Tribunal File Number: 18-006517/AABS
In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c. I.8, in relation to statutory accident benefits.
Between:
S.W.
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Craig Mazerolle
APPEARANCES:
Representative for the Applicant:
Alexei Antonov, Counsel
Representative for the Respondent:
Geoffrey Keating, Counsel
Held by Written Hearing:
September 30, 2019
OVERVIEW
1[S.W.] was injured in a motor vehicle accident on May 2, 2016. To assist in her recovery, she sought medical and rehabilitation benefits from the respondent, pursuant to the Statutory Accident Benefits Schedule (the “Schedule”).1 When the respondent refused to pay for some of these benefits, the [S.W.] applied to this Tribunal.
2As I will explain below, I find that [S.W.] is entitled to some of the disputed benefits, namely the two physiotherapy treatment plans, neurological assessment, disability certificate, chronic pain assessment, chronic pain program, and $1,200.00 of the shockwave therapy treatment plan). She is not entitled to an award or costs.
ISSUES
3The benefits at issue are as follows:
(i) Physiotherapy services in the amount of $1,465.10 (submitted on May 14, 2018);
(ii) Cost of a disability certificate in the amount of $200.00 (submitted on January 24, 2018);
(iii) Shockwave therapy, as a rehabilitation benefit, in the amount of $2,400.00 (submitted on March 19, 2019);
(iv) Physiotherapy, as a rehabilitation benefit, in the amount of $1,254.25 (submitted on March 18, 2019);
(v) Psychological assessment in the amount of $2,000.00 (submitted on November 30, 2018);
(vi) Neurological assessment in the amount of $2,000.00 (submitted on December 15, 2018);
(vii) Chronic pain treatment, as a rehabilitation benefit, in the amount of $11,281.90 (submitted on May 22, 2019);
(viii) Chronic pain assessment in the amount of $2,000.00 (submitted on January 9, 2019); and,
(ix) Psychological treatment, as a rehabilitation benefit, in the amount of $3,335.98 (less $1,091.76 already approved, and as submitted on June 12, 2019).
4[S.W.] is also requesting interest, costs, and an award under s. 10 of Regulation 664.
MEDICAL AND REHABILITATION BENEFITS
5Entitlement to medical benefits is determined under ss. 14 and 15 of the Schedule. Briefly, [S.W.] has the onus of demonstrating—on a balance of probabilities—that the medical expenses listed in a treatment plan are reasonable and necessary as a result of impairments caused by the accident.
6A similar test is used to determine entitlement to rehabilitation benefits, but s. 16 adds that these benefits must meet the purpose of “reducing or eliminating the effects of any disability resulting from the [accident-related] impairment or to facilitate the person’s reintegration into his or her family, the rest of society and the labour market.”
Physiotherapy Services
7Both of these treatment plans recommend physical therapy as a means of addressing [S.W.]’s chronic shoulder and back pain, as well as persistent headaches. The goals of these plans mainly focus on pain reduction and helping [S.W.] return to her post-accident activities.
Parties’ Positions
8[S.W.] argued that this physical therapy is needed to address her accident-related chronic pain, a condition that has been corroborated with diagnostic imaging. [S.W.] also added that the plan requesting $1,254.25 in physical therapy is a “minimal” amount of treatment.
9The respondent stands by its denial of these plans, as [S.W.] reported that her physical symptoms have largely subsided. For instance, [S.W.] did not raise any accident-related concerns with her family physician after July 2016, i.e., only three months following the accident. The respondent’s physical medicine assessor, Dr. Alborz Oshidari, also concluded that passive, physical modalities would be of no assistance several years after the accident.
10In her reply submissions, [S.W.] raised concerns with the orthopaedic assessment conducted by the respondent’s assessor, Dr. Louis Weisleder (report dated July 3, 2018). Specifically, [S.W.] alleged that this report not only ignored her medical history, but that significant sections of the report have been redacted. The respondent challenged this allegation with a brief e-mail to the Tribunal and [S.W.] on October 8, 2019. In this message, the respondent claimed that the alleged redactions in Dr. Weisleder’s report were, in fact, highlights.
