Todd v. Aviva General Insurance, 2022 CanLII 84681

Licence Appeal Tribunal

Citation: Todd v. Aviva General Insurance, 2022 ONLAT 20-007085/AABS

Licence Appeal Tribunal File Number: 20-007085/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:

Heejung Todd

Applicant

and

Aviva General Insurance

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Joseph Fearon, Counsel

For the Respondent: Mark Vella, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on April 1, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (“Schedule”).¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The following issues are to be decided:

a. Is the applicant entitled to $2,401.25 for a chronic pain assessment proposed by Q Medical in a treatment plan (“OCF-18”) dated November 6, 2019?

b. Is the applicant entitled to $989.67 for a functional assessment proposed by Q Medical in OCF-18 dated January 3, 2020?

c. Is the applicant entitled to an award for unreasonably withholding or delaying payments under section 10 of the Ontario Regulation 664?

RESULT

3I find that the applicant is entitled to:

a. $2,401.25 for a chronic pain assessment;

4I find that the applicant is not entitled to:

a. $989.67 for a functional assessment; and

b. An award for unreasonable withholding or delaying payments under section 10 of the Ontario Regulation 664.

BACKGROUND

5The applicant was the driver of a motor vehicle, when a short school bus made a left turn and hit the applicant’s vehicle. The applicant was transported to the North York General Hospital by ambulance.

6The emergency room report dated April 1, 2016, provided that applicant complained of a mild headache and pain in her neck, she was diagnosed with muscle strain and whiplash. The applicant was advised to treat her symptoms with heat, stretching, massage, Tylenol, and Ibuprofen.²

7On May 3, 2016, the applicant was assessed by Dr. Karim Vellani, family physician. The applicant disclosed she was experiencing 10/10 pain in her neck, shoulder, and hands. The applicant received an x-ray of her cervical spine, which revealed no evidence of fracture or dislocation.³

8On December 5, 2016, Dr. Marvin Tile completed an orthopaedic surgery assessment report that opined applicant had soft tissue strain.⁴

9On August 17, 2018, the applicant received a neurophysiology assessment by Dr. Thomas Steeves, staff physician, on her right neck and right arm.⁵ Dr. Steeves found that her pain relates primarily to a musculoskeletal source.

10On January 4, 2018, the applicant received an orthopaedic assessment by Dr. Franco Tavazzani, orthopaedic surgeon, following ongoing complaints of pain in her low back and neck. Dr. Tavazzani concluded that the applicants’ injuries were serious, permanent, and will continue to disrupt her work and home life-long term.⁶

11On November 6, 2019, Dr. Doreen Payan, chiropractor, recommended the OCF-18 for a chronic pain assessment.⁷

12On January 3, 2020, Dr. David Robertson, chiropractor, recommended the OCF-18 for a functional assessment.

13In February 2020, the applicant underwent a multidisciplinary assessment by the respondent’s assessors, Dr. Farooq Ismail and Dr. Mohammad Nikkou, with respect to the issues in dispute.⁸

ANALYSIS

Are the Treatment Plans Reasonable or Necessary

14Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

15The applicant bears the onus of proving entitlement to the proposed treatment by proving that the OCF-18s are reasonable and necessary on a balance of probabilities.⁹

$2,401.25 for a Chronic Pain Assessment, Dated November 6, 2019

16After considering the submissions and evidence of the parties, based on a balance of probabilities, I find that the applicant has met her onus of providing that the proposed chronic pain assessment is reasonable and necessary.

17Assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Nonetheless, the applicant still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary. To do so, the applicant must point to objective evidence that there are grounds to suspect they have the condition for which the assessment is sought.

18The OCF-18 was completed by Dr. Payan, chiropractor, which provided that the applicant had ongoing pain including headaches, chest pains, severe anxiety, pain in the right and left shoulders, pain in her thumb and hand, and chronic neck pain.¹⁰ The OCF-18 states that the goal of the chronic pain assessment was to provide an accurate diagnosis, prognosis, and treatment from a chronic pain specialist. The OCF-18 was denied by the respondent based on the Insurer’s Examination (“IE”) report of Dr. Ismail and Dr. Nikkou in February 2020, which opined that the assessment was not reasonable or necessary.

19The applicant submits that ongoing pain complaints can be found in specialist reports and assessments, all of which supports her assertion that she suffers from chronic pain. Given this ongoing pain, the applicant argues that she requests a plan of care and guidance on how to improve her condition.

