Released Date: July 7, 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.F.F.
Applicant
and
Aviva Insurance Canada
Respondent
DECISION AND ORDER
ADJUDICATOR: Sandeep Johal
APPEARANCES:
Paralegal for the Applicant: Loreto Scarola
Counsel for the Respondent: Robert Jones
Heard: By way of written submissions
OVERVIEW
1The applicant was injured in an automobile accident on February 12, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the ''Schedule'').
2The applicant was a rear-seated passenger in a vehicle that was stopped at a red light when a third party vehicle rear-ended the applicant’s vehicle. As a result of the accident, the applicant sustained injuries to her neck, shoulders and lower back.
3Based on her injuries, the applicant was removed from the Minor Injury Guideline (“MIG”) by the respondent and therefore the MIG is not an issue in dispute for this hearing.
4The applicant applied for medical benefits and costs of examinations that were denied by the respondent on the basis that they were not reasonable and necessary. The applicant disagreed with that decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).
ISSUES TO BE DECIDED
5The following are the issues to be decided:
i. Is the applicant entitled to a medical benefit in the amount of $1,666.00 for chiropractic treatment recommended by Physiotherapy Active Rehab in a treatment plan (OCF-18) submitted on November 27, 2018 and denied on December 5, 2018?
ii. Is the applicant entitled to payments for the cost of examinations in the amount of $503.90 for a Psychological Assessment recommended by Pilowsky Psychology Professional Corporation in a treatment plan (OCF-18) submitted on May 10, 2017 and denied on May 26, 2017?
iii. Is the applicant entitled to payments for the cost of examinations in the amount of $2,260.00 for a Chronic Pain Assessment recommended by Dr. Inese Robertus of All Health Medical in a treatment plan (OCF-18) submitted on June 12, 2019 and denied on June 17, 2019?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
6In the applicant’s submissions, issue number ii, a psychological assessment, was withdrawn and therefore it will not be addressed as part of this written hearing.
7In the respondent’s submissions, it raises the issue of causation and therefore causation will be addressed as part of this written hearing.
RESULT
8For the reasons outlined above, I find the applicant is entitled to a chronic pain assessment and interest on any overdue payment on the assessment in accordance with the Schedule.
9The applicant is not entitled a medical benefit for chiropractic treatment as it is not reasonable and necessary; and,
10The applicant is not entitled to an award.
ANALYSIS
11The respondent raises the issue of causation as a result of a second motor vehicle accident on October 5, 2018; however, the respondent does not provide any evidence in support other than the timing of the submission of the treatment plan.
12When the respondent raises the issue of causation, it is on that party to prove on a balance of probabilities and I find that the respondent has not done so. However, I find that the evidence establishes that the subject accident was the cause of the applicant’s injuries as I will now turn to discuss.
Causation
13Based on the evidence, I find that, on a balance of probabilities, the accident was a necessary cause of the impairments from which the applicant is suffering for the following reasons.
14The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities.2 The applicant must show that she would not have suffered the injuries “but for” the accident. The cause meeting that test need not be the major cause or sufficient in itself to have caused the injuries at issue. The injuries do not need to be “the cause of the accident, but at least “a necessary cause”.3
15The applicant’s clinical notes and records of the family doctor dated between the date of the accident, February 12, 2017 to July 27, 2018 clearly outline the back complaints the applicant was having as a result of the subject accident.4
16As stated in Sabadash, the injuries do not need to be the cause of the accident, but at least a necessary cause. In my view, the applicant’s family doctor’s notes clearly show her back pain to be a necessary cause of the subject accident and the clinical notes and records of the family doctor establishes that the applicant’s back pain is causally connected to the subject accident.
17I will now turn to discuss whether the treatment plan and cost of examination are reasonable and necessary.
Is the applicant entitled to a medical benefit in the amount of $1,666 for chiropractor treatment?
18I find the treatment plan for chiropractic treatment is not reasonable and necessary for the following reasons.
19The applicant submits that she was examined by her physiotherapist who completed the OCF-18 and it noted the applicant’s injuries and sequelae information, set out the goals and the evaluation process.
20In support of the OCF-18 the applicant relies upon the clinical notes and records of the physiotherapy clinic noting the applicant to have reoccurring back pain as well as her family doctor, Dr. Farhat who noted back pain and a recommendation for a lumbar spine X-ray.5
21The applicant visited Dr. Farhat on April 6, 2017 complaining of a lack of sleep because of severe back pain and the X-ray of her spine showed an L5 query spondylolysis and rotoscoliosis and was advised to continue with therapy.6 Dr. Farhat notes that she will refer the applicant to a physiatrist after receiving the report from a second X-ray as suggested by the radiologist.
