Mohamed v. Aviva Insurance Company, 2023 CanLII 2697

Licence Appeal Tribunal

Citation: Mohamed v. Aviva Insurance Company, 2023 ONLAT 20-014885/AABS

Licence Appeal Tribunal File Number: 20-014885/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:

Hussain Mohamed

Applicant

and

Aviva Insurance Company

Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: Anna Korolkova, Paralegal

For the Respondent: Brendan Sheehan, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1The applicant was involved in an automobile accident on December 7, 2016, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)(“Schedule”)¹.

2The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to medical services proposed by Downsview Healthcare Inc. in treatment plans/OCF-18s (“plan”) as follows:

a. $1,866.28 in a plan dated August 20, 2019;

b. $1,361.60 in a plan dated September 17, 2019;

c. $1,161.20 in a plan dated October 17, 2019?

ii. Is the applicant entitled to $2,000.00 for a Chronic Pain Assessment, proposed by Downsview Healthcare Inc., in a plan dated September 6, 2019?

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

RESULT

4I find that:

i. The applicant is not entitled to the medical services proposed by Downsview Healthcare Inc, in treatment plans dated August 20, September 17, and October 17, 2019.

ii. The applicant is entitled to $2,000.00 for a Chronic Pain Assessment, plus interest.

BACKGROUND

5The applicant was the seat-belted driver of a vehicle that T-boned another vehicle that was making a left-hand turn in front of him. The airbags deployed, and the applicant submits that he briefly lost consciousness. Hospital records, however, indicate that he did not lose consciousness.²

6The applicant was able to exit his vehicle independently before being transported to Humber River Hospital. He was assessed for chest pain, and then discharged without accompaniment with a diagnosis of ‘MVC’.³

7The applicant visited his family doctor, Dr. Magdy Bekhit, on December 9, 2016. He complained of neck pain, chest pain, and some anxiety with flashbacks related to the accident.⁴ Dr. Bekhit diagnosed post-traumatic stress disorder (“PTSD”) and musculoskeletal pain.

8The applicant submits that in addition to post-traumatic stress disorder, he suffers from chronic low back pain as a result of the accident. X-rays of the applicant’s lower back on January 18, 2018 showed moderate to severe degenerative changes.

9The applicant was employed as a full-time security guard at the time of the accident. He has continued to do the same job but works night shifts that are less demanding and allow him to avoid driving during rush hour.⁵

10The applicant was involved in another motor vehicle accident on May 24, 2017. A tractor trailer suddenly changed lanes in front of the applicant and the left back wheel of the tractor trailer hit the front right side of the applicant’s vehicle. The applicant submits that he was not physically injured, but the May 2017 accident did impact him psychologically.

POSITIONS OF THE PARTIES

11The applicant submits that his vehicle was a total write-off after the December 2016 accident. He suffered immediate neck and back pain, chest pain, and the ongoing back pain he continues to suffer from has made it difficult to bend to pray, put on his shoes, lift, and sustain any posture.

12The applicant relies on the clinical notes and records of Dr. Bekhit and the psychological assessment by Dr. Andrew Shaul dated April 17, 2017 to support his position. Dr. Shaul was of the opinion that the applicant was suffering from an adjustment disorder with mixed anxiety and depressed mood, and specific phobia (traveling in and around a vehicle). Dr. Shaul noted that the applicant reported ongoing pain throughout his body, and that his physical injuries limited his ability to perform tasks such as lifting, bending, standing, squatting, and walking for extended periods of time.⁶

13The applicant submits that he suffers from a chronic pain syndrome, and as such, the proposed plans are reasonable and necessary. There has been a slow but gradual improvement, and the applicant argues that further interruption in therapy will only cause additional exacerbation of his pain. The applicant submits that in addition to a chronic pain syndrome, he suffers from post-traumatic stress disorder, and an adjustment disorder. Those conditions would benefit from facility based physical and psychological therapy to improve and/or manage his pain as proposed.

14The respondent submits that the applicant did not report any complaints of back pain to his family doctor, Dr. Bekhit, until almost 6 months after the December 6, 2016 accident. His first report of back pain following the accident was on June 1, 2017, which was a week after his second, May 24, 2017 accident. It was only after the applicant’s May 2017 accident that he started complaining more frequently to Dr. Bekhit about back pain. The respondent argues that the applicant also failed to address the second accident in their submissions.

