Tribunal File Number: 18-007953/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:
[D.C.]
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Stephanie Kepman, Adjudicator
APPEARANCES:
For the Applicant:
Josh D. Nightingale, Counsel
For the Respondent:
Laura C. Meschino, Counsel
HEARD:
via Combination hearing with: Written submissions completed: April 26, May 10, and May 17, 2019 Telephone hearing: May 24, 2019
OVERVIEW
1[D.C.] (“the applicant”) was injured in an automobile accident on May 24, 2014 (“the accident”) and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule''). He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when his claims for benefits were denied by the respondent.
ISSUES
2The following issues are in dispute:
(i) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $8,738.06 for a multi-disciplinary chronic pain management treatment recommended by Alliance Diagnostics in a treatment plan (OCF-18) submitted on November 14,2017 and denied on November 29, 2017?
(ii) Is the applicant entitled to a medical and rehabilitation benefit for physiotherapy treatment recommended by Cardinell Physical Therapy in the amount of:
(a) $2,281.92 in a treatment plan (OCF-18) submitted on July 5, 2017 and denied on July 7, 2017?
(b) $3,989.80 in a treatment plan (OCF-18) submitted on September 21,2017 and denied on September 26, 2017?
(iii) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant entitled to a multi-disciplinary chronic pain management treatment.
4I do not find the physiotherapy treatment plans reasonable and necessary.
5The applicant is entitled to interest on the overdue payment of the multi-disciplinary chronic pain management treatment benefit.
ANALYSIS
6Sections 14 and 15 of the Schedule provide that an insurer is liable to pay for medical benefits for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of an accident.
7The onus is on the applicant to prove, on a balance of probabilities, that the medical benefits sought are reasonable and necessary as a result of the injuries sustained in the accident.2
8Some background is necessary to give clarity to the analysis to follow. The applicant is currently 37-years-old. He alleges that, as a result of his accident, he sustained injuries to his neck, shoulders, upper back, lower back, left hip, left knee, left ankle and left foot. He stated that he is still suffering from pain and limitations to his left ankle, left foot and left hip.
9He began attending physiotherapy at Abbey Lane Chiropractic and Massage therapy following his accident and did so from June 2014 until May 2015. In July of 2016, he began attending Cardinell Therapy for active and passive physiotherapy. He stopped attending this clinic in late 2017.
a. Is the multi-disciplinary chronic pain management treatment plan reasonable and necessary?
10The respondent denied the applicant’s claim for a chronic pain management treatment plan services on the basis of the treatment not being reasonable and necessary.
11I find that the applicant is entitled to a multi-disciplinary chronic pain management treatment for the following reasons:
(i) The findings of the Orthopaedic Assessment Report of Dr. Brian Alpert, Orthopaedic Surgeon, dated October 25, 2019. He is also a member of the Ontario Medical Association Chronic Pain Section, and an Orthopaedic Chronic Pain consultant and several clinics in the province of Ontario. Dr. Alpert produced an extensive report regarding the applicant and his injuries. He opines that the applicant’s residual musculoskeletal impairments are associated with severe chronic pain in his left foot and ankle.
The respondent notes that Dr. Alpert only assess claimants in pursuit of accident benefits or tort recovery, has no active clinical orthopaedic practice nor any hospital privileges. This, however, does not negate any of his credentials or experience.
Dr. Alpert reports that the applicant requested an MRI scan on his left ankle due to his chronic pain, which is consistent with Dr. Alpert’s findings. Dr. Alpert finds that, had it not been for the accident, the applicant’s pre-existing tarsal condition would have likely remained asymptomatic, and that the accident was the direct cause of the applicant’s chronic pain in his left ankle/foot.
Dr. Alpert also found that the accident was a material contributor to the applicant’s impairments to his lumbar spine. Dr. Alpert opines that, as a result of the applicant’s severe chronic pain in his left foot/ankle, he fell down a flight of stairs, causing further injury to his lower back.
The applicant reported constant pain in his left ankle/foot from prolonged walking for more than 5-10 minutes, standing, walking on uneven ground, climbing stairs, pulling, lifting, and cold damp weather.
Dr. Alpert states that the applicant is substantially disabled as a result of his several chronic painful injuries.
Though the respondent did provide a responding Insurer’s Examination (“IE”), performed by Dr. Basil Johnson, Orthopaedic Surgeon, dated December 14, 2017, I put less weight on this evidence. I have not been presented with evidence that Dr. Johnson has a background or extensive knowledge in the area of chronic pain. Rather, Dr. Johnson was looking for impairment. As he notes: “His [the applicant’s] complaint of pain is not in and of itself considered to be impairment.” Without considering the applicant’s pain when assessing a chronic pain assessment, the respondent cannot determine if the treatment is reasonable and necessary.
(ii) The respondent also argued that he did not have his condition, a congenital tarsal coalition, confirmed by diagnostic imaging until January 2015, approximately eight months after his accident. This condition was confirmed to be a longstanding, albeit asymptomatic condition, prior to the accident. Therefore, a causal connection cannot be established.