22April 17, 2017 the applicant visited his family doctor, Dr. Farhat with complaints of back pain being more severe than last time as well as neck and upper back pain. Dr. Farhat diagnosed the applicant with back pain, muscle sprain and strain and advised her to continue with therapy.
23The applicant continued to visit her family doctor on several occasions and Dr. Farhat noted the following complaints:7
a. June 26, 2017: Chronic back pain/herniated disk, referred for an MRI and advised to continue with physiotherapy and chiropractic treatment.
b. September 1, 2017: Low back pain is worse and ongoing, advised to continue with physiotherapy and massage therapy.
c. March 13, 2018: low back pain getting worse, referred for an MRI and advised to continue with chiropractic treatment.
d. April 16, 2018: Lower back pain and prescribed medications.
e. May 17, 2018: Lower back pain, has spasm now.
f. June 23, 2018: CT scan of the spine shows she has an L5-S1 disc bulging and applicant was advised to continue with physiotherapy and chiropractic treatment.
g. June 27, 2018: Low back pain and given a prescription note for osteopath for her low back pain. Chronic low back pain and sprain.
h. November 14, 2018: notes a second car accident on October 5, 2018 and low back pain after the accident. Patient had low back pain up to this time. Prescribed medication.
24The respondent submits her family doctor noted the applicant had full range of motion throughout her lumbar spine one month after the current accident and submits that the spondylolysis and rotoscoliosis were not related to the current accident. The respondent further submits the applicant was noted to have full range of motion on a visit to Dr. Farhat on March 13, 2018, that her X-ray was normal, her CT scan of her lumbar spine was predominantly normal and the disc bulge at L5-S1 was minimal. It is the respondent’s position that the applicant was largely recovered from any injuries when she was involved in her second motor vehicle accident on October 5, 2018.
25According to the respondent, the chiropractic treatment plan dated November 27, 2018 arose out of the accident on October 5, 2018 and not the subject accident.
26The respondent further relies upon and orthopaedic IE assessment with Dr. Drew who noted the applicant had full range of motion in her cervical spine with some end range pain and demonstrated 75% range of motion in her lumbar spine and on rotation in the thoracic spine. Dr. Drew opined that the applicant sustained soft tissue injuries and there was no objective signs of ongoing impairment and opined that while the therapy provided some temporary pain relief, it was no longer a long term benefit and concluded the treatment plan was not reasonable and necessary.8
27A review of the clinical notes and records of the applicant’s family doctor note repeated complaints of pain and recommendations for physiotherapy and chiropractic treatment. However, the applicant has not presented any evidence to show that the treatment she is seeking is beneficial in reducing her pain or is providing any ongoing therapeutic benefit.
28Subjective complaints of pain alone are not sufficient in support of treatment; there must be some form of limitation or functional restrictions as a result of the pain that the treatment will propose eliminate or relieve. In the present case, the applicant has not directed me to any evidence of the treatment being beneficial in terms of its goals of pain relief, increasing strength and increasing range of motion. The treatment plan itself notes that the applicant does not report any significant limitations in her daily living or work activities.9 The clinical notes and records from her family doctor note the applicant’s pain has not improved or has worsened.10
29The applicant’s family doctor, Dr. Farhat on several occasions has noted the applicant to have full range of motion in her cervical spine, shoulders and lower back on several occasions.11 Furthermore, the IE assessor, Dr. Drew also noted her range of motion to be full in her cervical spine and 75% range of motion in her lumbar spine and on rotation in the thoracic spin and opined that the treatment plan was not reasonable and necessary.12
30In my view, in order to show the treatment plan is reasonable and necessary, there must be some component of the goals of the treatment being met, in the present case, I am not directed to evidence that the proposed treatment is reasonable in terms of meeting its goals. The evidence suggests the applicant’s subjective complaints of pain continue or are getting worse. I have not been directed to evidence that continued treatment is providing any objective or therapeutic benefit.
31The applicant has provided evidence to suggest she has ongoing pain, however, pain alone in my view is not sufficient to prove that a treatment plan is reasonable and necessary. There must be some component of the treatment plans goals being met to a reasonable degree.
32As a result of the above, I find that the applicant has not persuaded me on a balance of probabilities that the chiropractic treatment plan is reasonable and necessary.
Is the applicant entitled to a payment for the cost of examination for a chronic pain assessment in the amount of $2,260?
