Seade v. Aviva Insurance Company, 2022 CanLII 106428

Citation: Seade v. Aviva Insurance Company, 2022 ONLAT 20-007300/AABS

Licence Appeal Tribunal File Number: 20-007300/AABS

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:

Juliana Seade

Applicant

and

Aviva Insurance Company

Respondent

DECISION

VICE-CHAIR: Beverly Brooks

APPEARANCES:

For the Applicant: Juliana Seade, Applicant Sevda Guliyeva, Paralegal

For the Respondent: Raji Kulen, Senior Litigation Specialist Michael Silver, Counsel

HEARD: By Way of Written Submission

BACKGROUND

1The applicant, Juliana Seade, was involved in an automobile accident on June 7, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).

2The applicant, who was denied certain benefits by the respondent, Aviva Insurance Company, submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

3The respondent initially characterized the applicant’s injuries as predominantly minor injuries and subjected her to the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit provided for a minor injury. The respondent indicated in its submission, however, that it agreed to no longer subject the applicant to the MIG and the funding limit. The respondent has consequently approved the psychological services treatment plan and partially approved one of the chiropractic services treatment plans.

4The onus is, therefore, on the applicant to demonstrate, on a balance of probabilities, that the remaining chiropractic services and the chronic pain assessment are reasonable and necessary.

ISSUES

5The following issues are to be decided:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and, therefore, subject to the MIG which limits the funding for medical and rehabilitation benefits to $3,500?

ii. Is the applicant entitled to a medical benefit in the amount of $2,734.03 for psychological services submitted in a treatment plan (“OCF-18”) dated June 20, 2019 by Mediwise Healthcare Centre?

iii. Is the applicant entitled to a medical benefit in the amount of $2,650.72 for chiropractic services submitted in an OCF-18 dated December 1, 2018 by Mediwise Healthcare Centre?

iv. Is the applicant entitled to a medical benefit in the amount of $2,596.52 for chiropractic services submitted in an OCF-18 dated June 24, 2019 by Mediwise Healthcare Centre?

v. Is the applicant entitled to a medical benefit in the amount of $2,456.81 for chiropractic services submitted in an OCF-18 dated June 6, 2020 by VIP Health Care Clinic?

vi. Is the applicant entitled to a medical benefit in the amount of $2,401.25 for a chronic pain assessment submitted in an OCF-18 dated August 30, 2019 by Q Medical?

vii. Is the applicant entitled to a medical benefit in the amount of $1,565.50 for a functional ability evaluation submitted in an OCF-18 dated March 5, 2022 by Q Medical?

viii. Is the applicant entitled to a medical benefit in the amount of $1,755.72 for a work site assessment submitted in an OCF-18 dated March 5, 2020 by Q Medical?

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

REsult

6Issues 1 and 2 have been resolved. Issue 3 has been partially resolved as the respondent has approved $2,185.12 leaving a balance of $465.60 outstanding.

7Given the recommendations of three chiropractors and her family doctor that the applicant undergo chiropractic treatments, as well as the specific goals of the chiropractic treatment plans, I find that the chiropractic treatments are reasonable and necessary.

8In light of the findings of the chronic pain assessment that was conducted by a chronic pain specialist, as well as an analysis that reveals the applicant meets at least four of the AMA chronic pain criteria, I find the chronic pain assessment reasonable and necessary.

9Given that there are no goals for the functional ability evaluation and that the applicant did not demonstrate how the functional ability evaluation would improve her probability of recovering from the accident, I find that the evaluation is not reasonable and necessary.

10Since the applicant did not demonstrate that the work site assessment would enable her to accomplish her essential work tasks more easily, I find that the work site assessment is not reasonable and necessary.

11I find that interest is payable pursuant to s. 51 of the Schedule on the amount that the applicant has already expended for the chiropractic treatments and the chronic pain assessment.

