Hinds v. Travelers Insurance, 2022 CanLII 124645

Citation: Hinds v. Travelers Insurance, 2022 ONLAT 20-009840/AABS

Licence Appeal Tribunal File Number: 20-009840/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:

Rosan Hinds

Applicant

and

Travelers Insurance

Respondent

DECISION

VICE-CHAIR:

Beverly Brooks

APPEARANCES:

For the Applicant:

Maria Makarova, Paralegal

For the Respondent:

Stanislav Bodrov, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1Rosan Hinds, the applicant, was involved in an automobile accident on September 1, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).The applicant was denied certain benefits by the respondent, Travelers Insurance, and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues in dispute are:

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 costs of treatments to under $3,500?

ii. Is the applicant entitled to $1,242.56 for physiotherapy sessions proposed by Downsview Healthcare in a treatment plan (“OCF-18”) dated March 9, 2020?

iii. Is the applicant entitled to $2,575.12 for physiotherapy sessions proposed by Downsview Healthcare in an OCF-18 dated November 1, 2019?

iv. Is the applicant entitled to $3,157.40 for physiotherapy sessions proposed by Alpha Physio & Rehab Centre in an OCF-18 dated February 7, 2019?

v. Is the applicant entitled to $2,200.00 for psychological assessment proposed by Injury Management & Medical Assessments in an OCF-18 dated January 22, 2019?

vi. Is the applicant entitled to $2,486.00 for a chronic pain assessment proposed by MediAssess Evaluations in an OCF-18 dated September 9, 2019?

vii. Is the applicant entitled to $18.66 for prescriptions proposed by MediAssess Evaluations in an Expenses Claim Form (“OCF-6”) dated December 20, 2018?

viii. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed payment to the applicant?

ix. Is the applicant entitled to interest on any overdue payments of benefits pursuant to s. 51 of the Schedule?

Results

3The applicant’s injuries are predominantly minor and, therefore, subject to treatment within the $3,500.00 limit of the MIG.

4The physiotherapy plans dated March 9, 2020 and November 1, 2019 and the prescription expenses are reasonable and necessary.

5The physiotherapy treatment plan dated February 7, 2019 is not reasonable and necessary pursuant to the Schedule, nor are the psychological assessment and the chronic pain assessment.

6The respondent is not liable to pay an award.

7The applicant is entitled to interest on the costs of the two physiotherapy treatment plans which are reasonable and necessary.

ANALYSIS

The Minor Injury Guideline

8The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

9The applicant’s position is that she suffers from chronic pain, psychological impairments and/or a neurological injury that remove her from the funding limits of the MIG. The applicant is not claiming that her physical injuries remove her from the funding limits of the MIG, so I am not addressing the question as to whether the applicant’s physical injuries remove her from the MIG. The applicant is also claiming entitlement to several medical benefit treatment plans and prescription medications. The applicant submits that medical evidence demonstrates that her injuries are substantial and that restricting her access to benefits through classifying her injuries as minor is inappropriate.

10The respondent submits that the applicant should not be removed from the MIG as she resumed her pre-accident employment immediately after the accident and, within eight months of the accident, she stopped attending physiotherapy treatment sessions and restarted pre-accident activities such as dancing and exercise workouts. The respondent also points out that psychological validity tests indicate that the applicant’s examination results were not reliable because of symptom magnification.

11The onus is on the applicant to prove, on a balance of probabilities, that she should be removed from the MIG because the accident caused her to develop chronic pain and/or a psychological impairment and/or a neurological injury thereby removing her from the MIG. The applicant also has to demonstrate that the proposed treatment plans, a chronic pain assessment and prescriptions are reasonable and necessary. In addition, the applicant also must demonstrate that she is entitled to an award and interest on overdue benefits that have unreasonably been withheld.

Psychological Impairment and the MIG

12The applicant was examined by a number of healthcare specialists who diagnosed her with psychological issues. Dr. J. Mehta, Physiotherapist, examined the applicant on September 6, 2018 and diagnosed her with sprain and strain of cervical spine, thoracic spine, lumbar spine, sacroiliac joint and the shoulder joint. In addition to these physical injuries, Dr. Mehta noted that the applicant was unable to return to work and suffered a complete inability to carry on her normal life because of the accident due to psychological issues. Dr. Mehta recommended psychological consultations.¹ It should be noted that Dr. Mehta is a physiotherapist, not a psychologist, and any psychological diagnoses would be beyond the scope of his practice.

