Citation: Mustafa v. Aviva General Insurance Company, 2022 ONLAT 20-010435/AABS

Licence Appeal Tribunal File Number: 20-010435/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:

Oday Saleh Mustafa

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Arthur Semko, Counsel

For the Respondent:

Christopher K. Lamm, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

BACKGROUND

1Oday Saleh Mustafa (the “applicant”) was injured in an automobile accident on April 25, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”)¹ from Aviva General Insurance Company (the “respondent”). The applicant was denied certain benefits on the basis that they were not reasonable and necessary and applied to the Licence Appeal Tribunal (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are to be decided:

(i) Is the applicant entitled to $3,805.76 for physiotherapy services recommended by Mediwise Healthcare Centre in a treatment plan (“OCF-18”) dated August 23, 2018?

(ii) Is the applicant entitled to $2,200.00 for a functional impairment assessment completed by Dr. J. A. Nathanson in an OCF-18 dated July 14, 2020?

(iii) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to either of the treatment plans in dispute as they are not reasonable and necessary. As a result, no interest is payable.

ANALYSIS AND OVERVIEW

Are the Treatment Plans Reasonable and Necessary?

4Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant as long as the applicant sustains an impairment as the result of an accident. The medical benefit must be a reasonable and necessary expense. The applicant bears the onus of proving entitlement to the proposed treatment by demonstrating that the OCF-18s in dispute are reasonable and necessary on a balance of probabilities.²

5In the interest of fairness, I considered the totality of the evidence before me and assigned it the weight that I deemed appropriate in order to make a determination on the issues in dispute.

The Medical Evidence

6The applicant claims he suffered psychological and physical impairments as a result of the motor vehicle accident that occurred on April 25, 2018. Clinical notes and records (“CNRs”) from treating physicians form the basis for this position.

7Medical treatment was first sought two days following the accident from Dr. K. Muhammad, family physician, at a walk-in clinic. The applicant was prescribed massage therapy, but the CNRs provided include no details regarding the number of visits recommended or duration of treatment.³

8The applicant attended an appointment with Dr. N. Zabib, his regular family physician, on May 15, 2018, where he complained of headaches due to the accident and “anxiety even just thinking about driving the car.”⁴ Dr. Zabib recommended physical treatment based on reported symptoms of headaches, neck pain, shoulder pain, thoracic pain, lumbar pain, disturbance of sleep, and disturbance of activities of daily living.⁵ Dr. Zabib also recommended a psychological assessment due to the applicant’s self-reported symptoms of diminished interest or pleasure in previously enjoyed activities, worry/anxiety, anger, low energy/fatigue, increased appetite, driving anxiety, sleep problems, difficulties with concentration, memory problems, fear, and headache.⁶

9Following these assessments, the applicant attended Mediwise Healthcare Centre on May 5, 2018 and was examined by K. Rakkar, chiropractor.⁷ This resulted in a diagnosis of acute pain, myalgia, muscle pain, headache, and injury of muscle and tendon of head, amongst other physical symptoms, as well as psychological symptoms of malaise and fatigue, nervousness, dizziness and giddiness, and unspecified emotional shock and stress. Treatment at Mediwise connected to these issues resulted in the OCF-18 dated August 23, 2018 at dispute here.⁸

10The applicant was assessed by Dr. H. Mrahar, psychologist, in an insurer-ordered independent examination (“IE”) on October 19, 2020.⁹ He rated the applicant in the moderate range for depression and anxiety, the average range for anxiety and somatic problems, and the above average range for depression when compared to other pain patients.¹⁰ His diagnosis was that the applicant had an adjustment disorder with mixed anxiety and depressed mood along with a specific phobia related to “driving on the highway,” and that psychological treatment would be of benefit.¹¹

11Aviva submits that the Mediwise Healthcare Centre OCF-18 is not reasonable and necessary, largely due to the lack of any contemporaneous medical evidence. The respondent notes that Dr. Zabib’s observations of the applicant just a few weeks after the subject accident revealed no evidence of any bruising, swelling, or tenderness, and that he displayed full range of motion.¹²

12Based on submissions provided by the parties, no medical intervention was sought between early 2019 and mid-2020. Dr. J. A. Nathanson, chiropractor, conducted a functional impairment assessment dated July 20, 2020 that diagnosed the applicant with chronic pain due to impairments in strength and range of motion that warranted removal from the MIG,¹³ and possible post-concussion symptoms.¹⁴ Dr. Nathanson further noted that the applicant demonstrated a substantial inability to perform the essential tasks of his pre-accident life with his job, housekeeping, and normal daily activities.¹⁵ He recommended rehabilitation programs at a facility such as a YMCA as well as personal trainer sessions with an expert trained in injury rehabilitation.¹⁶