Analysis

12Given that the respondent has removed the applicant from the MIG, an analysis of whether she sustained a minor injury is not required. Instead, the applicant must demonstrate that the treatment and assessment plans are reasonable and necessary on a balance of probabilities.

Chiropractic Services

13Three weeks following the accident on June 28, 2018, the applicant sought the medical advice of her family physician, Dr. M. Adamson. Dr. Adamson advised the applicant to undergo physiotherapy treatments to address the pain she was experiencing in her right hip, right leg and right knee.¹ The applicant began chiropractic, physiotherapy, exercise and massage sessions at Mediwise Healthcare Centre on July 4, 2018 and attended a total of seventy-two treatments between July 4, 2018 and December 5, 2019.² On July 10, 2018, Dr. Adamson advised the applicant to continue physiotherapy because of the pain she was still experiencing in her neck, back and knee following the accident.³

14Two months after Dr. Adamson’s recommendation, Dr. K. Rakkar, a chiropractor, recommended a chiropractic treatment plan. Moreover, D. Lam, a chiropractor at Mediwise Healthcare Clinic, also recommended a chiropractic treatment for the applicant a month after Dr. Adamson’s recommendation. The advice of the applicant’s family doctor was provided thirteen days prior to Dr. A. Yu assessing the applicant and completing a Disability Certificate⁴ (which indicated that the applicant had pain in the thoracic spine and sprain and strain of the sacroiliac joint and lumber spine) for her. Dr. Adamson’s recommendations for the applicant appear to be in agreement with the three chiropractors’ views. Dr. Adamson referred the applicant to a number of healthcare specialists for tests and examinations throughout 2018. After Dr. Adamson received the results of the tests, she recommended that the applicant should continue her physiotherapy treatments.

15Dr. Yu, a chiropractor at the Mediwise Healthcare Centre, assessed the applicant on July 12, 2018, and noted that the applicant had injuries to the thoracic spine, lumbar spine, sacroiliac joint, muscle and tendon at the lower leg level and multiple structure of the knee. Dr. Yu completed a Disability Certificate for the applicant in which he noted that the applicant was “too symptomatic to return to work”⁵ and that she suffered a “substantial inability to perform housekeeping and home maintenance services”.⁶ Dr. Yu also noted that the applicant had psychological symptoms such as headaches, nervousness, dizziness and giddiness and, in his view, was in a state of shock and fatigue. Dr. Yu recommended that the applicant undergo a psychological assessment. The applicant consequently underwent a psychological evaluation pre-screen with Dr. Hardiner Mrahar, who recommended a full psychological evaluation. This evaluation was then conducted by Dr. B. Cook on June 3, 2019. During this evaluation, the applicant completed a pain patient profile which indicated above average scores with respect to depression, anxiety and somatization.⁷ Dr. Cooke recommended cognitive behavioural therapy, anxiety management techniques and pain management.⁸

16On September 27, 2018, the applicant was assessed by Dr. Rakkar. Orthopedic testing by Dr. Rakkar revealed pain in the applicant’s neck, low back, sacroiliac joints and the medial and lateral knee joints.⁹ Dr. Rakkar recommended a treatment plan which included stimulation of head and neck, stimulation of the back, hyperthermy for multiple body sites, chiropractic treatment for multiple body sites and exercise for the respiratory system.¹⁰ The goals of the program are to reduce pain, increase the applicant’s range of motion and enable the applicant to return to activities of normal living and work.¹¹ The plan identified barriers to recovery as stress, insomnia, fear avoidance behaviour and cardiovascular condition.¹² On Dec, 1, 2018 Dr. Rakkar noted that the applicant reported temporary relief from the chiropractic treatments that she had undergone.