13The applicant attended a psychological assessment with Dr. L. Wagner, Psychologist, on November 5, 2019. Dr. Wagner diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood and with Somatic Symptom Disorder with predominantly pain. The assessor noted that it “is evident that the motor vehicle has caused her a great deal of emotional and physical distress from stress which she has yet to recover”.² Dr. Wagner, however, did not administer any validity testing to determine if the applicant was a reliable source of information. Dr. Wagner recommended twelve sessions of psychological therapy and noted that the applicant cannot be treated within the MIG.³

14Dr. I. Wilderman, a chronic pain specialist, conducted a chronic pain assessment on February 14, 2020 and diagnosed the applicant with chronic pain syndrome, depression, anxiety and moderate post-traumatic stress disorder (“PTSD”). Dr. Wilderman recommended a psychological chronic pain assessment and a social-emotional assessment as well as psychotherapy sessions and cognitive-behavior therapy. Dr. Wilderman noted that the applicant’s injuries fall outside the MIG as she had developed chronic pain with a psychological component.⁴ It should be noted that Dr. Wilderman is not qualified to make specific psychological diagnoses, as he is a chronic pain specialist, not a psychologist.

15The applicant was also examined by two Insurer’s Examination (“IE”) assessors who came to the conclusion that the applicant did not suffer from psychological impairments. Dr. A. Rubenstein, a psychologist, noted that the applicant had no psychological impairments after he conducted an s. 44 assessment on December 5, 2018. Moreover, Dr. Rubenstein stated in his psychological assessment report dated December 31, 2018 that during his assessment of the applicant, she compromised the validity of psychological testing because she amplified her symptoms. Dr. Rubenstein questioned the applicant’s credibility and noted that the applicant claimed a “high rate of symptoms rarely found in individuals with bona fide neurological disorders”.⁵ He added that “her symptoms are highly atypical even in patients with genuine psychiatric or cognitive disorders”.⁶ Dr. Rubenstein concluded that the applicant has not “sustained any diagnosable psychological impairment as a direct result of the subject accident”⁷ and that from “a psychological standpoint there was no injury sustained as a result of the motor vehicle accident’.⁸ Dr. Rubenstein also indicated that from “a psychological standpoint, the claimant is able to work on a full-time basis”.⁹ After a second psychological assessment on June 4, 2020, Dr. Rubenstein repeated his opinion in his report dated June 12, 2020 that “the applicant has not sustained any diagnosable psychological impairment as a direct result of the subject accident”.¹⁰ He also stated that the applicant did not suffer from psychological impairment and “in the absence of an accident-related psychological impairment, the claimant should not be removed from the Minor Injury Guideline”.¹¹

16I prefer Dr. Rubenstein’s findings about the applicant’s psychological state because Dr. Rubenstein used clinical testing methods which enabled him to determine whether the applicant was providing credible answers. Moreover, after conducing two IEs on June 4, 2020 and December 5, 2020 as well as a paper review on March 20, 2019, Dr, Rubenstein was consistent in his findings that the applicant did not suffer from a psychological impairment and should not be removed from the MIG.

17I place less weight on the applicant’s medical experts and their evaluations as neither Dr. Mehta nor Dr. Wilderman are psychologists. Dr. Wagner is a psychologist but he did not administer validity testing, unlike Dr. Rubenstein. In addition to Dr. Rubenstein’s examinations and paper review, my view that the applicant is not suffering from psychological impairments is reinforced by the applicant’s post accident recovery timeline and the clinical notes and records of her family physician and her physiotherapy clinic. The applicant returned to her pre-accident employment immediately after the accident and resumed many other activities of her pre-accident life such as dancing and driving by early 2019, less than six months post-accident. Moreover, the only reference to the applicant’s psychological state in the clinical notes and records of Dr. Sharma, the applicant’s family doctor, state that her mood is normal, her judgment and insight are intact and that she has no delusions or hallucinations.¹² Dr. Sharma includes this statement in his August 28, 2018 ( a few days before the accident) clinical notes and then makes the same statement in his November 30, 2019 clinical notes inferring that the accident did not have an impact on the applicant’s psychological state. The Alpha Physiotherapy & Rehab Centre includes the following information in its subjective findings in its December 7, 2018 Soap Notes “headaches along with psychological symptoms like altered sleep, low mood and anxiety”¹³ but focuses on the applicant’s physical wellbeing as Alpha Physiotherapy & Rehab Centre was providing physiotherapy treatments to the applicant. The psychological symptoms do not appear to be of serious concern to the family doctor or to the clinic.

