Citation: Persad v. Aviva General Insurance, 2022 ONLAT 19-010452/AABS

Licence Appeal Tribunal File Number: 19-010452/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:

Ganga Persad

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

David Carranza, Paralegal

For the Respondent:

Nisaa Khan, Counsel

HEARD:

By way of written submissions

BACKROUND

1Ganga Persad (“G.P.”) was involved in an automobile accident on September 21, 2017, and sought benefits from the respondent, Aviva, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (the “Schedule”). G.P. was denied certain benefits and applied to the Tribunal for resolution of the dispute.

ISSUES

2Is the medical benefit in the amount of $140.00 for the completion of an OCF-3 dated March 26, 2019, reasonable and necessary?

3Is the medical benefit in the amount of $14,029.19 for a chronic pain program recommended by Dr. Brown in a treatment plan (OCF-18) submitted December 3, 2019, and denied December 11, 2019, reasonable and necessary?

4Is G.P. entitled to interest on any overdue payment of benefits?

FINDING

5G.P. is entitled to payment for the OCF-3 and the treatment plan as it is reasonable and necessary. Interest is payable in accordance with s. 51.

ANALYSIS

Cost of OCF-3 for $140.00

6G.P. seeks payment in the amount of $140.00 for the completion of an OCF-3 disability certificate completed by Dr. Badwal, dated March 26, 2019. Section 36(2) requires an insured person to submit an OCF-3 with an application for a specified benefit, including a non earner benefit (NEB).

7By way of background, Dr. Badwal initially completed an OCF-3, dated October 12, 2017, indicating that as a result of the accident, G.P. suffered a strain of the lower back, incomplete left rotator cuff tear, and cervical strain. G.P. continued to report his condition to Dr. Badwal from October 12, 2017 to January 6, 2020, where he was diagnosed with chronic back pain, left shoulder pain, and depressed mood. Diagnostic imaging reports on April 24, 2018 (CT – rib fractures, lower cervical/upper thoracic spinal process fractures); and May 10, 2018 (X-ray – mild osteoarthritis at AC and shoulder joint – left shoulder) were also relied on by Dr. Badwal for the updated March 2019 OCF-3.

8The updated OCF-3 confirmed G.P.’s injuries as incomplete left rotator cuff tear, low back pain, bilateral rib fractures, fracture at C7 spinous, and fracture at T1 spinous process. Dr. Badwal indicated that G.P. suffered a complete inability to carry on a normal life, indicating in the OCF-3 that G.P. had difficulty with driving longer than 15 minutes, bending, climbing stairs, sexual activity and household chores. I note that Dr. Badwal indicated that G.P.’s recovery has been slow and may take longer than expected.

9Aviva submits that the OCF-3 is not payable as it had previously received the October 2017 OCF-3 and did not request an additional OCF-3. Its position is that the OCF-3 is not payable pursuant to s. 25 as it was not required under s. 21, 36, or 37 of the Schedule. Aviva disagreed with G.P.’s position that the March 2019 OCF-3 provided a medical update. Aviva posits that this position does not comply with s. 25(1).

10In response, G.P. argues that prior to the March 2019 OCF-3, Aviva indicated that G.P was no longer entitled to NEBs. G.P. submits that the March 2019 OCF-3 supported ongoing entitlement to NEBs. I note that on or about June 9, 2020 at a Tribunal Motion Hearing, the parties advised that the NEB issue was resolved.

11In addition to the OCF-3, a September 4, 2018 orthopaedic report from Dr. Manolopoulos was provided to Aviva, along with an October 2, 2017 ultrasound report, the March 10, 2018 x-ray report and the April 24, 2018 CT Scan report. This updated medical documentation was provided to Aviva’s s. 44 Insurer Examination (“IE”) assessor’s, who ultimately confirmed that G.P. suffered a complete inability to carry on a normal life and have paid the benefit at the time of this proceeding.