20The applicant relies on the neurophysiology assessment performed of Dr. Steeves dated August 17, 2018.¹¹ The physical exam found an unremarkable neurological examination, tenderness of the cervical paraspinal muscles extending into the trapezii in the upper musculature of her arm. As a result of the assessment, Dr. Steeves found that the applicant’s pain appears to relate primarily to a musculoskeletal source.¹²

21The applicant also relies on the orthopaedic assessment report of Dr. Tavazzani, orthopaedic surgeon, dated February 15, 2018. As noted above, Dr. Tavazzani opined that the applicants’ injuries are serious, permanent, and will continue to disrupt her work and home life-long term.¹³

22Furthermore, Dr. Tavazzani applied the American Medical Association Guidelines (AMA Guides)¹⁴, and identified that the applicant presented 4 clinical signs and symptoms that are indicative of the development of a chronic pain syndrome.

23The applicant also relies on the findings of Dr. Konstantine Zakzanis, neuropsychiatrist, who diagnosed the applicant with anxiety and depressive symptoms that impact her function at home and at work. Dr. Zakzanis found that her pain causes her stress and impacts her mood.¹⁵

24The applicant provides that the goal of treatment does not need to be complete recovery. Even temporary relief of symptoms is usually reasonable and necessary.¹⁶ The applicant relies on Sooknanan v. Aviva Insurance Company of Canada¹⁷ which provides that chronic pain assessments are reasonable and necessary when someone suffers from chronic pain that impacts their daily life or employment.

25The applicant provides that following the motor vehicle accident she took a number of months off and has only returned to work with restricted hours and modified duties, but still experiences ongoing pain.¹⁸ Furthermore, the applicant’s injuries continue to impact her daily living, including her housekeeping activities, she has yet to perform pre-injury home maintenance activities.

26The respondent takes issue with the applicant’s submissions notably the applicant’s interpretation that Dr. Steeve’s diagnoses the applicant with chronic pain syndrome, citing that that Dr. Steeve’s Clinical Notes and Records state that the applicant has “chronic pain symptoms” not chronic pain syndrome.¹⁹

27The respondent recognizes that the Tribunal has accepted that an applicant must meet 3 criteria of AMA Guides for a diagnosis of chronic pain syndrome, however it is the respondent’s position that with the exception of the development of psychological sequelae, the applicant has failed to adduce any evidence to establish any other criteria.²⁰

28The respondent submits that the only reliable medical opinions are Dr. Ismail and Dr. Nikkhou. Dr. Ismail’s physical examination revealed no ongoing physical impairments. Further during the examination with Dr. Ismail, the applicant provided that she had returned to work 4 days a week and was independent in self care activities.²¹ Dr. Ismail concluded that there were no ongoing musculoskeletal or neurological impairments and opined that the OCF-18 was not reasonably required for the soft tissue injuries sustained in the accident.

29The applicant was also assessed by Dr. Nikkou, neuropsychologist. Dr. Nikkou opined that from a psychological perspective, the OCF-18 chronic pain assessment was not reasonable or necessary. Given the applicant’s pre-accident depressions, her physical complaints are justified by her mild depressive-anxiety symptoms²².

30I find that the applicant has sustained a serious permanent impairment of important bodily functions as a result of injuries sustained in her accident.

31Although the AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. I note that several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. I put weight on Dr. Tavazzani’ certification in the AMA Guides and his application of the characteristics that establish that the applicant has a diagnosis of chronic pain syndrome based on these criteria; pain greater than 3 months, dramatization, prolonged use of drugs, despair, disuse, dysfunction, diagnostic dilemma, and dependence on others and/or on passive physical therapy.²³ I am persuaded by Dr. Tavazzani’s findings that given the length of time that elapsed since the motor vehicle accident, as well as the applicant’s limitation of function, that she has reached maximum medical improvement from her motor vehicle accident injuries.²⁴

32I also find that the OCF-18 is detailed in its approach, it provides that the chronic pain assessment will provide an accurate diagnosis, prognosis, and treatment from a chronic pain specialist. Leading me to dismiss the respondent’s argument that the applicant failed to adduce evidence to establish the goals of the OCF-18.

33Accordingly, I prefer Dr. Steeves and Dr. Tavazzani assessment of the reasonable and necessity of a chronic pain assessment to the proposal in the OCF-18, over that of Dr. Ismail and Dr. Nikkhou which I find to be vague and lacking in justification.

34I am persuaded by Sooknanan v. Aviva Insurance Company of Canada²⁵ and find that a chronic pain assessment is reasonable and necessary for the applicant as someone who suffers from chronic pain that impacts their daily life or employment.

