Citation: K. B vs. Aviva Insurance Canada, 2020 ONLAT 19-001195/AABS

Released Date: 09/11/2020

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:

K. B.

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Lisa Bishop, Counsel

For the Respondent:

Devon McIntyre, Counsel

HEARD:

In Writing

OVERVIEW

1The applicant was involved in an automobile accident on May 4, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was a pedestrian struck by a vehicle turning in an intersection.

2The applicant was denied certain benefits, including treatment plans for a chronic pain assessment and physiotherapy. The applicant submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (“Tribunal”). In a decision dated June 14, 2019 the Tribunal found that the applicant was entitled to the disputed treatment plans. The applicant incurred the chronic pain assessment with Dr. Karmy.

3The applicant is now disputing two further treatment plans, for physiotherapy and a chronic pain program which were also denied by the respondent.

ISSUES

4The issues in dispute to be decided in this hearing are:

a. Is the applicant entitled to a medical benefit in the amount of $2,575.12 for physiotherapy recommended by Downsview Healthcare Inc. in a treatment plan submitted on August 8, 2018 and denied on August 16, 2018?

b. Is the applicant entitled to a medical benefit in the amount of $12,293.41 for a chronic pain program recommended by Downsview Healthcare Inc. in a treatment plan submitted on December 14, 2018 and denied on February 4, 2019?

c. Is the applicant entitled to interest on any overdue payment of benefits?

d. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

5The applicant is entitled to the disputed treatment plans for physiotherapy and a chronic pain program, with interest payable in accordance with the Schedule. The applicant is not entitled to an award pursuant to Regulation 664.

ANALYSIS

6An insured person’s entitlement to accident benefits is determined in accordance with sections 14 and 15 of the Schedule. The applicant bears the onus of proving on a balance of probabilities that the goods and services listed in the treatment plans are reasonable and necessary. For the reasons that follow, I find that the proposed treatment plans are reasonable and necessary.

7The applicant has a long history of consistent complaints of pain. On the day of the accident the applicant was taken to hospital by ambulance. The records indicate complains of pain to his right hip, right elbow and low back. A few days later the applicant attended a walk-in clinic on May 11, 2016 and reported low back and right shoulder pain. He attended treatment regularly until July 2016.

8The applicant participated in two insurer examinations in 2017 during which he reported ongoing low back and right shoulder pain which were worsened with certain activities.¹ Dr. Sethi diagnosed an Adjustment Disorder, and recommended that the applicant be evaluated by a pain specialist to rule out a pain disorder.

9The applicant subsequently received psychological treatment with Dr. Shaul. The clinical notes and records from Dr. Shaul’s office indicate that in May and June 2018 the applicant complained of increased pain. He explained that his work and daily activity triggered pain.

10The applicant began seeing a family physician in January 2018. He never had a family physician before, but began seeing Dr. Gostelow because his right shoulder pain was worsening. In March 2018 Dr. Gostelow ordered an ultrasound of the right shoulder and cervical spine x-rays, and recommended that the applicant continue with physiotherapy. In July 2018 the applicant saw Dr. Gostelow again, for “significant functional pain” in his neck and right shoulder.

11The applicant underwent another insurer examination in 2018 with Dr. Walters regarding the previously disputed plan for the chronic pain assessment and physiotherapy. The applicant again reported pain in his right shoulder and hip which worsened in January 2018, as well as intermittent right hip pain and occasional aching in his low back. Dr. Walters diagnosed right rotator cuff tendinitis.

12The applicant underwent the chronic pain assessment with Dr. Karmy on May 4, 2018. He reported ongoing pain in his neck, right shoulder and low back, as well as disturbed sleep, anxiety and mood problems. Dr. Karmy diagnosed chronic pain involving the neck, right shoulder and low back, and noted that the applicant had also been diagnosed by psychologists as having an Adjustment Disorder and Specific Phobia. Dr. Karmy recommended that the applicant participate in a comprehensive, multi-modal rehabilitation program for his chronic pain.