12On the evidence, I agree that the March 2019 OCF-3 is payable, as there was additional medical evidence that supported ongoing accident-related impairments that directly impacted G.P.’s ability to carry on a normal life. The fact that Aviva provided the updated OCF-3 to its assessors and reinstated the NEB supports that the information in the OCF-3 was significant enough to have the NEB reinstated. This was not done prior to the receipt of the March 2019 OCF-3, therefore, this material evidence was reasonably necessary in order for the NEB to be reinstated. Accordingly, I find the OCF-3 to be payable.

OCF-18 for $14,029.19 dated December 3, 2019 for chronic pain treatment

13G.P. must demonstrate that the disputed OCF-18 is reasonable and necessary, pursuant to ss. 14-16 of the Schedule. On the evidence, I find that the balance of the chronic pain treatment plan is reasonable and necessary.

14Aviva partially approved the chronic pain treatment program in the amount of $2,329.08 for eight, one-hour sessions of psychological treatment following a s. 44 IE with a psychologist.

15In support of his claim, G.P. relies on the chronic pain report of Dr. Brown, dated September 20, 2019, the OCF-18 recommending the treatment and the clinical notes and records from his family physician. G.P.’s position is that the remainder of the OCF-18 is reasonable and necessary to treat his ongoing chronic pain.

16In response, Aviva contends that the OCF-18 is not reasonable and necessary, that G.P. has provided no compelling evidence of chronic pain and has failed to demonstrate that each recommended modality of the treatment plan is reasonable and necessary. Aviva relies on the January 21, 2020 IE report of general practitioner, Dr. Ko (who concluded G.P. reached maximum medical recovery) and the January 16, 2020 report of psychologist, Dr. Goodfield (who found the OCF-18 partially reasonable and necessary.

17Aviva submits that G.P. failed to address the six criteria from the AMA Guides as follows:

a. Use of prescription drugs – no prescription summary provided. The only documented prescriptions were Tramadol and Tylenol 2;

b. Excessive reliance on healthcare providers/spouse or family – noting visits to the family doctor approximately once a month due to his age and history of diabetes and cancer. No evidence provided of excess reliance on his wife or children;

c. Secondary deconditioning due to disuse and/or fear-avoidance of physical activity due to pain – no evidence of same;

d. Withdrawal from social milieu – no evidence of withdrawal from work, recreation or other social contacts;

e. Failure to restore pre-injury function – no evidence that such a capacity is insufficient to pursue work, family or recreational needs; and

f. Development of psychosocial sequelae – no evidence of anxiety, fear-avoidance, depression or non-organic illness behaviours.

18While not binding on the Tribunal, the AMA Guides are a helpful tool for interpreting chronic pain claims. However, I find that Aviva’s position is contradicted by the evidence:

a. There are several months where G.P. visited Dr. Badwal two times (November 2017, May 2018, March 2019, May 2019) and up to three times per month (February 2018). While it may not be considered ‘excessive’, the consistency of the pain complaints is compelling;

b. The second OCF-3 of Dr. Badwal and the contemporaneous medical documentation, support that G.P. suffered a complete inability to carry on a normal life. The Tribunal has accepted that a complete inability results in an avoidance of physical activity due to pain;

c. Having accepted that G.P. suffers a complete inability to carry on a normal life, and reinstating the NEB, it stands to reason that he would have a withdrawal from work and that he has not reached a point of restoration of pre-accident function to pursue work; and

d. Aviva’s own assessor agreed that G.P. suffered psychological impairment as a result of the accident, to the extent that she partially approved treatment for this specific type of accident-related impairment.

19On these facts, G.P. does meet several of the criteria.

20On the evidence, I agree with G.P. While Aviva references the six criteria from the AMA Guides and points out that Dr. Brown failed to address each of the criteria, I find it erroneously submits that Dr. Brown “solely relied on G.P.’s subjective complaints and the duration of the complaints.” While on the topic of failures, I question the strength of Dr. Ko’s report, as he did not address Dr. Brown’s report, and in turn did not provide any reasons or objective opinion as to why he did not agree with the report, the diagnosis or the recommended treatment.

