Release date: 04/06/2021
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:
Makeba Boyce
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce, Vice-Chair
APPEARANCES:
For the Applicant:
Neisha Moses, Paralegal
For the Respondent:
Marcin J. Panasewicz, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on August 30, 2017, and sought, amongst other benefits, a chronic pain assessment from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 Aviva denied the assessment on the basis that it was not reasonable and necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES IN DISPUTE
2The issues in dispute are as follows:
i. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 for a chronic pain assessment, recommended by Prime Health Care in a treatment plan dated January 28, 2019?
ii. Is the applicant entitled to an award under O. Reg. 664 because the respondent unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated that the assessment in dispute is reasonable and necessary or incurred. Interest and an award are not applicable.
ANALYSIS
Is the chronic pain assessment reasonable and necessary?
4In order to receive payment for a treatment and assessment plan under the Schedule, the applicant bears the burden of demonstrating that it is reasonable and necessary. To do so, the applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.
5The applicant submits that she suffers from ongoing physical impairments and continues to require treatment, that her ability to perform her activities of daily living is impaired by her chronic pain and discomfort and that the medical professionals who have treated and assessed her opine that a chronic pain assessment is necessary for an accurate prognosis for her recovery. She argues that, along with her accident-related psychological impairments, she meets three of the six criteria for a chronic pain condition under the AMA Guides and, to this end, relies on the clinical notes of her family physician, Dr. Jones, treatment records from Health Max Physiotherapy, the OCF-18 in dispute, her employment file from [PCS] and the s. 44 reports in evidence.
6In response, Aviva submits that it denied the OCF-18 in dispute following a June 2019 s. 44 report by Dr. Chaudry who found that the assessment was not reasonable and necessary. Further, it submits that the applicant has not met her burden as she has not provided objective medical evidence to support the assessment; has not demonstrated that the assessment was incurred in order to attract funding; that nowhere in the OCF-18 is there a suggestion that there is a reasonable possibility that she suffers from chronic pain, as alleged; that Dr. Jones does not support chronic pain intervention; that she was consistently employed post-accident; and, finally, that she does not meet three of the six AMA Guides criteria to support a chronic pain condition or an assessment for same.
7I agree with Aviva and find the applicant has not demonstrated that the chronic pain assessment is reasonable and necessary or incurred. The applicant submits she suffers from chronic lower back pain. However, the diagnostic imaging reports in evidence returned normal results and Dr. Jones only prescribed pain relievers and recommended back strengthening exercises, yoga/pilates and physiotherapy, as needed. While the assessment was proposed in January 2019, the applicant did not attend at Dr. Jones’ office between the date of the OCF-18 and September 11, 2019, where she then reported that her back was better and she was able to attend parties and that the yoga and her new physiotherapist were helping.
8Both parties also wrestled with the six criteria under the AMA Guides, so I agree that this common ground provides an appropriate tool to analyze whether the assessment in dispute is reasonable and necessary to investigate the alleged chronic pain condition. Further narrowing the dispute is the fact that the applicant asserts that the assessment would reveal that she meets criteria four, five and six and she only offered submissions on these criteria: 4) Withdrawal from social milieu, including work, recreation, or other social contracts; 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.
9I agree with the applicant that she meets criteria six, as she has been removed from the Minor Injury Guideline on the basis of a diagnosis of Adjustment Disorder with mixed anxiety and depressed mood and Specific (isolated) phobias, vehicular. Aviva does not contest this, but argues instead that any psychological impairments are mild or resolved as the applicant has not completed the 14 sessions of psychological counselling in the two and a half years since it was approved by Aviva.
10Despite meeting criteria six, I find the applicant does not meet either of criteria four or five as addressed in her submissions. The applicant asserts she meets criteria four because she is unable to participate in household activities and chores to her pre-accident level due to her limitations as a result of her pain. She relies on family members for assistance with childcare and household tasks, experiences anxiety when in a motor vehicle and submits that her chronic pain and traumatic headaches impair her ability to perform the activities of daily life.
