Citation: N.K. vs. Aviva Insurance Company, 2020 ONLAT 19-000356/AABS
Tribunal File Number: 19-000356/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:
N.K.
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
Counsel for the Applicant: Muhammad M. Alam
Counsel for the Respondent: Sonya M. Katrycz
Written Hearing: October 7, 2019
OVERVIEW
1N.K. was injured in an automobile accident on November 3, 2016 and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). N.K. applied for medical and rehabilitation benefits that were denied by Aviva because it determined her injuries were predominately minor and therefore subject to the Minor Injury Guideline (“MIG”) and that the treatment and assessments were not reasonable and necessary. N.K. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES TO BE DECIDED
2The following issues are in dispute, according to the Case Conference Order:
(i) Did the applicant sustain predominantly minor injuries as defined under the Schedule?
(ii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $245.05 for physiotherapy treatment recommended by Chingacousy in a treatment plan (OCF-18) submitted on January 26, 2017 and denied on February 15, 2017?
(iii) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $4,571.20 for physiotherapy treatment recommended by Chingacousy Physio & Foot Clinic in a treatment plan (OCF-18) submitted on March 17, 2017 and denied on March 29, 2017?
(iv) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,067.46 for physiotherapy treatment recommended by Chingacousy Physio & Foot Clinic in a treatment plan (OCF-18) submitted on January 19, 2018 and denied on February 4, 2018?
(v) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $1,596.50 for physiotherapy treatment recommended by Chingacousy Physio & Foot Clinic in a treatment plan (OCF-18) submitted on March 21, 2018 and denied on April 9, 2018?
(vi) Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,892.98 for psychological treatment recommended by Gozlan Psychology in a treatment plan (OCF-18) submitted on June 28, 2018 and denied on July 31, 2018?
(vii) Is the applicant entitled to payment for the cost of examinations in the amount of $1,657 for an in-home assessment recommended by Pearson Medical Assessment Centre Inc. submitted on June 15, 2017 and denied on June 30, 2017?
(viii) Is the applicant entitled to payment for the cost of examinations in the amount of $2,200.00 for an orthopedic assessment recommended by Pearson Medical Assessment Centre Inc. submitted on February 16, 2018 and denied on March 14, 2018?
(ix) Is the applicant entitled to payment for the cost of examinations in the amount of $2,200.00 for a chronic pain assessment recommended by Pearson Medical Assessment Centre Inc. submitted on March 27, 2018 and denied on May 15, 2018?
(x) Is the applicant entitled to payment for the cost of examinations in the amount of $2,000.15 for a psychological assessment recommended by Pearson Medical Assessment Centre Inc. submitted on April 30, 2018 and denied on June 4, 2018?
(xi) Is the applicant entitled to payment for the cost of examinations in the amount of $1,988.80 for an impairment assessment recommended by Pearson Medical Assessment Centre Inc. submitted on May 28, 2018 and denied on June 25, 2018?
(xii) Is the applicant entitled to payment for the cost of examinations in the amount of $2,000.00 for a physiatry assessment recommended by Pearson Medical Assessment Centre Inc. submitted on June 25, 2018 and denied on August 3, 2018?
(xiii) Is the applicant entitled to be reimbursed for prescription expenses submitted on June 22, 2017 and denied by the respondent on a date to be determined?
(xiv) Is the applicant entitled to interest on any overdue payment of benefits?
(xv) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
3N.K. has demonstrated on a balance of probabilities that she suffers from chronic pain that warrants investigation beyond the MIG limits.
4N.K. is entitled to payment for the physiotherapy treatment plan in the amount of $1,596.50, the psychological assessment and treatment plans, as well as payment for her prescription expenses and applicable interest as these items are reasonable and necessary.
5N.K. is not entitled to the remaining treatment and assessments plans as they are not reasonable and necessary. N.K. is not entitled to an award.
ANALYSIS
Applicability of the Minor Injury Guideline
6The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500. N.K. must establish entitlement to coverage beyond the limit on a balance of probabilities. I find the medical evidence indicates that N.K. suffered predominately minor physical injuries as a result of the accident.