18The applicant has not met her evidentiary onus on a balance of probabilities standard. The evaluations that the applicant has had conducted by medical practitioners and the conclusions reached have been refuted by other medical professionals who have more relevant qualifications or who have conducted more thorough and sophisticated testing and validity procedures. As a result, I cannot conclude that the applicant has established any accident-related psychological impairment that would fall outside the MIG and the prescribed definition of minor injuries.

Chronic Pain and the MIG

19The MIG does not define chronic pain. The only reference to chronic pain in the MIG can be found in Appendix D “Getting the Facts about Whiplash Brochure” under the section “Avoiding Chronic Pain”.¹⁴ This section recommends that whiplash sufferers not overestimate their physical damage, accept the advice of health care professionals and move on with their life. This statement infers that the legislation was not drafted with the intention of addressing the needs of chronic pain sufferers. As there is no definition for chronic pain in the MIG, one must look to criteria defined by alternative sources.

20In other cases that have been decided by the Tribunal, including MNM v. Aviva Ins. Co., 2018 CanLII 98282 (ON LAT)¹⁵, the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”) can be 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. These criteria include:

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

b. excessive dependence on healthcare providers;

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

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

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

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

21I find that the applicant does not meet any of the six AMA criteria for assessing chronic pain. She is taking Rupall (provides relief for allergy symptoms), Naproxen (alleviates pain and inflammation) and Teva-Lenotex (relives mild to moderate headaches and muscle pain) but does not have a heavy dependence on medication. She does not have excessive dependence on healthcare workers. She exhibits no fear of physical activity as she returned to dancing within a year after the accident. She has not withdrawn from her social milieu as she has returned to her pre-accident activities of work and dancing. In fact, she returned to work shortly after the accident. She does not appear to have developed psychosocial sequelae as none of her physicians have diagnosed her with anxiety or depression except Dr. Wilderman and Dr. Wagner. The other physicians’ opinions about the applicant’s psychological state do not support Dr. Wilderman’s and Dr. Wagner’s diagnoses of anxiety and depression.

22The applicant was examined by her family physician, a physiotherapist, a chiropractor and a chronic pain specialist who all diagnosed the applicant with chronic pain. Dr. Sharma, her family physician examined her on September 4, 2018 and noted tenderness of the back and neck muscles, as well as decreased and painful range of motion (“ROM”). On September 22, 2018, Dr. Sharma recommended Naproxen, ROM exercises and physiotherapy.¹⁶ Dr. Sharma noted neck strain, tenderness over the neck muscles, trapezius and upper back muscles and prescribed Vimovo and Tylenol 3 and told the applicant to continue with physiotherapy treatments.¹⁷ Dr. N. Sinhasan, Physiotherapist, prepared a progress note on October 16, 2018 that indicated the applicant was still experiencing neck and low back pain. He also noted that her active ROM was restricted at 90% for her neck and 50% for her lower back and that she had muscle spasms.¹⁸ Dr. O. Pivtoran, chiropractor, assessed the applicant on November 4, 2019. He diagnosed her with chronic cervical joint disfunction with myofascial symptoms, chronic lumbar dysfunction, chronic post-traumatic headache, lumbar disc herniation with radiculopathy and costovertebral joint dysfunction of thorax. Dr. Pivtoran recommended a chronic pain assessment.¹⁹ As noted above, Dr. Wilderman, Pain Specialist, diagnosed the applicant with chronic pain syndrome on February 14, 2020. Dr. A. Cooper, Physician, Caledon Medical Cannabinoid Clinic, assessed the applicant on July 19, 2019 and prescribed 1.5 mg. of dry cannabis THC and cannabis oil THC for three weeks for chronic pain.²⁰

