Citation: Borzush v. Aviva Insurance Canada, 2021 ONLAT 20-003486/AABS

Released Date: 04/16/2021

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:

Sandra Borzush

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Marina Korshunova, Paralegal

For the Respondent:

Nabila Majidzadeh, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1The applicant, Sandra Borzush (“Ms. Borzush”), was injured as a cyclist in an automobile accident on February 27, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Aviva Insurance Canada (“Aviva”), the respondent.

2Aviva denied Ms. Borzush’s claims for various physical treatment and for a chronic pain assessment. As a result, Ms. Borzush submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on August 17, 2020 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:²

(i) Is Ms. Borzush entitled to $3,000.00 for physiotherapy, kinesiology and chiropractic treatment recommended by PhysioMed in an OCF-18 dated November 19, 2019, and denied on December 3, 2019?

(ii) Is Ms. Borzush entitled to $2,200.00 for a chronic pain assessment recommended by HAL Disability Management in an OCF-18 dated April 26, 2019 and denied on May 28, 2019?

(iii) Is Ms. Borzush entitled to interest on any overdue payment of benefits?

RESULT

5I find that Ms. Borzush is not entitled to the November 19, 2019 OCF-18 for physiotherapy, kinesiology and chiropractic treatment or to the April 26, 2019 OCF-18 for a chronic pain assessment. As a result, no interest is payable, and this application is dismissed.

ANALYSIS

6Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

7I find that Ms. Borzush failed to meet her onus³ of proving that the proposed November 19, 2019 OCF-18 for physiotherapy, kinesiology and chiropractic treatment and the April 26, 2019 OCF-18 for a chronic pain assessment are reasonable and necessary on a balance of probabilities. Therefore, she is not entitled to these treatment plans.

Physiotherapy, Kinesiology and Chiropractic Treatment

8The November 19, 2019 OCF-18 was completed by Nayida Bowen, physiotherapist with PhysioMed, and sought funding for the following: a total body assessment ($180.00); 15 sessions of physiotherapy ($1,125.00); 15 kinesiology sessions ($975.00); and 12 sessions of chiropractic treatment ($720.00). The estimated duration of the OCF-18 was 12 weeks. The injury and sequelae information portion of the treatment plan listed the following: other symptoms and signs involving cognitive function and awareness; symptoms and signs involving an emotional state; nonorganic sleep disorders; headache; injury of muscle and tendon at neck level; sprain and strain of hip; and a tear of medial meniscus of knee. The goals of the treatment plan were pain reduction, increase in strength, increase range of motion and a return to activities of normal living.

9Ms. Borzush submitted that the November 19, 2019 treatment plan was reasonable and necessary as she had ongoing pain and physical limitations at the time when this OCF-18 was submitted to Aviva for consideration. Ms. Borzush also submitted the OCF-18 was reasonable and necessary because her family physician, Dr. Felix Klajner, and her treating orthopaedic surgeon, Dr. Khalid Syed, both recommended facility-based treatment.

10While I agree that Dr. Klajner and Dr. Syed recommended physiotherapy for Ms. Borzush, I disagree that Dr. Syed and/or Dr. Klajner recommended any physical treatment for Ms. Borzush in or about the date of this treatment plan. Dr. Syed only recommended physiotherapy to Ms. Borzush in a January 14, 2019 clinic note, some 10 months prior to the date of this OCF-18. Ms. Borzush saw Dr. Syed next on March 11, 2020, approximately 4 months after the date of this treatment plan, and Dr. Syed did not recommend any physical treatment at that time.

11Dr. Klajner’s clinical and notes and records (“CNRs”) show that he prescribed physiotherapy and massage therapy for Ms. Borzush on December 27, 2018, almost one year prior to the date of this OCF-18. Dr. Klajner’s next recommended physiotherapy on March 4, 2020, but this recommendation was not in existence at the time that the November 19, 2019 treatment plan was submitted to Aviva for consideration.

12Dr. Syed and Dr. Klajner also did not recommend at any time post-accident chiropractic treatment or kinesiology treatment, which were both additional treatment modalities proposed on the November 19, 2019 OCF-18. There is no information on the OCF-18 as to the reason for the recommendation for chiropractic and kinesiology treatment or for the total body assessment. There is also no evidence before me to support the frequency (3.5 sessions per week for twelve weeks) of the total treatment proposed in the November 19, 2019 OCF-18 which was submitted approximately 2 years and 9 months post-accident.

13The only other evidence before me that was in existence prior to the submission of the November 19, 2019 treatment plan to Aviva was a June 13, 2019 Psychological Report by Deni Herrera, registered psychotherapist, supervised by Dr. Sana Bodnar, psychologist.⁴ While this assessment report was completed in regards to Ms. Borzush’s psychological complaints, Ms. Herrera did review the physical treatment that Ms. Borzush had received to date. Aside from noting that PhysioMed was a “much better” clinic than a previous one she had attended, there is no information in this report of what treatment Ms. Borzush was receiving at PhysioMed, if she had pain relief following her treatment or how the treatment would meet the goals of the OCF-18.

