Gosling v. Aviva General Insurance, 2021 CanLII 62543

Citation: Gosling vs. Aviva General Insurance, 2021 ONLAT 19-013292/AABS

Released Date: 07/13/2021

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:

Jennifer Gosling

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Cezary Paluch

APPEARANCES:

For the Applicant: Jennifer Gosling, Applicant Emily McGivern and Frank A. Calcagni, Counsel

For the Respondent: Ajay Shukla, Representative Melanie A. Sousa, Counsel

HEARD: By Teleconference on February 19, 2021 and by way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on August 20, 2015 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2A case conference took place on July 7, 2020, scheduling a written hearing for April 26, 2021 with cross-examination on an affidavit sworn by the applicant on February 19, 2021.

ISSUES

3The following issues are in dispute for this hearing:

i. Is the applicant entitled to $12,580.00 for a multidisciplinary chronic pain program recommended by the Michael G. DeGroote Pain Clinic in a treatment plan submitted on July 17, 2019, and denied by the respondent on November 21, 2019?

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

Preliminary Issue – raised by the respondent

4The respondent submits that the applicant refers in her submissions to clinical notes and records (CNRs) from Health Plus Rehabilitation from March 1 – 15, 2019 that have not been previously disclosed and should be excluded because they were produced contrary to a deadline contained in the Tribunal Order dated July 8, 2020 (the “Order”). I am not clear what deadline the respondent is referring to as no date was specified in their submissions that was apparently breached. My review of para. 7 of the Order under the heading ‘Documents for the Hearing’ is that parties were able to exchange their evidence right up to the submission dates. There was no preliminary or other date for the exchange of documents in this part of the order. I also note that this Order was made on consent of the parties, so it appears that this provision was agreed to.

5I note that para. 6 of the Order re “Exchange of Documents Between the Parties (Productions)” does have a deadline date of December 31, 2020, which may be the date that the respondent is referring to. However, this deadline speaks to the parties exchanging any agreed upon documents but does not specify what documents were agreed to be produced (i.e. any CNRs). Indeed, this paragraph also provides that “The parties agreed that an order listing the documents to be produced and exchanged is not necessary.” More to the point, this paragraph only deals with productions (i.e. what one party requests from the other) and not documents for the hearing (i.e. what documents one party will be relying on at the hearing) such as the CNRs from Health Plus Rehabilitation from March 1 – 15, 2019 that the applicant provided with their submissions.

6For completion, para. 8 of the Order under the heading ‘Hearing Details’ confirms that “the parties will serve their written submissions and evidence on each other and file with the Tribunal according to the following timetable: Applicant’s submissions and evidence: March 25, 2021” [my emphasis]. Therefore, the applicant complied with the terms of the Order when they provided the noted CNRs with their written submissions prior to March 25, 2021 as per para. 7 and 8 of the Order and the respondent’s request to exclude this information is denied for these reasons based on the clear wording in the Order.

LAW

7Sections 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.

8The applicant bears the onus of proving her entitlement to the chronic pain program by proving they are reasonable and necessary on a balance of probabilities.²

ANALYSIS

Chronic Pain Treatment Program

9The applicant applied for a multidisciplinary chronic pain treatment program consisting of both physical and psychological treatment. It was denied by the respondent essentially because they maintain her current pain complaints are not accident-related and that her accident-related injuries have been treated resulting in maximum recovery.

10I find that the applicant is not entitled to the treatment plan for this chronic pain treatment program.

11This treatment plan was completed by Dr. Eleni Hapidou, psychologist, and John Cecen, occupational therapist, of the Michael G. DeGroote Pain Clinic, was dated May 27, 2019 and was submitted to the respondent on July 17, 2019. This treatment plan sought funding for a multidisciplinary chronic pain program comprised of the following:

i. Therapy, cognition and learning ($12,200.00)

ii. Hospital Parking ($180.00)

iii. Documentation ($200.00)

12In the additional comments section of the plan, the specific treatment consists of the following: group psycho-educational sessions learning about techniques and strategies to deal with their pain condition, fitness sessions, goal setting sessions, completion of psychometric instruments assessing personality and emotional functioning, appointments with the physician to review medication issues, meeting with the psychologist, team meeting, participation in six hours of structured activity, structured relaxation classes and hydrotherapy.

