Mirzaesmaeeli v. Aviva Insurance Canada, 2022 CanLII 117082

Licence Appeal Tribunal

Citation: Mirzaesmaeeli v. Aviva Insurance Canada, 2022 ONLAT 20-014334/AABS

Licence Appeal Tribunal File Number: 20-014334/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:

Alireza Mirzaesmaeeli

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

VICE-CHAIR:

Beverly Brooks

APPEARANCES:

For the Applicant:

Alireza Mirzaesmaeeli, Applicant

Saloumeh Baghbani, Counsel

For the Respondent:

Arsheena Harripal, Accident Benefits Adjuster

Emily Hill, Counsel

HEARD:

By Way of Written Submissions

REASONS FOR DECISION

BACKGROUND

1Alireza Mirzaesmaeeli, the applicant, was involved in an automobile accident on May 8, 2017, 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 him to the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit provided for a minor injury. The respondent, however, conceded that the applicant sustained an injury that was not minor and removed the applicant from the MIG on January 8, 2021.

4Given that the respondent has removed the applicant from the MIG, an analysis of whether he 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.

ISSUES

Preliminary Issue

5The respondent has requested that the following preliminary issue be addressed:

I. Should the reports and clinical notes and records of Dr. R. Haji, the applicant’s family physician, be omitted from the hearing record because the applicant never provided an Acknowledgement of Expert Duty Form, signed by Dr. Haji? The issue is whether this information should not be considered or given less weight because the applicant has not provided all of the information required under Rule 10.2 of the LAT Rules of Practice¹ (“Rules”) including submitting a signed prescribed statement from the applicant’s family doctor described in clause (b) and his family doctor’s CV?

Substantive Issues

6The substantive issues to be decided are as follows:

1. Is the applicant entitled to medical benefits recommended by HealthMax Physiotherapy, as follows:

i. $2,753.72 for chiropractic services, proposed in an OCF-18 treatment plan (plan) dated February 7, 2019;

ii. $3,179.34 for chiropractic services proposed in a plan dated March 14, 2019;

iii. $2,460.00 for a chronic pain assessment proposed in a plan dated July 24, 2019;

iv. $2,753.72 for chiropractic services proposed in a plan dated February 14, 2020;

v. $1,600.00 for a cervical spine MRI proposed in a plan dated January 23, 2020;

vi. $1,400.00 for a lumbar spine MRI proposed in a plan dated January 23, 2020.

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

3. Is the applicant entitled to an award under Regulation 664?

4. Is the applicant entitled to the reimbursement of the costs by the respondent?

RESULT

7Issue 1 is no longer in dispute as the respondent removed the applicant from the MIG.

8The applicant withdrew issues 1(v) and 1(vi).

9On the remaining issues, I find that the chiropractic services (issues 1(i), 1(ii) and 1(iv)) are not reasonable and necessary. I, however, find that that the chronic pain assessment (issue 1(iii)) is reasonable and necessary. The applicant is, therefore, entitled to the chronic pain assessment and the interest on the amount of the chronic pain assessment

10As the respondent has not unreasonably withheld or delayed the payment of benefits, the applicant is not entitled to a special award.

11With respect to costs, costs will not be awarded to the applicant as I am of the view that the respondent has not acted in an unreasonable, frivolous or vexatious manner.

PRELIMINARY ISSUE

12The respondent claimed that Dr. Haji’s reports at Tabs 1 and 2 of the applicant’s reply submission are expert reports and that this information should not be considered, or it should be given less weight. It submits that Rule 10.2 of the Rules requires that expert reports should be accompanied by a signed prescribed statement and a curriculum vitae. The applicant, however, submits that the information at Tabs 1 and 2 is not an expert report because Dr. Haji does not have special knowledge through training or experience and, therefore, Rule 10.2 does not apply.² The applicant explains that Dr. Haji is not an expert given the definition of an expert in Rule 10.2 of the Rules.

13I disagree with the applicant and find that Dr. Haji is an expert witness to this hearing within the meaning of this term under the Rules. Dr. Haji is a family doctor retained for the purpose of providing medial evidence. In his letter to the applicant³, Dr. Haji provides his medical findings regarding the applicant’s neck and back impairments. Dr. Haji is, therefore, providing factual information, rather than a medical opinion. Therefore, the applicant is not required to provide an Acknowledgement of Expert’s Duty form and the information at Tabs 1 and 2 of the applicant’s reply submission was considered and was not given less weight as requested by the respondent.