21In addition, I find that Dr. Ko’s report failed to properly consider the relevant evidence that was relied on that confirmed for Aviva that G.P. suffers a complete inability to carry on a normal life. Indeed, the significant medical records and reports over two years post-accident, suggests that G.P. may suffer from an accident-related chronic pain condition that would likely require treatment to address the ongoing pain issues.

22In contrast, Dr. Brown performed a series of tests, including an interview of G.P., pertinent questionnaires, and pain assessment evaluations. I note that Dr. Brown also performed a physical examination and reviewed medical records provided. Dr. Brown identified several barriers to recovery, including:

a. High levels of anxiety three months post-accident;

b. Disrupted sleep at three months post-accident;

c. Negative mood, social withdrawal;

d. Abnormal pain beliefs, high levels of catastrophizing;

e. Traumatic life events (craniotomy 1985);

f. Physical demands of job, dependence on physical/manual labour;

g. Duration of pain symptoms;

h. Low socioeconomic status, financial stressors; and

i. Low level of attained education.

23Dr. Brown opined that the presence of chronic pain has led to fundamental changes to the spinal cord and brain resulting in neural input from the spinal column and left shoulder to be interpreted as pain. Dr. Brown diagnosed G.P. with chronic pain syndrome, chronic pain – lumbar and cervical spine, and chronic pain left shoulder due to a supraspinatus partial tear. Dr. Brown opined that the symptoms are directly related to the accident.

24Dr. Brown went on to note that G.P. has not returned to his previous levels of personal and occupational productivity. Further, that the after-effects have diminished G.P.’s ability to work, his competitive advantage and potentially his employability. In addition, Dr. Brown opined that G.P.’s impairments interfere with his participation in recreational activities and negatively affect his psychological well-being.

25Dr. Brown commented that G.P.’s symptoms have persisted well after the expected time for normal healing and recovery. Dr. Brown noted that G.P. has experienced psychological distress, sleep disturbances, cognitive impairments, declining work performance, and adopted a sedentary lifestyle. Dr. Brown opined that these factors support a chronic pain syndrome diagnosis and that the prognosis for significant recovery is poor.

26Dr. Brown recommended interventions for chronic pain, including physiotherapy, exercise, behavioural therapy, and a multidisciplinary program to improve G.P.’s ability to deal with the emotional, behavioural, cognitive and sensory challenges associated with chronic pain syndrome.

27As a chronic pain specialist, I afford more weight to Dr. Brown’s report over that of general physician, Dr. Ko. Dr. Brown is specifically trained, skilled and practiced in the field of chronic pain and would therefore have a more focused approach in determining whether G.P. suffers from chronic pain, which Dr. Brown concluded, he does.

28For these reasons, I find that the OCF-18 for the chronic pain program is reasonable and necessary.

INTEREST

29As I have found that the disputed benefits are overdue and payable, G.P. is entitled to payment for interest on the overdue amounts, in accordance with s. 51 of the Schedule.

Non-compliance with Tribunal Order

30Aviva submits that G.P. failed to comply with the Tribunal order in utilizing 14 pages, rather than the agreed upon 10 pages. It submits that this amounts to a failure of procedural fairness and prejudices “its ability to respond adequately while complying with the ten-page limit.” Aviva requests that the Tribunal strike G.P.’s submissions after page 10.

31G.P. admits that the length of submissions was not in compliance with the order, however, it was due to an oversight and was unintentional.

32I agree with G.P. that if Aviva had an issue with the submissions, it could have and should have filed a Motion with the Tribunal to address the length of the submissions, rather than raise the issue in its own submissions. In addition, Aviva provided no argument as to how it is prejudiced by the additional four pages.

33As such, I see no reason to exclude the last four pages of G.P.’s submissions and have considered the entirety of the submissions in rendering my decision.

CONCLUSION

34I find that G.P. is entitled to payment of the OCF-3 as it is reasonable and necessary.

35G.P. is entitled to the balance of the OCF-18 for chronic pain treatment as it is reasonable and necessary.

36G.P. is entitled to payment for interest on the overdue amounts, in accordance with s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10, as amended.