Released Date: 01/08/2021
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:
Jin Yang Guo
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR: Monica Chakravarti
APPEARANCES:
For the Applicant: Lily Rodriguez, Paralegal
For the Respondent: Suzanne Clarke, Counsel
HEARD: Via Written Submissions
1The applicant was injured in a motor vehicle accident on March 17, 2016 (the “Accident”). The applicant sought medical and rehabilitation benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the “Schedule”). The respondent denied the benefits because it concluded that the benefits being sought were not reasonable or necessary, the applicant disagreed and applied to the Tribunal for resolution of the dispute.
THE ISSUES IN DISPUTE
2The issues in dispute are:
Is the applicant entitled to $2,496.66 for chiropractic services recommended by Life Harmony Rehabilitation Centre Inc., in the treatment and assessment plan (OCF-18 for Chiropractic Services) dated January 16, 2018 and denied by the respondent on February 2, 2018?
Is the applicant entitled to $2,000.00 for the cost of a chronic pain assessment recommended by Perfect Physio Rehabilitation Centre Inc. in the treatment and assessment plan (OCF-18 for a Chronic Pain Assessment) dated December 28, 2017 and denied by the respondent on March 9, 2018?
Is the applicant entitled to $2,200.00 for the cost of a psychological assessment recommended by Perfect Choice Psychological Services in the treatment and assessment plan (OCF-18 for a Psychological Assessment) dated May 1, 2019 and denied by the respondent on May 22, 2019?
Is the applicant entitled to $3,701.88 for psychological services recommended by Perfect Physio Rehabilitation Centre Inc. in the treatment and assessment plan (OCF-18 for Psychological Services) dated May 27, 2019 and denied by the respondent on June 10, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has met his burden in showing that the Chronic Pain Assessment is reasonable or necessary and therefore the applicant is entitled to the OCF-18 for a Chronic Pain Assessment with interest in accordance with section 51 of the Schedule.
4The applicant has not met his burden in proving on a balance of probabilities that the OCF-18s for the Psychological Assessment, the Psychological Services and the Chiropractic Services are reasonable or necessary and therefore the applicant is not entitled to the treatment plans for Chiropractic Services, Psychological Assessment and Psychological Services.
ANALYSIS
5The applicant will be entitled to the disputed OCF-18s if, in accordance with section 15 and section 25 of the Schedule, he can establish that the OCF-18s represent reasonable or necessary medical expenses incurred as a result of the Accident.
6Even if the applicant has been removed from the Minor Injury Guideline (MIG) he continues to bear the onus of establishing reasonableness or necessity of any claimed medical benefits on a balance of probabilities.
7Section 3 of the Schedule defines “minor injury” to include injuries from an accident such as sprain, strain and contusion, but excludes fractures.
8On or about February 6, 2017, almost one-year post-accident an x-ray indicated that the applicant sustained a fracture to his coccyx that has now healed. This fracture the applicant submitted was as a result of the accident. The respondent accepted that the fracture to the coccyx warranted removal from the MIG.2
Chronic Pain Assessment
9Under section 25(3) of the Schedule the applicant, in seeking an assessment or examination, must show that the assessment is reasonable or necessary. The applicant is seeking a chronic pain assessment.
10The OCF-18 for the Chronic Pain Assessment dated December 26, 2017 indicates that that applicant has difficulty with sustained posture, walking, sitting, lifting, pushing, pulling etc. The OCF-18 notes that the applicant continues with pain in his neck, mid back, low back and shoulder, that the pain has continued more than one year following the accident; the family doctor has stated that the applicant has chronic MSK (musculoskeletal) pain. The provider lists the goals of this OCF-18 is assist the applicant to return to his normal activities and that given the applicant’s ongoing symptomatology that a further assessment determine the potential chronicity of the patient’s injuries should be considered so as to determine the appropriate course of action.
11The applicant submits that he suffers from chronic pain and/or chronic pain syndrome as a result of the accident. This chronic pain is confirmed in his family doctor’s clinical notes and records and by the applicant’s treating physiatrist, Dr. Wong, who diagnosed the applicant with chronic pain syndrome. Further the applicant submits that the goals returning to activities of normal living and the goal of determining the appropriate treatment required are reasonable or necessary.