17Dr. Rakkar prepared a second chiropractic treatment plan and reassessment report on June 24, 2019. Dr. Rakkar stated that the applicant was showing signs of mild improvement but that her left knee was “getting worse and she often walks with a limp.¹³ The second plan recommended similar activities to the first plan Dr. Rakkar prepared including stimulation of the muscles of the head and neck, stimulation of the muscles of the back, hyperthermy (multiple body sites), chiropractic treatment and exercise (multiple body sites).¹⁴ The goals of the proposed treatment are pain reduction, increased strength, increased range of motion and a return to normal living activities.¹⁵ In his Reassessment Report, Dr. Rakkar, stated that if the applicant’s injuries are not addressed, the applicant will “incur damaging long term effects”¹⁶ and will have a “limited quality of life”.¹⁷

18On June 15, 2020, Ms. N. Lam, a chiropractor at VIP Health Care Clinic, proposed a detailed chiropractic treatment which included manipulation of the hip joint, the sacroiliac joint, the pelvis, the spinal vertebrae, the muscles of the head, neck, hips and thigh as well as hyperthermy of the back, hip joint and shoulder joint and mobilization of multiple body sites.¹⁸ The goals of the chiropractic treatment plan are pain reduction and a return to the activities of normal living. This plan would address many of the issues from which the applicant is suffering.

19In her orthopedic surgery assessment dated August 27, 2019, Dr. Auguste, an orthopedic surgeon who conducted an insurer’s examination (“IE”) on the applicant, addressed two of the chiropractic treatments proposed by Mediwise Healthcare Center. Dr. Auguste stated that the treatment plan dated December 1, 2018 (issue 3) was reasonable and necessary as the applicant has not reached “maximal medical improvement”¹⁹ and because the applicant has clinical evidence of ongoing impairments related to the exacerbation of her pre-existing patellofemoral osteoarthritis²⁰. Dr. Auguste qualified her views of the treatment plan by emphasizing that this treatment plan “is partially reasonable and necessary at this time if focused on the left knee impairment”.²¹ Dr. Auguste, however, stated that massage therapy which is part of the treatment is not reasonable and necessary. She also added that the injuries listed in this OCF-18 are out of date and do not represent the applicant’s accident-related injuries which are limited to the bilateral knee contusions and an exacerbation of pre-existing left patellofemoral osteoarthritis.²² Moreover, Dr. Auguste opined that the second chiropractic treatment plan dated July 15, 2019 (issue 4) is “not reasonable and necessary as it would be redundant”²³.

20Given that the applicant’s family doctor is urging her to seek treatments for her right hip, leg and knee and that three chiropractors are recommending chiropractic services after they examined her, my view is that the chiropractic treatment plans are reasonable and necessary. Dr. Auguste, an orthopedic surgeon, recommended one chiropractic treatment but thought that another treatment would be redundant. It should be kept in mind that Dr. Auguste who conducted the IE spent a short time with the applicant. I prefer the recommendations and insights of the three chiropractors and her family doctor as they have spent far more time examining her. It should be noted that Dr. Rakkar, one of the chiropractors, warned that the applicant could suffer damaging long-term effects if the treatment was not undertaken. Dr. Rakkar not only examined the applicant, as did the other chiropractors, but he also prepared a detailed and customized chiropractic treatment plan for the applicant. I, therefore, prefer Dr. Rakkar’s assessment of the applicant as it is based on a more thorough analysis. In my view, more than one chiropractic treatment plan would not be redundant. These chiropractic sessions could be sequential as in a continuation of the same treatment which the applicant has found effective in the past.

Chronic Pain Assessment

21In addressing the issue of the reasonableness and necessity of an assessment, I note that the applicant bears the onus on a balance of probabilities, to show entitlement to the assessment. I also note that assessments, by their very nature, are speculative. There is a likelihood that an assessment will prove negative. Keeping this in mind, the applicant’s position is that there must be some suggestion that the condition may exist, and that further investigation is warranted.

