Anuta Gavrila v. CUMIS General Insurance Company, 2022 CanLII 4537

Licence Appeal Tribunal

Citation: Gavrila v. CUMIS General Insurance Company, 2022 ONLAT 20-009301/AABS

Licence Appeal Tribunal File Number: 20-009301/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:

Anuta Gavrila

Applicant

and

CUMIS General Insurance Company

Respondent

DECISION [AND ORDER]

ADJUDICATOR: Tavlin Kaur

APPEARANCES:

For the Applicant: Anuta Gavrila, Applicant Kate Barretto, Counsel

For the Respondent: Evan Argentino, Counsel

HEARD: In Writing

BACKGROUND

1The applicant was involved in an automobile accident on April 20, 2018 and sought benefits 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”).

2I have been asked to decide the following issues:

1. Is the applicant entitled to $2,095.23 for physiotherapy services recommended by Sports Trauma & Accident Rehabilitation Clinic in an OCF-18 dated September 10, 2018?
2. Is the applicant entitled to $3,559.50 for physiatry assessment recommended by Allied-Med Trauma in an OCF-18 dated October 16, 2018?
3. Is the applicant entitled to $2,938.00 for a psychological assessment recommended by Allied-Med Trauma in an OCF-18 dated October 17, 2018?
4. Is the applicant entitled to interest on any overdue payment of benefits?

ANALYSIS

Issue 1: Physiotherapy

3The applicant submitted that the treatment plan is reasonable and necessary. The applicant further submitted that since being removed from the MIG, the Respondent has not re-evaluated the treatment plan nor obtained a further s.44 report addressing the treatment plan. The contemporaneous medical evidence indicates that the treatment plan was reasonable and necessary. The treatment was incurred by the Applicant. The applicant argued that the Respondent has not adduced any medical evidence to rebut the necessity or reasonableness of the treatment.

4The respondent submitted that the lack of reasonableness and necessity of the physiotherapy treatment plan in dispute is evidenced by Ms. Gavrila’s subjective reports to assessors and the lack of referrals for treatment by her family doctor for alleged accident-related issues.

5I find that the treatment plan for physiotherapy is reasonable and necessary.

6The OCF-18 dated September 10, 2018 was completed by Shawn Freeman, physiotherapist. The goals identified were “pain reduction, increase in strength, range of motion and mod minimal rehab phase.” The functional goals were identified as returning to the activities of normal living and pre-accident work activities

7In support of her case, the applicant is relying on a re-assessment plan from Mr. Freeman dated August 29, 2018.

8The respondent is relying on a physiatry assessment by Dr. Alfonse Marchie, physiatrist, dated December 19, 2018. Dr. Marchie stated “In general it appears that Ms. Gavrila sustained soft tissue injuries. Soft tissue injuries typically have a very good prognosis if treated appropriately. By treating appropriately, I mean gradual increase in self-directed aerobic exercises accompanied with regular stretching exercises.”

9I find that the physiotherapy treatment is reasonable and necessary as the applicant reported that she was getting better. For example, Mr. Freeman noted in the OCF-18 that there was a 20% to 25% improvement at the end of the previous treatment plan. His notes after the submission of the OCF-18 in dispute suggest a 25% to 30% improvement.

10The clinical notes and records (‘CNRs’) submitted show that the applicant attended the Clinic eight times from September 10, 2018 to September 26, 2018. During these visits, she underwent different types of treatments for her neck, back and shoulder pain. The medical evidence confirms that the applicant reported that she was continuing to experience pain, but that the treatments provided her with some form of relief. It should also be noted that she reported to multiple assessors that the physiotherapy provided her with some relief.

11In my view, treatment that relieves physical pain and improves function is a legitimate medical and rehabilitative goal. It is clear based on the notes that she was gradually improving, albeit slowly.

12The respondent pointed out that the applicant advised Dr. Vitelli, psychologist, that the sessions were not beneficial. Given the concerns around Dr. Vitelli’s report that I will discuss later, I have assigned less weight to this statement. As for Dr. Marchie’s opinion, I am not persuaded that stretching and self-directed aerobic exercises would on their own resolve the applicant’s conditions. She was undergoing a variety of treatment which are more intense compared to his suggestion.

13For these reasons, I find that the treatment plan for physiotherapy is reasonable and necessary.

Issue 2: Physiatry Assessment

14In order to receive payment for this assessment, the applicant must demonstrate, on a balance of probabilities, that it is reasonable and necessary. That is, the applicant must show that the treatment goals, as identified, are reasonable; that these goals would be met to a reasonable degree; and that the overall costs of achieving these goals is reasonable, taking into consideration both the degree of success and the availability of other treatment alternatives.

