

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Kimberly Parish

APPEARANCES:

For the Applicant: Nicole Corriero, Counsel

For the Respondent: Yann Grand-Clement, Counsel

HEARD: By way of Written Submissions

OVERVIEW

1The applicant, Sandra Pauvif (“Ms. Pauvif”) was involved in an automobile accident on January 18, 2018 (the “accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ Ms. Pauvif was denied certain benefits by the respondent, Aviva General Insurance, and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2A case conference was held on November 18, 2020 and the matter proceeded to a written hearing.

ISSUES

3The following issues are to be decided:

1. Is Ms. Pauvif entitled to $5,062.70 for chiropractic treatment, recommended by Essential Physio Rehabilitation Inc. in a treatment plan (“OCF-18”) dated July 5, 2018?
2. Is Ms. Pauvif entitled to $1,596.95 ($4,091.49 less $2,494.54 approved by Aviva) for psychological treatment, recommended by All Health Medical Centre in an OCF-18 dated August 29, 2020?
3. Is Ms. Pauvif entitled to a cost of examination expense in the amount of $2,520.00 for an orthopedic assessment, recommended by All Health Medical Centre in an OCF-18 dated July 31, 2020?
4. Is Ms. Pauvif entitled to interest on any overdue payment of benefits?

RESULT

4I find Ms. Pauvif is entitled to the following benefits:

1. The OCF-18 in the amount of $5,062.70 for chiropractic treatment.
2. Up to $1,496.17 towards the OCF-18 for the unapproved balance for psychological treatment.
3. The OCF-18 in the amount of $2,520.00 for an orthopedic assessment.
4. Interest on any overdue payment of benefits in accordance with s. 51 of the Schedule.

ANALYSIS

5Ms. Pauvif was in a prior motor vehicle accident in 2011 and she sustained whiplash and chronic residual headaches, as noted in a letter dated December 22, 2014 from Dr. P. Hwang, neurology consultant.² Dr. Hwang notes she was diagnosed with chronic pain in 1997. The clinical notes and records (“CNRs”) from Brampton East Urgent Care Clinic support that prior to the subject accident, she had a history of depression and anxiety, and previously reported left hip pain.³

Chiropractic treatment plan (OCF-18)

6Sections 14 and 15 of the Schedule note that an insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

7Ms. Pauvif bears the burden of establishing entitlement to the benefits claimed under the Schedule.⁴ I find Ms. Pauvif has established on a balance of probabilities that this OCF-18 is reasonable and necessary. I find the pre- and post-accident CNRs establish that she suffered from pre-existing impairments, which I find were exacerbated by the injuries sustained from the accident. Further, I find the CNRs support ongoing pain complaints following the accident in areas for which the OCF-18 proposes treatment.

8This disputed OCF-18 was completed by Ashley Narula, chiropractor, and sought funding in the amount of $5,062.70. The OCF-18 recommends 16 sessions including chiropractic treatment, functional and strengthening exercise, physical rehabilitation sessions, massage therapy, acupuncture, and osteopathic therapy, $197.42 for a reassessment, and $200.00 for completion of the OCF-18. The goals of the treatment plan include pain reduction, increase in strength/range of motion, and a return to activities of normal living and pre-accident work activities. The OCF-18 also notes that examination and palpation of the cervical and thoracic spine revealed deep and superficial muscle spasms, and pain in the cervical/thoracic/lumbar areas. Further, it is noted “a shoulder exam painful in all areas”, wrist pain with all ranges of motion, and left hip pain. Barriers to recovery included complicated history, multiple injury sites, severity of initial presentation, psychological symptoms (anxiety, stress related to the accident, sleep disturbances). While the barriers to recovery include a psychological diagnosis, I find this is outside of a chiropractor’s scope and I have not relied on this psychological diagnosis in my determination whether this OCF-18 is reasonable and necessary.