13The treatment plan lists the following injuries and sequelae information: chronic intractable pain, neck injuries, low back pain, shoulder and upper arm injuries, injury of muscle and tendon of the rotator cuff of shoulder, somatoform disorder, and adjustment disorder. The goals of this treatment plan were: increased function, improve overall quality of life and increase ability to implement chronic pain management strategies.

14Notably, the proposed treatment does not list any of the applicant’s other apparent injuries to her hips or right foot/ankle which she complained to Dr. M. Nesterenko about in October 2019 as part of an insurer’s examination (IE) which is after the OCF-18 was prepared. As a result, it appears that the applicant disclosed “new” injuries during the October 2019 IE but failed to mention those injuries to the De Groote pain clinic team 6 months earlier that prepared the treatment plan. As well, the plan appears not to list anxiety as an impairment which the applicant stated in her affidavit dated January 22, 2021 that she continues to suffer from related to the accident.³ The applicant essentially states that she had anxiety supposedly “caused” by the accident but notably anxiety was not included in the OCF-18 as an accident-related impairment.

15On July 24, 2019, the respondent notified the applicant via an Explanation of Benefits (EOB) that it did not agree to fund the proposed treatment because she sustained predominantly soft tissue injuries, that the injuries are a temporary exacerbation and the current shoulder complaint is not accident-related but attributable to a long-standing degenerative shoulder pathology. The respondent also notified the applicant that they required the applicant to attend an insurer’s examination (“IE”) which details were confirmed in the follow up letter dated September 11, 2019 scheduling two IEs for October 8, 2019 (psychology) and October 29, 2019 (general practitioner).

16As a result, a psychological in-person assessment was conducted on October 8, 2019 with Dr. A. Syed and a family medicine in-person assessment with Dr. M. Nesterenko for October 29, 2019. Subsequently, on November 21, 2019, the respondent denied the plan based on these two IEs via an EOB that stated that the physical components of the plan are not considered reasonable and necessary. With respect to the goods and services of a mental health nature, the EOB stated that the applicant was not suffering from any psychological impairment that would warrant a diagnosis as per the DSM-5 as a result of the accident and therefore the plan was also not reasonable and necessary from a psychological perspective. A further addendum report to review additional medical documentation dated December 18, 2020 from Dr. Syed and Dr. Nesterenko did not alter the physicians’ opinions and the respondent maintained their denial.

17The onus is on the applicant to show that each individual component that the treatment plan is comprised of is both reasonable and necessary. The only submissions made by the applicant on the reasonableness and necessity of this treatment plan is that the applicant continues to experience chronic pain and that her ongoing pain and symptoms stemming from injuries sustained as a result of the accident, clearly meet the criteria of a chronic pain condition.

18I find the proposed chronic pain program to be lacking in specificity to the applicant. While the Michael G. DeGroote Pain Clinic Interdisciplinary Initial Assessment dated May 19, 2019 (the “Initial Report”) noted that the applicant was complaining of left arm and shoulder pain, mid back pain, left and right foot pain and headache, it did not identify why this specific program would be beneficial to the applicant’s rehabilitation based on the report’s diagnoses of Somatic Symptom Disorder and Adjustment Disorder. The Initial Report concludes the applicant would “likely benefit” from participating in the program on a “part time basis” and notes that she wants to attend the program over six weeks to accommodate her part time work schedule.

19However, the plan does not explain how and if the applicant can be accommodated and/or what exactly the applicant would do over the six weeks, which, according to the treatment plan, was to last for four consecutive weeks and not six. In my view, it is not enough to state that the applicant will likely benefit from the program but to verify that the proposed plan will assist the applicant in her recovery to the injuries from the accident, to detail what the specific benefits will be, and how she will be accommodated given her work schedule. In my view, the scheduling was especially important in this case because the applicant had already not followed through with treatment recommendations from another pain clinic.

