Citation: Thai v. Aviva General Insurance Company, 2021 ONLAT 19-009101/AABS

Released: February 9, 2021

Number: 19-009101/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:

Albert Thai

Applicant

and

Aviva General Insurance Company

Respondent

DECISION AND ORDER

ADJUDICATOR:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Domenic Pellegrino, Counsel

For the Respondent:

Rozlien Brikha, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Albert Thai, was involved in an automobile accident on July 10, 2016, when the vehicle he was driving was rear-ended. He sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”).

2The respondent, Aviva General Insurance Company, determined that the applicant’s injuries were not minor as defined in s. 3 of the Schedule. Based on Insurer’s Examiner Dr. Shahriar Moshiri’s opinion that the applicant suffered from adjustment disorder as a result of the accident, the respondent removed the applicant from the Minor Injury Guideline² (“MIG”). However, the applicant applied for other medical and rehabilitation benefits outside the MIG which the respondent denied. The applicant then applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute.

ISSUES IN DISPUTE

3I am to decide the following issues:

i. Is the applicant entitled to $2,314.26 for a Chronic Pain Assessment, recommended by Dr. Michael West in a treatment plan dated May 21, 2019, denied by the respondent on August 1, 2019?

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

RESULT

4The applicant has established entitlement to the disputed Chronic Pain Assessment in the amount of $2,314.26. He is entitled to interest on this amount calculated in accordance with the Schedule.

ANALYSIS

5The parties do not dispute that the applicant’s injuries are non-minor as defined in the Schedule and are therefore not subject to the MIG limit. As a result, pursuant to s. 18(3)(a) of the Schedule, the applicant is eligible for medical and rehabilitation benefits totalling $65,000.00, provided he can establish that the benefits are reasonable and necessary as a result of the accident.

6It is well-established in the case law that the applicant bears the onus of establishing, on a balance of probabilities, entitlement to the benefits he claims.³

Pre-accident medical conditions

7The applicant suffered from back pain before the accident. The applicant’s family physician, Dr. Edward Hussman, documented his recurrent pain complaints as early as April 4, 2014, characterizing the applicant’s pain as “posture-related”.

8Approximately one month before the accident, on June 1, 2016, the applicant complained to Dr. Hussman of “intermittent mid and low back pain” and requested a medical note for therapeutic massage and chiropractic treatment, which, he reported, had provided symptom relief for several years.

9The applicant reported to Dr. Hussman that he had thrown his back out at age 24 while wrestling, and that he had thrown it out again five years later when he sneezed.

Accident-related injuries

10The day after the accident, the applicant visited Dr. Hussman complaining of “post[erior] neck stiffness”. Dr. Hussman diagnosed him with “minimal nuchal spasm and tenderness”.

11Several days later, on July 19, 2016, the applicant returned to Dr. Hussman with “increasing pain in post[erior] neck especially left side – cant [sic] swivel head to look around easily”. The applicant also described an episode of low back pain the week prior that had since resolved. Dr. Hussman noted pain on physical examination of the applicant’s neck and diagnosed “AD injury to C spine with [left] sided nuchal spasm”. He prescribed physiotherapy and Tylenol #2.

12Dr. Hussman saw the applicant for recurring back pain again on January 23, 2017, diagnosing him with “myofascial back pain post MVA”.

13The applicant reported low back pain again on February 21, 2017, noting pain radiating down the back of his left leg. Dr. Hussman diagnosed recurrent lumbar spine spasm and possible degenerative disc disease. He ordered an x-ray of the applicant’s lumbar spine, which showed minor degeneration at the L4-L5 vertebrae. Dr. Hussman diagnosed left side sciatica and degenerative disc disease on March 15, 2017. He recommended continued physiotherapy and home exercises and prescribed Naproxen.

14Over the next two years, the applicant repeatedly complained to Dr. Hussman of low back pain radiating down his left leg, often reporting symptom aggravation due to prolonged sitting at work. On July 11, 2018, the applicant reported a “flare up” of his sciatica triggered by pushing a stroller. On April 24, 2019, the applicant reported another “flare up” of his sciatica, this time triggered by carrying a lot of luggage while on vacation. Dr. Hussman continued to treat the applicant’s symptoms with analgesics, including Naproxen and Gabapentin, and to recommend physiotherapy, stretching and strengthening exercises.

The disputed Chronic Pain Assessment

15On May 21, 2019, Dr. Michael West, Orthopedic Surgeon, completed a Treatment and Assessment Plan (OCF-18) on behalf of the applicant recommending a Chronic Pain Assessment to establish the applicant’s diagnoses, the extent of his injuries, prognosis and recommendations for recovery. In Part 8 of the plan, under “Activity Limitations”, Dr. West noted,

The 2002 publication of the College of Physicians and Surgeons of Ontario on Guidelines for treatment of Chronic Non-malignant Pain, described chronic pain syndrome as a complex physical and psychological ailment which does not directly correlate with the objective physical findings so that functional testing is of no value to rule it out…The main goal of the program is the prevention of pain becoming permanent.