9Ms. Pauvif sought medical attention from Brampton East Urgent Care Clinic on the date of the accident.⁵ The CNRs note complaints of pain in her neck, upper and lower back, and right wrist and reference the 2011 motor vehicle accident. The CNR entry dated June 7, 2018 notes she reported left hip pain since the accident. The CNRs support that left hip pain complaints were last reported on January 4, 2017. An ultrasound dated June 8, 2018 confirmed trochanter bursitis of the left hip. The CNR dated June 15, 2018 notes Ms. Pauvif further complained of lower back and left hip pain. The CNR entry further notes a referral for a cortisone injection, degenerative disc disease in L4-L5 lumbar back, and MRI for her lower back, a small lipoma on her lower back, and a referral to a pain control clinic by her “MRP” (most responsible physician). I find these CNRs support that Ms. Pauvif had not complained of left hip pain in the year prior to the accident and but following the accident, reported left hip pain. I find the CNRS establish that pain in her left hip and lower back had not resolved by June 2018.

10I find the CNRS from Essential Physio Rehabilitation support that she was receiving treatment following the accident for pain to the following areas: left shoulder, including trapezius area, left hip, and low back.⁶ I find the timeframe for this treatment to be consistent with the documented pain complaints in the Brampton East Urgent Care Clinic CNRs.

11An orthopedic assessment report dated November 3, 2020 was performed by Dr. D.J. Ogilvie-Harris, orthopedic surgeon⁷ via telephone consultation due to the Covid-19 pandemic. Dr. Ogilvie-Harris diagnosed Ms. Pauvif with chronic pain syndrome and central sensitization. I do not find this assessment is helpful in determining whether this OCF-18 is reasonable and necessary. This is because the OCF-18 was submitted six months following the accident and Dr. Ogilvie-Harris assessed her two years and nine months after the accident. While Dr. Ogilvie-Harris notes that her pain has persisted for more than two years, which is well outside the timeframe for soft tissue injuries to heal, I find it does not assist me with determining whether this OCF-18 was reasonable and necessary at the time it was submitted to the respondent.

12The respondent relies on a physiatry insurer’s examination (“IE”) report issued by Dr. M. Ko, physiatrist, on November 6, 2020.⁸ The IE assessment was originally scheduled for November 26, 2018 but Ms. Pauvif submits she did not attend on this date due to a death in the family. Dr. Ko concluded this OCF-18 is not reasonable and necessary. He noted her injuries were minor and that she sustained sprain/strain injuries to her left cervical/thoracic/lumbar paraspinal muscles, left trapezius, and her left groin. He further concluded she did not sustain a direct impairment as a result of the accident and found no objective evidence of ongoing organic pathology. He noted pain amplification behaviour was exhibited when she displayed limited range of motion in her right shoulder, i.e. her pain-free side.

13Dr. Ko issued an addendum report on March 11, 2021⁹ in response to an addendum report prepared by Dr. Ogilvie-Harris dated November 25, 2020.¹⁰ Dr. Ko disagreed with Dr. Ogilvie-Harris’ diagnosis of chronic pain syndrome and central sensitization, which Dr. Ko notes was solely based on the applicant’s “subjective symptom duration”.¹¹ Dr. Ko’s opinion remained unchanged from the IE report issued November 6, 2020.

14I am not persuaded by Dr. Ko’s IE report or addendum report. This is because I find his conclusion is based on limited findings. While I accept that he reviewed Ms. Pauvif’s pre- and post-accident medical records and performed a physical examination, I find his report did not explore the details surrounding her reported pain complaints. For example, the report notes range of motion limitations due to pain in her left shoulder, lumbar spine, and palpation tenderness in left hip. It is further noted that she reported constant pain in the left side of her neck, upper and lower back, and right forearm and that any type of lifting, walking, of movement, or prolonged standing exacerbates the pain. He also notes she reported poor sleep. However, Dr. Ko does not elaborate on how the pain impacts her activities of daily living, lifestyle, or sleep.

15In addition, Dr. Ko notes that she “may have some kind of pathology or discomfort along the left hip given the fact that she had some x-rays done on the left hip…”¹² While Dr. Ko acknowledges issues with her left side, I find Dr. Ko did not take the opportunity to address the issues with her left side further despite the Brampton East Urgent Care Clinic CNRs from June 2018 referencing complaints of left hip and low back pain since the accident. I find similar pain complaints were noted in the CNRs by the treating clinic, Essential Physio Rehabilitation from February - July 2018. Dr. Ko’s report references reviewing these CNRs.