22The applicant relies on Dr. Goldstein’s report dated November 3, 2019 to support her position that she suffers from chronic pain.²⁴ Dr. Goldstein, a chronic pain specialist, conducted a chronic pain assessment on the applicant on October 23, 2019 which was 16 months post-accident. At the time of the assessment, the applicant complained of bilateral knee pain, lower back pain, neck pain, headaches and right foot pain. The pain in the bilateral knees, lower back and neck was described by the applicant as intermittent and as ranging in intensity from 5/10 to 9/10.²⁵ Dr. Goldstein noted that the applicant was using a cane, wearing a knee brace on her left knee, taking frequent breaks when performing her household chores, and using safety bars in the washroom. He also reported that both her knees were swollen, painful, and had a limited range of motion. Dr. Goldstein diagnosed the applicant with “chronic headaches attributed to whiplash injury, chronic cervical and lumber spinal pain, chronic bilateral knee pain, probable exacerbation of pre-existing bilateral osteoarthritis of the knees, chronic pain and chronic spinal deconditioning”.²⁶

23The respondent refers to the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”) and submits that the applicant does not meet at least three of the six criteria²⁷ under the AMA Guides. In other cases that have been decided by the Tribunal, including MVM v. Aviva²⁸, the AMA Guides were used as criteria against which chronic pain should be assessed. According to the AMA Guides at least three of six criteria should be met to establish chronic pain syndrome. I acknowledge that the applicant is not required to satisfy the criteria in the AMA Guides in order to be successful, but I find that it is a helpful guide in assessing whether she has a chronic pain condition. These criteria include.

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

ii. excessive dependence on healthcare providers;

iii. secondary physical deconditioning due to disuse and fear-avoidance of physical activity due to pain;

iv. withdrawal from one’s social milieu, including work, recreation and other social contacts;

v. failure to restore pre-injury functions after a period of disability such that physical capacity is insufficient to pursue work, family or recreational needs;

vi. and the development of psychosocial sequelae after the initial incident including anxiety, fear-avoidance, depression or non-organic illness behaviours.

24I find that a chronic pain assessment is reasonable and necessary because the applicant exhibits at least four of the six criteria above, making an assessment of her condition to be reasonable and necessary. The applicant has been heavily medicated by prescription drugs (criterion 1) including Metoprolo , Micardis, Nifedipine, Spironolactone and Norvasac²⁹ as well as extra strength Tylenol. At times she has been taking Tylenol 23 times a day.³⁰ Dr. M. Goldstein, a chronic pain specialist at Q Medical, who examined the applicant stated that her the chronic pain symptoms have led to an inability to participate in some of her social and recreation activities, complete household maintenance chores and to accomplish the essential tasks of her employment without pain”³¹(criterion 4). The applicant has not been able to restore her pre-injury functions as she did not return to her previous job as a dietary assistant in a seniors’ residence (criterion 5). Furthermore, she was diagnosed with anxiety, depression and fear avoidance (driving) after the accident on June 3, 2019 by Dr. B. Cooke, a psychologist (criterion 6) during his psychological assessment of the applicant on June 3, 2019.

25The chronic pain assessment proposed by Q Medical includes a total body assessment, documentation preparation, and transportation to the treatment.³² The goals of the chronic pain assessment are to determine the biological mechanism of pain through documentation of pain location, intensity, quality, onset/duration, functional abilities and psychological factors. The evaluation includes a review of medical history, prescribed medications and medical testing. In addition, the treatment plan emphasizes the importance of an early treatment strategy that controls pain intensity and improves outcomes.³³

26It should be noted that s.15(2) of the schedule states that the respondent is only liable for authorized expenses which are set out under s.3(1). These provisions allow for a 50-kilometer deduction unless the applicant is CAT impaired. This means that the applicant will not receive the entire amount of the treatment plan i.e. there will be a small deduction for the 50-kilometer deductible.