7N.K. submits that she has developed chronic pain and psychological impairments as a result of the accident that warrant treatment beyond the MIG due to their affect on N.K.’s activities of daily living. N.K. provides support to meet her burden by sheer volume, as she relies on two Disability Certificates (“OCF-3”), numerous clinical notes and records from two family physicians, several reports from different specialists and twelve treatment and assessment plans covering both physical and psychological modalities. In response, Aviva submits that the documentation N.K. relies on is riddled with credibility issues, pointing out discrepancies and inconsistencies in N.K.’s self-reporting and the reports of various assessors, the fact that no objective physical diagnoses have been made and that the psychological testing indicates that N.K. is likely feigning her impairments. To be frank, I found it difficult to discern exactly what N.K.’s physical impairments as a result of the accident are, as the medical documentation supports Aviva’s contention that there is limited evidence of any objective physical injury or condition as a result of the accident. The OCF-3s in evidence list sprain and strain-type injuries that fall squarely within the definition of minor injuries under the Schedule. However, the OCF-3s also indicate that N.K. meets, at various points in time, the test for income replacement benefits, the stringent non-earner benefit test and also qualifies for housekeeping, despite the fact these benefits are not being claimed. On the details of the accident—which was seemingly minor and where none of N.K.’s three children in the back seat were harmed—combined with the dearth of diagnosed physical conditions, I find it difficult to reconcile the credibility of N.K.’s claims of physical functional impairment. The clinical notes and records before the Tribunal from both of N.K.’s family physicians confirm that there is limited objective evidence of a physical impairment to justify removal from the MIG. Further, the x-ray, ultrasound and MRI reports in evidence are unremarkable and her physical testing results indicated no issues with range of motion. Accordingly, I do not accept N.K.’s physical impairments as reason to remove her from the MIG.
8Indeed, N.K.’s submissions focus primarily on her pain—which, to N.K.’s credit, she does consistently report as affecting her neck, upper back and as headaches—that she argues constitutes chronic pain syndrome and therefore removal from the MIG. To that end, N.K. secured a report from a chronic pain specialist, Dr. Azimzadeh, on a referral from her family physician only four months following the accident. The report diagnosed N.K. with radiculopathy, myofascial pain and possible fibromyalgia. N.K.’s self-reporting to her family physician seems to increase in the latter half of 2018 and into 2019. This led to a second assessment for chronic pain in August 2019 with Dr. Wilderman, who determined that N.K. has chronic pain disorder with a psychological impairment that warrants treatment beyond the MIG. Dr. Wilderman further opined that N.K. meets five out of six criteria for chronic pain syndrome, as per the AMA Guides, and recommended an intensive chronic pain program.
9Aviva’s response to N.K.’s submissions on chronic pain is limited as it focuses largely on the psychological impairments N.K. alleges. With regards to chronic pain, it argues that a s. 25 report identifying chronic pain syndrome is not sufficient, on its own, to remove an insured from the MIG and that a possible diagnosis of fibromyalgia also cannot suffice on its own. Aviva relies on two reports of Dr. Millard, physiatrist, who found that N.K. suffered from no objective injuries whatsoever, that no further physical rehabilitation was required, and that as a result, removal from the MIG was unjustifiable. It also relies on the report of orthopaedic surgeon Dr. Bhargava, who determined that N.K. only suffered WAD I and a lumbar sprain and strain in the accident. From a psychological standpoint, Aviva relies on the report of Dr. Syed, who found that N.K. does not meet the diagnostic criteria for any psychological impairment and it argues that neither of N.K.’s physicians have ever diagnosed a psychological illness, proposed psychotherapy, or prescribed any psychotropic medication.
10It is well-settled that it is N.K.’s burden to prove that treatment beyond the MIG is justified. Here, while I find the documentation concerning her physical impairments to be disproportionate to the functional limitations she describes, I do find that her reports of pain are continuous, consistent, allegedly severe, and diagnosed by several medical professionals as being chronic in nature. Indeed, while self-reported pain is subjective, I find it difficult to overlook the sheer volume of her complaints and the consistency of her reporting over time and to various assessors. The fact that she has undergone two separate assessments to determine why her chronic pain persists suggests, in my view, that the pain is significant enough that it is hampering her daily activities and requires investigation over three years post-accident. I do not rule out that there is likely a psychological component to her pain complaints as well—as several assessors note—and in the absence of a competing report from Aviva speaking to the narrow issue of chronic pain and how it may be affected by or related to psychological impairment, I have no basis to depart from the findings of two chronic pain specialists who determined that N.K. has chronic pain.
11Accordingly, I find that N.K. has provided enough evidence to satisfy the Tribunal on a balance of probabilities that she suffers from chronic pain syndrome with a likely psychological component that warrants investigation and treatment beyond the MIG limits.
Are the treatment and assessment plans reasonable and necessary?
12Having determined that N.K.’s impairments justify removal from the MIG, a consideration of the various treatment and assessment plans in dispute is required. In order to receive payment for an OCF-18, N.K. must prove that the treatment or assessment proposed is reasonable and necessary and incurred, pursuant to sections 14-18 of the Schedule.