20In the same vein, the Initial Report notes that the applicant viewed her sleep problems and physical (somatic) symptoms as the most severe problems at this time and recommends a sleep test and sleep hygiene counselling but neither sleep testing nor sleep counselling were directly addressed in the proposed treatment plan. Nor was a sleep test done as part of the initial assessment which lasted 5.5 hours with three different health practitioners. As well, the report also recommended an MRI on the left shoulder, but it appears this was never done or provided to update the information in the report

21I also I question the breakdown of the amount of $12,200 in relation to the 20 proposed sessions over the four or six weeks. For example, I question what portion was allocated towards the physical treatment and what portion was for psychological services. The additional comments section of the treatment plan refers to a multitude of services including relaxation classes, hydrotherapy, six hours of structured activity, community outing, fitness sessions and numerous providers but there is no correlation to the amount requested and who will be providing each of these services and what will be the cost. Perhaps most importantly, there is no explanation of what the specific benefits to the applicant would be under each of these services. Notably, no services were allocated towards sleep counselling despite, when she was seen at the pain clinic for the initial assessment, difficulties with sleep was identified as her most severe problem.

22After reviewing all of the materials in evidence, I find it is still unclear why this particular four or six week program is necessary for the applicant’s recovery and how all of these services will provide greater benefit in her recovery than all of the other modalities including chronic pain services she has completed or been approved for to date. I note that the applicant has already been receiving physiotherapy for several years after the accident. As well, she was referred by Dr. Gwardjan to a pain clinic and attended the Minerva Comprehensive Pain Management Program.

23Around April 30, 2018, the applicant was assessed by Dr. S. Upadhye of the Minerva Comprehensive Pain Management Program to investigate her bilateral shoulder pain. Dr. Upadhye diagnosed chronic shoulder pain and also noted that fibromyalgia was present. A follow up appointment was arranged. On examination, Dr. Upadhye opted to start her on a trial of Meloxicam and recommended her as a candidate for trigger point, joint and bursa injections at this clinic. However, the applicant failed to follow through with the treatment recommendations.

24On this point, I found applicant’s affidavit and testimony confusing and lacking in detail. Her affidavit only briefly mentions that Dr. Gwardjan recommended treatment through a chronic pain program but does not mention that she attended the Minerva Comprehensive Pain Management Program with Dr. Upadhye. At the cross-examination on her affidavit, when she was questioned about this program, she responded that she stopped taking the Meloxicam and she was to be prescribed a different pain medication. The CNR note of Dr. Pinto dated July 19, 2018, however, states that she “was given Meloxicam by pain clinic but stop taking the OTC meds and using recreational THC.” The applicant further tried to explain this discrepancy that she was recommended to start taking THC but never started taking it.⁴ Amidst all these discrepancies, one thing was clear - that the applicant was seen at a pain clinic and recommended trigger point injections but never followed through with the recommendations.⁵

25As another example of the lack of correlation, I did not see any health practitioner recommend hydrotherapy. The applicant’s affidavit does not state that she requires hydrotherapy treatment and how this will assist her or for that matter refer in any way to the four week chronic pain program other than say in a very general way that her pain is worse, that she continues to suffer from anxiety and that she was diagnosed with somatic symptom disorder and adjustment disorder. As it is the applicant’s onus to prove that the treatment plan is reasonable and necessary, I find she has not met that onus.

26As well, in support of the reasonableness and necessity of the chronic pain program, under the heading – ‘Part IV - Position of the Applicant’ of the main submissions, the applicant relies only on the Psychology IE Report of Dr. A. Syed who concluded that the applicant is not suffering from any psychological impairment proposed treatment plan and no further treatment is warranted from a psychological perspective and the proposed treatment plan is not reasonable and necessary. The applicant submits that she reported pain affecting her neck, both shoulders, middle back, left arm, and both wrists to Dr. Syed and reported that her physical symptoms had been worsening since the index accident. She rated her pain 8 out 10 to Dr. Syed. Particularly, however, the applicant’s submissions do not provide any reasons as to why the applicant disagrees with Dr. Syed’s conclusions including that she has achieved maximum medical improvement from a psychological perspective, or the other reasons cited by Dr. Syed for her experiencing symptoms of depression and depression related to her granddaughter which triggered her feelings of sadness.

