M.R. v Aviva Insurance Canada, 2020 CanLII 12743

RECONSIDERATION DECISION

Before: Samia Makhamra, Adjudicator

Date: February 11, 2020

File: 17-008917/AABS

Case Name: M.R. v Aviva Insurance Canada

Written Submissions by:

For the Applicant: James Armstrong, Counsel

For the Respondent: Suhasha Hewagama, Counsel

OVERVIEW

1Aviva seeks reconsideration of the Licence Appeal Tribunal’s (the “Tribunal”) May 27, 2019 decision, in which I was the adjudicator. The issues before me were, in essence, whether M.R. was entitled under the Statutory Accidents Benefits Schedule, O. Reg. 34/10 (the “Schedule”) to payment from Aviva, M.R.’s insurer, for two treatment plans: one for a chronic pain assessment, the other for a neurological assessment. I found that M.R. was entitled to both.

2Aviva seeks to vary that decision. In its view, M.R. is not entitled to either.

3Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009,¹ I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

4Aviva’s request for reconsideration is granted in part. The request for reconsideration with respect to the treatment plan for a chronic pain assessment is dismissed. The request for reconsideration with respect to the treatment plan for a neurological assessment is granted.

ANALYSIS

5The grounds for a request for reconsideration are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure. A request for reconsideration will not be granted unless one of the following criteria is met:

a) The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

b) The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision had the error not been made;

c) The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

6Aviva’s request for reconsideration is advanced pursuant to Rules 18.1 and 18.2, on the basis that I made significant errors of law and facts in granting both benefits, such that I would likely have reached a different decision had the errors not been made.

7M.R. provided written submissions that directly disputed Aviva’s position and supported the reasons in the decision.

The claim for a chronic pain assessment

8I found this treatment plan reasonable and necessary based on recommendations of Dr. Brown, M.R.’s assessor, and compelling information in the medical records, which corroborated notes in an in-home assessment by Tanja Jakovljevic, RN, of April 2016. These three combined persuaded me that the assessment was reasonable and necessary.

9Aviva submitted that I made a number of errors, without which this treatment plan could not be granted. First, it argued that I erred in relating any complaint of pain to the accident, in disregarding reduced medication intake, and in failing to address causation. Second, it argued that I erred in preferring M.R.’s assessor, who prepared this treatment plan, over Aviva’s. Third, it argued that I erred in failing to explain my finding in relation to a previous Tribunal decision involving the parties and the same accident.

10I have considered the parties’ submissions. My finding that the treatment plan for a chronic pain assessment was reasonable and necessary remains. In the next paragraphs, I address Aviva’s concerns and clarify this finding.

The medical records and medication intake

11Aviva pointed out that of the nine dates in paragraph [9] of the decision, three were not related to the accident: September 23 and September 29, 2014, and June 28, 2016. It argued that complaints of accident-related injuries were sporadic. To this same end, it highlighted that, of 54 visits until July 2018, only 11 were for accident-related injuries. As a result, Aviva submitted, I failed to address causation, and did not evaluate M.R.’s significant pre-existing and post-accident health.

12Aviva is correct with respect to two dates that were listed in paragraph [9] in error; September 23, 2014 and June 28, 2016. The September 23, 2014 note includes M.R.’s complaints of pain starting three to four weeks prior, but there is no reference to the accident. The June 28, 2016 includes a prescription for pain medication, but it does not state that it was for an accident-related complaint.

13The September 29, 2016 date, however, does contain a complaint that I interpret as accident-related. The doctor’s notes for this visit are:

“L scapular pain x months started around time of MVA 1 year ago, but

I do not have her² reporting it in my notes from her no dyspnea.

o/(illegible) tender point L upper back / scapular

C – spine full ROM (rotational / lat flexion)

I - msk pain

P - (illegible)³ / tear, prn tylenol, voltaren gel”

Here, Aviva argued that I erred in concluding that the applicant’s complaint of left scapular pain was related to the accident because the doctor specifically noted that he did not see this reporting in his notes [emphasis added].

I disagree. First, in the absence of more specific information such as a date or period, it is not clear what “notes” the doctor was referring to. Second, a plain reading of the notes from this visit informs me that: M.R. experienced left scapular pain which she attributed to the accident; the doctor found tenderness in the left upper back/scapular area⁴; the doctor’s impression was of musculoskeletal pain; and, the plan forward was to investigate a possible tear and for M.R. to take Tylenol as needed and/or Voltaren gel.

Read together, I am satisfied that these notes are from a complaint by M.R. that was accident-related.