Analyisis

14The applicant must demonstrate that the treatment and assessment plans are reasonable and necessary on a balance of probabilities. The following analysis determines whether the chiropractic services and a chronic pain assessment are reasonable and necessary. This analysis explains why the assessment of Dr. E. Silver, who maintains that the chiropractic services are not required for the applicant, is preferred to the diagnosis of the applicant’s family doctor who claims that the chiropractic services would provide some relief for the applicant from his head and neck pain. This analysis also explains that the chronic pain assessment is reasonable and necessary as the applicant has been diagnosed by several healthcare professionals with chronic pain. Given these diagnoses, it is necessary to know the extent of the chronic pain and its source. The chronic pain assessment which was undertaken a year ago by Dr. K. Rod, a chronic pain specialist who works in the Toronto Poly Centre, was an important step in the applicant’s recovery process from his accident-related injuries.

Chiropractic Services

15HealthMax proposed three chiropractic and laser treatment plans (dated February 7, 2019, March 14, 2019 and February 14, 2020) to alleviate the applicant’s head and neck pain.⁴ The goals of all three chiropractic treatment plans are the same -- pain reduction, an increased range of motion and a return to activities of normal living and modified work activities.⁵

16In my view, the chiropractic treatment plans proposed by Healthmax are not reasonable and necessary.

17The HealthMax patient notes illustrate that these chiropractic and laser treatments have not provided effective pain relief for the applicant in the past and have not led to a significant reduction in his neck and back pain. The patient notes track the applicant’s progress over a fourteen-month period from November 3, 2018 to December 2, 2019. These fourteen months of notes indicate that at the end of this period the applicant reported feeling less pain and discomfort but still experienced intermittent neck and back pain as well as headaches.

18Dr. Silver assessed the applicant on June 6, 2019, and concluded that he sustained mechanical neck pain and myofascial low back pain which were a result of strain and sprain injuries to his neck, upper back and lower back.⁶ In contrast, Dr. Haji recommends chiropractic treatments without analyzing the impact that the chiropractic treatments have had on the applicant since the accident. Dr. Silver is more qualified to diagnose the applicant because he is internationally certified in impairment and disability ratings by the American Board of Forensic Professionals. Moreover, Dr. Silver’s conclusions in his two reports dated June 19, 2019 and August 19, 2019 are consistent with the comments in HealthMax’s notes which state that the chiropractic treatments have not had much impact on the applicant’s head and neck pains after several years of treatments. In the report, Dr. Silver opines that the chiropractic treatments are not reasonable or necessary as the applicant has reached “maximum recovery from clinical-based therapies related to physical injury”.⁷ I prefer the opinion of Dr. Silver to that of Dr. Haji as Dr. Silver’s opinion is based on an analysis of the impact of the chiropractic treatments since the accident. In comparison, Dr. Haji does not provide details as to how the chiropractic treatments will reduce the applicant’s head and neck pain and does not take the applicant’s medical history into consideration i.e. the lack of impact that the chiropractic treatments have had on the applicant’s head and neck pain in the past.

19On November 3, 2017 Dr. M. Curcio, a chiropractor at HealthMax Physiotherapy and the applicant’s chiropractor, diagnosed the applicant with a 25% decrease in his flexion and extension of his cervical lumbar and thoracic and lumbar spine.⁸ In subsequent HealthMax notes, Dr. Curcio states that the applicant suffers from hypertoxicity in the cervical spine erectors, sub-occipitals, levator and trapezius.⁹

20Dr. Curcio’s diagnosis was issued as soon as the applicant started his treatments at HealthMax but seven months after the accident occurred. The applicant’s submission indicates that on February 15, 2018, Dr. Curcio diagnosed the applicant with cervical, lumber and thoracic facet syndrome, cervicogenic headaches, degenerative disc disease of the lumbar and cervical spine and dorsalgia.¹⁰

21The notes from HealthMax Physiotherapy illustrate the lack of progress of the applicant’s recovery in spite of the chiropractic and laser treatments for his head and neck pain. In November of 2017, the applicant was reporting neck and upper, mid and low back pain.¹¹ On December 14, 2018 and January 11, 2019, the applicant reported that he felt less pain and discomfort ¹² because of the treatments but that he was still experiencing some neck and back pain. The applicant continued to report neck pain and intermittent headaches on February 27, 2019.¹³ Although the treatments seem to have alleviated some of the applicant’s pain, he still has the same symptoms after three years of continuous treatment. Dr. Silver’s second Insurer’s Examination (“IE”) report, dated August 14, 2020 noted that the applicant claimed his neck and back pain were worse during the second examination conducted on August 6, 2020, than during the first examination on June 6, 2019.¹⁴