27As a further example of this lack of correlation, at para. 51 of the applicant’s submissions, the applicant states that the “evidence provided to date substantiates her claim that the pain she experiences as a result of the index collision has resulted in a functional impairment which has substantially limited in her ability to work” but there is no reference or corroboration what evidence the applicant is referring to. The Order specifically instructed the parties to make specific reference to the evidence.

28Similarly, at para. 52, the applicant’s submissions do not assist. The applicant again makes a general conclusion that “the above medical evidence is sufficient to show that, on a balance of probabilities, the Applicant may be experiencing symptoms necessitating intensive chronic pain assessment and treatment services” but never references what documentation supports this conclusion or explains in any detail why the specific treatment requested is reasonable and necessary for the applicant’s specific impairment. The applicant’s own Affidavit does not reference any exhibits or supporting medical information. At para. 12 she deposes that her family doctor recommended physiotherapy to deal with the flare up in her left arm but does not reference what the date of this note was and where I can find it or what doctor she is referring to. More is required to discharge the applicant’s onus.

29I do note that the applicant does refer to her family physician, Dr. Victoria Pinto, who has commented on chronic pain in the clinical notes and records and additional supporting records from Dr. Gwardjan, another treating physician, substantiating that the applicant has been assessed and followed for chronic pain issues. However, the family doctor’s CNRs do not demonstrate that the requested physical and psychological services are reasonable and necessary for the applicant’s impairments.

30On May 16, 2019, the applicant was also assessed by Dr. D. Kumbhare, physiatrist, who prepared a physiatry report dated August 1, 2019. The listed complaints were neck and shoulder pain. The applicant also reported to Dr. Kumbhare that she feels angry towards the driver that hit her and that she has feelings of driver/passenger anxiety and that she is experiencing feelings of forgetfulness. Dr. Kumbhare diagnosed chronic myofascial neck pain and flare of left shoulder pain causing left shoulder adhesive capsulitis and psychological distress and recommended a referral to a chronic pain program. However, Dr. Kumbhare does not consider that the applicant already attended at the Minerva Comprehensive Pain Management Program and did not follow through with the treatment recommendations.

31The above analysis involves consideration of the applicant’s evidence and submissions only and giving it appropriate weight. The claim could be decided on this basis alone. I turn now to the respondent’s submissions and the second reason for dismissing the claim.

32The applicant was seen by Dr. S. Taylor, physician, less than a year after the accident, on June 6, 2016, for an IE assessment to determine whether the applicant has sustained a “minor injury” and assess a chiropractic treatment plan (which is not part of this dispute). Dr. Taylor diagnosed whiplash grade II and lumbar strain and concluded that her injuries are “minor injuries” and that the proposed treatment will not be of any significant benefit to the applicant as her injuries have essentially healed and further treatment will not improve her outcome. Dr. Taylor also concluded that she has reached maximum medical recovery. The applicant did not directly address Dr. Taylor’s report in her submissions and the report stands essentially uncontested.

33I also find the evidence of Dr. Syed contained in the psychological IE Assessment Report dated November 14, 2019 credible and persuasive. Dr. Syed administered a wide array of psychometric testing and the tests generally fell in the normal range, suggesting the applicant answered in a forthright manner and she did not present an unrealistic or inaccurate impression. Dr. Syed noted that the applicant’s condition appears to have improved and she has achieved maximum medical improvement from a psychological perspective. He noted that although she exhibits some symptoms or depression due to her granddaughter’s condition, she is not suffering from any psychological impairment that would warrant a diagnosis as per the DSM-5 as a result of the accident. I prefer this conclusion especially when considering all the other evidence and over the conclusion reached in the Michael G. DeGroote Pain Clinic Interdisciplinary Initial Assessment report that diagnosed Somatic Symptom Disorder and Adjustment Disorder discussed earlier.