14I do not find that M.R.’s accident-related complaints were sporadic, as characterized by Aviva. From the date of the accident, to the date of the chronic pain assessment, which was on August 12, 2016, M.R. complained to the doctor during 11 visits, she received physiotherapy and chiropractic treatments⁵, she was assessed by Tanja Jakovljevic (in-home assessment), and she saw Dr. Brown. Specifically, the first complaint to the doctor was on December 17, 2013, which was shortly after the accident. In 2014, she complained on March 24 and September 29, and sought physiotherapy and chiropractic treatment. In 2015, she complained on April 14, July 21 (pain medication for accident-related pain was prescribed), August 10, and December 1. In 2016, she complained on February 16, April 4, May 17, and August 9. In addition, there were two appointments with Dr. Brown, one on August 3, 2016, when he prepared the treatment plan for a chronic pain assessment, and another on August 12, the date of the actual assessment.

15In other words, taken as a whole, I am of the view that up until the time of this treatment plan and the actual assessment for chronic pain, M.R. complained of accident-related pain on a regular basis.

16Regarding medication, Aviva submitted that in the year prior to the accident, M.R. regularly filled prescriptions for pain medication. Following the accident, M.R. filled only two prescriptions, one on December 17, 2013 and another on March 23, 2014. Subsequent prescriptions were filled following a diagnosis of deep vein thrombosis (DVT), which was unrelated to the accident. Here, Aviva argued that I erred in failing to explain my finding that M.R.’s reduced medication intake did not change my view of the medical records.

17In the decision, my statement regarding reduced medication intake after the accident was in the context of the strong evidence in the medical records, and in response to a submission by Aviva. Although I should have explained this point better, to clarify, whether or not M.R.’s doctor saw fit to prescribe pain medication or whether it was filled, did not change my view that M.R. suffered from some form of chronic pain that warranted an assessment.

18Regarding causation, Aviva submitted that I failed to evaluate M.R.’s significant pre-existing and post-accident health in determining the chronic pain assessment was reasonable and necessary. Specifically, it argued that I related any complaint to the accident, and that I relied on the subjective complaints relative to other pertinent evidence, such as: post-accident health, which it argued was significant because M.R. returned to work four days after the accident and only stopped working following her DVT diagnosis in January 2015; her lack of treatment following the accident; her sporadic accident-related pain complaints; and, the lack of regular use of prescription medication.

19On balance, I do not find that the above factors change my view of this treatment plan. Regarding M.R.’s work, there is no dispute that M.R. returned to work shortly after the accident but stopped working in January 2015 because of a DVT diagnosis. However, in the year leading up to, and following her work stoppage in 2015, M.R. was suffering from accident-related injuries. I addressed this in more detail in paragraphs [14] and [15] above.

The Tribunal’s previous decision and Dr. Brown’s treatment plan

20By way of background, the applicability of the Minor Injury Guideline and attendant care benefits were part of an oral teleconference hearing before the Tribunal on December 7, 2016. Among the findings, the adjudicator who reviewed Dr. Brown’s chronic pain assessment report found the applicant’s chronic pain to be the sequelae of her minor physical injuries. Here, Aviva submitted that this previous finding has a direct impact on whether the chronic pain assessment is reasonable and necessary, and that I made an error in not providing an explanation for reaching a different conclusion.

21I offer the following comments. First, the Tribunal’s previous decision did not address the treatment plan for a chronic pain assessment; rather, it made a factual finding about the nature of the applicant’s chronic pain. It is important to note that my finding was that the chronic pain assessment was reasonable and necessary at the time that it was prepared, which was in August 2016, after M.R. had seen her doctor for accident-related complaints several times, and nearly four months before the Tribunal held the previous hearing. In other words, this is not a scenario where the treatment for a chronic pain assessment and the actual assessment took place after the Tribunal decision.

22Second, a finding that the chronic pain assessment was reasonable and necessary does not contradict the Tribunal’s previous finding that M.R.’s chronic pain was the sequelae of her minor physical injuries. In fact, this previous decision confirms that M.R. did have some chronic pain.

23Third, reasons for finding in favor of the chronic pain assessment were provided, namely Dr. Brown’s recommendations and the medical records. While an adjudicator is under no obligation to address every submission made by the parties, in hindsight, I could have addressed this, and the parties would have been better served.