13Following this report, the treatment plan for physiotherapy in the amount of $2,575.12 was submitted on August 8, 2018. It proposed chiropractic treatment, massage therapy, laser therapy, and an exercise program. The goals of treatment included pain reduction, increased strength and range of motion. It is noted that the applicant had multiple chronic injuries, persisting pain, and a physically demanding job, and listed various activities that were impacted by the applicant’s impairments.

14The treatment plan for the multidisciplinary chronic pain program was submitted on December 14, 2018. It proposed various modalities consistent with the recommendations of Dr. Karmy.

15The respondent relies on a multidisciplinary insurer examination report dated May 17, 2019 by Dr. Levy (physician) and Dr. Day (psychologist) to address the disputed treatment plans. To Dr. Levy, the applicant reported pain in his right shoulder and low back, and felt that his condition had improved by about 60% since the time of the accident. Dr. Levy concluded that the applicant had reached maximum medical improvement. There was no indication that the applicant was suffering from a chronic pain disorder and there was no need for further facility-based treatment for uncomplicated soft tissue injuries.

16Dr. Day’s portion of the report indicates that the applicant reported ongoing problems with pain in his right hip, right shoulder and headaches as a result of the accident. Although he had returned to full time work and most of his pre-injury activities, his pain continued to interfere with his ability to meet obligations at work. Dr. Day concluded that the applicant’s condition was still consistent with an Adjustment Disorder, but in partial remission.

17I find the conclusions reached by Dr. Karmy are more consistent with the evidence before me. The insurer’s psychological assessor contemplated in 2017 that the applicant should be evaluated by a pain specialist. I accept that the applicant has chronic pain, and that the proposed treatments are reasonable and necessary to treat the applicant’s impairments. He has been reporting pain consistently since the accident. The applicant reported to Dr. Karmy that the treatment he received in the past was beneficial in alleviating his pain, but it worsened since his treatment stopped. This is consistent with the clinical notes and records of the family physician. Prior to the submission of the treatment plans, the family physician recommended that the applicant continue with physiotherapy. He was also diagnosed with psychological conditions and underwent treatment. Despite the time elapsed and the treatment received, the insurer’s assessor found in 2019 that the applicant’s condition was consistent with an Adjustment Disorder.

18The majority of the respondent’s submissions focus on the fact that the applicant does not meet the criteria for chronic pain syndrome in accordance with AMA Guides. However, this is not disputed by the applicant. The applicant submits that he has chronic pain, not chronic pain syndrome. The Tribunal has distinguished between chronic pain and chronic pain syndrome in an earlier decision, which I find persuasive.² I accept that the applicant has chronic pain, given that he continues to experience consistent ongoing impairments despite the time elapsed.

19I find the goals of the treatment plans and the associated costs are reasonable. The disputed treatment plans are reasonable and necessary.

INTEREST

20Having determined that the applicant is entitled to the disputed treatment and costs of examinations, interest is also payable on the amount overdue pursuant to s. 51 of the Schedule.

AWARD

21Under s. 10 of O. Reg. 664, the Tribunal may issue an award of up to 50 per cent of the amount to which the applicant is entitled if the Tribunal finds that the respondent has unreasonably withheld or delayed payments as a result of its conduct.

22The applicant submits that the respondent failed to uphold its duty of good faith, and unreasonably withheld and delayed payment of benefits. The applicant submitted that the insurer did not adjust his file in a fair and even manner, but rather acted as an adversary requiring three separate applications to the Tribunal.

23Considering the evidence before me, I find an award is not appropriate. There is no evidence to prove that the respondent neglected its duty. I am not satisfied that the respondent acted unreasonably in denying the treatment plans, or neglected its duty to adjust the file in good faith. It reviewed the file and relied upon the conclusions reached by the medical assessors. Accordingly, I decline to order an award.

ORDER

24The applicant is entitled to the treatment plans in dispute, with interest pursuant to s. 51 of the Schedule.

25The applicant is not entitled to an award pursuant to Regulation 664.

Footnotes

1. 1Reports of Dr. Shaul dated January 23, 2017 and Dr. Sethi dated February 22, 2017.
2. 2D.P. v Chieftain Insurance 2017 CanLII 147726 (ON LAT), 17-007909/AABS.