34Again, the applicant’s submissions do not directly challenge Dr. Syed’s report or his conclusions aside from stating that the applicant has never been provided with any raw data or answers for any self-administered questionnaires that form the basis of her scores on any of the psychometric testing that the respondent is relying upon to support its refusal to fund the disputed chronic pain services. However, Dr. Syed confirmed that the applicant’s scores on the validity measures in the psychometric testing fell within the normal range, so I was not certain on what basis the raw test data would assist. Moreover, it seems, that this was simply a production issue that could have been addressed prior to the hearing. I note that the Order states that the parties agreed at the case conference that an order listing the documents to be produced was not necessary, but any such exchange was to take place by December 31, 2020. In any event, it appears from the record no motion for production of raw test data was ever brought.

35The applicant was also seen on October 29, 2019 (over four years post-accident) by Dr. M. Nesterenko, physician, for a physical examination and to assess the proposed chronic pain treatment plan. Dr. Nesterenko prepared an IE report dated November 14, 2019 where she concluded that the applicant has achieved maximum medical improvement (MMI) with respect to her physical injuries from the accident and the physical components of the plan were not considered to be reasonable or necessary. Dr. Nesterenko noted that the applicant did not appear to be in any distress due to pain or being uncomfortable. Her physical examinations found the range of motion of her feet and ankles were all within normal limits without any discomfort even though she reported to Dr. Nesterenko that she experiences 4/10 pain to her right foot/ankle. She also reported 8/10 pain level in her neck and, on examination, neck rotation was mildly reduced with forward flexion, backward extension and lateral bending left and right all with normal ranges of motion. Similar to Dr. Syed’s report the applicant’s submissions do not challenge Dr. Nesterenko’s conclusion regarding the proposed chronic pain treatment plan.

36In my view, the previous treatments alleviated the applicant’s symptoms to a degree which makes the proposed chronic pain program redundant or unnecessary or were unrelated to the accident. For example, the applicant deposes at para. 16 of her affidavit that she does have full range of motion in her right shoulder. She reported to Dr. Boucher that initially sleep was quite poor but that it is generally well and improved significantly with the use of a therapy pillow.

37During the cross-examination on her affidavit, the applicant conceded that there were other factors in her life not related to the accident that cause her stress and psychological issues including worry and stress including potential abuse claims related to her granddaughter.⁶ This was consistent with Dr. Syed’s findings that although she exhibits some symptoms or depression it is due to her granddaughter’s condition and the treatment meted towards her prior to her adoption.⁷

38Similarly, following the IE assessment with Dr. Boucher in April 2018, Dr. Boucher diagnosed the applicant with WAD II and bilateral shoulder strains as a result of the accident. After Dr. Boucher was provided with additional family physician CNRs and prepared an addendum report dated October 17, 2018, his opinion remained unchanged, but he commented that the applicant’s current shoulder complaints are not accident-related but attributable to long standing degenerative shoulder pathology.

39Related to this point, I also found it difficult to reconcile how the applicant had such a long standing (over ten years) history of bilateral shoulder pain⁸ but she fails to mention this to Drs. Syed, Nesterenko or Taylor – or least this information is not found anywhere in their reports. For example, Dr. Nesterenko’s report dated November 14, 2019 indicates that the applicant reported that she has had no medical history of significance. Her affidavit does mention that prior to the collision she had an intermittent bilateral shoulder pain and that she had not experienced it for a long period of time prior to the accident. Although she deposes that the accident triggered a pain event, she does not provide further details or corroborating evidence of how serious this injury is.

40Finally, the respondent submits that the applicant has been inconsistent in her reporting of her accident-related pain complaints, which calls into question the credibility of her current pain complaints and the exact nature of her accident-related injuries. I agree. The applicant has been inconsistent in the reporting of her pain complaints. When she saw Dr. Nesterenko in October 2019, she complained of neck, back, left shoulder pain, wrist pain, hip pain, left and right knee pain, right foot/ankle pain. However, when she saw Dr. M. Boucher, she did not report any presence of pain in her wrists, hips, or right foot/ankle. Further, when she saw Dr. S. Taylor, she did not report of pain in her left shoulder, wrist, hips, knees or right foot/ankle with respect to the accident. I also note that she told Dr. Nesterenko that she broke and sprained her ankle over 10 years ago. Dr. Gwardjan’s consultation note of October 10, 2017 does mention a right ankle fracture ten years ago and that she was ambulating using a soft ankle brace. Drs. Taylor and Boucher’s main reports do not mention any prior injury with her ankle, nor does the Initial Assessment report (under the Past Medical History section) from the Michael DeGroote Pain Clinic dated May 19, 2019.