13Dr. G. Pohani, general practitioner, conducted an IE at the request of the insurer on September 16, 2020.¹⁷ She did not find any evidence of musculoskeletal or neurologic impairment as a result of the subject accident, and assessed that any injuries from that accident were soft tissue in nature.¹⁸ As a result, she did not find that the OCF-18 for the functional impairment assessment was reasonable and necessary.¹⁹

14Dr. K. McCutcheon, psychologist, conducted another IE at the request of the insurer on September 17, 2020.²⁰ She diagnosed the applicant with a DSM-V adjustment disorder with mixed anxiety and a depressed mood as a result of the subject accident, and further noted that maximum medical improvement had not been reached from a psychological perspective.²¹ Her opinions accorded with those of Dr. Mrahar (see paragraph 9, above), in an examination conducted a month later. She also deemed that an earlier psychological treatment OCF-18 submitted by Dr. Mrahar dated October 10, 2018 was reasonable and necessary.²² Aviva subsequently removed the applicant from the MIG in a letter dated October 8, 2020.²³

15In response, the insurer submits that insufficient medical evidence has been submitted to warrant a functional impairment assessment, and that the applicant did not follow up with medical professionals to address concerns such as post-concussion symptoms, especially in the weeks and months immediately after the subject accident.²⁴ The respondent further submits that Dr. Nathanson is not qualified to make a diagnosis of chronic pain, that he did not properly assess the criteria required to provide a diagnosis of chronic pain, and that the applicant does not meet the test as described in the American Medical Association (“AMA”) Guides,²⁵ regardless.²⁶ As such, the respondent argues that this treatment plan is not reasonable and necessary.

Chronic Pain

16First, to address the chronic pain question. It is generally accepted that to meet a diagnosis of chronic pain, an individual must be deemed to meet at least three of the six criteria as set out in the American Medical Association (“AMA”) Guides:

(i) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

(ii) Excessive dependence on health care providers, spouse, or family;

(iii) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

(iv) Withdrawal from social milieu, including work, recreation, or other social contacts;

(v) 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

(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

17The applicant has provided insufficient evidence to satisfy any of the above six criteria, save (vi). Both the psychological assessments of Dr. Mrahar and the IE report of Dr. McCutcheon stand unchallenged, as they both come to the same diagnoses linking the applicant’s psychological issues and a driving phobia to the subject accident. Insufficient evidence has been provided to satisfy any of the other five criteria. No prescription information has been provided to show an undue dependence on medication with regard to criterion (i). There is no evidence of dependence on family or medical professionals, as required by criterion (ii). The same can be said for criteria (iii) and (iv), as aside from some minor comments about reduced activity in the Dr. Pohani and Dr. McCutcheon reports,²⁷ there is no claim that the applicant was avoiding physical activity or withdrawing from work, friends, or family to a significant degree. And with regard to criterion (v), the applicant continued to work at a restaurant following the accident. Although he may have altered his role, moving from front-line kitchen work to the back, he continued in the same line of employment after the accident.²⁸

18As a result of the above, I do not find that the applicant has met the AMA Guides criteria for a diagnosis of chronic pain.

19Granted, the AMA Guides criteria regarding chronic pain are not incorporated into the Schedule, so I am not bound to utilize them as anything but a useful interpretive tool. The AMA Guides do not provide the only standard for measuring chronic pain. Other medical evidence can substitute for an analysis guided by the principles in the AMA Guides.

20In this instance, however, there is little such other credible medical evidence provided to support this claim. While the applicant’s reply submissions point to comments in the Dr. Pohani report indicating that the applicant was not playing soccer and attending the gym post-accident,²⁹ and was not able to do laundry and other household tasks involving bending,³⁰ there remains an issue of causation. Given the span of time between the accident and the symptoms reported to Dr. Pohani, there is insufficient evidence to establish that the accident caused these impairments.

21I am persuaded by the respondent’s submissions regarding the quality of the Dr. Nathanson report. While I will not comment on the chiropractor’s qualifications to make a chronic pain assessment, I will note that his report is brief to the point of being inconsequential. All of the diagnoses are provided through bullet points and short paragraphs with little to no analysis. Far more of the document is dedicated to photographs of the applicant during the examination and quotations of the MIG, a FSCO decision about chronic pain, and the definition of “complete inability” than any sort of thorough, textual review of his patient’s condition.³¹ As a result, I place little weight on this diagnosis of chronic pain, or the assessment of the applicant’s condition at the time of the examination.