24Aviva raised four concerns with my preference for Dr. Brown’s recommendations over Dr. Alikhan’s. First, Aviva submitted that I erred in assigning limited weight to Dr. Alikhan’s report because, if I simply did so on the basis that Dr. Alikhan is not a chronic pain specialist, it is reasonable to conclude that I would have preferred the opinion of a chronic pain specialist, but that I failed to find Dr. Brown a specialist. Second, I allegedly erred in failing to recognize that Dr. Alikhan conducted a thorough assessment of M.R. in person shortly before Dr. Brown saw her for this treatment plan, and I failed to recognize that Dr. Alikhan’s paper review was Aviva’s only option pursuant to s. 44 of the Schedule. Third, Aviva argued that I failed to recognize the purpose of Dr. Alikhan’s reports when I expected his paper review of Dr. Brown’s treatment plan to provide remedies or pain recommendations. Lastly, Aviva also argued that the assessment was not warranted because M.R. did not follow the recommendations in Dr. Brown’s assessment report in any event.

25Paragraph [11] of the decision addressed Dr. Brown’s treatment plan and his reasons for recommending that M.R.’s chronic pain be assessed. Paragraphs [12] and [13] provided the reasons for preferring Dr. Brown’s recommendations over Dr. Alikhan’s. I preferred Dr. Brown’s assessment and treatment plan and his assessment report because he assessed M.R. in person, his findings were consistent with information in the medical records, and he provided a plan to address her long-standing accident-related complaints. Dr. Alikhan, on the other hand, among other things, noted the complaints and concluded that the injuries were minor and should have resolved. However, the complaints had not resolved. I did not fail to recognize the purpose of Dr. Alikhan’s reports; rather, I preferred Dr. Brown’s because he noted the complaints, and he offered a plan to address those by having M.R. assessed for chronic pain. I considered these factors and found in favor of the assessment, again, based on the medical records and the accident-related complaints. As for Dr. Alikhan’s qualifications, I considered this because, unlike Dr. Brown, he did not assess M.R. in person. The decision could have been clearer. But it does not change my preference for Dr. Brown’s recommendations in favor an assessment for M.R.’s chronic pain at the time that it was prepared. Lastly, whether or not M.R. sought the treatment that Dr. Brown recommended does not change the finding that the assessment was warranted.

26In conclusion, based on these reasons, the finding that the treatment plan for a chronic pain assessment was reasonable and necessary remains.

The claim for a neurological assessment

27In short, Aviva submitted that I made errors regarding M.R.’s headaches, and the ultimate finding that the neurological assessment was reasonable and necessary.

28This treatment plan was prepared by Ms. Breen, OT. I preferred her recommendations over Aviva’s assessor, Dr. Alikhan, because Ms. Breen directly addressed the concern with headaches. In reviewing the evidence and the parties’ submissions, I agree with Aviva. This was an error.

29In paragraph [14] of the decision I stated that the basis for this assessment was M.R.’s headaches. The rest of the paragraph follows the trail of her headaches in various medical notes, including a visit to a neurologist, Dr. Baskind, on April 23, 2014. The focus on M.R.’s headaches was an error that in my view changes the finding that this treatment plan is reasonable and necessary.

30Specifically, Ms. Breen’s treatment plan listed the following injuries: cervicalgia, sprain and strain of sacroiliac joint, low back pain, pain in thoracic spine, and contusion of thigh. Under activity limitations, Ms. Breen noted that M.R. continued to suffer from cervicalgia, requiring a neurological assessment.

31Cervicalgia is mentioned in paragraph [15] of the decision, but it did not drive the conclusion in favor of this assessment for M.R. This does not mean that the applicant did not suffer from headaches. But it does not support the basis for this assessment either.

32Aviva raised additional concerns regarding my preference for Ms. Breen’s report over Dr. Alikhan’s, and M.R.’s headaches. Given the error noted above, I do not need to address this further.

Conclusion

33The finding that the chronic pain assessment is reasonable and necessary remains. As this treatment plan has been incurred, M.R. is entitled to interest, pursuant to s.51.

34The treatment plan for a neurological assessment is not reasonable and necessary. Accordingly, no interest is owed to M.R.

Remedy

35For the reasons noted above, I vary the Tribunal Decision dated May 27, 2019, and make the following finding:

i. M.R. is not entitled to receive a medical benefit in the amount of $2,200.00 for a neurological assessment, recommended by Ms. Rhoda Breen, and submitted on June 29, 2016. Accordingly, no interest is owed to M.R.

Footnotes

1. 1S.O. 2009, c. 33, Sched. 5
2. 2The handwriting isn’t clear, this word could be either “her” or “left”.
3. 3This word could be “rule out”.
4. 4In the record for a visit on December 17, 2013, the doctor noted “L spine sore” and “C spine pain”, which I interpret as back pain.
5. 5According to records from Weston Wellness Clinic, the service provider, treatment was provided on the following dates: on December 16, 2013, February 15, 2014, May 5, 2014, May 10, 2014 and October 15, 2014.