22The respondent maintains that the applicant’s accident-related injuries were minor, and the applicant’s behaviour immediately after the accident and his timing with respect to seeking medical advice and treatments demonstrate that his injuries are minor. The applicant drove away from the scene following the accident and did not go to the hospital. Six months after the accident, the applicant started chiropractic and laser treatments for head and neck pain at HealthMax Physiotherapy. Both the applicant and the respondent state in their submissions that the applicant began chiropractic and laser treatments on November 3, 2017 and the HealthMax notes submitted by the applicant start at November 3, 2017.¹⁵ However, Dr. Silver stated in his first report that the applicant was receiving chiropractic and laser treatments three times a week at the time of the accident because of a previous accident and that the applicant continued his treatments at HealthMax at the same frequency after the accident.¹⁶ Dr. Silver’s statement, however, is contradicted by information in both the applicant’s and the respondent’s submissions which clearly state that the date the applicant began treatment was November 3, 2017. These contradictory statements matter because if Dr. Silver’s statement is true the respondent can not claim that the applicant waited six months before seeking chiropractic treatment and that, therefore, his injuries are minor. There are, however, no clinical notes and records from HealthMax predating the accident, so it is not possible to determine whether the applicant waited as long as six months after the accident to undergo chiropractic treatments. In fact, there are no clinical notes and records predating November 3, 2017. It is, therefore, unclear as to whether the applicant waited as long as the respondent claims he waited for chiropractic treatments.

23The applicant sought treatment for his injuries from Dr. Haji, a family physician, on June 25, 2019, about two years after the accident. The applicant was examined by Dr. Haji on October 17, 2019 for lower back and neck pain which the applicant told Dr. Haji had been ongoing since the accident. On November 28, 2019 the applicant saw Dr. Haji again about a pain in the right leg which the applicant stated began while walking two weeks before his appointment. On November 18, 2020, Dr. Haji assessed the applicant’s recovery progress and indicated that the applicant “suffers from pre-existing degenerative disc disease, multilevel arthrosis and degenerative joint disease which prevent him from achieving maximal recovery”¹⁷. Dr. Haji then stated that an individual with these pre-existing conditions “will sustain more than soft tissue injuries when this type of trauma (the motor vehicle accident) is applied to a degenerated spine”¹⁸. Dr. Haji noted that the applicant’s injuries are more serious than soft tissue injuries. Although Dr. Haji describes the applicant’s injuries as more serious than soft tissue injuries, it appears that the applicant waited for two years before seeking the advice of a family physician.

24As noted previously, I prefer the opinion of Dr. Silver to that of the applicant’s family physician, Dr. Haji. Dr. Silver’s first IE report dated June 19, 2019 concluded that the applicant suffered from strain and sprain injuries to the neck and back¹⁹ but that the chiropractic treatment was not reasonable or necessary because the applicant had achieved maximum medical recovery.²⁰ Dr. Silver conducted a second IE on the applicant on August 6, 2020 and concluded that in spite of receiving chiropractic and laser treatments for three years the applicant’s neck and back complaints were worse than during his first examination on June 6, 2019.²¹ In his second report dated August 14, 2020, Dr. Silver concluded that given the time that had passed since the accident these impairments were not related to the accident. He again found that the treatment plan was not reasonable or necessary. Dr. Silver also stated that given the applicant has received significant amounts of clinic-based therapy since the accident which occurred three years ago, his conclusion was that the applicant had reached maximal medial recovery.²² I agree with Dr. Silver’s findings as the HealthMax notes illustrate that the physiotherapy treatments have not had much of an impact on reducing the applicant’s neck and back pain.

Chronic Pain Assessment

25In 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 possibility that the assessment will prove negative. Keeping this in mind, I accept the applicant’s position that there is some suggestion that the specific condition in question exists and that further investigation may generate additional information.

26According to the chronic pain assessment OCF-18, it seems that Dr. Rod works for both the Toronto Poly Clinic and HealthMax Physiotherapy Clinic.²³ Although the applicant’s submission does not directly state that the chronic pain assessment for which the applicant is seeking approval has already been completed, the results of Dr. Rod’s chronic pain assessment conducted on July 7, 2021 are available. The applicant is now seeking a finding that the chronic pain assessment is reasonable and necessary so that the respondent will cover the costs.