$245.05 for physiotherapy treatment
$4,571.20 for physiotherapy treatment
$3,067.46 for physiotherapy treatment
$1,596.50 for physiotherapy treatment
13I find four treatment plans for physiotherapy are not reasonable and necessary. To reiterate, I find no compelling basis to warrant treatment beyond the MIG limits for N.K.’s alleged physical impairments as there is no objective medical evidence of an injury that can be distinguished as anything other than a minor injury as defined by the Schedule. While some reports indicate that N.K. was receiving benefit from various facility-based modalities and was improving, I find the treatment plans proposed here are of the garden variety type of rehabilitation and do not encompass the type of “intensive chronic pain program” contemplated by Dr. Wilderman, who ultimately provided the diagnoses of chronic pain syndrome on which N.K. relies.
14Indeed, all of the treatment plans in dispute pre-date Dr. Wilderman’s diagnosis of chronic pain syndrome in 2019, as they were submitted in 2017 and 2018. While N.K.’s pain complaints obviously pre-date Dr. Wilderman’s diagnosis, there was no support provided by N.K. for the contention that these physiotherapy plans are specifically tailored to address N.K.’s chronic pain diagnoses or that, individually or cumulatively, they will help N.K. achieve maximal medical recovery from her chronic pain syndrome, or any recovery at all, at this point in time. However, it is well-settled that pain relief is a legitimate goal for treatment and sufficient grounds to award payment for same where chronic pain affects an individual, as I have found it does here in N.K.’s case. In this vein, I find it reasonable to address her pain with some component of physical rehabilitation. It would be unreasonable not to do so.
15As the basis for N.K.’s request to be removed from the MIG is on chronic pain, I find it is important that treatment beyond the MIG moving forward specifically address her chronic pain syndrome and potential psychological impairments. In my view, it would be unreasonable and unnecessary to permit nearly $10,000 of physiotherapy where there is no indication that same would be beneficial or that the recommendations are no longer stale in the face of the recent chronic pain diagnosis from Dr. Wilderman. However, I do find that it would prove difficult to address her chronic pain without some form of physiotherapy. In my view, a treatment plan for physiotherapy, in combination with the benefits awarded below, comprises a reasonable and tailored plan to address N.K.’s chronic pain.
16Accordingly, I find it reasonable and necessary to permit payment for the most recent OCF-18 for physiotherapy, being the treatment plan in the amount of $1,596.50, as it was recommended closest in time to the chronic pain diagnosis and is a reasonable cost. N.K. is entitled to payment for this treatment plan as it is reasonable and necessary, but not the remaining three treatment plans.
$2,892.98 for psychological treatment
$2,000.15 for a psychological assessment
17I have grouped these OCF-18s together because I find that they cumulatively provide a reasonable and necessary battery of assessments and treatment that will allow N.K. to investigate the interplay between her chronic pain syndrome and potential psychological impairments, address avenues for treatment and illuminate a path to maximal medical recovery. Further, I find that granting these treatment and assessment plans narrows the scope of investigation into the impairments that N.K. alleges hinder her daily activities.
18The psychological impairments—identified by Dr. Gozlan as Adjustment Disorder with Anxiety and Depression, Somatoform Disorder, Irritability and Anger, Other sleep disorders, specific (isolated) phobias and Limitations of activities due to disability—are allegedly of a severity to warrant removal from the MIG on their own, as these impairments affect N.K.’s daily activities. Therefore, I find the goal of conducting an appropriate assessment and treatment plan reasonable and necessary based on N.K.’s symptoms “as a way to avoid deterioration in her condition and prevent her pain and post-traumatic distress from turning into a chronic condition.” Contrary to the opinion of Dr. Syed, I find the costs to be reasonable in order to address the alleged psychological impairments that continue to affect N.K. A psychological assessment and treatment plan combined with an intensive chronic pain program will hopefully provide a roadmap for N.K. to overcome her chronic pain and achieve her maximal medical recovery.
$2,200.00 for a chronic pain assessment
19N.K. submits that a chronic pain assessment is reasonable and necessary. While I find a chronic pain assessment is reasonable because chronic pain syndrome forms the basis for N.K.’s removal from the MIG, I am not certain that this particular OCF-18 is reasonable and necessary. Indeed, I question whether the assessment is necessary simply because the evidence shows that N.K. already has two chronic pain reports in hand from previous referrals, with the report of Dr. Wilderman on which I rely having been completed more recently in August 2019 and ultimately providing the diagnosis of chronic pain syndrome. It does not appear that the assessment in this OCF-18 was incurred by N.K. or that a report was even completed by the chronic pain specialist noted in the comments as Dr. Karmy. Since this OCF-18 was completed prior to Dr. Wilderman’s report but not incurred, I fail to see how payment for same would be reasonable and necessary where N.K. already has a diagnosis and recommendation.
