Citation: Appuhamilage vs. Aviva General Insurance, 2021 ONLAT 19-009067/AABS

Released Date: 01/06/2021

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:

Jayantha Mallika Appuhamilage

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Jayantha Mallika Appuhamilge, Applicant

Nivedita Misra, Counsel

For the Respondent:

Aviva General Insurance, Representative

Chantalle Youkhana, Counsel

HEARD:

By way of written submissions

OVERVIEW

1JMA was injured in an accident on August 15, 2016 and sought various benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). The treatment plans in dispute were denied by Aviva on the basis that the treatment was not reasonable and necessary. JMA disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES

2The issues to be decided are as follows:

i. Is the medical benefit in the amount of $1,970.00 for chiropractic treatment, recommended by Toronto Medical Centre in a treatment plan (“OCF-18”) dated March 17, 2017, and denied on April 4, 2017, reasonable and necessary?

ii. Are the payments for the cost of examinations recommended by Toronto Medical Centre reasonable and necessary, as follows:

a. $1,672.11 for a functional ability’s evaluation, submitted in an OCF-18 dated February 27, 2017, and denied on March 10, 2017;

b. $1,992.81 for a neuropsychological assessment, submitted in an OCF-18 dated March 17, 2017, and denied on August 8, 2017;

c. $2,104.00 for an orthopedic assessment, submitted in an OCF-18 dated May 31, 2017, and denied on August 8, 2017; and

d. $2,000.00 for a chronic pain assessment, submitted in an OCF-18 dated May 1, 2018, and denied on May 18, 2018?

iii. Is JMA entitled to interest on any overdue payment of benefits?

FINDING

3I find JMA is not entitled to payment for the OCF-18 for chiropractic treatment, and no interest is payable.

4JMA is entitled to the functional ability evaluation and chronic pain assessment, payable with interest, pursuant to s. 51 of the Schedule.

5JMA is not entitled to the neuropsychological or orthopaedic assessments in dispute as he has not demonstrated that they are reasonable and necessary.

LAW

6Sections 14, 15 and 25 of the Schedule provide that an insurer is only liable to pay for medical and cost of examination expenses that are reasonable and necessary as a result of the accident.

7The onus is on the applicant to establish, on a balance of probabilities, that any proposed treatment plans he or she seeks is reasonable and necessary.² On the evidence, I find that JMA is not entitled to payment for the treatment plans in dispute as they are not reasonable and necessary.

BACKGROUND

Pre-accident health

8JMA had heart surgery following a heart attack in 2011. He reported having type 2 diabetes for 20 years, high cholesterol for five years and high blood pressure for two years prior to the accident to the insurer examination (“IE”) assessors.³

9Diagnostic imaging of the cervical and lumbar spine from 2013 reportedly show degenerative changes in the cervical spine, as well as changes to the lumbosacral spine.⁴ An MRI report dated February 28, 2017 for post-traumatic worsening back pain indicated that there was multi-level degenerative disc disease of the cervical and lumbosacral spine, but there was no evidence of acute traumatic injury.⁵ I note that degenerative changes and worsening back pain pre-date the accident.

10JMA had been seeking medical attention from family physician Dr. Ramesh. On various visits, he complained of the occasional headache, cold/sinusitis, aches and pains. Dr. Ramesh cautioned JMA about his diet and rice intake. In May 2015, he was diagnosed with diabetic neuropathy. Dr. Ramesh noted that JMA has poorly controlled diabetes mellitus.⁶ In April 2016, JMA was diagnosed with pneumonia and reactive airway disease and prescribed medication and puffers.⁷

Post-accident health

11On the day of the accident, JMA sought treatment from Dr. Ramesh. JMA complained of neck pain and dizziness. Dr. Ramesh noted reduced range of motion of the neck. JMA was diagnosed with musculoskeletal pain, whiplash, low back pain, low back strain, bilateral shoulder and neck pain, right leg pain, mild post-traumatic stress disorder and radiculopathy. Dr. Ramesh prescribed physiotherapy and Tylenol.

12JMA sought treatment at Toronto Medical Centre on or about August 18, 2016. Chiropractor Dr. O’Hare noted the following accident-related injuries in the Disability Certificate (“OCF-3”); other sprain and strain of the cervical spine; WAD 2 with complaint of neck pain with musculoskeletal signs; injury of muscle and tendon at neck level; pain in thoracic spine; sprain and strain of thoracic spine; injury of muscle and tendon of thorax level; low back pain; sprain and strain of lumbar spine; sprain and strain of sacroiliac joint; injury of muscle and tension of abdomen, lower back and pelvis; other and unspecified injury of nerve root of lumbar and sacral spine; headache; tension-type headache; nonorganic sleep disorders; acute pain; and, other reactions to severe stress.