15The respondent considered the psychological report by Dr. Peter Stenn dated September 12, 2017. In that report, Dr. Stenn noted that the applicant suffered from insomnia, flashbacks, and chronic back pain that was worse with sitting/standing for prolonged periods. Dr. Stenn did not, however, mention that the applicant’s chronic back pain was the result of his December 2016 accident.

16The respondent submits that none of the clinical notes from the applicant’s visits with Dr. Bekhit following the December 2016 accident reference that accident as a cause of the applicant’s low back pain.

17The respondent acknowledges that the applicant was referred to a chronic pain clinic in December 2018 by Dr. Bekhit, and that he received a nerve block injection in January 2019. The pain specialist, Dr. Ali Kajdehi, made no diagnosis and did not comment about any association between the December 2016 accident and the applicant’s back condition. In addition, there was no further mention of back pain in Dr. Bekhit’s clinical notes between December 2018 and December 2020.

18With respect to the applicant’s psychological condition, the respondent notes that the applicant’s psychological treatment at Downsview Healthcare was sporadic. The applicant attended frequent sessions until July 24, 2018, but then did not have any other sessions until September 2019.

19The respondent relies on the psychological assessment report from Dr. Monique El-Hage dated May 8, 2017 to support their position. Dr. El-Hage found that the applicant had subclinical levels of post-traumatic stress disorder, as well as adjustment disorder with mixed anxiety and depressed mood.

20The respondent submits that the applicant has continued to work on a full-time basis as a security guard and he takes no prescription medication. The only accommodation that he has needed at work has been to be able to schedule his shifts around rush hour traffic.

ANALYSIS

Medical benefits proposed on treatment plans (“OCF-18s”) dated August 20, September 17, October 17, 2019

21Sections 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. The applicant bears the onus of proving that any OCF-18 in dispute is reasonable and necessary on a balance of probabilities.

22I am not persuaded that the treatment plans proposed by Downsview Healthcare Inc. in the amount of $1,866.28, $1,361.60, and $1,161.20 are reasonable and necessary pursuant to the Schedule. Since the applicant is seeking payment for three OCF-18s from the same provider and the plans list similar treatment goals, I will address them all at once.

23The plans in dispute were proposed more than two and a half years after the applicant’s December 2016 accident. Dr. Oleksandr Pivtoran, chiropractor from Downsview Healthcare Inc., proposed primarily passive treatment modalities, including chiropractic, massage, physical therapy, functional exercises, acupuncture, shockwave therapy, and spinal decompression therapy. The treatment goals were listed to include pain reduction, increased strength, increased range of motion, restored core stability and spine flexibility, and a return to activities of normal living and pre-accident work activities. Dr. Pivtoran noted that barriers to recovery included chronic injuries, persisting multifocal pain, emotional disturbances, interruption in therapy, and current symptom exacerbation.

24Dr. Pivtoran provided little in the way of quantified outcome measures that would support the beneficial impact of the proposed treatment and the need for ongoing facility-based care as proposed more than two and a half years after the accident. Dr. Pivtoran only noted that the applicant was demonstrating ‘slow, gradual improvement’ on each of the plans in dispute.⁷ Dr. Pivtoran also failed to persuasively link the applicant’s physical symptoms to his December 2016 accident when proposing the treatment in dispute.

25I have considered Dr. Pivtoran’s comment that the applicant’s improvements have been very slow to date, the time that has elapsed since the December 2016 accident, and the fact that no objective findings have been provided that would substantiate the benefit or need for ongoing passive facility-based therapy.

26It is also hard to distinguish between what symptoms were caused by the applicant’s December 2016 accident and the May 2017 accident. The proposed treatment plans do not delineate between the two accidents or how the sequelae from each on has impacted the applicant’s overall condition and recovery.

27The applicant has failed to convince me that on a balance of probabilities the plans in dispute are both reasonable and necessary.

Chronic Pain Assessment

28I am satisfied that the Chronic Pain Assessment in the amount of $2,000.00 is reasonable and necessary pursuant to the Schedule.

29In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists and to make treatment recommendations. Notwithstanding their speculative nature, 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 persuasive, objective evidence that there are grounds to suspect he has the condition for which he seeks the assessment.