$1,657.00 for an in-home assessment
$2,200.00 for an orthopedic assessment
$1,988.80 for an impairment assessment
$2,000.00 for a physiatry assessment
20I have grouped the remaining assessments together for clarity and because I agree with Aviva that the orthopedic, physiatry, in-home occupational therapy and “impairments” assessments are excessive, redundant, and not reasonable and necessary on the evidence.
21N.K. does not provide any substantive submissions on why these particular assessments are reasonable and necessary to address her chronic pain. Indeed, her submissions state that because of her chronic pain the goals of the assessments are self-explanatory and reasonable as they are in line with the fee guidelines. And yet, all of the treatment plans for these assessments’ pre-date her diagnosis of chronic pain syndrome and, given the dearth of diagnoses of objective physical impairments elsewhere, I find it difficult to justify payment for additional orthopaedic, physiatry and “impairment” assessments where it is clear that it is a chronic pain program that is required. In addition, I follow Aviva’s submission that neither of N.K.’s two family doctors that follow her regularly ever referred her to an orthopaedic surgeon or a physiatrist. It also remains unclear how the “impairment” assessment request differs from the chronic pain assessment request or how either is not redundant where N.K. already has two chronic pain reports.
22Further, the fact that all of these assessments were proposed by the same clinic—including the chronic pain assessment—gives the Tribunal pause over how alive the clinic was to N.K.’s actual condition given its unfocused and redundant approach to assessing N.K.’s pain complaints. Aviva also addresses the in-home assessment specifically, submitting that N.K. confirmed at the case conference that she will not be pursuing attendant care benefits, that she is independent in her personal care tasks and that the proposed in-home assessment is not reasonable and necessary as result. N.K. does not rebut this argument and since attendant care is not in dispute here, I see no reason to interfere. Accordingly, I find all four of the proposed assessments are not reasonable and necessary.
Prescription Expenses
23N.K. submitted an OCF-6 for various prescriptions expenses she claims were filled in order to treat impairments she sustained in the accident and as a result of prescriptions from her physicians. The total amount identified in the OCF-6 is $264.77, however N.K. withdraws the claim for amoxicillin in the amount of $21.29. The remaining invoices submitted are for Acetaminophen & caffeine & codeine, apo-cyclobenzaprine, Zopiclone, Tramadol, Vimovo, Naproxen, Gabapentin, Elavil and Ratio-Lenoltec. N.K. is required to demonstrate that the medications for which she seeks reimbursement were prescribed in relation to the accident. While Aviva argues N.K. has not met her burden, I do find that every prescription corresponds to a clinical note following the accident, for both N.K.’s pain and sleep complaints. Accordingly, I find the expenses listed in the OCF-6 are payable in the amount of $243.48 as they are incurred.
Award
24N.K. seeks an award of 50% of the disputed treatment pans, alleging that Aviva unreasonably withheld payment knowing that her injuries were not minor. Under s. 10 of O. Reg. 664, the Tribunal may award a lump sum of up to 50% in cases where an insurer has unreasonably withheld payment of benefits to an insured. On the facts and evidence before the Tribunal, I find an award is not appropriate. As detailed above, I find that N.K.’s impairments warrant investigation beyond the MIG limits, however, I find the majority of the treatment plans in dispute do not actually pertain to her impairments or address her pain complaints. Accordingly, I find Aviva raised a genuine dispute over whether N.K.’s accident-related impairments were treatable within the MIG and did not unreasonably withhold payment to N.K.
Interest
25As I have found benefits are payable, it follows that interest applies on any overdue payment of benefits incurred by N.K., pursuant to s. 51.
CONCLUSION
26N.K. has satisfied her burden on a balance of probabilities that her impairments warrant treatment beyond the MIG. She is entitled to payment for the physiotherapy treatment plan in the amount of $1,596.50, the psychological assessment and psychological treatment. She is entitled to her prescription costs as well. Interest applies pursuant to s. 51 of the Schedule.
27N.K. is not entitled to an award or payment for the remaining treatment and assessment plans in dispute as they are not reasonable and necessary.
Released: March 6, 2020
___________________________
Jesse A. Boyce, Adjudicator