Citation: Marushko v Aviva General Insurance, 2022 ONLAT 20-004611/AABS

Licence Appeal Tribunal File Number: 20-004611/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:

Volodymyr Marushko

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Jeton Memeti, Paralegal

For the Respondent:

Christine McKenna, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Volodymyr Marushko (“V.M.”) was involved in an automobile accident on September 28, 2016, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva denied the benefits on the basis that they were not reasonable and necessary. V.M. disagreed and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

a. Is the medical benefit in the amount of $11,678.54 for chronic pain treatment, recommended by All Health Medical Centre in a treatment plan (OCF-18) dated February 8, 2020, reasonable and necessary?

b. Is the medical benefit in the amount of $3,060.00 for an MRI of the lumbar spine, recommended by All Health Medical Centre in an OCF-18 dated February 8, 2020, reasonable and necessary?

c. Is the cost of examination expense in the amount of $2,520.00 for an orthopaedic assessment, recommended by All Health Medical Centre in an OCF-18 dated March 4, 2020, reasonable and necessary?

d. Is the cost of examination expense in the amount of $2,410.00 for a neurological assessment, recommended by All Health Medical Centre in an OCF-18 dated May 11, 2020, reasonable and necessary?

e. Is Aviva liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to V.M.?

f. Is V.M. entitled to interest on any overdue payment of benefits?

RESULT

3Based on a review of the evidence, I find the following:

a. V.M. is not entitled to the disputed OCF-18s;

b. V.M. is not entitled to interest; and

c. V.M. is not entitled to an award.

BACKGROUND

Pre-accident History

4Prior to the accident, on or about October 9, 2013, V.M. was diagnosed with mechanical low back pain by his family physician, Dr. Kozerawski . Dr. Kozerawski diagnosed chronic low back pain with paraspinal muscle spasm. He also suffered from lower leg discomfort and left leg swelling. He was diagnosed with mild deep venous insufficiency. He had surgery in 2015 to treat the issue.

5V.M. was involved in prior motor vehicle accidents in 2009 and 2013. In the 2009 accident, V.M. claims to have suffered soft tissue injuries to the neck, back and shoulders, as well as headaches, problems sleeping and anxiety. In the 2013 accident, V.M. again suffered soft tissue injuries to the neck, back and shoulders, as well as headaches and problems sleeping.

6Lastly, V.M. reported to the s. 44 insurer examination (“IE”) assessor that he had sports-related left knee surgery pre-accident.

ANALYSIS

Is the OCF-18 in the amount of $11,678.54 reasonable and necessary?

7Sections 14 and 15 of the Schedule set out that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. To be eligible to receive payment for a treatment or assessment plan under the Schedule, V. M. bears the onus of demonstrating that the treatment sought is reasonable and necessary. In order to do so, he must establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.

8I find that V.M. has not established that the disputed OCF-18 is reasonable and necessary.

9The February 8, 2020 OCF-18 for chronic pain treatment recommends 29-two hour physical rehabilitation sessions, five education sessions, 12 psychotherapy sessions, two progress reports, 10 social worker treatment sessions, four family physician visits and the fee for completion of the OCF-18. The OCF-18 notes the following accident-related impairments, including, but not limited to: WAD2 with complaint of neck pain; sprain and strain of lumbar spine with pain radiating to right hip and right lower extremity; sprain and strain of cervical spine; mixed anxiety and depressive disorder, sprain and strain of shoulder joint; decreased memory and focus; chronic post-traumatic headache; sprain of thoracic spine; and chronic pain.

10V.M. submits that the OCF-18 is reasonable and necessary to address his accident-related impairments. To this end, he relies on a February 23, 2020 chronic pain assessment report from Dr. Robertus. In her report, Dr. Robertus relies on V.M.’s self-reporting and subjective complaints regarding his accident-related injuries and the impact on his engagement in his activities of daily living. Dr. Robertus goes on to further discuss a fibromyalgia diagnosis and mental health status. There is a discussion of post-traumatic stress disorder. Dr. Robertus diagnosis V.M. with chronic pain syndrome. Dr. Robertus recommends a chronic pain program; orthopaedic assessment; psychological treatment, various other treatment modalities and an MRI.

11In response, Aviva submits that V.M. has not established that each individual component of the OCF-18 is reasonable and necessary. It submits that there has been no compelling evidence of chronic pain syndrome. It refers to the lack of analysis engaging the six criteria used to determine whether an individual suffers from chronic pain syndrome, under the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th ed. (the “AMA Guides”).

12The AMA Guides identify six criteria as “major” characteristics of chronic pain syndrome, with three required to establish chronic pain syndrome: the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances; excessive dependence on health care providers, spouse, or family; secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain; withdrawal from social milieu, including work, recreation, or other social contacts; a failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs; and the development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviors.

13The Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain syndrome that causes functional impairment or if they meet three of the six criteria for chronic pain as provided by the AMA Guides. However, here, V.M. did not engage with any of the criteria under the AMA Guides.