11Even though no further submissions were allowed after [S.W.]’s reply, I will accept the respondent’s e-mail into the hearing record. The version of the report I have been provided does not have any redactions and, rather, it is clear that there are highlighted passages. As such, nothing of import turns on this e-mail.
Analysis
12For the following reasons, I find [S.W.] is entitled to these treatment plans, as I am satisfied that physical therapy is needed to continue addressing her accident-related pain.
13First, there is ample evidence that [S.W.] has experienced significant and ongoing pain as a result of the accident. For instance, the clinical notes and records from the family physician provide compelling evidence of significant pain in her left shoulder and wrist. That is, during a visit on July 25, 2016, [S.W.] reported being “unable to carry her 5 month old daughter” due to the pain in her wrist. Then, on July 28, 2016, [S.W.] complained about pain in both her wrist and shoulder. Though I do recognize that this latter entry is the final record from the family physician to reference an accident-related impairment, [S.W.] continued to complain about upper body pain to a number of medical practitioners throughout the years, including to the respondent’s assessors.
14I do note that there is some evidence to suggest that the pain has significantly subsided. For instance, when describing her pain levels during an assessment with her psychologist, Dr. Andrew Shaul (report dated February 14, 2019), her self-reported pain maxed out at a rating of 4/10 (with 10 representing “most severe pain”). Then, during the assessment with Dr. Weisleder, she described her left shoulder pain as having improved by 80% since the accident. She went even further to state that the left wrist pain had improved by 95%.
15Though this evidence might suggest that pain is no longer an issue for [S.W.], this self-reported improvement is not consistent with the objective findings from the respondent’s assessor. Most notably, Dr. Weisleder still found serious limitations in her left shoulder range of motion (as compared to the right shoulder). Dr. Oshidari’s report (dated May 8, 2019) also revealed issues with the left shoulder’s range of motion, albeit fairly minor in comparison to those found by Dr. Weisleder.
16[S.W.]’s self-reported pain levels have also fluctuated over time. For example, during her interview with the respondent’s psychologist, Dr. Monique Costa El-Hage (report dated August 8, 2019, i.e., only a few months after the assessment with Dr. Shaul), she rated her left shoulder pain as 8-9/10.
17Taken together, I am satisfied that [S.W.] continues to suffer from significant, accident-related pain.
18Moving on to the question of whether the proposed treatment will assist with this impairment, I find that [S.W.] continued with physiotherapy until May 2018, at which point these services were no longer approved by the respondent. This longstanding reliance on physical therapy not only speaks to its efficacy at dealing with her condition, but—as detailed in the assessment with Dr. El-Hage—[S.W.]’s pain worsened after she stopped receiving this treatment. Therefore, while Dr. Oshidari may have concluded that physical therapy would no longer be of assistance, this timeline of recovery and subsequent deterioration suggests otherwise.
19Taken together, I am satisfied that both treatment plans are reasonable and necessary to assist [S.W.] with accident-related pain.
Psychological Assessment and Services
20In addition to recommending a psychological assessment, Dr. Shaul submitted a treatment plan recommending 14 psychotherapy sessions (with a duration of 90 minutes each) to address [S.W.]’s accident-related adjustment disorder and phobia. While the respondent denied the assessment outright, it partially approved this psychological treatment in the amount of $1,091.76, i.e., six, one-hour sessions of psychotherapy with related documentation and facilitation costs.
Parties’ Positions
21[S.W.] argued that psychological treatment is needed for her recovery due to the longstanding nature of her emotional difficulties and driving anxiety.
22The respondent contended that the proposed assessment is a duplication of earlier psychological testing completed by Dr. Ricardo Harris in October 2016. Additionally, the respondent approved two psychological treatment plans in July 2017 that have yet to be exhausted, and—while the respondent did partially approve this disputed plan—there is no evidence to support the full amount of counselling being requested.