14For all of the reasons set out above, I find that Ms. Borzush has failed to prove on a balance of probabilities that the November 19, 2019 OCF-18 was reasonable and necessary and, as a result, she is not entitled to this treatment plan.

Chronic Pain Assessment

15The April 26, 2019 OCF-18 was completed by Dr. Dahir Hashi, chiropractor, and sought funding for a chronic pain assessment to be completed by Dr. Tajedin Getahun, orthopaedic surgeon. The injury and sequelae information portion of the OCF-18 lists the following: concussion; whiplash associated disorder [WAD 2] with complaint of neck pain; sprain and strain of lumbar spine; and sprain and strain of medical collateral ligament of the knee. The goals of the treatment plan were to design and develop strategies to assist with pain management and implementation of these strategies to positively affect Ms. Borzush’s level of everyday functioning. The additional comments section of the treatment plan stated that Ms. Borzush had not yet achieved maximum medical recovery and that pain resolution had been documented to occur for as long as 2- to 3-years post-accident.

16One of the purposes of a chronic pain assessment, in my opinion, is to diagnose chronic pain syndrome. Therefore, in determining the reasonableness and necessity of a treatment plan proposing a chronic pain assessment, I must consider whether it is reasonably possible that Ms. Borzush may have chronic pain syndrome.⁵

17Aviva submitted that whether or not it was possible that Ms. Borzush had chronic pain should be assessed against the six criteria set out in the American Medical Association (“AMA”) Guides,⁶ which require at least three of the following criteria be met for a diagnosis of chronic pain:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

2. Excessive dependence on health care providers, spouse, or family;

3. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

4. Withdrawal from social milieu, including work, recreation, or other social contacts;

5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and

6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

18Ms. Borzush disagreed and submitted that the AMA Guides criteria should not be considered in determining the reasonableness and necessity of the proposed chronic pain assessment. Instead, Ms. Borzush relied upon the International Association for the Study of Pain’s definition of chronic pain as, “pain that persists past normal healing time…Usually pain is regarded as chronic when it lasts or recurs for more than 3 to 6 months.”⁷

19While the Tribunal has accepted that chronic pain is a condition that persists for 3 to 6 months after an initial trigger or injury,⁸ the Tribunal has also found that chronic pain encompasses adverse effects on an individual’s wellbeing⁹ and functional impairment. As such, I find that the six criteria set out in the AMA Guides provide helpful guidance as an interpretive tool to determine if an individual’s pain is adversely affecting their wellbeing and functional capacity such that it would be reasonably possible that the individual was suffering from chronic pain syndrome and, therefore, warranting a chronic pain assessment.

20At the outset, Aviva conceded that Ms. Borzush developed psychological sequelae after the accident and, therefore, I find that Ms. Borzush meets criteria six as set out in the AMA Guides.¹⁰ However, I agree with Aviva that Ms. Borzush fails to meet any of the remaining criteria of the AMA Guides for the following reasons:

(i) There is no evidence before me that Ms. Borzush abused or was dependent upon any prescription medication. In fact, Ms. Borzush reported no use of prescription medication to several assessors, and that she only used topical anti-inflammatory cream and, very occasionally, cannabis edibles and ibuprofen.¹¹ Dr. Syed’s CNRs also reported that Ms. Borzush had a cortisone injection into her left knee in January 2019 and only one further injection over one year later on March 11, 2020 which, in my opinion, does not demonstrate dependence;

(ii) There is no evidence that Ms. Borzush had excessive reliance on health care providers. Ms. Borzush only submitted as evidence for the hearing Dr. Klajner’s CNRs for the period of December 2018 to March 11, 2020 plus three additional prescriptions of Dr. Klajner from 2017 and 2018 for physical therapy. These CNRs show that Ms. Borzush saw Dr. Klajner on January 23, 2019 for a follow-up after her knee injection with Dr. Syed. Ms. Borzush only attended at one other appointment with Dr. Klajner regarding any accident-related complaints during the period that the CNRs cover. There is also no indication of chronic pain or chronic pain syndrome in Dr. Klajner’s CNRs or on his three prescriptions;

(iii) There is also no evidence that Ms. Borzush had excessive reliance upon her husband or family post-accident. Ms. Borzush denied any changes to her relationship status and family relations post-accident,¹² and consistently reported being fully independent with her personal care tasks after the accident.¹³ Ms. Borzush did struggle to perform her household chores immediately following the accident, which led her husband to assist with these tasks and, ultimately, the hiring of a housekeeper.¹⁴ However, Ms. Borzush reported to Dr. Silver that, at the time of his assessment (August 2020), she was able to do all of her pre-accident cooking and housekeeping tasks with the use of pacing;¹⁵