27The applicant has been diagnosed with chronic pain on a number of occasions by several different physicians. Dr. Haji diagnosed the applicant with chronic neck and back pain²⁴ on June 25, 2019 and then with chronic lower back and neck pain on October 17, 2019.²⁵ In his progress report of November 18, 2020, Dr. Haji recommends “the involvement of a chronic pain specialist”²⁶. Dr. Haji specifically diagnosed the applicant with disc herniation and chronic lower back pain and on February 20, 2021, referred the applicant to Dr. K. Rod, a chronic pain specialist at the Toronto Poly Clinic for treatments. Dr. Haji also referred the applicant for an MRI and prescribed Vimovo (prescription medicine for osteoarthritis and rheumatoid arthritis). The MRI indicated mild multilevel degenerative changes, impingement of the traversing right SI (sacral spinal) nerve root (causes lower back pain) as well as an annular tear. These developments are being summarized to emphasize that the applicant has been diagnosed with chronic pain by a number of doctors.

28Dr. Rod and Dr. Haji agreed that the applicant suffers from chronic pain. Dr. Haji referred the applicant to Dr. S. Harris, an orthopedic surgeon, for orthopedic surgery on May 11, 2021, as a result of S1 nerve impingement with radicular symptoms.²⁷ In the referral, Dr. Haji states that the applicant suffers from chronic neck and back pain. The applicant underwent a chronic pain assessment conducted by Dr. Rod on July 7, 2021 and received a diagnosis of chronic post motor vehicle accident lumbar spine S1 disc injury with nerve root impingement, chronic cervicogenic headaches and chronic cervical sprain.²⁸ Dr. Rod recommended that he receive “Baclofen, CBD oil, physiotherapy (active, passive and laser) and injections (nerve block injections, trigger point injections, Botox, epidural and steroid injections)”²⁹.

29Dr. Curcio, who has been the applicant’s chiropractor since 2017, is of the view that the proposed chronic pain assessment is reasonable and necessary. Dr. Curcio endorsed the chronic pain treatment plan by noting that such a plan will help him and the other medical practitioners who are treating the applicant better understand the patient’s current state and it will identify barriers so that the appropriate recommendations can be made.³⁰

30The chronic pain assessment proposed by HealthMax Physiotherapy emphasizes that such an assessment will help to develop a more detailed understanding of the applicant’s current physical state. The comments at the end of the report point out that it has been two years since the accident and that the applicant is continuing to experience pain in his neck, upper and lower back, and ongoing headaches. The chronic pain assessment included a detailed description of treatments to date, a subjective evaluation of current complaints including orthopedic, neurological and functional testing and an evaluation of pharmaceutical interventions to date. The goals of the chronic pain assessment are to reduce pain, increase strength, increase the range of motion and to enable the applicant to return to the activities of daily living.³¹ The treatment plan was denied because Dr. Silver, who conducted the IE on the applicant on June 6, 2019, stated that the applicant only suffered strain and sprain injuries as a result of the accident and that the applicant has already reached maximal recovery.

31In other cases that have been decided by the Tribunal, including MVM v. Aviva³², the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”) were used as criteria against which chronic pain should be assessed. It should be noted that the AMA Guides are only a tool to help analyze chronic pain. According to the AMA Guides at least three of six criteria should be met to establish chronic pain syndrome. These criteria include:

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

32In my view, the applicant qualifies as a chronic pain sufferer because he meets at least three of the above criteria. The chronic pain symptoms have led to an inability to participate in some of his work, social and recreation activities which are limited due to pain (criterion 4). At the time of the accident, the applicant was employed full time as a chiropractor and was a co-owner of the Healthmax Physiotherapy. He has not restored his pre-injury functions as he did not return to treating patients after the accident but rather can only handle administrative work at a health care clinic. Dr. Silver stated in his second IE report dated August 14, 2020, that the applicant returned to his pre-accident employment but in an administrative role rather than as a chiropractor. Dr. Silver noted in his report that the applicant occasionally treated patients when another chiropractor was temporarily absent but that working as a chiropractor provoked the applicant’s pain.³³ He has not been able to cut grass, remove garbage and shovel snow since the accident (criterion 5). He was diagnosed with anxiety and depression after the accident by Leanne Wagner, a psychological associate (criterion 6).

33The applicant’s family physician, a chronic pain specialist and his chiropractor have all diagnosed the applicant with chronic pain. When the applicant underwent the chronic pain assessment, he was diagnosed with “chronic post MVA injury lumber spine S1 disc injury with nerve root impingement, chronic cervicogenic headaches and chronic cervical sprain”³⁴ and given a prescription for botox and steroid injections. Given the number of physicians who diagnosed the applicant with chronic pain, the outcome of the chronic pain assessment by Dr. Rod and the AMA Guide chronic pain guidelines, I am of the view that the chronic pain assessment is reasonable and necessary.