12The respondent’s position is that the OCF-18 for the Chronic Pain Assessment is not reasonable or necessary as the applicant has not established that he sustained chronic pain. The respondent submits that medical evidence related to chronic pain should include an assessment of how the pain affects the injured person’s functionality or ability to perform his activities of daily living. The respondent submits that the applicant continued to work after the accident, continued to perform his activities of daily living and demonstrated normal ranges of movement during medical assessments. Lastly the respondent rejects the opinion of Dr. Wong, the treating physiatrist because they submit Dr. Wong made the diagnosis without investigation into the applicant’s activities of daily living and the impact of the accident on those activities.
13I find that the applicant has established that the OCF-18 for the Chronic Pain Assessment is reasonable or necessary. Based on the medical evidence the applicant has established that he has chronic pain and/or chronic pain syndrome and that despite the treatment to date that his pain has not resolved and therefore the goal of an assessment to determine a further course of action in the applicant’s treatment of his accident related chronic pain is reasonable or necessary.
14The medical evidence has established a consensus that the applicant has chronic pain. The clinical notes and records of the physiotherapy and family doctor starting in 2017 have notations of ongoing pain in the lower back and thoracic spine. The family doctor referred the applicant to an orthopedic surgeon, pain clinic and a physiatrist.
15The treating physiatrist Dr. Wong confirmed in his report of March 13, 2018 that the applicant has chronic pain syndrome. I do not agree that Dr. Wong’s diagnosis be rejected based on the submissions of the respondent. Dr. Wong saw the applicant after being referred by his family doctor. Dr. Wong therefore is the applicant’s treating doctor and diagnosis and recommendations made by him would presumably be acted upon by the family doctor and the applicant. Dr. Wong would have no reason to provide a misdiagnosis to a patient and there is no evidence to imply that he did misdiagnosis his patient or that he was misled or something untoward occurred that resulted in a misdiagnosis of chronic pain syndrome. Without evidence or information to the contrary I accept the diagnosis made by the treating physiatrist of chronic pain.
16The Orthopedic Insurer’s Examination (I.E.) completed by Dr. Gallimore on March 6, 2018 concedes that the applicant has ongoing pain specifically to the coccyx area. Dr. Gallimore specifically notes ongoing pain and symptoms to his coccyx area that have not resolved, and he requested that he be provided with the reports of the specialists the applicant saw for the pain to determine what the recommendations were. Dr. Gallimore noted that the applicant has reached maximum medical recovery, but he wanted to review the reports of the specialists to see if there were any alternative care options noted for the pain in the coccyx.
17Dr. Efala, who completed the OCF-18 for the chronic pain assessment, completed the chronic pain assessment despite the denial and concluded that the applicant has chronic pain of his back. Dr. Efala’s findings in his report were consistent with the findings of Dr. Gallimore the I.E. doctor.
18Further Dr. Efala and Dr. Gallimore both report that the applicant has difficulty with heavier housekeeping tasks and heavier work-related tasks. Both note that the applicant is working on somewhat modified duties. Neither provide more details as to exactly what “heavier” means but both reports indicate that the pain has an impact on the applicant in his daily life.
19Based on the above the applicant has shown that he has chronic pain and/or chronic pain syndrome as a result of the injuries sustained in the Accident.
20The evidence also shows that the applicant has proven on a balance that the treatment plan is reasonable. The treatment plan itself submitted by Dr. Efala on behalf of the applicant notes that the goal is to improve functionality and explore further treatment options. I find that based on the ongoing symptomology reported and confirmed in the evidence distilled above that it is reasonable for the applicant to undergo an assessment to obtain treatment options to alleviate the symptoms and/or to improve functionality.
21I am also persuaded that the chronic pain assessment is reasonable or necessary based on the comments of Dr. Gallimore, the I.E. orthopedic surgeon. Dr. Gallimore in his report stated that he wanted to review the reports of the specialists to see if there were any alternative care options noted for the pain in the coccyx. I take this to mean that Dr. Gallimore thought it reasonable to see opinions for alternative treatment options.
22Based on the above I find the OCF-18 for the chronic pain assessment to be reasonable or necessary.
OCF-18s for Psychological Assessment and Psychological Services
23The applicant has not met his onus to prove that the OCF-18 for the psychological assessment and psychological services are reasonable or necessary.