11However, she seemingly only relies on the OCF-18 itself, which is not medical evidence, and Aviva’s s. 44 occupational therapy report to prove this, a report that was prepared nine months before the OCF-18 in dispute. Notably, the report found that she is functionally capable of doing largely everything she did or had shared responsibility for doing pre-accident and that her personal care tasks are not affected. Additionally, the report actually states that she has the ability to provide caregiving for her two stepdaughters and her son, and that her boyfriend only assists her in lifting and carrying her son from the infant bathtub. The report states that she demonstrated adequate functional ability to perform her pre-accident caregiving tasks and, other than subjective pain, there was no significant accident-related functional impairment.
12Further, I agree with Aviva that it is unclear how the other self-reported limitations in her submissions—decreased socialization due to headaches and noise sensitivity, less attendance at parks with her children, an inability to work out since her pregnancy in November 2016—are related to a chronic pain condition from the accident where no objective evidence was provided. The report made no recommendations.
13With regard to criteria five, the applicant submits she has been unable to return to her pre-accident level of function, as she was unable to work post-accident and her pain and headaches caused her to turn down opportunities for employment. She submits that she attempted to return to the work force as a security guard with [PCS] on February 13, 2019, but subsequently left that position on October 31, 2020. Further, she submits that she is unable to perform family and recreational needs due to pain, is unable to resume her workout routine, care for her son and experiences anxiety while driving.
14I again agree with Aviva that the applicant has provided no evidence to support these assertions or how they are related to a chronic pain condition. Indeed, there was no evidence provided to support that she turned down employment due to chronic pain, as the sole piece of evidence related to her inability to work is a note by Dr. Jones from October 21, 2017, that states, “asks me to report that she was offered a job but she declined it due to her headaches (lawyer asks to document this fact).” This note is not contemporaneous with the OCF-18.
15More problematic for the applicant are the records of employment and paystubs in evidence that indicate she was regularly employed post-accident from July 2018 until at least October 2020 as a security guard with [PSC] from February 13, 2019 to October 31, 2020; as a front-desk staff member for [FSRPS] from July 26, 2018 to November 15, 2018; and as a security guard with [RS] from November 13, 2018 to February 28, 2019. Aviva also argues that the applicant’s employment income actually increased post-accident, which, on the records of employment and tax records in evidence, appears to also be true.
16Indeed, against these facts, it is difficult to find that the applicant was prevented from working due to her pain when she quit her job as a security guard to take a position as a security guard with a different company during the same period the assessment was proposed in January 2019—a position she then held for over a year and a half, working a minimum of 40 hours per week. Her submissions do not indicate why she resigned from her position with [PSC] and her resignation letter in evidence does not cite a physical inability to perform the job or pain as reason for quitting or whether she is currently employed. In any case, I do not find that the evidence offered by the applicant constitutes “a 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,” as there is quite a bit of evidence to suggest that she was functionally able to perform her personal, household and employment tasks before and after the assessment in dispute was proposed.
17On the medical evidence, I also find the s. 44 report of Dr. Chaudry persuasive. It found range of motion and strength testing within normal limits, revealed no objective neurological or radicular pathology, identified no significant barriers to recovery based on the diagnostic imaging, the applicant’s medical history and the physical examination and found uncomplicated soft tissue injuries to the lumbar spine. Dr. Chaudry found the chronic pain assessment not reasonable and necessary and encouraged a home-based program focusing on range of motion and strength training rather than chronic pain intervention. I find that this opinion is consistent with the evidence before the Tribunal.
18For these reasons, and without evidence that the assessment was incurred in the two years since it was proposed or a reply to rebut Aviva’s position, I find the applicant has not demonstrated that the chronic pain assessment in dispute is reasonable and necessary. As no benefits are overdue, interest does not apply under s. 51.
19In a similar vein, while the applicant sought an award under s. 10 of O. Reg. 664, I find an award is not appropriate. Under s. 10, the Tribunal may award up to 50 percent of the total benefits in dispute if it determines that the insurer unreasonably withheld or delayed payment. Having determined that the OCF-18 is not payable, it follows that the Tribunal cannot order an award. In any case, I find no evidence that Aviva unreasonably withheld payment for the assessment to justify a s. 10 award.
ORDER
20The applicant has not demonstrated that the assessment in dispute is reasonable and necessary or that interest or an award apply.
Released: April 6, 2021
________________________
Jesse A. Boyce, Vice Chair
Footnotes
- O. Reg. 34/10, as amended.