Analysis
23I find that [S.W.] is not entitled to the psychological assessment, nor is she entitled to the outstanding amount in the psychological services treatment plan.
24This finding does not diminish the severity of the psychological symptoms that [S.W.] has been experiencing since the accident. For instance, I accept that she suffers from intense driving anxiety. However, I question the necessity of these further treatment plans in light of the services that have already been approved.
25First, there is no indication as to why a second psychological assessment is needed. Some cases may require further testing to take place, as one’s condition may change significantly over time. However, it is still [S.W.]’s onus to demonstrate why a particular benefit is reasonable and necessary. Without a convincing explanation for why this second assessment is needed, I do not find that she has met this burden. In fact, the treatment plan proposing this testing stated that no previous psychological assessment had been conducted, and it also listed psychological symptoms that mirror the diagnoses in Dr. Harris’s earlier report—evidence that this second assessment would be duplicative.
26Then, in a similar vein, I find that [S.W.] has not provided a sufficient justification for why the additional psychotherapy sessions are reasonable expenses, as there are other approved services that she has not yet used. Again, there is no denying that these services are needed, but the costs are not reasonable as she still has access to previously approved funding.
27Finally, I would add that the chronic pain assessment completed by Dr. Michael Gofeld (dated April 16, 2019) noted that [S.W.]’s emotional and sleep complaints have largely resolved. That is, save for continued driving anxiety and a general increase in nervousness overall, [S.W.] did not endorse low mood, difficulty falling asleep, or passenger anxiety. This self-reported improvement is further evidence that extensive psychological therapy is not reasonable, and, rather, the limited counselling approved by the respondent should be sufficient.
28The respondent raised concerns about Dr. Gofeld’s qualifications that will be discussed below, but—considering this psychological symptomology was self-reported—I am willing to accept this part of his report.
Neurological Assessment
29Citing her accident-related chronic pain and headaches, the treatment plan for this neurological assessment hopes testing will lead to recommendations for how to address [S.W.]’s possible, neurological impairments.
30[S.W.] submitted that this assessment is reasonable and necessary as she continues to experience chronic pain, carpal tunnel syndrome, and headaches. Further, the denial of this proposed plan has meant that she has been hindered in her “efforts to mitigate and manage the pain stemming from her accident related impairments.” The respondent simply contended that there is no evidence that [S.W.] suffers from an accident-related, neurological impairment.
Analysis
31I find that [S.W.] is entitled to this disputed assessment. In his report dated February 6, 2019, the respondent’s neurological assessor, Dr. Jamsheed Desai, concluded that [S.W.] did not suffer from any accident-related, neurological impairments. However, the respondent’s assessor did concede that [S.W.]’s bilateral paresthesias may have been exacerbated by the accident, though he opined that “given the amount of time that has elapsed, as well as the claimant’s current pregnancy…it makes it less likely”. This assessor also noted that the mechanism of the accident made this conclusion unlikely as well.
32Even if these alternative explanations appear credible on their face, I am still satisfied that the possibility of accident-related exacerbation is sufficient to determine that this assessment is reasonable and necessary. That is, even if this assessment only establishes that one of these other explanations is the reason for her worsening condition, this knowledge will still be of assistance to [S.W.]’s recovery.
Chronic Pain Assessment, Chronic Pain Program, and Shockwave Therapy
33In addition to a proposed assessment to determine the extent of this impairment, the disputed chronic pain program comprises of a number of physical and psychological modalities meant to address [S.W.]’s chronic pain. Also, in addition to the shockwave therapy recommended as part of the chronic pain program (targeting the “MSK / Back” and “Neck”), a separate treatment plan was submitted for shockwave therapy targeting the “MSK / Back” and “Upper Limb”.