16Dr. West identified the goals of the assessment as follows: pain reduction, evaluation of the extent of injuries, return to activities of normal living, and providing guidance on multidisciplinary care. In the “Additional Comments” section of the plan, Dr. West stated that the assessment was warranted due to incomplete resolution of the applicant’s symptoms, the time that had passed since the accident, and the applicant’s current limitations.

17On June 22, 2019, Dr. West conducted the Chronic Pain Assessment and issued his report the same day. Based on his review of the medical records provided to him, the applicant’s reported symptoms, and the findings of his assessment, Dr. West diagnosed the applicant’s accident-related injuries as:

i. myofascial strain lumbosacral spine with exacerbation of left sciatic symptoms;

ii. post-traumatic headaches;

iii. post-traumatic insomnia and fatigue;

iv. post-traumatic anxiety and stress with depressive episodes (noting that further comment on this diagnosis is beyond the scope of his specialty); and

v. chronic pain syndrome.

18Dr. West observed that the unremitting nature of the applicant’s back pain and left sciatic pain symptoms for three years despite appropriate treatments and appropriate accommodations suggested chronic pain syndrome. He opined that these symptoms could be expected to persist indefinitely and recommended multidisciplinary treatment interventions.

19Dr. West opined that the applicant is substantially limited with respect to being able to resume essentially all of his pre-accident activities of daily living, citing reduced functioning in housekeeping and home maintenance, caring for his young child, family, social and recreational activities. He noted that the applicant was unable to return to work immediately after the accident and was subsequently laid off; he later found full-time office/desk work. At the time of the assessment, the applicant was able to meet the physical demands of his sedentary role, though he required accommodations such as a comfortable chair.

The positions of the parties on the disputed assessment

20The applicant submits that the disputed assessment is reasonable and necessary as a result of the accident. He submits that Dr. Hussman’s clinical notes and records establish that he was suffering from recurrent back pain and sciatica symptoms in the year prior to the submission of the treatment plan. The applicant relies on the Tribunal’s decision in 17-003641 v Certas Direct Insurance Company⁴ for his position that the diagnosis of chronic pain syndrome made by Dr. West in his June 22, 2019 assessment can be used as evidence to show that the assessment was reasonable and necessary. At paragraph 29 of the decision, the Tribunal held,

Certas did not have the chronic pain assessment report when it denied the Treatment Plan for the chronic pain assessment. At this hearing, however, I decide entitlement to payment on the basis of all of the evidence. Unlike Certas, I am able to consider the chronic pain assessment report in determining whether the chronic pain assessment is reasonable and necessary.

21The applicant submits that Dr. Hussman’s clinical notes and records show that there was a reasonable possibility at the time the treatment plan was submitted that he was suffering from chronic pain syndrome. The reasonable possibility of a chronic pain diagnosis, the applicant submits, makes the Chronic Pain Assessment a reasonable and necessary expense as a result of the accident.

22The respondent submits that the Chronic Pain Assessment was not reasonable and necessary as a result of the accident. Dr. Anna Czok, Physiatrist, conducted an Insurer’s Examination of the applicant on July 13, 2019, finding no ongoing musculoskeletal impairment. Dr. Czok opined that the lumbar sprain and strain sustained in the accident had resolved, and that the applicant’s pre-existing condition was not likely to impact his ability to achieve pre-accident status if subject to the MIG. Based on Dr. Czok’s opinion, the respondent denied the Chronic Pain Assessment.

23The crux of the respondent’s position on the reasonableness and necessity of the disputed treatment plan is causation: it denies that the applicant suffers from chronic pain syndrome, but submits that, if he does, it is not because of the accident. The respondent points to the applicant’s pre-existing chronic back pain for which he received years of chiropractic and physiotherapy treatment before the accident. The applicant has also sustained other injuries, the respondent submits, since the accident, including recurrences of sciatica when pushing a stroller in July 2018 and when carrying luggage in April 2019.

24The respondent submits that the reasonableness and necessity of Dr. West’s proposal for a Chronic Pain Assessment is undermined by his indication in the OCF-18 that the applicant’s pre-existing injuries and injuries since the accident that could affect the applicant’s response to treatment were “unknown” to him. The respondent submits that Dr. West’s report also fails to address how the applicant’s pre-existing back pain could affect his response to treatment.

25The respondent also submits that the disputed treatment plan is not reasonable and necessary because the applicant has been able to successfully return to his pre-accident activities including full-time work and extensive international travel. The respondent submits that Dr. West’s failure to account for the applicant’s travel history further undermines the reliability of his conclusions as to the impact of his injuries on his return to his pre-accident activities.