27The respondent maintains that Dr. Goldstein provided a diagnosis of chronic pain without giving a thorough analysis of the issue. In his report, however, Dr. Goldstein sets out the necessary background information and the evidence of the applicant’s chronic pain issues. As noted above, the applicant meets four of the six AMA chronic pain criteria. I have, therefore, concluded that the chronic pain assessment proposed by Q Medical is reasonable and necessary. Since I have found that the chronic pain assessment is reasonable and necessary, the respondent is liable to pay for the chronic pain assessment. As the applicant has already undergone the chronic pain assessment, the applicant is owed interest, pursuant to s. 51 of the Schedule, on the cost of the chronic pain assessment.

Functional Abilities Evaluation

28The functional abilities evaluation dated March 2, 2022 includes documentation support activity, preparation services, assessment (total body), a test of the musculoskeletal, counselling and promoting health, documentation support activities, interpretation services and transportation to the treatment centre.³⁴ The goals of the functional abilities assessment are stated as “other”. No details are provided even though the form instructions direct the individual completing the form to “please specify”.

29The applicant did not address this issue in her submission. Given that she did not address this issue, it is difficult to determine whether it is reasonable and necessary.

30The respondent claims that the functional ability evaluation is not reasonable or necessary . Dr. Auguste, who conducted an orthopaedic assessment of the applicant on July 15, 2020 (twenty-four months after the accident), concluded that the applicant “has probably reached maximal medical recovery with respect to the knee contusion injuries sustained in the subject the accident.³⁵ She concludes that the proposed treatment and assessment plans are not reasonable and necessary for the applicant’s accident-related injuries at this time. Other physicians, however, as noted above, are not of that view and several health care professionals have stated it is unlikely that the applicant has reached maximal medical recovery. Moreover, when the respondent’s IE assessor, Dr. Auguste, examined the applicant on July 15, 2020, twenty-four months after the accident, she concluded that the applicant “has likely not reached maximal medical recovery”.³⁶

31It should be noted that there are no defined goals for this treatment. Given that the evaluation has no stated goals and that the applicant did not address this issue in her submissions, the applicant has not met her onus to demonstrate that the evaluation is reasonable and necessary.

Work Site Assessment

32The work site assessment plan, dated March 2, 2020, proposed by Q Medical includes the documentation activity for the claim form, the preparation services, an environmental assessment, preparation service, document support activity, an interpretation service and transportation to the treatment.³⁷ The goals of the plan are to enable the applicant to return to work and normal living activities.³⁸ The plan indicates that there are no barriers to achieving the goals.

33The applicant did not address this issue in her submission. Given that she did not address this issue, she does not meet her onus to demonstrate that the assessment is reasonable and necessary.

CONCLUSION

34I find that the chiropractic sessions and the chronic pain assessment to address the applicant’s physical limitation issues and the chronic pain assessment are reasonable and necessary for the reasons outlined above.

35The applicant did not meet her onus to demonstrate that the functional abilities evaluation and the work site assessment are reasonable and necessary. For these reasons, I am of the view that the functional abilities evaluation and the work site assessment are not reasonable and necessary.

36Interest is payable pursuant to s. 51 of the Schedule on the cost of the goods and services in the reasonable and necessary treatment plans.