Parties’ Positions
34[S.W.] submitted that the chronic pain assessment should have been approved, as she continues to experience intense pain. Then, in regard to the chronic pain treatment, [S.W.] submitted that not only would it assist with this longstanding issue, but the paper review conducted for the respondent by Dr. Oshidari is flawed (dated August 8, 2019). That is, Dr. Oshidari allegedly failed to consider the clinical notes of [S.W.]’s physician, as well as the “ultra sound findings of Dr. Gofeld” (namely, the findings of supraspinatus and labral tears).
35This reasoning is then similar to the arguments she has provided regarding the standalone shockwave therapy. Specifically, she has experienced longstanding pain in her back muscles and upper limbs, and this treatment seeks to address it.
36The respondent’s submissions about these issues are mainly concerned with the lack of medical evidence. For instance, as noted above, [S.W.] did not raise any accident-related concerns with her family physician after July 2016, and she only reported minor symptoms to the respondent’s assessors. Further, Dr. El-Hage did not diagnose [S.W.] with somatic symptom disorder, thus eliminating the need for a chronic pain program. Finally, the respondent has raised concerns with Dr. Gofeld’s chronic pain assessment and his qualifications more generally.
37In her reply, [S.W.] added that her reported pain is consistent with the definition provided for “chronic pain” in the Tribunal’s decision from T.S. v. Aviva Insurance Company.2 Further, the psychological symptoms reported by Dr. El-Hage are, in fact, “typically noted in a chronic pain finding.”
Analysis
38I find that [S.W.] is entitled to these disputed treatment plans, save for the expense listed as “Shockwave Therapy – MSK / Back” in the standalone shockwave therapy plan.
39First, as noted above, [S.W.] has continued to experience significant, accident-related pain for many years. Then, as referenced in Aviva, chronic pain is often associated with adverse effects to “the individual’s well-being”.3 Evidence of significant, post-accident changes to [S.W.]’s well-being can be found throughout the medical records, including: a reduction in pre-accident, social activities; functional limitations (e.g., lifting, carrying, caregiving, etc.); and, while she has returned to full time work as a nurse, she has required help with the job’s physical tasks.
40Therefore, considering both the length of time since the accident, as well as the functional changes during this period, it was reasonable for [S.W.] to explore the possibility that her pain had developed into a chronic condition. As such, I find the chronic pain assessment to be reasonable and necessary.
41Then, moving on to the proposed program, Dr. Shaul’s assessment provides a helpful explanation for why this program is needed, as he addressed the connection between [S.W.]’s physical and psychological conditions:
These psychological and emotional difficulties are in large part a direct consequence of her physical condition. As long as her physical condition, along with its pain and restrictions remain present, it is likely that [[S.W.]] will experience significant emotional distress.
42This need for treatment that covers both [S.W.]’s physical and psychological impairments is, therefore, why I find this chronic pain program to be reasonable and necessary. That is, the plan proposes a combination of physical and psychological modalities that, together, form a holistic, wraparound treatment regime that may finally provide [S.W.] with lasting pain relief.
43In reaching this determination, I do not accept Dr. El-Hage’s conclusion that this program is not reasonable and necessary. While I accept that there is no formal diagnosis of somatic symptom disorder, I still find that the totality of the psychological testing before me suggests that [S.W.] is experiencing some distress about her physical condition. For instance, [S.W.]’s score on part of Dr. El-Hage’s psychometric testing revealed that she has the profile of pain patients who are likely “bothered by the intensity or duration of their pain and subsequently may feel somewhat threatened or vulnerable.” Then, during the testing with Dr. Shaul, she endorsed a number of responses that suggested elevated distress with her physical condition. Therefore, I am satisfied that some form of psychological treatment is needed to manage this component of her accident-related condition.
44Additionally, though I found above that further psychological treatment is not required from the disputed psychological services treatment plan, I find that psychological treatment associated with the chronic pain treatment program is still reasonable. That is, I accept that [S.W.] is experiencing chronic pain, and so I further accept that this treatment program should be implemented in its entirety.