15The applicant submitted that Dr. Wong’s physiatry assessment was reasonable and necessary to further investigate the nature and extent of the Applicant’s injuries given her persistent pain six months post-accident (at the time of the submission of the treatment plan).

16The respondent submitted that the applicant unnecessarily and unreasonably incurred the physiatry assessment months after the section 44 assessments in December 2018.

17In support of her case, the applicant is relying on the physiatry assessments completed by physical medicine and rehabilitation specialists Dr. Joseph Wong dated January 21, 2019 and Dr. Robert Hastings dated June 24, 2020. The respondent is relying on the physiatry assessment completed by Dr. Alfonse Marchie dated December 19, 2018.

18I find that the applicant is entitled to the physiatry assessment.

19In his report, Dr. Marchie stated “With regards to the subjective findings Ms. Gavrila stated that she had pain localized in her head, posterior neck, left shoulder and lower back. Her subjective complaints do correlate with my objective findings.” However, he did not find that the treatment plan was reasonable or necessary. He did not provide his reasons as to how and why he came to this conclusion. If her complaints correlated with his findings, then this confirms that she was still continuing to have pain months after the subject accident. This raises the question why he did not think that an assessment was reasonable or necessary given the amount of time that had lapsed.

20In contrast, Dr. Hastings opined:

There were multiple soft tissue injuries sustained by Ms. Gavrila in the subject accident including myofascial strain of the cervical, thoracic, and lumbar spine and post-traumatic headaches. While a majority of individuals sustaining such soft tissue injuries make a full recovery with or without treatments and without residual functional impairments, there is a small subset of patients who develop chronic musculoskeletal pain with associated functional impairments. Based on today’s assessment, Ms. Gavrila fits within this latter category. Her ongoing pain has extended beyond the expected duration (3 to 6 months) for healing, and several aspects of her assessment suggest that she has developed a chronic pain syndrome. These include regional (diffuse) tenderness, give way weakness, and non-dermatomal sensory complaints. She has a history of cervical and lumbar pain, and an x-ray following the subject accident revealed cervical and lumbar spondylosis.

21He opined that the spondylosis was present prior to the subject accident and has likely predisposed her to developing chronic musculoskeletal pain.

22While Dr. Wong’s report did not address whether or not the treatment plan in dispute was reasonable and necessary, he too concluded that the applicant had chronic pain and chronic pain syndrome. The fact that there are two specialists who have arrived at the same conclusion leads me to believe that the applicant is continuing to experience pain. Moreover, even though her visits to her family physician, Dr. Savvidou, are somewhat sporadic, there are notes in the CNRs which mention the fact that she is continuing to experience pain years after the subject accident.

23The respondent submitted that the applicant does not meet any of the criteria for chronic pain outlined by the AMA Guides. While the criteria in the AMA Guides provide a helpful analytical tool for assessing chronic pain claims, the six criteria are not binding on the Tribunal. Moreover, at issue is whether this treatment plan for a physiatry assessment is reasonable and necessary.

24My review of all three reports suggests that the applicant is continuing to experience pain beyond the standard time for recovery. I find the assessment plan to be reasonable and necessary to further investigate the Applicant’s impairments and any barriers to her maximal medical recovery. Accordingly, I find that the applicant is entitled to payment for the physiatry assessment, plus interest under s. 51, as it is reasonable and necessary.

Issue 3: Psychological assessment

25The applicant is seeking a psychological assessment in accordance with the OCF-18 dated October 17, 2018 and denied by the respondent on November 1, 2018. The applicant submitted that Dr. Romeo Vitelli’s psychological assessment is reasonable and necessary to investigate the nature and extent of the Applicant’s psychological impairments. The applicant submitted that the Disability Certificate (‘OCF-3’) notes “Sign/symptoms of emotional state, sleep disorders”.

26The respondent submitted that the applicant unnecessarily and unreasonably incurred the psychological assessment just months after the section 44 assessments in December 2018.

27The applicant is relying on a report from Dr. Vitelli, psychologist, dated February 15, 2019. Dr. Vitelli opined:

Results of the current evaluation reveal moderate levels of depression and anxiety, but her somatization scores reflect the chronic pain concerns she reported during the interview. She denies suicidal or posttraumatic symptoms though her adjustment disorder symptoms are preventing her from engaging in the active lifestyle she had before the accident. While she minimizes other emotional issues, she is strongly pain-focused and views this as the primary barrier to her return to an active life.