35I find that the applicant has demonstrated on a balance of probabilities that the proposed OCF-18 for a chronic pain assessment is reasonable and necessary pursuant to the Schedule.

$989.67 for a Functional Assessment dated January 3, 2020

36I find that the applicant is not entitled to the OCF-18 completed by Dr. Robertson in the amount of $989.67 for a functional assessment as the applicant has not met her burden to prove on a balance of probabilities that the OCF-18 is reasonable and necessary.

37Dr. Robertson completed a phone consultation with the applicant where she self-reported complaints of pain during repetitive movements or prolonged static postures as well as a decreased strength and endurance to daily activities. Dr. Robertson concluded after the telephone consultation that a functional mobility exam was warranted to determine why this is happening, what muscles are involved and how it can be reversed.²⁶

38In the OCF-18 Dr. Robertson identified the goals of the functional assessment was to reduce pain, increase strength and increase the applicant’s range of motion.

39The respondent expressed concerns that the pre-screen to complete the OCF-18 was done via telephone consultation. The respondent suggested that Dr. Robertson relied solely on the self-reported comments of the applicant in order to complete the OCF-18, having never assessed the applicant in person. Furthermore, the respondent argues that the OCF-18 also references non-accident-related issues.²⁷

40I assign little weight to the opinion of Dr. Robertson, as the entirety of the OCF-18 was self-reported by the applicant via telephone. I am persuaded by the respondent’s argument that should the applicant require active functional therapy as recommended by Dr. Robertson, an OCF-18 with an initial assessment could have been submitted. The applicant did not provide submissions as to why she never completed an in-person assessment, why this was completed over the telephone and why an initial assessment was never submitted.

41I am not persuaded that the evidence indicates that the proposed OCF-18 is reasonable or necessary.

Payments under Section 10 of Ontario Regulation 664

42Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.

43Although I found one OCF-18 reasonable and necessary, I do not find compelling argument or evidence put forward by the applicant indicating that the respondent was unreasonable in its denial of the benefit or that it was unreasonably withheld. The fact that the respondent disagreed with the applicant’s assertions and or assessment of the OCF-18 submitted does not represent unreasonable conduct.

ORDER

44I find that the applicant is entitled to:

a. $2,401.25 for a chronic pain assessment;

45I find that the applicant is not entitled to:

i. $989.67 for a functional assessment; and

ii. An award for unreasonable withholding or delaying payments under section 10 of the Ontario Regulation 664.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Emergency Report, dated April 1, 2016.
3. 3Letter from Dr. Vallani, dated April 3, 2017.
4. 4Orthopedic Assessment Report, Dr. Tavazzani, dated February 15, 2018.
5. 5Clinical Notes and Records of Dr. Steeves, dated March, 15 2017.
6. 6Orthopedic Assessment Report, Dr. Tavazzani, dated February 15, 2018.
7. 7OCF-18, Dr. Payan, November 6, 2019.
8. 8Multidisciplinary Assessmetn Report, March 3, 2020.
9. 9Scarlett v. Belair Insurance, 2015 ONSC 3635 at paras. 20-24.
10. 10OCF-18, Dr. Payan, November 6, 2019.
11. 11Clinical Notes and Records of Dr. Steeves, dated March, 15 2017.
12. 12Clinical Notes and Records of Dr. Steeves, dated March, 15 2017.
13. 13Orthopaedic Report of Dr. Tavazzani, dated February 15, 2018.
14. 14American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.
15. 15Psychological Assessment Report of Dr. Zakzanis, dated June 10, 2020.
16. 16Cubello v. Guidolin, [2000] OJ No 1468.
17. 172021 ON LAT 76603
18. 18Clinical Notes and Records of Dr. Steeves, dated March, 15 2017.
19. 19Clinical Notes and Records of Dr. Steeves, dated March, 15 2017.
20. 20Orthopedic Report of Dr. Tavazzani, dated February 15, 2018.
21. 21Multidisciplinary Assessment Report, March 3, 2020.
22. 22Multidisciplinary Assessment Report, March 3, 2020.
23. 23Orthopedic Report of Dr. Tavazzani, dated February 15, 2018.
24. 24Orthopedic Report of Dr. Tavazzani, dated February 15, 2018.
25. 252021 ON LAT 76603
26. 26OCF-18, Dr. Robertson, dated January 3, 2020.
27. 27OCF-18, Dr. Robertson, dated January 3, 2020.