Licence Appeal Tribunal
Released Date: 10/05/2020
Tribunal File Number: 19-007068/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:
K. A. J.
Applicant
and
Aviva General Insurance
Respondent
CASE CONFERENCE REPORT
ADJUDICATOR:
Anita Goela, Member
APPEARANCES:
For the Applicant:
Jeton Memeti, Paralegal
For the Respondent:
Mark Vella, Counsel
Written Hearing:
April 14, 2020
BACKGROUND
1The applicant was involved in an automobile accident on December 18, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule1 - Effective September 1, 2010 (the ''Schedule'').
2The applicant submitted an application to the Licence Appeal Tribunal Automobile Accident Benefits Service (“Tribunal”). The parties participated in a case conference on November 19, 2019 and were unable to resolve the issues in dispute. The matter was set down for a written hearing to determine the applicant’s entitlement to a chronic pain assessment, s.10 award and interest.
3The parties further participated in a motion hearing on March 19, 2020 after the filing of the applicant’s submissions. Several paragraphs of the applicant’s submissions were ordered to be partially or fully struck and the timeline for the respondent’s and applicant’s reply submissions were extended.
ISSUES IN DISPUTE
4The issues in dispute are as follows:
a. Is the applicant entitled to $2,260.00 for a chronic pain assessment recommended by All Health Medical in a treatment plan submitted April 30, 2019 and denied May 9, 2019?
b. Is the respondent liable to pay an award under s.10 of Regulation 6642 because it unreasonably withheld or delayed payments to the applicant?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5The applicant is not entitled to the chronic pain assessment. Because I do not find that the benefit is payable, the remaining issues of the s.10 award and interest are also not payable.
ANALYSIS
Chronic Pain Assessment – Compliance with s. 38
6Section 38(3) of the Schedule provides:
A treatment and assessment plan must,
(a) be signed by the insured person unless the insurer waives that requirement;
(b) be completed and signed by a regulated health professional; and
(c) include a statement by a health practitioner approving the treatment and assessment plan and stating that he or she is of the opinion that the goods, services, assessments and examinations described in the treatment and assessment plan and their proposed costs are reasonable and necessary for the insured person’s treatment or rehabilitation […]” (emphasis added)
7The respondent submits that the treatment plan has not been signed by the applicant and Dr. Inese Robertus, which the respondent requested the applicant to do. On review, I agree with the respondent that the treatment plan has not been signed by the applicant or Dr. Inese Robertus.
8The applicant submits in reply that a signed copy was submitted by the health practitioner directly to the respondent, but no evidence of the signed copy was provided with his submissions.
9The respondent requested Dr. Inese Robertus to also provide the basis for why the chronic pain assessment was reasonable and necessary. The applicant submits that the information contained in the treatment plan addresses those issues.
10Pages 11 and 12 of the treatment plan include a description of the accident, level of recovery, current physical status, list of injuries sustained and the medical information reviewed by the health practitioner.
11I do not find that the information provided meets the requirement in section 38(3)(c). Specifically, there is no statement by Dr. Robertus or any other health practitioner stating that they are of the opinion that the assessment plan is and the costs are reasonable and necessary. In fact, there is no specific reference made to the chronic pain assessment.
12The language of s. 38(3) provides for mandatory requirements for a treatment and assessment plan. On technical grounds alone, I find that the treatment plan is deficient.
Chronic pain assessment is not reasonable and necessary
13Even if I did not find that the treatment plan is technically deficient, I do not find that the applicant has demonstrated that the chronic pain assessment is reasonable and necessary.
14Section 15(1) of the Schedule provides that an insurer is required to pay for all reasonable and necessary expenses incurred by the insured person. With respect to the disputed cost of examination, the applicant must demonstrate that, on a balance of probabilities, it is reasonable and necessary to assess whether she suffers from chronic pain.
15The clinical notes and records (CNRs) of the applicant’s family doctor, Dr. Rahul Khanna, contain brief references to chronic pain in the applicant’s back and right shoulder.
16The respondent submits that the Tribunal has followed the criteria of the American Medical Association Guides when determining whether an insured suffers from chronic pain. The guide provides that chronic pain includes evidence of dependence on prescription drugs, excessive dependence on healthcare providers, physical deconditioning, withdrawal from a social milieu and failure to restore to pre-injury function. The respondent further submits that the applicant’s family doctor has recommended continued physiotherapy and that ongoing pain does not necessitate the need for a chronic pain assessment.
17On balance, I do not find that the applicant has met her onus that the chronic pain assessment is reasonable and necessary. While Dr. Khanna’s CNRs mention chronic pain and were supportive of ongoing therapy, they did not sufficiently meet the burden of demonstrating that the chronic pain assessment is reasonable and necessary. I agree with the respondent that ongoing pain and recommendations to continue therapy do not meet the high threshold of the criteria for chronic pain as set out in the American Medical Association Guides. Overall, the medical evidence was not sufficient to establish that the assessment for chronic pain was reasonable and necessary.
ORDER
18The applicant’s claim is dismissed.
Released: October 5, 2020
Anita Goela
Adjudicator