Footnotes

1. 1Applicant’s Document Brief, Clinical Notes and Records, Dr. Adamson, Tab 7, page 13.
2. 2Applicant’s Document Brief, Mediwise Healthcare Centre, Sign In Sheets, pages 6 to 7 and 10.
3. 3Applicant’s Document Brief, Clinical Notes and Records, Dr. Adamson, Tab 7, page 13 to 14.
4. 4Applicant’s Document Brief, Mediwise Healthcare Clinic, Disability Certificate, page to 7.
5. 5Applicant’s Document Brief, Disability Certificate, July 12, 2018, Dr. Yu, Tab 4, page 3.
6. 6Applicant’s Document Brief, Disability Certificate, July 12, 2018, Dr. Yu, Tab 4, page 3.
7. 7Applicant’s Document Brief, Psychological Assessment Report, Dr. Cooke, Tab 14, page 8.
8. 8Applicant’s Document Brief, Psychological Assessment Report, Dr. Cooke, Tab 14, page 10.
9. 9Applicant’s Document Brief, OCf-18, Chiropractic Treatment, Dr. K. Rakkar, Tab 11, page 22.
10. 10Applicant’s Document Brief, OCF-18, Chiropractic Treatment, Dr. K. Rakkar, Tab 11, page 19.
11. 11Applicant’s Document Brief, OCF-18, Chiropractic Treatment, Dr. K. Rakkar, Tab 11, page 17.
12. 12Applicant’s Document Brief, Reassessment Report, Dr. Rakkar, Tab 11 page 57.
13. 13Applicant’s Document Brief, OCF-18, Reassessment Report Dr. Rakkar, Tab 11, page 46.
14. 14Applicant’s Document Brief, OCF-18, Chiropractic Treatment, Dr. Rakkar, Tab. 11, page 56.
15. 15Applicant’s Document Brief, OCF-18, Chiropractic Treatment, Dr. Rakkar, Tab 11, page 54.
16. 16Applicant’s Document Brief, OCF-18, Reassessment Report, Dr. Rakkar, Tab 11, page 59.
17. 17Applicant’s Document Brief, OCF-18, Reassessment Report, Dr. Rakkar, Tab 11, page 59.
18. 18Respondent’s Document Brief, OCF-18, Chiropractic Treatment, Dr. Lam, Tab. 9 page 8.
19. 19Respondent’s Document Brief, Treatment and Assessment Plan Orthopedic Surgery Assessment, Tab 12, page 5.
20. 20Respondent’s Document Brief, Treatment and Assessment Plan Orthopedic Surgery Assessment Report, Tab 12, page 6.
21. 21Respondent’s Document Brief, Treatment and Assessment Plan Orthopedic Surgery Assessment Report, Tab 12, Page 5.
22. 22Respondent’s Document Brief, Treatment and Assessment Plan Orthopedic Surgery Assessment Report, Tab 12, page 5 and 6.
23. 23Document Brief, Treatment and Assessment Plan Orthopedic Surgery Assessment Report, Tab 12, Page 5.
24. 24Applicant’s Document Briefs, Chronic Pain Assessment Report, Dr. Goldstein, Tab 15, page 1.
25. 25Applicant’s Document Briefs, Chronic Pain Assessment Report, Dr. Goldstein, Tab 15, page 5.
26. 26Applicant’s Document Brief, Chronic Pain Assessment, Dr. Mark Goldstein, Nov. 3, 2019, Tab 15, page 15.
27. 27Respondent’s Submission, page 12.
28. 28MNM v. Aviva Ins. Co. , 2018 CanLII 98282 (LAT), at paras. 6 to 8.
29. 29Respondents’ Document Brief, Clinical Notes and Records, Dr. McIntyre Tab 4, page 49.
30. 30Respondents’ Document Briefs, Clinical Notes and Records, Dr. Adamson, page 4 and page 7.
31. 31Applicant’s Document Briefs, Chronic Pain Assessment Report, Dr. Goldstein, Tab 15, page 14.
32. 32Respondent’s Submission, Tab 11, page 10.
33. 33Respondent’s Submission, Tab 11, page 8.
34. 34Respondent’s Document Brief, OCF-18, Functional Limitations Assessment, Tab 15, page 8.
35. 35Applicant’s Document Brief, Orthopaedic Surgery Assessment Report, Dr. J. Auguste, Tab 18, page 5.
36. 36Respondent’s Document Brief, Orthopaedic Surgery Assessment Report, Dr. J. Auguste, Tab 16, page 13.
37. 37Respondent’s Document Brief, OCF-18, Work Site Assessment, Tab 17, page 8.
38. 38Respondent’s Document Brief, OCF-18, Work Site Assessment, Tab 17, page 8.