41Inconsistencies also revealed themselves during the applicant’s cross-examination of her Affidavit. During the cross examination, the applicant stated that immediately following the accident, she told paramedics she felt pain in her back, neck and chest.⁹ In her Affidavit at para. 6, the applicant deposed that immediately after the collision she had headache, shoulder and back pain and was transported to hospital. However, she admitted on cross-examination that she did not complain of shoulder pain at the time of the accident because she was not feeling it at that time.¹⁰

42At para. 18 of her Affidavit, the applicant deposes that in the first several months following the accident, she suffered from dizziness, headaches, post traumatic stress disorder, sleep problems, depression and anxiety. However, during her cross-examination, she conceded that she was not diagnosed with any psychological condition until 2019¹¹ (the accident was in August 2015), and she was never diagnosed with post traumatic stress disorder or depression.¹²

43Another inconsistency in the evidence was with respect to the applicant’s anxiety. At para. 19 of her affidavit she deposed that she continues to suffer with anxiety related to the accident. However, when she saw Dr. Syed on October 18, 2018 for an IE assessment, she told him that she denied experiencing any problems appearing overly anxious since the accident. Although, in cross-examination she denied ever telling this to Dr. Syed and explained that she told him that she was too anxious to drive.

44Overall, I found that there were numerous discrepancies in the evidence related to the applicant’s reporting of her pain complaints to various physicians especially when certain information in cross-examination was tested against the documentary evidence filed. I did not discount the applicant’s Affidavit and her testimony but, when faced with inconsistent evidence between the applicant’s testimony and the documentary evidence including the medical reports, I preferred the documentary evidence. In a case such as this, where many of the complaints are subjective and pain-related, the consistency and reliability of the applicant’s reporting and testimony is essential.

45The applicant cites S.T. v. Direct Insurance Company,¹³ submitting that this case is relevant because that matter addressed similar evidence to this application (i.e. in that case as here the applicant suffered from pre-existing shoulder pain before accident which was exacerbated and that the adjudicator considered the fact that even though the insurer’s assessor opined the applicant had reached maximal medical recovery, the applicant continued to state he was in significant pain). Further, I am not bound by the S.T. and the other Tribunal case law before me, as these cases are highly fact specific. As well, S.T. is distinguishable from this proceeding as it dealt with a minor injury guideline and whether a treatment plan for a chronic pain assessment was reasonable. Moreover, the adjudicator in S.T. did not identify any concerns related to the reliability of the applicant’s evidence.

46In conclusion, I find the multidisciplinary chronic pain treatment program not to be reasonable and necessary.

CONCLUSION and ORDER

47The applicant is not entitled to the treatment plan for a multidisciplinary chronic pain program in the amount of $12,580.00 and, as no benefits are overdue, no interest is payable. I dismiss the application.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635 (Div. Ct.) at paras. 20-24.
3. 3Para. 19 of applicant’s Affidavit dated January 22, 2021.
4. 4Transcripts Q. 69-79.
5. 5Transcript Q. 80.
6. 6Transcripts Q. 197, 198, 199 and 200.
7. 7Respondent’s Brief p. 268.
8. 8See note of Dr. Gwardjan dated March 6, 2018, that indicates a long standing, over ten-year history of bilateral shoulder pain.
9. 9Transcripts Q. 42-56.
10. 10Transcripts Q. 56.
11. 11Transcripts Q. 177.
12. 12Transcripts Q. 178.
13. 1317-005871 v Certas Direct Insurance Company, 2018 CanLII 115642 (ON LAT) and Reconsideration 17-005871 v Certas Direct Insurance Company, 2019 CanLII 76843 (ON LAT). [S.T.]