(iv) Ms. Borzush did not withdraw or fail to pursue work post-accident. Ms. Borzush returned to work 1-week after the accident with no modifications¹⁶ to her pre-accident role as a manager at RBC;¹⁷ and

(v) While I accept that Ms. Borzush did not return to playing softball post-accident, this is only one of the many recreational activities that Ms. Borzush participated in prior to the accident. Ms. Borzush reported that she slowly resumed her dance lessons, bicycle riding and yoga as of January 2020,¹⁸ and that she continued to participate in these activities, albeit on a reduced capacity, in September 2020.¹⁹ Therefore, I find that Ms. Borzush did not withdraw from all of her recreational activities post-accident.

21Moreover, Ms. Borzush underwent a chronic pain assessment with Dr. Gofeld on September 25, 2020 despite Aviva’s denial of the April 26, 2019 OCF-18. In his resulting September 25, 2020 Chronic Pain Assessment Report, Dr. Gofeld diagnosed Ms. Borzush with, among conditions, chronic pain syndrome. I agree with Aviva that little weight should be given to Dr. Gofeld’s September 25, 2020 report as he does not set out any definition of chronic pain syndrome or provide any reasons or the criteria that was met for Ms. Borzush’s diagnosis of chronic pain syndrome. There was also no explanation provided for the change in the proposed services providers from Dr. Tajedin Getahun, who was listed on the original OCF-18, to Dr. Gofeld who completed the chronic pain assessment. The completion of the chronic pain assessment by a different service provider at a different clinic some 17 months after the OCF-18 was submitted to Aviva is further evidence that the original OCF-18 for a chronic assessment completed by Dr. Getahun was not reasonable or necessary. I appreciate that Covid-19 closures may have caused some delay in the completion of the chronic pain assessment, but there is not, even at a minimum, any explanation for the 11 month delay prior to the Covid-19 closures which came into effect in or about March 2020.

22For all of the reasons set out above, I find that Ms. Borzush has failed to prove on a balance of probabilities that the chronic pain assessment was reasonable and necessary such that it was possible she had chronic pain or chronic pain syndrome. Therefore, she is not entitled the April 26, 2019 OCF-18 for a chronic pain assessment.

Interest

23As there are no benefits owing, no interest is payable.

CONCLUSION

24For the reasons outlined above, I find that:

(i) Ms. Borzush is not entitled to the November 19, 2019 OCF-18 or to the April 26, 2019 OCF-18;

(ii) No interest is payable; and

(iii) This application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2The Tribunal’s August 18, 2020 Case Conference Report and Order included the following issue which Ms. Borzush confirmed in her submissions at paragraph 11 is no longer in dispute: Is Ms. Borzush entitled to $1,197.13 ($2,328.18 less $1.131.05 approved) for psychological services recommended by Physio Fix & Fitness in a treatment plan (“OCF-18”) submitted on August 1, 2019 and partially denied on August 1, 2019?
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
4. 4Submissions of the Applicant, tab 9.
5. 5See 16-001934 v Aviva Insurance Canada, 2017 CanLII 19197 (ON LAT) (“16-001934”).
6. 6American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pages 32-33.
7. 7Submissions of the Applicant, tab 16, page 2.
8. 8See the reconsideration decision of T.S. v. Aviva General Insurance Canada, 2018 CanLII 83520 (ON LAT) at para. 19.
9. 9Ibid. at para. 23.
10. 10Submissions of the Respondent, para. 57.
11. 11January 16, 2020 Musculoskeletal IE Assessment by Dr. Ahmed Mian, family physician, Submissions of the Applicant, tab 10, page 4 and the August 5, 2020 Musculoskeletal IE Assessment by Dr. Eric Silver, general physician, Submissions of the Respondent, tab 11, pages 6 and 11.
12. 12September 25, 2020 Chronic Pain Assessment Report by Dr. Michael Gofeld, physician, Submissions of the Applicant, tab 8, page 8.
13. 13Ibid. at page 9, the August 5, 2020 Musculoskeletal IE Assessment by Dr. Eric Silver, general physician, Submissions of the Respondent, tab 11, page 8 and the January 16, 2020 Musculoskeletal IE Assessment by Dr. Ahmed Mian, family physician, Submissions of the Applicant, tab 10, page 5.
14. 14Supra note 12 at page 9 and supra note 4 at pages 3-4.
15. 15August 5, 2020 Musculoskeletal IE Assessment by Dr. Eric Silver, general physician, Submissions of the Respondent, tab 11, page 8.
16. 16January 16, 2020 Musculoskeletal IE Assessment by Dr. Ahmed Mian, family physician, Submissions of the Applicant, tab 10, page 5.
17. 17Supra note 12 at pages 8-9.
18. 18Supra note 16 at page 5.
19. 19Supra note 12 at page 10.