23The respondent maintains that the applicant does not suffer from chronic pain and emphasizes that chronic pain must be chronic pain syndrome or be continuous for the applicant to be removed from the MIG. The respondent refers to O.P. v. Intact Insurance Company, 2020 CanLII 27414 (ON LAT)²¹ which emphasizes that constant complaints about chronic pain are not sufficient. Rather, the complaints must be accompanied by some functional impairment or disability and must be of a severity that causes an adverse impact on the individual’s well being. This means that any analysis regarding chronic pain must be accompanied by a discussion on the individual’s functional ability. The respondent references Castillo v. TD Insurance Company, 2021 CanLII 18907 (ON LAT)²², which underlined that the applicant had to suffer from functionally disabling pain to be considered a victim of chronic pain. In my view, the applicant’s chronic pain does not meet these thresholds. The applicant’s reports of chronic pain are not accompanied by any functional impairments. Dr. F. Abuzgaya, the orthopaedic surgeon that conducted the physical IE, stated in his assessment report dated December 13, 2019 that the applicant did not have any musculoskeletal impairments. Dr. Abuzgaya also reported that during the two assessments which he conducted on December 20, 2018 and November 19, 2019, the applicant displayed symptom magnification behaviour,²³ so it is difficult to determine the extent of the applicant’s physical and psychological injuries based on these assessments.

24I find that the applicant does not suffer from chronic pain as she does not meet any of the AMA Guide criteria for chronic pain. Moreover, none of the physicians who examined her diagnosed a functional impairment or a disability. Dr. Sharma, Dr. Sinhasan and Dr. Pivtoran have diagnosed the applicant with chronic pain. Dr. Abuzgaya, the orthopaedic surgeon who conducted the physical IE on the applicant on December 20, 2019, however, stated in his assessment report dated December 13, 2019 that the applicant did not have any musculoskeletal impairments. I prefer the diagnosis of Dr. Abuzgaya because he is an orthopaedic surgeon, he examined the applicant twice and he conducted a paper review of the applicant’s medical records. Dr. Abuzgaya also used tests that detect symptom magnification. The applicant’s evidence is based on physicians who are not as qualified as Dr. Abuzgaya, who is an orthopaedic surgeon, to diagnose chronic pain, and rely on the applicant’s self-reporting rather than physical assessments. Moreover, the applicant’s evidence does not rely on validity tests as do the tests of Dr. Abuzgaya. In addition, Dr. Abuzgaya has over sixteen years of experience with respect to independent medical evaluations and insurer examinations. He has been a practicing orthopaedic surgeon for almost thirty years.²⁴

25The applicant has not met her evidentiary onus on a balance of probabilities standard. According to the AMA Guides, the applicant does not meet the criteria to establish that she suffers from chronic pain. Moreover, the medical assessments of an orthopaedic surgeon, who specializes in such assessments and has practiced for almost thirty years, demonstrates that she does not suffer from chronic pain. As a result I cannot conclude that the applicant suffers from chronic pain as a result of the accident.

OCF-18s for Physiotherapy Services

26I am persuaded that the November 2019 and March 2020 OCF-18s for the physiotherapy services are reasonable and necessary pursuant to the Schedule.

27I have analyzed the goals, the barriers to successful treatment and the treatment plan activities to determine whether the treatment plans are reasonable and necessary.

28The goals, barriers, activities, key performance measurements and the program flexibility aspects of the November 2019 and March 2020 treatment plans are the same because these two treatment plans were developed by the same chiropractor and the same healthcare institution. These goals are pain reduction, increased ROM, an increase in strength and a return to activities of normal living and work activities.²⁵ Dr. P. Oleksandr, a chiropractor, who prepared these OCF-18s indicated that progress will be monitored with re-examination, a general pain index questionnaire, a visual analogue pain scale and ROM.²⁶ Dr. Oleksandr identified several barriers to a successful treatment which include multiple chronic injuries, persisting pain, headaches, dizziness, emotional disturbances, anxiety, impairment of sleep, demanding work duties and a history of asthma.²⁷ When asked how these barriers could be overcome, Dr. Oleksandr emphasized that the one-month long treatment plan includes activities such as a total body assessment, exercise of multiple body sites and the mobilization of multiple body sites.²⁸ He also pointed out that the plan is tailored to the individual as sessions are modified according to the patient’s consent, therapeutic needs, side effects, reactions and other variables.²⁹