16While Dr. Ko has noted Ms. Pauvif has demonstrated symptom amplification with her right shoulder, I accept that her pain complaints and physical limitations on her left side are genuine. I base this finding on the consistency of pain complaints contained within the CNRs of Brampton East Urgent Care Clinic and Essential Physio Rehabilitation which align with Ms. Pauvif’s complaints reported to Dr. Ko as noted within Dr. Ko’s physiatry assessment report. For the reasons I addressed, I am not persuaded by Dr. Ko’s conclusion that there is no objective evidence of any ongoing organic pathology and that this OCF-18 is not reasonable and necessary. Therefore, I find this OCF-18 is reasonable and necessary and Ms. Pauvif is entitled to the full amount of this OCF-18.

Unapproved amount of OCF-18 - psychological treatment

17The respondent partially approved this OCF-18 on November 9, 2020. The unapproved portion of this OCF-18 is $1,596.95 ($149.61 line item 2, planning service; $1,037.34 line item 3, preparation service; $400.00 line item 4, documentation support activity). I find Ms. Pauvif is entitled to $149.61 for planning service, $1,037.34 for preparation service, and $299.22 (two hours for documentation support activity at $149.61 per hour hour) as I find these amounts to be reasonable and necessary. Ms. Pauvif is not entitled to the remaining balance of $100.78 for the documentation support activity.

18Ms. Pauvif submits these amounts are payable as they are related to the psychological treatment approved by the respondent. She further submits that these amounts are not duplicitous as they were not claimed on the psychological assessment approved by the respondent.

19The respondent relies on the psychological IE assessment report dated October 22, 2020, prepared by Dr. K. McCutcheon, psychologist,¹³ which notes the amounts were not reasonable and necessary. Dr. McCutcheon’s report did not elaborate on why they are not reasonable and necessary. The respondent submits these amounts claimed are not reasonable and necessary for the provision of psychological services. The respondent further submits the fee of $400.00 is above the approved rate of $149.61 and hour for a psychologist rate.

20I find the amount claimed in the OCF-18 for planning service in the amount of $149.61 is a reasonable and necessary expense based on the OCF-18 noting this expense is for consultation, collaboration, communication with treatment providers and others. I find it would be reasonable and necessary for the treating psychologist to communicate information to Ms. Pauvif’s other treatment providers and that this line item is separate from the approved psychological treatment sessions. The rate of $149.61 is the maximum hourly rate for psychologists in non-catastrophic impairment matters as set out within FSCO’s Professional Services Guideline.¹⁴

21I find $299.22 (2 hours at $149.61 per hour) for documentation support activity is reasonable and necessary based on the approved psychological treatment sessions. I accept that there would be additional time required to prepare progress reports and discharge reports as noted in the OCF-18 and this is in addition to the psychological treatment provided. It is unclear how the amount of $400.00 was arrived at for line item 4, the claimed document support activity, as it does not appear to be based on an hourly rate of $149.61. As such, I find Ms. Pauvif is not entitled to the remaining balance of $100.78 for the documentation support activity as I do not find the applicant has established it is reasonable and necessary.

22I find the amount of $1,047.34 claimed for preparation service is a reasonable and necessary expense claimed. The OCF-18 claims this amount is for ongoing progress evaluation and reassessment and includes continuous evaluation of progress and formal re-administration, scoring, and interpretation of psychometric tests. I find this to be a reasonable and necessary expense for evaluating Ms. Pauvif’s treatment progress. Therefore, Ms. Pauvif is entitled to $1,496.17 ($149.61 + $299.22 + $1,047.34) towards the unapproved amount of this OCF-18.

Orthopedic assessment

23I find the orthopedic assessment is reasonable and necessary and Ms. Pauvif is entitled to $2,520.00 ($800.00 orthopedic assessment + $400.00 file review + $800.00 report formulation and writing + $200.00 form fee preparation for OCF-18 + $60.00 transportation + $260.00 HST). I accept the ongoing pain complaints since the accident caused impairments to Ms. Pauvif’s functioning and affected her ability to perform her employment and activities of daily living. I also accept the conclusion reached in this orthopedic assessment report that Ms. Pauvif suffers from chronic pain syndrome and central sensitization.

