N.K. vs. Aviva General Insurance
Released Date: June 22, 2020
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 General Insurance
Respondent
DECISION
PANEL:
Melody Maleki-Yazdi, Adjudicator
APPEARANCES:
For the Applicant:
Jeton Memeti, Paralegal
For the Respondent:
Sarah Fasih, Counsel
HEARD:
By way of written submissions
OVERVIEW
1N.K. (“the applicant”) was injured in an automobile accident (“the accident”) on June 21, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”).
2She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution when her claim for a cost of examination was denied by the respondent.
ISSUES
3The following issues are in dispute for this hearing:
(i) Is the applicant entitled to the cost of a chronic pain assessment in the amount of $2,260.00 recommended by All Health Medical Centre in a treatment plan (OCF-18) dated December 13, 2018, and denied on February 19, 2019?
(ii) Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
(iii) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is entitled to the chronic pain assessment in the amount of $2,260.00 and the applicable interest. She is not entitled to an award.
ANALYSIS
Preliminary issue regarding new evidence
5The respondent raises a preliminary issue. The respondent submits that the applicant provided the following new evidence: the clinical notes of Citrus Medical Centre from the period between February 5, 2019 and August 27, 2019,2 and the medical note of Dr. Amr Elmaraghy (orthopaedic surgeon) from St. Joseph's Health Centre dated September 8, 2019.
6The respondent submits that the clinical notes of Citrus Medical Centre were not disclosed or produced to either the respondent or the respondent’s counsel at any time prior to this hearing, which is in contravention of the Tribunal’s Common Rules of Practice and Procedure. Furthermore, the respondent submits that the Order from the case conference dated July 18, 2019, stipulates that no new productions shall be submitted after September 20, 2019. These clinical notes were received by the respondent as part of the applicant’s submissions on October 4, 2019. The respondent also submits that the medical note of Dr. Amr Elmaraghy was not produced to the respondent or the respondent’s counsel prior to September 20, 2019, as required by the Order. The respondent submits that, as a result of the timing of the service of these notes, it is prejudiced as Dr. Michael Boucher (general practitioner), the insurer’s examination (“IE”) assessor, is unable to review them for the purpose of providing his updated medical opinion.
7The applicant argues that these documents were provided to the respondent at least 20 days before its submissions were due and that allowed the respondent enough time to complete a paper review. The applicant submits that excluding these materials would prejudice her more than it would prejudice the respondent.
8I agree with the position of the respondent. As the respondent recognized in its hearing submissions, Rule 9.2 of the Tribunal’s Common Rules of Practice and Procedure was implemented to ensure that parties know the case they have to meet and allow them to prepare accordingly. Those who fail to comply with Rule 9.2 face the consequence outlined in Rule 9.4:
If a party fails to comply with any Rules or Orders with respect to disclosure or inspection of documents or things, or list of witnesses, that party may not rely on the document or thing as evidence, or call the witnesses to give evidence, without the consent of the Tribunal.
9The applicant should have provided the respondent with these documents by the agreed upon date so that it could have properly reviewed the materials and provided them to its assessor. The applicant provided these documents approximately three weeks prior to when the respondent’s submissions were due and deprived the respondent an opportunity to obtain an addendum, if needed. As such, I have not considered these materials in this hearing. At any rate, these documents would not have made a difference because the applicant is entitled to the chronic pain assessment based on the existing record.
Is the chronic pain assessment reasonable and necessary?
10I find that the chronic pain assessment, recommended by Dr. Inese Robertus (general practitioner), is reasonable and necessary. The applicant is entitled to this treatment plan because I am convinced that she requires an assessment to determine whether she experiences chronic pain as a result of the accident.
11The applicant submits that this treatment plan is reasonable and necessary as the medical notes from The Centre for Chronic Headache and Pain Management speak to her injuries, diagnosing her with a myofascial pain syndrome and recommending treatment, including regular physiotherapy and nerve block injections. The applicant submits that she has reported difficulties with respect to completing self-care and housekeeping tasks, an inability to perform all of her weight training and gym activities, and that she now drives with modifications. Furthermore, the applicant cites the development of her psychosocial sequalae.
12The respondent’s denial is based on the physician assessment report of Dr. Michael Boucher (general practitioner) dated February 15, 2019. Dr. Boucher assessed the applicant on February 1, 2019, approximately three years and seven months after the accident. He diagnosed the applicant with a cervical myofascial neck strain (WAD II injury) and a left shoulder strain/sprain. Dr. Boucher opined that the applicant's injuries do not satisfy the required medical criteria for the definition of chronic pain syndrome as referenced in the American Medical Association's Guides’ fourth edition. Dr. Boucher acknowledges that the applicant has developed psychosocial sequalae, as demonstrated by her medical record. The respondent submits that the applicant has not adduced any compelling medical evidence to refute Dr. Boucher’s findings and that the applicant’s medical record largely consists of self-reported pain.
13I find that there is evidence before me that the applicant experiences constant and/or severe pain as a result of the accident. Dr. Mofolosade Sam-Ogunbiyi (the applicant’s family physician) produced a clinical note dated April 18, 2018 (approximately two years and ten months after the accident), which indicates that the applicant has had neck and left shoulder pains for three years following the accident. Dr. Sam-Ogunbiyi completed a disability certificate dated April 20, 2018 (approximately two years and ten months after the accident), in which she indicates in Part 7 that the applicant has been referred for chronic pain management.