24The applicant submits that in the months following the accident that he reported to his family doctor that he was having difficulties with sleep. The applicant submits that this is considered a psychological injury and/or was the beginning of psychological injuries and impairments that require an assessment and treatment. The applicant relies upon the consultation report attached to the OCF-18 for the psychological assessment.
25The respondent submits that it took two years following the accident for the applicant to report any sleep issues and that in 2019, more than three years post-accident, the family doctor noted mild features of anxiety. The respondent also relies on the findings of the I.E. by Dr. Saunders, psychologist who opined that the applicant did not suffer from a diagnosable psychological condition as a result of the accident.
26The applicant has not met his onus to show that the OFC-18s for the Psychological Assessment or Services are reasonable or necessary because the applicant has not shown that he sustained psychological injuries in the accident that require an assessment or treatment.
27The applicant did not report to his family doctor any emotional issues following the accident. He did report difficulties with sleep however this was reported to the family doctor two years following the accident and it was the applicant who relayed to the family doctor that it was accident related. In the report of Dr. Efala dated May 20, 2019 the chronic pain specialist, the applicant made no complaints about emotional issues but had difficulty with sleep and memory. He related to Dr. Efala that his limitations in his activities are as a result of pain and his physical injuries.
28The applicant reported to Dr. Saunders, the I.E. psychologist, that he experiences nightmares which accounts for his sleeping difficulties. The nightmares were not reported to the family doctor. The applicant reported feeling anxious in social situations and loss of interest in socializing. Dr. Saunders noted that the testing showed moderate depressive experience however he stated that this testing was elevated because of factors associated solely with pain. He therefore concluded that when removing the portions of the test that related solely to pain, and then assessing the responses of the applicant that there was only a “transient elevation in [depressive] symptoms”.
29I am not persuaded by the report of Dr. Saunders and his testing. He has provided no explanation as to how he can parse out a test that he describes as a “61 item self-report scale of depressive symptoms. It has been specifically designed to provide an accurate measurement of the intensity of a claim’s depression and also to provide specific information to guide a valid diagnosis of depressive disorders.” He provides no explanation as to how he can rule out the reporting of some items and not the others.
30I am, however, persuaded by the clinical notes and records of the family doctor that do not note any psychological or emotional issues as a result of the Accident. Other than difficulty with sleep and one notation in 2019, there are no indications of ongoing psychological difficulties that warrant an assessment or treatment. Further the family doctor has consistently referred the applicant to various specialists as noted above and has not recommended any psychological intervention.
31I find based on the above that the applicant has not shown the OCF-18s for psychological assessment and psychological treatment are reasonable or necessary because he has not shown on a balance of probabilities that he sustained any accident related psychological injuries or impairments.
OCF-18 for Chiropractic Services
32The OCF-18 for Chiropractic Services is not reasonable or necessary because there are no recommendations for ongoing treatment of this nature. The applicant received over two years of treatment at the Life Harmony Rehab Centre Inc. and as found above still has unresolved pain and limitations. The chronic pain expert, Dr. Efala in his report did not recommend further chiropractic or physiotherapy treatment. As well, the applicant’s treating physiatrist Dr. Wong did not make further recommendations for treatment that correspond to what is proposed in the OCF-18 for chiropractic treatment.
33The applicant’s only evidence recommending further chiropractic services is the treatment plan itself and this is not enough to discharge the onus of the applicant in showing that the treatment is reasonable or necessary. The applicant needs to provide some corroborating evidence along with the OCF-18 for chiropractic services and he has not done so.
Interest
34The applicant is entitled to interest in accordance with section 51 of the Schedule with respect to the OCF-18 for the Chronic Pain Assessment
35The remaining treatment plans in dispute are not payable and therefore the applicant is not entitled to interest as there are no overdue payments associated with the remaining treatment plans in dispute.
CONCLUSION
36The applicant is entitled to the OCF-18 for the Chronic Pain Assessment with interest in accordance with section 51 of the Schedule.
37The applicant is not entitled to OCF-18s for Chiropractic Services, a Psychological Assessment and Psychological Services and therefore no interest is overdue or payable on these OCF-18s.
Released: January 8, 2021
Monica Chakravarti
Adjudicator
Footnotes
- O. Reg. 34/10, as amended.
- Respondent’s submissions paragraph 15.```