45Then, in regard to the standalone shockwave therapy treatment plan, while I again accept that this type of physical modality is a necessary part of [S.W.]’s overall chronic pain regime, I do not find it reasonable for the entirety of this plan to be approved. That is, in the treatment plan for the chronic pain program, there is a recommendation for shockwave therapy targeting the “MSK / Back” and “Neck”. In the shockwave therapy treatment plan, the proposed treatment will target the “MSK / Back” and “Upper Limb”.
46Therefore, while I accept that physical treatment is necessary to address [S.W.]’s accident-related pain, I do not find it reasonable for two different plans to propose the shockwave therapy targeting the same part of the body. Instead, the chronic pain program should be implemented in its entirety, and only the portion of the shockwave therapy plan targeting the “Upper Limb” should be approved. This portion of the treatment plan amounts to $1,200.00.
47Finally, while the respondent has raised questions about Dr. Gofeld’s qualifications, I do not find it necessary to make a determination about this concern. Save for his diagnoses of supraspinatus and labral tears, the symptoms and conclusions in his assessment largely mirror those found in other records. As such, whether or not I accept his report in its entirety is irrelevant, because this information can be found in other parts of the hearing record.
Disability Certificate
48[S.W.] submitted that this additional disability certificate (signed December 9, 2017) was needed because “her prognosis and respective barriers to recovery require the appropriate determination.” The respondent countered that this certificate provided no helpful information for the adjusting of [S.W.]’s claim. Specifically, since [S.W.] had returned to work, there could be no claim for any of the specified, weekly benefits. Further, all of the diagnoses listed in the certificate could have been found in other medical records.
49I find that the cost of this certificate is payable. A significant amount of time had passed since the last disability certificate was signed on June 6, 2016, so it was reasonable for [S.W.] to seek out an updated summary of her medical condition, especially as it could have captured impairments that develop slowly over time.
AWARD AND COSTS
50Section 10 of Regulation 664 permits the Tribunal to “award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured” if the Tribunal “finds that an insurer has unreasonably withheld or delayed payments”.
51Rule 19 of the Tribunal’s Common Rules of Practice & Procedure (the “LAT Rules”) then outlines the powers that the Tribunal has to order costs against a party. Briefly, Rule 19.1 states that costs may be awarded in cases where a party has “acted unreasonably, frivolously, vexatiously, or in bad faith”.
52[S.W.] submitted that the respondent unreasonably denied payment of these disputed medical benefits, as it possessed compelling medical evidence that should have been sufficient to find them payable. Additionally, this refusal to approve the plans has required the parties and the Tribunal to expend a significant amount of time and money—wasted resources that merit a costs award.
53The respondent denied it acted unreasonably, and instead stated that its denials were all based on careful consideration of the medical evidence. Further, even if its denials are overturned, it contended that “they are not so unreasonable as to warrant a special award.” Then, regarding costs, the respondent submitted that it has acted “on a good faith basis” throughout this proceeding.
54Though [S.W.] may not agree with the respondent’s reasons for denying her these benefits, perfection is not the standard by which the reasonableness of an insurer’s actions is measured. I am satisfied that the respondent took reasonable steps to determine whether [S.W.] was entitled to the disputed benefits, as medical opinions were obtained and considered by the respondent. In fact, the partial approval of the disputed psychological services demonstrates the careful consideration that the respondent appears to have taken in the adjusting of this file.
55Taken together, I am not satisfied that this case is an appropriate matter for granting an award. Additionally, I have not been provided with any evidence of conduct on the part of the respondent that would merit a costs award.
ORDER
56I find that [S.W.] is entitled to some of the disputed treatment plans (i.e., the two physiotherapy treatment plans, the neurological assessment, the disability certificate, the chronic pain assessment, the chronic pain program, and $1,200.00 of the shockwave therapy treatment plan). She is also entitled to interest on any overdue payments.
57She is not entitled to an award or costs.
Released: April 7, 2020
Craig Mazerolle
Adjudicator
Footnotes
- Effective September 1, 2010, O. Reg. 34/10.
- 2018 CanLII 83520 (“Aviva”).
- Ibid at para. 23.```