14Specifically, with respect to meeting any of the AMA Guides criteria, I note the following based on the evidence:

a. V.M. did not direct me to any evidence of using prescription medication beyond the recommended duration or dosage;

b. There is no evidence of excessive reliance on any healthcare or treatment providers, spouse or family. The medical documentation notes 11 visits to the family physician in the four years between the date of the accident and September 23, 2020. There is no evidence adduced of excessive reliance on his wife and/or children;

c. I am not pointed to any evidence of secondary deconditioning as a result of fear-avoidance of physical activity, or disuse due to pain;

d. There is no evidence of a withdrawal from social milieu, including work, recreation or other social interactions;

e. There is no evidence of a failure to restore his pre-morbid function after a period of disability, to the extent that his physical ability is not sufficient enough to engage in work, family or recreational activities. V.M. specifically did not provide any pre-accident documentation that demonstrates his pre-accident activities; and

f. Lastly, I have not been directed to any evidence of a psychological diagnosis as a result of the accident, to the extent that it would satisfy the criteria under the AMA Guides. This is supported by a report from Dr. Moshiri, psychologist, who in 2017 concluded that V.M. had no diagnosable psychological condition. Psychiatrist Dr. Gratzer came to the same conclusion in 2021.

15I also do not find Dr. Robertus’ report to be persuasive for several reasons. First, the report is based on V.M.’s subjective reporting. Second, Dr. Robertus does not engage in the cause of any alleged chronic pain, in light of the three-year pre-accident history of back pain complaints. It also appears that Dr. Robertus did not have the clinical notes and records from the family physician for the period of 2018 to 2020. Lastly, Dr. Robertus’ report does not include any type of conclusion or diagnoses that relies on objective findings to attribute V.M.’s chronic pain complaints to the subject accident.

16Despite V.M.’s claims of ongoing pain, I find the lack of corroborative evidence of a chronic pain syndrome does not satisfy his onus that, on a balance of probabilities, the disputed OCF-18 is reasonable and necessary. By its very nature, chronic pain syndrome is distinctly different from ongoing pain, as it is considered pain that debilitates and severely limits one’s engagement in activities. V.M.’s self-reporting and documentation does not support that he has suffered significant functional limitations as a result of chronic pain syndrome.

Are the remaining OCF-18s reasonable and necessary?

17The remaining OCF-18s are recommendations made in Dr. Robertus’ report. V.M. relies on the Dr. Robertus’ report as evidence that the OCF-18s are reasonable and necessary. Having already discussed Dr. Robertus’ report and the weight assigned, I find that V.M. has not established that the OCF-18s are reasonable and necessary.

18Regarding the claim for funding for an MRI, on review, I find the evidence does not support the need for funding for an MRI. This type of diagnostic imaging is ordinarily funded by OHIP. Further, V.M. had previously undergone an MRI of his lumbar spine, which, according to V.M., was reported by the insurer examination assessors to have “not shown anything.”

19Regarding the OCF-18 for an orthopaedic assessment, V.M.’s submission is that it was based on a recommendation of Dr. Robertus. The goal of the report is to aid in V.M.’s recovery and return to activities of daily life. V.M.’s position is that there is no assessment or report denying the orthopaedic assessment.

20In response, Aviva submits that its s. 44 assessor, Dr. Jaroszynski determined that the orthopaedic assessment was not reasonable and necessary. On examination, Dr. Jaroszynski opined that V.M. sustained uncomplicated soft tissue injuries to the cervical and lumbar spine, which is in line with the injuries noted in the disability certificate. Dr. Jaroszynski’s finding is further supported by the medical evidence that V.M. had full range of motion in the lumbar spine as early as 2018. An insurer examination report by Dr. Millard, physiatrist, assessed V.M., states that V.M. sustained soft tissue injuries to his cervical, thoracic and lumbar spine and right trapezius. Dr. Millard concluded that V.M. had reached maximum medical recovery, and the orthopaedic assessment was not reasonable and necessary.

21On the evidence, I prefer the reports of Drs. Jaroszynski and Millard over that of Dr. Robertus. Although as a chronic pain specialist, Dr. Robertus’ would have more specialized expertise in the area of chronic pain, I afford less weight to her report due to the lack of objective analysis. I am persuaded by the reports of the s. 44 assessors, who’s reports contain objective evidence to support their determinations.

22Lastly, in considering the OCF-18 for a neurological assessment, V.M. submits that the treatment goals are the same as those for the orthopaedic assessment. As V.M. relies on the same evidence as that of the orthopaedic assessment and MRI, I find that he has not established that the neurological assessment is reasonable and necessary.

23On examination, Dr. Yahmad, neurologist, found no evidence of myelopathy, plexopathy, active ongoing radiculopathy or neuropathy. None of V.M.’s pain complaints were found to be neurological in nature. Dr. Yahmad went on to note that V.M. still holds a valid driver’s licence, continues to drive, and there have been no recommendations against him driving a motor vehicle. Dr. Yahmad concluded that from a physical neurological perspective, no neurological impairment was detected.

24I prefer the report of Dr. Yahmad over that of Dr. Robertus. As Dr. Yahmad is a neurologist, his report is afforded more weight. Dr. Yahmad performed an objective analysis, which I found to be persuasive, and his finding that V.M. does not suffer from any neurological deficits, is in line with the bulk of the medical evidence which did not indicate that V.M. sustained a neurological impairment as a result of the accident.

INTEREST

25As no benefits are outstanding, no interest is payable.

AWARD

26Having found that V.M. is not entitled to any of the disputed OCF-18s, Aviva cannot have been found to have unreasonably withheld or delayed payment of benefits.

27Accordingly, V.M. is not entitled to an award.

CONCLUSION

28V.M. has not satisfied his onus to establish that the disputed OCF-18s are reasonable and necessary. He is therefore not entitled to any of the claimed benefits.

29No interest is owing as there is no overdue payment of benefits, and an award is not payable.