However, this argument is directly disputed by the above-noted evidence of Dr. Alpert, who found a direct causal relation between the applicant’s chronic pain and his accident. Dr. Patrick Tansey, Orthopaedic Surgeon, in a letter dated March 13, 2017, also opines that the applicant’s worsening of his condition was caused by his accident.
The respondent further argued that it has been more than three years since his last corrective surgeries in 2016, and therefore, his hindfoot fusion will consolidate within three months in the majority of cases. However, Dr. Alpert reports that the applicant found little musculoskeletal improvement since his accident, despite undergoing two orthopaedic surgical procedures on his left foot and treatment related to such.
(iii) The respondent argues that the applicant does not meet the psychological criteria of a chronic pain diagnosis. It relies on its IE, conducted by Dr. Godwin Lau, Psychologist, which found no psychological diagnosis in the applicant.
It further relies on the clinical notes and records of his family doctor, Dr. Ron Lo, from November 2016 to January 2017. The respondent notes that Dr. Lo indicated on January 4, 2017, that the applicant’s anxiety may be due to the season. Furthermore, it argues that the applicant has not provided any evidence of ongoing psychological difficulties beyond that. When looking at the note from the doctor, I do observe that the doctor wrote “due to time of year?”. I note that the doctor is asking a question, rather than the doctor is making a seasonal affective disorder (“SAD”) diagnosis.
The applicant’s clinical notes and records note that the applicant was diagnosed with panic attacks and complained of depression on November 16, 2016, and was prescribed Clonazepam, an anti-anxiety medication.
Later in November, he followed up with his doctor. In December, he mentioned his sleep difficulties to his doctor. He was then prescribed opiates to assist with his pain management. He also noted that he was taking more of his Clonazepam than usual.
Though Dr. Lo did note in January 2017 that the applicant’s anxiety had improved, he did not note that he was no longer experiencing it.
The applicant did not submit clinical notes and records beyond 2017. However, he did provide an affidavit, sworn April 24, 2019, describing his continuing depressive issues and panic attacks. He also stated that he has followed up with his family doctor regarding his mental health symptoms but has not received any formal counselling.
(iv) Finally, the respondent argues that the professionals who recommended the treatment plan, Dr. Csumrik, Chiropractor, nor Dr. Alpert, are within their realm of expertise, when making recommendations regarding counselling and mental health services.
Though I do understand this argument, the services requested by the applicant are in a vacuum and are not stand-alone psychological services. Instead, they are part of a multidisciplinary treatment plan for chronic pain, involving passive modalities from a chiropractor and psychological treatment from a registered Clinical Psychotherapist, Dr. Mohammad-Reza Sadeghi.
I did take into consideration when deciding how much weight to put on the recommendation by Dr. Csumrik. However, when read with the recommendations of Dr. Alpert, I concluded that the treatment plan was reasonable and necessary.
b. Are the physiotherapy treatment plans reasonable and necessary?
12The applicant has also applied for two separate physiotherapy treatment plans. These treatment plans have similar goals, are with the same provider and were addressed were evaluated via Multi-Disciplinary Insurer’s Examinations assessment at the same time.
13The respondent denied the applicant’s claim for the physiotherapy treatment plans on the basis of the treatments not being reasonable and necessary.
14I find that the applicant has not demonstrated that for the proposed physiotherapy treatments are reasonable and necessary for the following reasons:
(i) In Dr. Johnston’s IE dated October 25, 2017, he specifically notes that from an Orthopaedic perspective, he does not believe that passive modalities would result in significant improvement to the applicant.
Dr. Johnston confirms that the applicant is suffering from soft tissue strain to his neck, hips and knees and that he has achieved maximal medical improvement.
Dr. Alpert confirms this by also stating that the applicant has achieved maximal medical recovery from the accident, and he does not anticipate any further musculoskeletal improvement.
(ii) Though Dr. Tansey does recommend physio therapy to try to improve the applicant’s range of motion for his ankle, he does not recommend the amount.
Given that this report was written in 2017, and that the applicant’s chronic pain management treatment already includes a component of multiple body sites therapy, I do not see how the applicant could require further therapy beyond that associated with his chronic pain management treatment. I mirror this comment to the recommendations of Dr. Alpert.
c. Is the applicant entitled to interest?
15Since the applicant is only entitled to one of the benefits in dispute, the multi-disciplinary chronic pain management treatment benefit, he is entitled to interest on said benefit in accordance with the Schedule.
CONCLUSION
16For the reasons outlined above, I find that:
(i) The applicant is entitled to his multidisciplinary chronic pain management treatment.
(ii) The applicant is not entitled to his two physiotherapy treatment plans.
(iii) The applicant is entitled to interest on his multidisciplinary chronic pain management treatment plan but not his 2 physiotherapy treatment plans.
Released: March 20, 2020
___________________________
Stephanie Kepman
Adjudicator
Footnotes
- O. Reg. 34/10.
- Scarlett v. Belair Insurance Company, 2015 ONSC 3635.