29Unlike the November 2019 and the March 2020 treatment plans, the third physiotherapy treatment plan has no goals or identified barriers. Although activities such as total body assessment, exercise of multiple body sites, exercise of multiple body sites and mobilization of multiple body sites are common to all three physiotherapy treatment plans, the third plan also includes therapy for the applicant’s head and the neck, areas in which the applicant has complained of experiencing pain.

30The applicant maintains that she still needs physiotherapy treatments because of ongoing head and back pain. The applicant attended physiotherapy treatments for eight months after the accident but then stopped attending the sessions on May 15, 2019.³⁰ The applicant does not provide a reason for why she stopped attending the sessions.

31Dr. Abuzgaya was asked by the respondent to undertake a s. 44 assessment to determine whether the physiotherapy treatment plan dated March 9, 2020 was reasonable and necessary. Dr. Abuzgaya concluded that the proposed treatment plan was not reasonable and necessary. His reasons for this conclusion are that the applicant has already reached maximum recovery and that the injuries sustained are minor.³¹ Dr. Abuzgaya, however, opined that the costs of the plan were reasonable.³²

32Dr. Sharma, the applicant’s family physician, recommended that the applicant continue physiotherapy when she complained about chronic low back pain in May, 2019. He recommended physiotherapy again in March 2021 and referred to the accident. Dr. H. Gill, a Family Physician, recommended physiotherapy on April 2, 2021.

33Given the positive impact that previous physiotherapy has had on the applicant since the accident and the fact that the applicant is still complaining about neck and back pain, which, I find to be a sequela of the minor injuries sustained in the accident, I find this treatment plan reasonable and necessary.

34I find that the second physiotherapy OCF-18 dated November 1, 2019 is also reasonable and necessary as this treatment plan has the same goals and activities as the treatment plan dated March 20, 2020.

35I do not consider the physiotherapy OCF-18 treatment plans duplicates. Although the plans have the same goals, barriers, key performance indicators, tailored treatments and activities, I consider the two plans as sequential treatments that will address the applicant’s neck and back pain.

36I do not find the third physiotherapy treatment plan dated February 7, 2019 reasonable and necessary as it has no goals, no performance measurements and no tailored treatments.

OCF-18 for Psychological Assessment

37I do not find the psychological assessment to be reasonable and necessary pursuant to the Schedule.

38The applicant presents the findings of Dr. L. Wagner as evidence that she required a psychological assessment. The applicant attended a psychological assessment on November 5, 2019 with Dr. L. Wagner, a psychologist. Dr. Wagner diagnosed her with adjustment disorder, mixed anxiety and depressed mood and somatic symptom disorder with predominant pain. Dr. Wagner noted that she was “experiencing significant pain which is having a disruptive impact on her ability to participate in a variety of activities of normal living”.³³ She attributed her emotional distress directly to the accident. In her clinical notes and records, he stated “It is evident that the motor vehicle accident has caused her a great deal of emotional and physical distress from which she has yet to recover”.³⁴ Moreover, Dr. Wagner opined that the applicant could not be treated within the MIG.³⁵

39The respondent relies on the psychological assessments of Dr. Rubenstein to emphasize that a psychological assessment is not necessary. The applicant attended a psychological IE on December 5, 2018. Dr. Rubenstein, who conducted the assessment, wrote in his report dated December 31, 2018, that the applicant had a high rate of symptoms rarely found in individuals with psychological impairment, brain dysfunction or cerebral injury”.³⁶ Dr. Rubenstein states that “the claimant had not sustained any psychological impairment as a direct result of the accident.”[37] Dr. Rubenstein also indicated that the applicant was able to work on a full-time basis.³⁸ Dr. Rubenstein concluded that the applicant has amplified her symptoms and that his examination reveals that she is well enough to work. Dr. Rubenstein’s findings were similar when he conducted a second IE on June 4, 2019.