13A diagnostic imaging report dated August 2, 2018 showed early stage bilateral shoulder osteoarthritic changes in the glenohumeral joints with marginal spurring of the inferior glenoid. This is similar to the degenerative changes noted in pre-accident diagnostic imaging. The spurring includes calcific changes in and around the joint of the bone. Calcific tendinosis is likely related to the degenerative changes and not to the minor accident at issue.⁸

ANALYSIS AND REASONS

OCF-18 for chiropractic treatment

14JMA has not met his onus that the OCF-18 for chiropractic treatment is reasonable and necessary for two reasons:

a. The first reason being that D. Ramesh routinely recommended physiotherapy. There is no medical evidence aside from the treatment plan, that supports JMA’s claim for chiropractic treatment.

b. The second reason, a claim for treatment should be supported by objective medical evidence. On its own, a treatment plan is not enough to establish a claim for treatment is reasonable and necessary. A treatment plan does not contain an objective evaluation of the treatment sought, and therefore carries little weight in establishing that the treatment goals set out within are based on an objective evaluation of an insured’s treatment needs.

15JMA has not put forth any evidence subjective or objective that supports his claim for chiropractic treatment. For these reasons, I find that the OCF-18 for chiropractic treatment is not reasonable and necessary.

OCF-18s for a functional ability evaluation, neuropsychological assessment, orthopaedic assessment and chronic pain assessment

16In determining whether an assessment is reasonable and necessary, it must be borne in mind that assessments, by their nature, are evaluative. The purpose of an assessment can be to determine if a condition exists or to assess the extent of a condition or level of functionality. As such, assessments are also for the purpose of then making recommendations for treatment based on the findings. Notwithstanding its evaluative nature, JMA still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, JMA must point to objective evidence that there are grounds to suspect he has the condition(s) for which he seeks the assessment.

Functional ability evaluation – reasonable and necessary

17For the reasons to follow, JMA has met his onus that the functional ability evaluation is reasonable and necessary.

18Between August 29, 2016 and October 30, 2019, JMA presented with various pain complaints and sought treatment from Dr. Ramesh.

19JMA has reported to his own treatment providers and assessors as well as to the IE assessors that his post-accident injuries have impacted facets of his activities of daily living. He reported to Dr. Mackay that his wife has taken over many of the duties of housekeeping and cooking. Further, that he limits his interactions with his children so as to not disturb them when they complete homework. He reported that his wife and children have taken over many of the household duties and won’t allow him to do much in order for him to rest.

20Although JMA reports to participate in occasional outings with his family and friends, he has significant concerns about his future and his ability to take care of and provide for his family. While I note that JMA has been driving for Uber since 2017, this is a sedentary job compared to his pre-accident employment of delivering towels, that required an amount of lifting that his post-accident pain prohibited him from continuing.

21I find that JMA’s consistent pain complaints and the impact on his ability to function warrants further investigation into the limitations imposed on him from his accident-related injuries. For these reasons, I find that functional ability evaluation is reasonable and necessary.

Neuropsychological assessment – not reasonable and necessary

22JMA relies on a psychological screening report⁹ from Dr Keeling in which he is diagnosed with adjustment disorder with mixed anxiety and depressed mood and specific phobia, situational type (automobile anxiety). The report recommended 12 sessions of cognitive behavioural therapy. It should be noted that the IE psychologist, Dr. Mackay, also diagnosed JMA with adjustment disorder with mixed anxiety and low mood. On September 21, 2017, Dr. Keeling provided an addendum report following the twelve psychotherapy sessions. Dr. Keeling opined that JMA suffered severe and life-altering repercussions from the accident which prohibit him from carrying out his pre-accident life roles and duties.

23In the second Dr. Keeling report, JMA reported neck, shoulder and back pain, as well as numbness to his arm, fingers and into his right leg. He also complained of headaches and sleep deprivation secondary to the pain. The report notes anxiousness, decreased stress tolerance, emotional struggles, irritability and withdrawal from friends and family. Dr. Keeling recommended 12 additional one-hour counselling sessions to address ongoing anxiety, low mood, negative thinking patterns and strategies for ongoing pain, sleep and symptom management.