14The applicant saw Dr. Harmanjit Sandhu (general practitioner) from The Centre for Chronic Headache and Pain Management on August 20, 2018, approximately three years and two months after the accident. The applicant told Dr. Sandhu that she experiences constant right-sided neck pain, constant right-sided neck “ache” which flares in severity with activity, and constant left-sided shoulder pain which ranges in severity depending on the degree of overall activity. When her right-sided neck pain is more severe, she also experiences severe pain on the left side of her neck. It was Dr. Sandhu’s impression that she has regional myofascial pain syndrome and his treatment recommendation included a series of local anesthetic nerve blocks with the goal of breaking her chronic pain cycle, reducing her overall pain burden and improving her overall level of function and her overall quality of life. Dr. Sandhu administered the first nerve block treatment that day.
15The applicant told Dr. Boucher on February 1, 2019 that she experiences constant left posterior shoulder pain and that the pain is aggravated with straight posture and external rotation of the shoulder. She also experiences constant neck pain that is aggravated with a prolonged forward head position. She also told Dr. Boucher that Dr. Sandhu administered an anesthetic injection, but she did not find any relief, so she did not return.
16There is also evidence that the applicant experiences some functional limitations as a result of physical pain caused by the accident. She told Dr. Boucher that, prior to the accident, she attended the gym an average of five times per week and participated in cardiovascular and weight resistance exercises. Following the accident, she stated that, although she attempted to attend the gym, she found that the weight training caused pain, so she discontinued. She resumed driving but has modified her driving and currently drives with her right arm.
17Therefore, there is compelling evidence that the applicant requires an assessment to evaluate the extent of her chronic injuries, and to provide a prognosis and recommendations for recovery. To be clear, I am not finding that the applicant has chronic pain. That is beyond the scope of this hearing. Rather, I find that the applicant has significant and ongoing pain of the type that more than warrants further investigation.
Is the applicant entitled to an award under Regulation 664?
18Pursuant to section 10 of Ontario Regulation 664, if an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50 percent of the amount to which the insured was entitled at the time of the award, together with interest on all amounts then owing.
19I find that an award is not warranted.
20The applicant submits three main reasons in support of her claim for an award. First, the applicant submits that the respondent has subjected her to unwarranted medical assessments to intentionally limit her access to medical treatment and ignored its fiduciary duty owed to her by refusing treatments and assessments that she needed, despite the overwhelming medical evidence to the contrary. The applicant submits that, due to the respondent’s refusal to deal with her in a reasonable manner, her physical and mental health and well-being have significantly deteriorated.
21Secondly, the applicant submits that the denial of the assessment was not in accordance with s. 38(8) of the Schedule and, as a result, she was denied access to the chronic pain assessment.
22Thirdly, the applicant submits that the respondent failed to provide her with the adjuster’s log notes and, as a result, further comment on the management of her claim by the respondent cannot be made.
23I find that there is no evidence that the respondent unreasonably withheld or delayed the payments of any benefits. The respondent was within its rights under the Schedule to challenge whether the applicant was subject to the Minor Injury Guideline limit and whether the treatment plans were reasonable and necessary. The applicant was removed from the Minor Injury Guideline and the respondent denied the chronic pain assessment based on Dr. Boucher’s physician assessment report. As the chronic pain assessment is the only issue in dispute, I find that the respondent appears to have continually adjusted the applicant’s claim.
24The applicant has not provided any specific submissions regarding the respondent’s supposed non-compliance with s. 38(8). I find that the respondent initially provided an Explanation of Benefits denying the assessment on January 7, 2019. Following Dr. Boucher’s IE assessment, the respondent subsequently provided a second Explanation of Benefits on February 19, 2019, confirming that the assessment was not reasonable and necessary. Although the treatment plan is dated December 13, 2018, neither party has clearly indicated the submission date for the treatment plan. Therefore, I do not have enough information to determine whether the respondent failed to comply with s. 38(8). Regardless, I have found that the applicant is entitled to this treatment plan.
25Regarding the adjuster’s log notes, the respondent submits that, pursuant to the Order, they were to be provided upon the receipt of written particulars, which the applicant failed to provide. The Order indicates the following: “the applicant requested the complete log notes of the adjuster and the respondent refused in the absence of any particulars for a special award under Ontario Regulation 664.” It appears that the Order did not determine whether the log notes should be produced, but rather left open the option for the applicant to obtain them. I find that the applicant could have provided the respondent with the particulars of the award and/or filed a motion to contest the respondent’s position regarding the log notes, and it did not do so.
26For these reasons I find that the applicant is not entitled to an award.
CONCLUSION
27The applicant is entitled to the payment and applicable interest for the chronic pain assessment in the amount of $2,260.00. She is not entitled to an award.
Released: June 22, 2020
Melody Maleki-Yazdi
Adjudicator
Footnotes
- O. Reg. 34/10.
- I note that the respondent wrote August 27, 2018 in its submissions, but a review of the corresponding tab of the applicant’s materials indicates that the respondent made a typographical error.