40I prefer the findings of Dr. Rubenstein to the applicant’s other physicians because Dr. Rubenstein is a psychologist who has conducted two thorough examinations of the applicant and a paper review. He used psychological tests to determine the validity of the applicant’s symptoms. Dr. Rubenstein has conducted psychological examinations for over twenty years in both personal injury and medical-legal contexts. He is a court qualified expert in psychology and forensic hypnosis in both civil and criminal proceedings.³⁹ Dr. Wagner administered psychological tests but recommends physiotherapy treatments for the applicant rather than psychological treatments. The applicant provides no background information on Dr. Wagner, so it is difficult to compare the professional credentials of Dr. Wagner to those of Dr. Rubenstein.

41The psychological assessment is not reasonable and necessary pursuant to the Schedule. Psychological examinations have indicated that the applicant does not suffer a psychological impairment.

OCF-18 for Chronic Pain Assessment

42I find that the chronic pain assessment is not reasonable or necessary, pursuant to the Schedule.

43In addressing the issue of the reasonableness and necessity of a chronic pain assessment, I note that the applicant bears the onus on a balance of probabilities, to demonstrate 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.

44A number of physicians have diagnosed the applicant with chronic pain including:

a. Dr. A Cooper, a physician at the Caledon Medical Cannabis Clinic;

b. Dr. Wilderman, a chronic pain specialist;

c. Dr. Harmanjit, a family physician.

45Dr. Cooper, a physician at the Caledon Medical Cannabis Clinic, noted that the applicant’s PTSD and pain disability scores were high when he examined the applicant on July 19, 2019. Dr. Cooper prescribed cannabis for three weeks for pain relief, sleep initiation, improved function and chronic pain. Dr. Wilderman, a chronic pain specialist, diagnosed the applicant with chronic pain syndrome on February 14, 2020. He also noted that the applicant was suffering from chronic Whiplash Associated Disorder, Mechanical Lower Back Pain Pattern, light headedness, depression, anxiety and moderate PTSD.⁴⁰ Dr. Wilderman stated in his clinical notes and records that the applicant was terminated from her job a month after the accident. He pointed out that although she was able to find another job, she still has difficulties performing her employment tasks. Dr. Wilderman noted that the applicant has become unable to perform her household tasks. Dr. Wilderman also opined that the applicant’s injuries fall outside the MIG.⁴¹ Dr. Gill indicated on April 2, 2021 that the applicant has developed chronic back pain and sciatica as a result of the accident and recommended physiotherapy, massage, acupuncture and dry needling.⁴²

46Dr. Wilderman prepared a chronic pain treatment plan for the applicant. The goals of the plan are to reduce pain, return the applicant to normal living and pre-accident work activities, to evaluate the extent of the applicant’s injuries and to obtain guidance on multidisciplinary care.⁴³ Barriers to treatment include the severity of the injuries and chronic pain syndrome manifestations.

47The goals of the chronic pain treatment are to reduce pain and to return to activities of normal living. The barriers to recovery include severity of injuries and chronic pain syndrome manifestations. The activities are intake (pain history, history of functional limitations, medical history, history of procedures, psychological review), testing, review of external file material, physical examination and report preparation. The barriers to recovery are severity of applicant’s injuries and chronic pain syndrome manifestations.

48In my view, the chronic pain assessment is not reasonable and necessary given that Dr. Abuzgaya has examined the applicant twice, conducted a paper review, employed validity testing and concluded that she was exaggerating her symptoms. Dr. Wilderman did not use validity testing to determine whether the applicant’s symptoms were genuine. Although Dr. Wilderman is a chronic pain specialist, orthopaedic surgeons, such as Dr. Abuzgaya, are experts on the nervous and musculoskeletal aspects of the body and specialize in treating acute and chronic pain management issues.

Prescriptions

49I find the costs of the prescription medication reasonable and necessary, pursuant to the Schedule.

50The applicant purchased pain relieving medication, such as Naproxen and Lenoltec, prescribed by Dr. Sharma for her accident-related injuries. The respondent notes that the prescription summary includes non-accident-related medication for asthma and dermatology.⁴⁴ This list of medications, however, is not the list of medications for which the applicant is requesting approval. The applicant is requesting approval of three prescriptions that she is using as pain relief medications.

