Licence Appeal Tribunal File Number: 20-013747/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:
Ian Pollard
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Thomas Long, Counsel
For the Respondent:
Mohamed R. Hashim, Counsel
HEARD:
By way of written submissions
BACKGROUND
1Ian Pollard (“the applicant”) was involved in an automobile accident on October 14, 2016, and sought benefits from Aviva Insurance Company of Canada, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of this dispute.
ISSUES
2The issues to be decided at this hearing are:
a. Is the applicant entitled to a medical benefit in the amount of $2,680.00 for a chronic pain assessment proposed by Dr. R. Jessa, chiropractor, in a treatment and assessment plan dated August 4, 2020?
b. Is the applicant entitled to interest on any overdue payment of benefits?
Result
3I find that:
a. The treatment and assessment plan in dispute is not reasonable or necessary.
b. As such, the applicant is not entitled to any interest
ANALYSIS
4In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing on a balance of probabilities, that an assessment is reasonable and necessary. To do so, the applicant must point to objective evidence that there are grounds to suspect he has the condition for which he seeks the assessment. On the evidence, I find that the applicant has failed to satisfy that onus and, therefore, he is not entitled to the proposed chronic pain assessment as it is not reasonable or necessary.
AMA GUIDES’ CRITIERIA FOR CHRONIC PAIN
5Both the applicant and the respondent reference the American Medical Association (AMA) Guides’ criteria as laid out in their submissions to the Tribunal, with competing views on the results of the analysis as outlined in M.N.M v Aviva Insurance1. I note that while the Schedule does not incorporate the AMA Guides on the evaluation of claims of chronic pain, they may be a useful tool in interpreting such claims.
6The applicant submits that the chronic pain assessment is reasonable and necessary as the applicant meets at least 3 of the 6 of the AMA criteria, however, he does not specify which criteria are met and how they are met. The respondent simply states that the applicant does not meet 3 of 6 criteria.
7However, the medical records submitted as evidence, especially the clinical notes and records of Dr. A. Arya, the applicant’s former family physician, paint a picture of extensive chronic pain in the years leading up to the accident.
8I am not persuaded by the submitted clinical notes and records that the applicant’s pre-existing chronic pain has been exacerbated by the accident. As such, it would be inappropriate to use the AMA Guides to assess whether the treatment plan is reasonable or necessary.
9The applicant has visited his doctor numerous times over the years for pain related reasons prior to the accident. The Applicant complained of knee, ankle and foot pain on April 20, May 6, June 12, and June 24, 2015. On August 16, 2015, the Applicant complained of left shoulder pain radiating down to his hand.2
10On May 6, 2015 Dr. Arya notes in his clinical notes and records that the applicant is suffering from “Chronic Pain”.3 A diagnosis of chronic pain by the family physician prior to the date of the subject accident holds strong weight when determining if the applicant would have chronic pain but for the accident.
11The applicant’s pain complaints were consistent before and after the subject accident. I reviewed the records from Bonafide Medical and found no newly reported chronic pain complaints from the applicant following the accident. The applicant’s post-accident visits to Bonafide Medical are predominantly for issues that are unrelated to the accident or chronic pain. His prescription summary is unremarkable and includes no evidence of a dependence or abuse of medication.4
CHRONIC PAIN ASSESSMENT
12As evidenced by the clinical notes and records of Dr. Arya, this patient is suffering from chronic pain, the questions that must be evaluated in this situation are:
a. Was the chronic pain a result of the motor vehicle accident?
b. Is the treatment plan reasonable and necessary?
13Based on the evidence before the Tribunal I find that the applicant has failed to meet his onus to demonstrate that the chronic pain he experiences is a result of the accident. This is evidenced by the considerable history of chronic pain and pain related issues present before the subject accident, and no evidence differentiating the pain experienced both pre and post the subject accident. This is enough to satisfy me that the proposed assessment is not reasonable and necessary since accident benefits must in relation to the subject automobile accident. Without that first condition met, the analysis should end here.
CONCLUSION
14I find that the applicant has not proven on a balance of probabilities that a chronic pain assessment is reasonable or necessary for the reasons outlined above.
a. The applicant is not entitled to a Chronic Pain Assessment;
b. No interest is payable; and
c. This application is dismissed
Released: December 8, 2022
Julian DiBattista
Vice-Chair
Footnotes
- M.N.M v Aviva Insurance, 2018 CanLII 98282 (ON LAT)
- Clinical notes and records of Dr. A Arya
- Clinical notes and records of Dr. A Arya (May 6, 2015)
- Clinical notes and records of Bonafide Medical