24The OCF-18 notes Ms. Pauvif’s impairments from the injuries sustained from the accident are affecting her employment activities and activities of daily living. The goals identified include pain reduction, increase in strength/range of motion, treatment recommendations, return to activities of daily living, and identify impairments and help to achieve maximum medical recovery.

25Ms. Pauvif submits an orthopedic assessment is reasonable and necessary as she has a long, multifaceted medical history, prolonged psychological dysfunction, and objective impairments to her hip, shoulder and back. She also relies on the psychological assessment report of Dr. I. Gladshteyn, psychologist, dated August 30, 2020¹⁵ and the psychological IE assessment report of Dr. K. McCutcheon dated October 22, 2020, which recommended 14 sessions of cognitive behaviour therapy to improve her awareness and understanding of the links between negative mood states, pain, and somatic symptoms.

26Ms. Pauvif submits that the disputed orthopedic assessment report of Dr. Ogilvie-Harris dated November 3, 2020 acknowledges Ms. Pauvif’s history of chronic pain and psychological issues and discusses chronic pain syndrome and central sensitization. Ms. Pauvif submits the assessment was necessary to evaluate and investigate the nature of her disability and how it impedes her functioning. She further submits that at the time of the assessment, the pain had persisted for almost three years since the accident and was affecting nearly all of her activities. She submits the assessment took place by telephone because of the provincial government’s mandate in place at the time, which required the province be in a modified stage two of the Ontario government’s “Phase 2” reopening plan and, as a result, Dr. Ogilvie-Harris was not offering in-person assessments at that time. Ms. Pauvif submits Dr. Ogilvie-Harris thoroughly reviewed her medical records and utilized her subjective complaints through the administration of questionnaires. She further submits that an orthopedic consultation was not pursued through an OHIP referral because OHIP consultations do not address legal issues.

27The respondent relies on Dr. Ko’s physiatry IE report and addendum report in which Dr. Ko found no evidence of any ongoing organic pathology. The respondent further submits if an orthopedic assessment is reasonable and necessary then it could have been sought through the family physician, through an OHIP referral. The respondent argues that because Ms. Pauvif has not proffered any evidence to support that this option was unavailable to her, the claim should be barred pursuant to s. 47(2) of the Schedule. The respondent relies on 16-004501 v. The Sovereign General Insurance Company,¹⁶ which determined the applicant was not entitled to the claimed amount for x-rays because the applicant failed to prove that payment for x-rays was not reasonably available through OHIP.

28I find 16-004501 is distinguishable from this case before me. X-rays are an item commonly funded by OHIP, which do not require a referral from a family doctor to a specialist in order to be performed. I agree with Ms. Pauvif’s submission that an OHIP referral would not have been appropriate in her case because she is trying to access treatment under the Schedule, which is being denied by the respondent.

29I have already addressed and provided reasons why I am not persuaded by Dr. Ko’s conclusion noted in the physiatry IE assessment report that there is no evidence of any ongoing organic pathology and that Ms. Pauvif’s injuries are predominantly minor as set out within the Schedule. I accept she sustained soft tissue injuries as a result of the accident with which Dr. Ogilvie-Harris also concurred. However, I am persuaded by her ongoing consistent pain complaints relating to her left hip/shoulder and back which, at the time of Dr. Ogilvie-Harris’s orthopedic assessment, had been ongoing for nearly three years since the accident. I find this evidence persuasive that her impairments from the injuries sustained in the accident were unresolved. I do not find the conclusion made by Dr. Ko in the addendum report dated March 11, 2021 persuasive. This is because Dr. Ko concluded that Dr. Ogilvie-Harris’s diagnosis of chronic pain syndrome was made solely on the basis of Ms. Pauvif’s subjective symptom duration. While I accept that Dr. Ogilvie-Harris did not perform a physical examination of Ms. Pauvif, the orthopedic assessment report notes questionnaires were administered to Ms. Pauvif¹⁷ and her functional scores reviewed, which were relied on by Dr. Ogilvie-Harris in diagnosing her with chronic pain syndrome and central sensitization.