Award

51Section 10 of Regulation 664 provides that, if the tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount to which the person was entitled.

52The applicant is maintaining that the physiotherapy treatments are reasonable and necessary but has not submitted any information that relates to s. 10 and has not claimed that there has been an unnecessary delay.

53Since the applicant failed to provide submissions or evidence regarding s. 10 and there has been no unnecessary delay, the applicant has failed to meet her onus to establish entitlement to a s. 10 award. I have, therefore concluded that no award is payable.

Interest

54Interest is payable on the November 2019 and May 2020 physiotherapy treatment plans, pursuant to section 51 of the Schedule.

CONCLUSION

55The applicant’s injuries are predominately minor and, therefore, subject to treatment within the $3,500.00 limit of the MIG.

56I find that the physiotherapy session treatment plans dated March 9, 2020 and November 1, 2019 are reasonable and necessary. As it is unclear from the submissions how much has been spent to date on this file, the physiotherapy treatment plans are to be awarded up to the $3,500.00 spending limit of the MIG.

57The physiotherapy treatment plan dated November 5, 2019 is not reasonable and necessary pursuant to the Schedule.

58I find the chronic pain assessment is not reasonable and necessary pursuant to the Schedule.

59I find that that the applicant is not entitled to the psychological assessment as it is not reasonable and necessary pursuant to the Schedule.

60I find that the applicant is entitled to the prescriptions because they are reasonable and necessary. As noted above, the physiotherapy treatments and the prescriptions are to be awarded up to the $3,500.00 spending limit of the MIG.

61The applicant is not entitled to an award because the respondent has not unreasonably withheld or delayed the payment of benefits.

62I find that the applicant is entitled to interest on the physiotherapy treatment plans dated March 9, 2020 and November 1, 2019 and on the prescriptions.