30The applicant submits that in addition to chronic pain syndrome, he suffers from post-traumatic stress disorder and an adjustment disorder, both of which would benefit from facility-based physical and psychological therapy to improve and manage his pain as proposed.

31The applicant has not been formally diagnosed with a chronic pain syndrome based on the criteria in the AMA Guides. He does, however, meet the definition of chronic pain based on the time since the accident and his ongoing symptoms.⁸ He also suffers from post-traumatic stress disorder and an adjustment disorder according to Dr. Shaul and Dr. Bekhit. Dr. Pivtoran, chiropractor, has also listed chronic myofascial symptoms, chronic lumbar joint dysfunction, chronic shoulder sprain/strain, and chronic headaches as diagnoses on the treatment plans in dispute.

32I am persuaded by the applicant’s ongoing pain symptoms, his psychological impairments, his pre-existing back condition, and Dr. Bekhit’s clinical notes that echo the applicant’s submission that he continues to suffer from both physical and psychological symptoms. I accept that the applicant’s overall condition is multifactorial.

33X-rays of his lower back dated January 2018 objectively confirm moderate to severe degenerative changes. While those findings cannot be causally linked to the December 2016 accident, the pain symptoms that the applicant continues to experience could have been exaggerated or amplified by the accident because of that underlying spinal degeneration. I also accept that physical pain can impact an individual’s emotional state, and vice versa.

34The respondent submits that the applicant has already attended a pain clinic in January 2019. The applicant was assessed and given lower back nerve block injections on one occasion at that time. I find no evidence that the pain clinic doctor, Dr. Kajdehi, considered or discussed any other treatment options with the applicant, or that he considered his psychological status.

35Dr. Kajdehi provided little in the way of a comprehensive chronic pain assessment, apart from a focused examination of the applicant’s lower back. The referral form Dr. Bekhit sent to Dr. Kajdehi clearly outlines the reason for the referral, which was solely to assess the applicant’s lower back pain.⁹ There was no mention of, or consideration for, multi-disciplinary support that might benefit the applicant. Dr. Kajdehi did not assess or address the applicant’s psychological symptoms, or the impact his other chronic physical complaints have had.¹⁰

36I find that the proposed chronic pain assessment would not be duplicative of the nerve block injection the applicant received at a pain clinic from Dr. Kajdehi. The applicant has been to a pain clinic for a single set of lower back injections. Dr. Karmy, from Downsview Healthcare Inc., indicated on the disputed plan that the chronic pain assessment would address all treatment modalities yet to be explored that the applicant could benefit from, as well as the need for multi-disciplinary care to address his ongoing psychological symptoms.

37I find that the proposed chronic pain assessment would provide a more holistic assessment of previously untrialled treatment modalities that may be of benefit to that applicant, both physically and psychologically.

38I agree with the respondent that it is difficult to isolate the specific injury sequelae and impact from the applicant’s December 2016 accident vs his May 2017 accident. However, I look to Dr. Bekhit’s clinical notes and Dr. Shaul’s April 2017 psychological report which provide persuasive evidence that the applicant was suffering from pain and an adjustment disorder with specific phobia prior to his May 2017 accident.

39For all of these reasons, I am persuaded that the chronic pain assessment is both reasonable and necessary. The applicant has provided persuasive objective and subjective evidence that support grounds to suspect that he could be suffering from a chronic pain syndrome.

Interest

40The applicant is only entitled to applicable interest pursuant to the cost of the Chronic Pain Assessment, in the amount of $2,000.00 pursuant to s. 51 of the Schedule.

ORDER

41I find that:

i. The applicant is not entitled to the plans for chiropractic services in the amounts of $1,866.28, $1,361.60, and $1,161.20.

ii. The applicant is entitled to a Chronic Pain Assessment in the amount of $2,000.00, plus interest.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2TAB 5 - Respondent’s Submissions, page 16.
3. 3TAB 5 - Respondent’s Submissions, page 15.
4. 4Dr. Bekhit’s clinical notes and records - TAB 4 - Respondent’s Submissions, page 12.
5. 5Applicant’s Submissions, page 145.
6. 6Applicant’s submissions, page 12.
7. 7TAB 5 - Applicant’s submissions, page 63.
8. 8Health Canada definition of chronic pain – pain lasting longer than 3 months.
9. 9TAB 14 – Applicant’s submissions, page 149.
10. 10TAB 14 – Applicant’s submissions.