AWARD

34I find that the respondent’s behaviour was not unreasonable. It did not go beyond what is reasonable and equitable. Its conduct was not imprudent, stubborn, inflexible, unyielding or immoderate with respect to withholding or delaying payments to the applicant.

CostS

35The applicant requested that costs be awarded to him because, in his view, the respondent denied the issues in dispute without reliable evidence and this denial resulted in the applicant applying to the Tribunal. The applicant does not provide any details to justify his claim for costs. The issue of awarding costs is not addressed by the respondent in his submission.

36I am of the view that costs should not be awarded to the applicant. Costs are awarded if a party to the proceedings has acted unreasonably, frivolously, vexatiously or in bad faith. The respondent, however, has not missed any deadlines, has not failed to disclose any information and has acted in a respectful and civil manner.

CONCLUSION

37The above analysis concludes that the treatments for chiropractic services are not reasonable and necessary but that the chronic pain assessment is reasonable and necessary and that the applicant is entitled to the chronic pain assessment.

38Given that the applicant is entitled to the chronic pain assessment, the applicant is entitled to interest on the overdue payment of the chronic pain assessment benefit.

39The applicant is not entitled to an award or costs.

Footnotes

1. 1Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended, Section 10.2 Expert Witness (Identification and Disclosure), Page 17.
2. 2Applicant’s Reply Submission, page 4.
3. 3Applicant’s Document Brief, Letter from Dr. Haji to applicant dated May 8, 2017, Tab 2, page 1.
4. 4Applicant’s Document Brief, Tabs 9, 10 and 13, page 7.
5. 5Applicant’s Document Brief, Tabs 9, 10, and 13, page 7.
6. 6Respondent’s Submission, Assessment Report, Dr. Silver, page 6 (page 34 of the submission).
7. 7Respondent’s Submission, Assessment Report, Dr. Silver, page 7 (page 122 of the submission).
8. 8Applicant’s Document Brief, HealthMax Notes, Tab 14, page 1.
9. 9Applicant’s Document Brief, HealthMax Notes, Objective Findings, pages 17 to 48.
10. 10Applicant’s Document Brief, HealthMax Notes, Tab 14, page 13.
11. 11Applicant’s Document Brief, Tab 14, page 1.
12. 12Applicant’s Document Brief, Tab 14, page 44.
13. 13Applicant’s Document Brief, Tab 14 page 47.
14. 14Respondent’s Submission, Physician Assessment Report, Dr. Silver, page 10 (page 56 of submission).
15. 15Applicant’s Document Brief, HealthMax Notes, Tab 14, page 1.
16. 16Respondent’s Submission, Assessment Report, Dr. Silver, page 3 (page 31 of submission).
17. 17Applicant’s Document Brief, Progress Report, Dr. Haji, Tab 2, page 1.
18. 18Applicant’s Document Brief, Progress Report, Dr. Haji, Tab 2, page 1.
19. 19Respondent’s Submission, Physician Assessment Report, Dr. Silver, Tab 4, page 6 (page 34 of submission)
20. 20Respondent’s Submission, Physician Assessment Report, Dr. Silver, Tab 4, page 7 (page 35 of submission).
21. 21Respondent’s Submission, Physician Assessment Report, Dr. Silver, page 10 (page 56 of submission).
22. 22Respondent’s Submission, Physician Assessment Report, Dr. Silver, page 10 (page 56 of submission).
23. 23Applicant’s Document Brief, OCF-18, Dr. Curio, July 24, 2019, page 9.
24. 24Applicant’s Document Brief, Clinical Notes and Records of Dr. Haji, Tab 19, page 3.
25. 25Applicant’s Document Brief, Clinical Notes and Records of Dr. Haji, Tab 19, page 4.
26. 26Applicant’s Document Brief, Progress Report, Dr. Haji, Tab 2, page 1.
27. 27Applicant’s Submission, page 10.
28. 28Applicant’s Document Brief, Dr. Rod’s Report, Tab 17, page 4.
29. 29Applicant’s Document Brief, Consultation Report, Dr. Rod, Tab 17, page 4.
30. 30Applicant’s Document Brief, OCF-18, Chronic Pain Assessment, page 11.
31. 31Applicant’s Document Brief, Chronic Pain Assessment, Tab 12, page 7.
32. 32MNM v. Aviva Ins. Co. , 2018 CanLII 98282 (LAT), at paras. 6 to 8.
33. 33Respondent’s Submission, Physician Assessment Report, Dr. Silver, Page 5 (page 51 of the submission).
34. 34Applicant’s Document Brief, Tab 17, Dr. Rod’s Report, Tab 17, page 4.