30The psychological assessment report of Dr. Gladshteyn and psychological IE report of Dr. McCutcheon were before both Dr. Ko and Dr. Ogilvie-Harris. Both psychological assessment reports note Ms. Pauvif’s reported pain complaints and the impacts she reported to these assessors relating to her psychological and physical functioning. The orthopedic assessment report of Dr. Ogilvie-Harris references the recommendation made by Dr. Gladshteyn for cognitive behaviour therapy in support of Ms. Pauvif experiencing a combination of physical and psychological issues.¹⁸

31Based on a review of Dr. Ogilvie-Harris’s orthopedic assessment report, I am persuaded by his conclusion that Ms. Pauvif suffers from chronic pain syndrome and central sensitization as a result of the accident. The report relied on a telephone consultation with Ms. Pauvif, a review of her pre- and post-accident medical records, two psychological assessment reports that diagnosed Ms. Pauvif with psychological impairments as a result of the accident, and a review of her functional scores from questionnaires. I also find the orthopedic assessment report described in detail the functional impairments reported by Ms. Pauvif relating to her employment and activities of daily living. I found this information supports that she is experiencing functional impairments from the injuries sustained from the accident. As a result, I find this assessment to be reasonable and necessary and addresses the goals set out within the OCF-18.

ORDER

32For the reasons outlined above, I find the applicant is entitled to the following benefits:

1. The OCF-18 in the amount of $5,062.70 for chiropractic treatment.
2. Up to $1,496.17 towards the OCF-18 for the unapproved balance for psychological treatment.
3. The OCF-18 in the amount of $2,520.00 for an orthopedic assessment.
4. Interest on any overdue payment of benefits in accordance with s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 2Tab 2, applicant’s submissions (part 1), letter dated December 22, 2014, issued by Dr. P Hwang, at 94.
3. 3Ibid, CNR entries dated April 15, 2015, April 29, 2015, January 4, 2017, March 16, 2017, at 35, 36, 48, 49.
4. 4Owusu v. TD Home & Auto Insurance Company et al, 2010 ONSC 6627, at para 8.
5. 5Supra, note 2, CNR entry from Brampton Urgent Care Clinic, dated January 18, 2018, at pages 30, 31.
6. 6Tab 8, applicant’s submissions (part 2), CNRS of Essential Physio Rehabilitation from February 6, 2018 – July 5, 2018, at pages 57-62.
7. 7Tab 6 of applicant’s submissions (part 2), orthopedic assessment report of Dr. Ogilvie-Harris dated November 3, 2020.
8. 8Tab 4 of respondent’s submissions, physiatry IE assessment report of Dr. Ko dated November 6, 2020.
9. 9Tab 5 of respondent’s submissions, addendum report of Dr. Ko, dated March 11, 2021.
10. 10Tab 22 of applicant’s submissions (part 2), orthopedic addendum assessment report of Dr. Ogilvie-Harris dated November 25, 2020.
11. 11Supra, note 9, page 3 of report.
12. 12Supra, note 8, page 5 of report.
13. 13Tab 9 of respondent’s evidence, psychological IE report of Dr. McCutcheon dated October 22, 2020, at page 11 or report.
14. 14Superintendent’s Guideline No. 03/14, September 2014, at page 5.
15. 15Tab 5 of applicant’s submissions (part 2), psychological assessment report of Dr. Gladshteyn dated August 30, 2020.
16. 1616-004501 v. The Sovereign General Insurance Company, 2018 CanLII 13158 (ONLAT), paras 23-24
17. 17Supra, note 7, references to the following questionnaires being administered during the orthopedic assessment by Dr. Ogilvie- Harris: Pain Disability Questionnaire, Central Sensitization Inventory, World Health Organization Disability Assessment Schedule, at pages 4-5 of orthopedic assessment report, dated November 3, 2020 and attached scores at end of the orthopedic assessment report.
18. 18Ibid, at page 7 of orthopedic assessment report.