Footnotes

1. 1Applicant’s Document Brief, OCF3, September 6, 2018, Tab 5, page 4.
2. 2Applicant’s Document Brief, Psychological Assessment, Dr. Wagner, Psychologist, November 14, 2019, Tab 16, page 9.
3. 3Applicant’s Document Brief, Psychological Assessment, Dr. Wagner, Psychologist, November 14, 2019, Tab 16, page 9.
4. 4Applicant’s Document Brief, Independent Medical Evaluation Report, Dr. Wilderman, February 14, 2020, Tab 17, page 16.
5. 5Respondent’s Document Brief, Psychological Assessment, Dr. Rubenstein, December 31, 2018, Tab 7, page 4 (page 162 of the Document Brief)
6. 6Respondent’s Document Brief, Psychological Assessment, Dr. Rubenstein, December 31, 2018, Tab 7, page 4 (page 162 of the Document Brief)
7. 7Respondent’s Document Brief, Psychological Assessment, Dr. Rubenstein, December 31, 2018, Tab 7, page 5 (page 163 of the Document Brief).
8. 8Respondent’s Document Brief, Psychological Assessment, Dr. Rubenstein, December 31, 2018, Tab 7, page 6 (page 164 of the Document Brief).
9. 9Respondent’s Document Brief, Psychological Assessment, Dr. Rubenstein, December 31, 2018, Tab 7, page 7 (page 165 of the Document Brief).
10. 10Respondent’s Document Brief, Psychological Assessment, Dr. Rubenstein, June 12, 2020, Tab 11, page 8 (page 198 of the Document Brief).
11. 11Respondent’s Document Brief, Psychological Assessment, Dr. Rubenstein, June 12, 2020, Tab 11, page 8 (page 198 of the Document Brief).
12. 12Applicant’s Document Brief, Clinical Notes and Records, Dr. Sharma, August 28, 2018, Tab 7, page 14.
13. 13Applicant’s Document Brief, Alpha Physiotherapy & Rehab Centre, Soap Notes, December 7, 2018, Tab 11, page 41.
14. 14Pre-approved Framework Guidelines for Whiplash Associated Disorder, Financial Services Commission of Ontario, June 2003, page 2.
15. 15MNM v. Aviva Ins. Co., 2018 CanLII 98282 (ON LAT), 2018 CanLII98282(LAT), at paras. 6 to 8.
16. 16Applicant’s Document Brief, Clinical Notes and Records, September 1 to September 24, 2018, page 10.
17. 17Applicant’s Document Brief, Clinical Notes and Records, September 1 to September 24, 2018, page 12.
18. 18Applicant’s Document Brief, Dr. Sharma’s Clinical Notes and Records (includes Dr. Sinhasan’s Clinical Notes and Records, Tab 7, page 52.
19. 19Applicant’s Document Brief, OCF-3, Dr. Pivtoran, November 4, 2019, page4.
20. 20Applicant’s Document Brief, Cannabis Prescription, Dr. Copper, July 16, 2019, Tab 12.
21. 21O.P. v. Intact Insurance Company, 2020 CanLII 27414(ON LAT), para. 15.
22. 22Castillo v. TD Insurance Company, 2021 CanLII 18907 (ON LAT), para. 26.
23. 23Respondent’s Document Brief, Insurer’s Orthopaedic Examination, Dr. Abuzgaya, Tab 6, page 9, page 156 of the Document Brief.
24. 24Respondent’s Document Brief, Insurer’s Orthopaedic Examination, Dr. Abuzgaya, Tab 6, page 11, page 157 of the Document Brief.
25. 25Applicant’s Document Brief, Physiotherapy Treatment Plan, OCF-18, Dr. Oleksandr, Tab. 32, page 6.
26. 26Applicant’s Document Brief, Physiotherapy Treatment Plan, OCF-18, Dr. Oleksandr, Tab. 32, page 6.
27. 27Applicant’s Document Brief, Physiotherapy Treatment Plan, OCF-18, Dr. Oleksandr, Tab 32, page 6.
28. 28Applicant’s Document Brief, Physiotherapy Treatment Plan, OCF-18, Dr. Oleksandr, Tab 32, page 8.
29. 29Applicant’s Document Brief, Physiotherapy Treatment Plan, OCF-18, Dr. Oleksandr, Tab 32, page 10.
30. 30Respondent’s Document Brief, Alpha Physiotherapy & Rehab Centre Sign In Sheets and Soap Notes, September 8, 2018 to May 15, 2019, pages 88 to 146.
31. 31Respondent’s Document Brief, Orthopaedic Assessment, Dr. Abuzgaya, June 26, 2020, Tab 12, page 11 (page 212 of the Document Submission).
32. 32Respondent’s Document Brief, Orthopaedic Assessment, Dr. Abuzgaya, June 26, 2020, Tab 12, page 12 (page 213 of the Document Brief).
33. 33Applicant’s Document Brief, Dr. Wagner, Clinical Notes and Records, Tab 16, page 9.
34. 34Applicant’s Document Brief, Dr. Wagner, Tab 16, pages 9.
35. 35Applicant’s Document Brief, Dr. Wagner, Tab 16, page 9.
36. 36Applicant’s Documents Brief, Psychological Assessment Report, December 31, 2018, Dr. Rubenstein, Tab 31, page 4.
37. 38Applicant’s Document Brief, Psychological Assessment, December 31, 2018, Dr. Rubenstein, Tab 31, page 7.
38. 39Respondent’s Document Brief, Insurer’s Psychological Examination, Dr. Rubenstein, December 31, 2018, Tab 7, page 2 and page 160 of the Document Brief.
39. 40Applicant’s Document Brief, Independent Medical Evaluation Report, February 14, 2020, Tab 17, page 16.
40. 41Applicant’s Document Brief, Independent Medical Evaluation Report, February 14, 2020, Tab 17, page 16.
41. 42Applicant’s Document Brief, Dr. Sharma’s Clinical Notes and Records, March 1, 2021 to April 13, 2021, Tab 15, page 4.
42. 43Applicant’s Document Brief, OCF-18, Chronic Pain Assessment, Dr. Wilderman, Tab 42. Page 7.
43. 44Applicant’s Document Brief, OCF-6, December 20, 2018, Tab 43, pages 4 and 5.
44. 37Applicant’s Document Brief, Psychological Assessment, December 31, 2018, Dr. Rubenstein, Tab 31, page 5.