The Chronic Pain Assessment is reasonable and necessary as a result of the accident

26The applicant has established on a balance of probabilities that the Chronic Pain Assessment is reasonable and necessary as a result of the accident. Dr. Hussman’s clinical notes and records document the applicant’s persistent back pain and left side sciatica symptoms from the accident to the time the treatment plan was submitted nearly three years later. This evidence alone establishes the prima facie reasonableness and necessity of the assessment. I turn now to the defences raised by the respondent.

27I am not persuaded by the respondent’s causation arguments. The history of the applicant’s back pain in the record before me establishes that the applicant had “posture-related” back pain for which he found massage and chiropractic treatment helpful. There is evidence that on two occasions, the applicant “threw his back out”. Post-accident diagnostic imaging was positive for mild degenerative changes to the applicant’s lumbar spine.

28The medical evidence before me establishes that the accident caused significant exacerbation of the applicant’s condition: prior to the accident there are two entries, roughly four years apart, citing back pain in the clinical notes and records of Dr. Hussman. In under three years from the date of the accident to the date the treatment plan was submitted, there are close to 20 entries in Dr. Hussman’s clinical notes and records related to the applicant’s pain and related symptoms. The records show that therapeutic interventions undertaken throughout this period alleviated the applicant’s symptoms but did not resolve them.

29The respondent’s own Insurer’s Examiner, Dr. Czok, opined that the applicant’s pre-existing condition was unlikely to affect the applicant’s ability to return to his pre-accident status if he were subjected to the MIG. Although the MIG is not in dispute, Dr. Czok’s opinion on the issue supports a finding that the applicant’s pre-existing back pain had little bearing on his enduring post-accident condition.

30I also find the respondent’s submissions on the applicant’s post-accident injuries unconvincing. The respondent suggests that the applicant’s episodes of sciatica triggered by pushing a stroller and carrying luggage while on vacation are of causal significance. It also points to the pain induced by the applicant’s desk work in suggesting alternate causes for the applicant’s condition.

31For the test for causation in the accident benefits context, I look to the Ontario Court of Appeal’s ruling in Sabadash v. State Farm et al.⁵ Causation is a factual determination made on a balance of probabilities. An applicant must show that an impairment would not have occurred “but for” the accident. Scientific proof for causation is not required.

32I find that pushing a stroller, carrying luggage, and sitting at a desk for prolonged periods are not, in themselves, independent causes of the applicant’s impairment. I do not accept that these activities, which could be characterized as routine or ordinary, caused the applicant’s impairment and that a rear-impact collision had no bearing on his condition. I find, on the totality of the evidence, that the accident is a “but for” cause of the applicant’s persistent pain complaints.

33The respondent submits that the applicant’s extensive international travel is evidence that a Chronic Pain Assessment is not reasonable and necessary. It is not apparent that a person suffering from chronic pain should not be able to travel. I do not infer, based on the evidence that the applicant engaged in travel after the accident, that his pain impairments did not exist, or that those impairments were not serious enough to warrant investigation or treatment. The applicant’s sciatica flared up when pushing a stroller and when carrying luggage – again, in my assessment these are routine activities and the fact that they occurred outside the country does not change the analysis.

34The respondent’s submissions as to Dr. West’s knowledge of the applicant’s medical history do not shift the balance in an analysis of whether a Chronic Pain Assessment was reasonable and necessary. The applicant’s pre-accident medical history was unknown to Dr. West at the time he completed the Treatment and Assessment Plan (OCF-18). However, contrary to the respondent’s submission, Dr. West’s Chronic Pain Assessment report does consider the applicant’s pre-accident health history. In my view, the fact that Dr. West may not have gathered a complete health history prior to completing the treatment plan does not detract from the reasonableness and necessity of the proposed assessment. Dr. West elicited the applicant’s history for the purposes of the assessment, and it informed his findings.

35I accept the evidence of Dr. West that the applicant’s return to his pre-accident activities has been hampered by his persistent accident-related pain, especially in the areas of housekeeping, home maintenance and caregiving. These findings are consistent with Dr. Czok’s report and Dr. Hussman’s records. I also find that the applicant has required accommodations to be able to meet the physical demands of his work, and even with accommodations in place, prolonged sitting at a desk caused symptom aggravation as noted on more than one occasion by Dr. Hussman.

36I agree with the applicant that the Tribunal may rely on a diagnosis reached in an assessment to establish the reasonableness and necessity of that very assessment. However, in this case, the evidence establishes the reasonableness and necessity of the Chronic Pain Assessment even without the diagnosis ultimately made by Dr. West. The applicant has met his evidentiary onus and is entitled to the benefit in dispute, plus interest.

ORDER

37The applicant is entitled to the disputed Chronic Pain Assessment in the amount of $2,314.26 plus interest calculated in accordance with s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 2Superintendent’s Guideline No. 01/14.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635.
4. 42018 CanLII 76438 (ON LAT).
5. 52019 ONSC 1121.