28He diagnosed her with Adjustment Disorder and Chronic Pain Disorder associated with both psychological factors and a general medical condition.

29He stated “Ms. Gavrila is experiencing chronic pain, adjustment problems, sleep difficulties, social isolation, cognitive concerns, and emotional issues stemming from her injuries. Her psychological symptoms appear consistent with her presentation though she is primarily pain-focused at this time. Prognosis would be considered fair with psychological counselling.”

30The respondent is relying on a psychological assessment by Dr. Billy Mangos, clinical psychologist, dated December 19, 2018. Dr. Mangos opined:

Results of this assessment failed to reveal evidence of a psychotic process or imminent risk of harm to self or others. From a purely psychological perspective, at the present time, Ms. Gavrila is not currently experiencing any clinically significant distress or impairment in her activities of daily living, including social, psychological, emotional or occupational functioning as a direct result and consequence of her involvement in the index motor vehicle accident. As noted in the body of this report, Ms. Gavrila is actively engaged in usual activities of daily living without any significant clinical interference.”

31He found that the applicant did not meet any diagnostic criteria for a psychological impairment and that she experiences transient anxious and low-grade depressive symptomatology consistent with sub-clinical threshold without clinical interference in her overall emotional and psychological functioning, social or occupational functioning. He ruled out adjustment disorder. Her prognosis was noted as good.

32I am not persuaded that the psychological assessment is reasonable and necessary. There are no contemporaneous notes in the applicant’s family physician’s CNRs regarding the applicant’s psychological impairments. On May 10, 2018, there is a note that says that the applicant has anxiety. Other than the note, there is nothing in the CNRs from 2018 to 2020 that addresses any psychological concerns. However, on January 6, 2021, Dr. Savvidou notes that the applicant has anxiety. On January 22, 2021, Dr. Savvidou notes “PTSD, insomnia, depression, all related to the MVA.” Interestingly, Dr. Savvidou did not prescribe any medication, treatment, or a referral to a specialist. Moreover, it is unclear to me how Dr. Savvidou arrived at this conclusion. It does not appear that she did any psychological testing of the applicant.

33If the applicant was struggling with psychological issues, then it raises the question why these issues were not raised before at her appointments with her family physician. There is no explanation as to why there is such a big gap in the CNRs of Dr. Savvidou in relation to psychological issues. Had there been any previous evidence of psychological disorder to illustrate a causal link in the three years following the accident, a psychological assessment would be required. But in this case, there is nothing in the CNRs.

34I am not persuaded by Dr. Vitelli’s opinion. Other than the note regarding anxiety, I see no documented evidence of any psychological disorder, such as adjustment disorder, prior to the assessment by Dr. Vitelli in 2019. Moreover, the applicant advised Dr. Mangos that she had no recollection of consulting Dr. Vitelli for psychological screening secondary to the aforementioned OCF-18 Treatment and Assessment Plan dated October 17, 2018; nor did she express any significant desire or need for any psychological intervention.

35In fact, she reported to Dr. Mangos "I don't think I need to see a Psychologist for me [sic]." If the applicant did not recall seeing Dr. Vitelli, then it raises the question how Dr. Vitelli arrived at these conclusions. The applicant has not submitted any evidence to refute this fact. For these reasons, I am assigning less weight to Dr. Vitelli’s opinion.

36I prefer Dr. Mangos’ report because he reviewed the applicant’s medical history and conducted a series of tests, which showed that there were no psychological issues. Moreover, the applicant does not seem interested in psychological treatment based on what she advised Dr. Mangos. This coupled with the fact that she didn’t receive any treatment for her alleged psychological issues leads me to believe that her psychological issues are not as serious as she purports them to be. On a balance of probabilities, the applicant has not established that a psychological assessment is reasonable or necessary.

INTEREST

37Interest is owing on all benefits that are payable.

ORDER

1The applicant is entitled to $2,095.23 for physiotherapy services recommended by Sports Trauma & Accident Rehabilitation Clinic in an OCF-18 dated September 10, 2018.

2The applicant is entitled to $3,559.50 for physiatry assessment recommended by Allied-Med Trauma in an OCF-18 dated October 16, 2018.

3The applicant is not entitled to $2,938.00 for a psychological assessment recommended by Allied-Med Trauma in an OCF-18 dated October 17, 2018.

4The applicant is entitled to interest on overdue payments for the outstanding physiotherapy (issue 1) and physiatry assessment (issue 2).