24Upon completion of the second round of counselling sessions, Dr. Keeling noted JMA made significant improvements with respect to his coping skills, he continued to have difficulty with insomnia and coping with physical pain. A further eight therapy sessions were recommended.

25Although JMA claims a neuropsychological assessment is reasonable and necessary, I do not agree.

26JMA has obtained, on his behalf, two reports from Dr. Keeling, as well as 24 sessions of treatment. I do not see the need for an additional psychological assessment. Dr. Keeling recommends further treatment, not a further evaluation. There is no evidence between the reports of Dr. Keeling and Dr. Mackay that JMA requires further evaluation of his accident-related psychological impairments. As a result, I do not find the neuropsychological assessment to be reasonable and necessary.

Orthopaedic assessment – not reasonable and necessary

27I find that Dr. Ramesh’s CNRs before and after the submission of the orthopaedic assessment in dispute do not document any physical limitations of JMA requiring an orthopaedic assessment. Dr. Ramesh’s notes repeatedly recommend JMA to continue physiotherapy treatment and medication. There is no referral to an orthopaedic specialist. In my view, the medical evidence does not support the necessity of an orthopaedic assessment on a balance of probabilities.

28Aviva relied on the February 9, 2017 orthopaedic report of Dr. Yee, who opined that JMA has residual symptomatology related to myofascial strains of the cervical and lumbar spine. Dr. Yee concluded that there were no objective neurological findings of any active radiculopathy or myelopathy.

29I prefer the report of Dr. Yee, as an orthopaedic specialist, he would be more knowledgeable in this area of expertise compared to Dr. Ramesh. For these reasons, I do not find that orthopaedic assessment to be reasonable and necessary.

Chronic pain assessment – reasonable and necessary

30JMA was evaluated by pain specialist Dr. Chen for a chronic pain condition, as referred by Dr. Ramesh. In a letter dated August 2, 2018, Dr. Chen provided a report to Dr. Ramesh. JMA described his pain as achy and painful with varying degrees of intensity. JMA claimed that his back pain was of concern and that it worsened with walking, lifting, bending, while at rest and changing positions. Dr. Chen diagnosed JMA with chronic neck, shoulder and back pain. Dr. Chen opined that the accident was an “acute precipitating event”. Dr. Chen provided JMA with pain management injections to his neck and back on August 2, 9, 16 and 22, 2018 and September 6, 17, 21, 2018. Dr. Chen recommended pharmacological remedies, nerve block injections, a sleep clinic and psychological rehabilitation.

31Although Aviva relies on the reports of its assessors, Dr. Yee and Dr. Mackay in support of its denial of the chronic pain assessment, I am persuaded by Dr. Chen’s report. As a chronic pain specialist, Dr. Chen is better trained to spot the signs and impacts of chronic pain. Dr. Chen’s records and report note the pain complaints and duration, as well as the psychological impact the accident has had on JMA. Since the IE report was intended to address the applicability of the minor injury guideline, Dr. Chen’s report provides a persuasive evaluation of JMA’s pain symptoms beyond the accepted duration that minor injuries tend to last.

32Consequently, I find that JMA has established on a balance of probabilities that the chronic pain assessment is reasonable and necessary.

CONCLUSION

33JMA is entitled to the functional ability evaluation and chronic pain assessment. Interest is payable the outstanding payment of benefits in accordance with s. 51 of the Schedule.

34JMA is not entitled to chiropractic treatment, a neuropsychological or orthopaedic assessment. As such, no interest is payable.

Footnotes

1. 1O. Reg. 34/10
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Crt.)
3. 3Respondent Document Brief - Tab 7 – Clinical notes and records (“CNRs”) of Dr. Ramesh, Family Physician, dated August 15, 2016
4. 4Ibid – Tab 9 – Cervical and Lumbar Spine X-ray report dated June 6, 2013.
5. 5Ibid – Tab 11 – MRI report dated February 28, 2017.
6. 6Ibid – Tab 10 – CNRs of Dr. Ramesh dated 2013 to date.
7. 7Ibid
8. 8Supra – Tab 15 – Bilateral shoulder x-ray dated August 2, 2018 and bilateral shoulder ultrasound dated August 3, 2018.
9. 9Applicant Document Brief – Tab 11 - Psychological Evaluation report by Dr. Keeling and Ms. Chachshina dated March 2, 2017