Mediwise Healthcare Centre Physiotherapy Services OCF-18 ($3,805.76)

22The chronic pain question is key to both treatment plans. Although the applicant reduces the emphasis on this argument in his reply submissions, noting that chronic pain is not the issue in dispute here,³² the fact remans that the applicant utilizes this diagnosis and Dr. Nathanson’s report overall to establish that both treatment plans are reasonable and necessary. This is an impossible argument to support. The Dr. Nathanson report of 2020 cannot be used to retroactively bolster the Mediwise Healthcare Physiotherapy Services plan from 2018, as too much time has passed and there is no evidence of any contemporaneous medical support necessitating such an examination. The Dr. Nathanson Functional Impairment Assessment also cannot be used to bolster itself, for self-evident reasons.

23Virtually no contemporary medical evidence has been submitted to support the Mediwise Healthcare Centre treatment plan. The applicant simply cites the one recommendation from Dr. Zabib that he seek physical and psychological treatment as the rationale. But this consists of a single line in the doctor’s CNRs, as shown above, and is not enough to justify a treatment plan as being reasonable and necessary. This argument also sets aside Dr. Zabib’s other observations, also cited above, that showed the applicant had no bruising, swelling, or tenderness, and was able to demonstrate a full range of motion, just a few weeks after the accident. Dr. Zabib’s notes are most pertinent here, given that the goals of the treatment in this OCF-18 at dispute involve addressing pain reduction, range of motion, and strength.³³

24Strangely, the applicant immediately moves from the Dr. Zabib report to the Dr. Nathanson and Dr. McCutcheon reports in his written submissions, as if the latter somehow help prove the reasonable and necessary nature of the OCF-18 from two years earlier. While I can understand the applicant’s desire to establish a chain of causation linking 2018 with 2020, it simply does not exist. To me, this lengthy gap in the medical evidence severely weakens the applicant’s argument.

25As a result, I find that the applicant has not met his burden and proven that the Mediwise Healthcare Services OCF-18 is reasonable and necessary.

Dr. J. A. Nathanson Functional Impairment Assessment OCF-18 ($2,200.00)

26Similarly, the Dr. J. A. Nathanson Functional Impairment Assessment OCF-18 has little medical support. There must always be some latitude when it comes to determining that assessments are reasonable and necessary, as otherwise injured parties would face Catch-22 situations where they need an assessment to prove the relevance of said assessment. The applicant rightly notes this in his written submissions with reference to Tribunal precedent.³⁴

27However, medical evidence must still be provided to warrant such an assessment. Not enough such evidence has been provided here. The Dr. Nathanson examination is actually the first significant activity by the applicant in two years. No medical evidence has been provided to establish any basis for ordering this assessment. Instead, in written submissions the applicant goes directly from the report of Dr. Zabib on May 15, 2018 (where, again, it was noted that the applicant had no bruising, swelling, or tenderness, and had a full range of motion) to the examination of Dr. Nathanson on July 20, 2020, which resulted in diagnoses of chronic pain, possible post-concussion symptoms, and a substantial inability to perform the tasks of everyday life. It may very well be that the applicant did experience a progression of symptoms during the two years and two months between these reports. But medical evidence to establish this progression has not been submitted in support of this argument.

28Granted, the subsequent psychological IE by Dr. McCutcheon resulted in the applicant being removed from the MIG. But this psychological examination took place two months after the Dr. Nathanson assessment, in July 2020. At any rate, the decision to remove the applicant from the MIG involved purely psychological sequelae resulting from the accident, not any physical impairment, which was the primary focus of ordering the Nathanson examination and report.

29As a result, I find that the applicant has not met his burden and proven that the Dr. J. A. Nathanson Functional Impairment Assessment OCF-18 is reasonable and necessary.

CONCLUSION

30Overall, I do not find the medical evidence persuasive in proving that either the physiotherapy treatment plan or the functional impairment assessment in dispute here is reasonable and necessary pursuant to the Schedule.

31Nominal medical evidence has been presented to support the treatment plans. The Mediwise physiotherapy plan was not supported by any medical recommendations beyond a couple of lines in the notes of a family doctor—notes that also included observations that the applicant was recovering well from the subject accident. The functional impairment plan is provided with no medically documented foundation, either, appearing rather suddenly over two years after the accident and with a questionable diagnosis of chronic pain.

32For the above reasons, I find that the applicant is not entitled to either of the treatment plans in dispute, or interest.

Released: September 8, 2022

__________________________