33Based on the following, I find a chronic pain assessment to be reasonable and necessary.
34The applicant submits that her family doctor, Dr. Farhat completed a Disability Certificate (OCF-3) dated May 15, 2019 and notes that the applicant has “continuing relapse of low back pain with occasional inability to do any work and recommends a pain clinic consultation.13
35The OCF-18 is submitted by Dr. Robertus, who is a general practitioner with a speciality in the diagnosis and treatment of chronic pain. Dr. Robertus completes a mini assessment in support of the chronic pain assessment.
36The respondent submits the applicant has relied exclusively on her subjective reports of pain to substantiate her claim for the chronic pain assessment and that she has failed to submit any objective evidence to corroborate her subjective complaints. The respondent further relies upon a paper review IE assessment of Dr. Drew dated June 19, 2019,14 wherein Dr. Drew confirmed his earlier assessment that the applicant does not have an objective impairment and the chronic pain assessment is not reasonable and necessary.
37The onus is on the applicant and after a review of the evidence, I find that she has provided sufficient and compelling evidence in support of a chronic pain assessment.
38IE assessor, Dr. Drew in his report dated March 25, 2019 notes that as of two years post-accident the applicant still had sprain and strain type injuries and Dr. Drew diagnosed the applicant with those same type of injuries.
39The clinical notes and records of the applicant’s family doctor has noted her back pain continuously since March 2017 on numerous occasions through to July 27, 2018. The family doctor has also noted chronic pain on several occasions.15
40In my view, the applicant does not need to prove she has chronic pain in order to demonstrate that the chronic pain assessment is reasonable and necessary. All she is required to show is that there is a reasonable possibility that she has the condition the assessment will investigate.
41In the present case, I find that the evidence demonstrates that there is a reasonable possibility that the applicant suffers from chronic pain. The clinical notes and records of her family doctor, the physiotherapy clinic and from the IE assessor Dr. Drew who all diagnosed the applicant with sprain and strain type injuries more than two years post accident. As a result, I find that a chronic pain assessment is reasonable and necessary.
Is the applicant entitled to an award for unreasonable withheld or delayed payment of benefits?
42The applicant submits that the respondent did not provide the clinical notes and records of IE assessor Dr. Drew and also did not provide the adjuster’s log notes as required by the Tribunal order from the case conference. As a result, the applicant submits that I should draw an adverse inference by this breach and that the respondent has a fiduciary responsibility to its policyholders.
43In my view, the onus is on the applicant to provide submissions and evidence in support of her request for an award and the applicant has not done so. The applicant submits that I draw an adverse inference as a result of the respondent not providing the adjuster’s log notes and the clinical notes and records from IE assessor, Dr. Drew. However drawing an adverse inference as a result of productions not being provided would not be sufficient on its own to satisfy the applicant’s onus to prove that the respondent unreasonably withheld or delayed the payment of benefits.
44As a result, I find that the applicant has not persuaded me on a balance of probabilities that the respondent unreasonably withheld or delayed the payment of benefits and the request for an award is dismissed.
ORDER
45For the reasons outlined above, I find the applicant is entitled to a chronic pain assessment and interest on any overdue payment on the assessment in accordance with the Schedule.
46The applicant is not entitled a medical benefit for chiropractic treatment as it is not reasonable and necessary; and,
47The applicant is not entitled to an award.
Released: July 7, 2020
___________________________
Sandeep Johal
Adjudicator
Footnotes
- O. Reg. 34/10.
- Sabadash v. State Farm et al., 2019 ONSC 1121 at para. 31 (“Sabadash”).
- Ibid at paras. 36, 39.
- Written Submissions of the Applicant at Tab 10
- Written Submissions of the Applicant at Tab 10, Clinical Notes and Records dated March 20, 2017.
- Ibid, dated April 6, 2017.
- Ibid Tab 10.
- Respondent’s Written Submissions at Tab 4, Dr. Drew Report dated March 25, 2019.
- Written Submissions of the Applicant at Part 1, Tab 2, OCF-18 dated November 15, 2018.
- Written Submissions of the Applicant, Part 3, Clinical Notes and Records Dated March, 13, 2018; May 8, 2019; September 10, 2019
- Respondent’s Written Submissions at Tab 6.
- Ibid at Tab 4.
- Written Submissions of the Applicant at Tab 11.
- Written Submission of the Respondent at Tab 15.
- Applicant Written Submissions at Tab 10, Clinical Notes and Records dated June 26, 2017 and July 26, 2018.