Pardeep Singh v. Aviva General Insurance Company, 2023 CanLII 4442

Licence Appeal Tribunal

Citation: Singh v. Aviva General Insurance Company, 2023 ONLAT 21-002421/AABS

Licence Appeal Tribunal File Number: 21-002421/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:

Pardeep Singh

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Ilona Agivaeva, Counsel

For the Respondent: Shivana Mehta, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

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

ISSUES IN DISPUTE

2The following issues are agreed to be in dispute:

1. Is the applicant entitled to $2,702.11 for chiropractic services recommended by Ideal Rehab Centre in a treatment plan/OCF-18 (“plan”) dated February 25, 2019?

2. Is the applicant entitled to $2,200.00 for a chronic pain assessment recommended by Princeton Hills Medical Assessments in a plan dated December 19, 2018?

3. Is the applicant entitled to interest on any overdue payment of benefits, pursuant to s. 51 of the Schedule?

RESULT

3I find that:

i. The applicant is not entitled to the chiropractic treatment plan in the amount of $2,702.11 dated February 25, 2019, as it is not medically reasonable and necessary.

ii. The applicant is entitled to the chronic pain assessment in the amount of $2,200.00 dated December 19, 2018, as it is reasonable and necessary, plus interest on any incurred amounts, pursuant to s. 51 of the Schedule.

BACKGROUND

4The applicant was the driver of a vehicle involved in a t-bone collision on James Potter Road in Brampton on May 1, 2016. He was transported by ambulance from the scene of the accident to Brampton Civic Hospital, where he complained of pain in his left hand and biceps and a laceration of his right elbow.²

5X-rays of the applicant’s left hand taken on the day of the accident revealed oblique fractures of the third and fourth metacarpals along with mild volar angulation and displacement of the distal fracture fragments. The applicant’s hand was placed in a cast.³

6Further imaging of the applicant’s left hand, conducted on May 9, 2016 as part of a consultation with Dr. Selig Krajden, orthopaedic surgeon, showed no significant changes, although Dr. Krajden noted edema and bruising in the left hand, as well as rotational deformity and shortening.⁴ Dr. Krajden performed a closed reduction procedure of the fractures and put the applicant’s hand in a splint. He also reviewed the “longterm risks” of the hand fractures with the applicant, including the possibility of “chronic pain.”⁵

7The applicant received primarily physical treatment (including chiropractic care and physiotherapy) for injuries and sequelae from the accident from March 15 to February 25, 2019.⁶

8The applicant takes the position that he suffers from a chronic pain disorder as a result of injuries sustained in the subject accident. He submits that the chiropractic treatment plan and the chronic pain assessment are reasonable and necessary to assess his overall condition and to meet goals of reducing pain along with increasing strength and range of motion.

9The respondent takes the position that the applicant does not suffer from chronic pain as a result of the accident and that the treatment plans in dispute are not reasonable and necessary.

ANALYSIS

Are the Treatment Plans Reasonable and Necessary?

10Sections 14 and 15 of the Schedule outline that an insurer is only liable to pay for reasonable and necessary medical expenses incurred as a result of an accident. To be eligible to receive funding for a treatment or assessment plan according to the Schedule, the applicant bears the onus of proving on a balance of probabilities that the treatment sought is reasonable and necessary.

11I find that the applicant has not established that the chiropractic treatment plan is reasonable and necessary, but that he has established that the chronic pain assessment is reasonable and necessary.

$2,702.11 Chiropractic Services Treatment Plan, February 25, 2019

12I find the applicant’s medical evidence with regard to the chiropractic treatment plan to be unpersuasive. The applicant relies on the treatment plan itself, completed by Dr. Farhan Khandwalla, chiropractor, dated February 25, 2019.⁷ But this treatment plan features few details aside from recommendations for 10 sessions of physical rehabilitation including muscle stimulation of the back and neck, hyperthermy of various body sites, acupuncture, and massage therapy.⁸ There is no medical analysis in this plan to support why this treatment is needed.

13The applicant’s argument that this treatment plan is necessary to meet the goals of pain relief, increasing strength, and increasing range of motion is not compelling. The applicant describes the treatment recommended in this plan as being “of the same nature” as the treatment he received between March 15, 2017 and February 25, 2019.⁹ This suggests that the treatment is ineffective, given that the applicant has seen little improvement over the course of two years.

14While it is well established that pain reduction is a legitimate goal in and of itself,¹⁰ I am not persuaded that the applicant is suffering from ongoing chronic pain. The applicant relies on the chronic pain assessment of Dr. Inese Robertus, family physician, dated July 13, 2021,¹¹ to support his claim, but I find this report to be insubstantial.

15Dr. Robertus diagnoses the applicant with chronic pain, but does not specify how she came to that conclusion other than by reciting the self-reported complaints of the applicant. Although Dr. Robertus states that the applicant meets “at least five” of the six criteria (listed below) generally used to determine whether or not a person suffers from chronic pain syndrome, as noted in the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”), she does not review how she came to this conclusion, nor does she specify which five of the six criteria she is referencing.¹²

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.

16As a result, I assign little weight to Dr. Robertus’ diagnosis that the applicant suffers from chronic pain. A thorough assessment of the applicant in relation to the individual six criteria listed in the Guides should have been included, not just a single sentence alleging that the applicant met five of the criteria without any analysis to support such a conclusion.

17Furthermore, Dr. Robertus does not endorse chiropractic treatment in the absence of a chronic pain program. She instead recommends a comprehensive multidisciplinary chronic pain program to start to address chronic pain symptoms and sequelae, followed by a chronic pain management program of treatment lasting five years. While Dr. Robertus includes chiropractic sessions and physiotherapy as part of her recommendations, she focuses almost entirely on psychological treatment such as individual counselling and behavioural therapy to develop coping methods for chronic pain.¹³

18The legible portions (the notes are hand-written and very difficult to read) of the clinical notes and records (“CNRs”) of the applicant’s family doctor, Dr. Mukesh Saini, do not reveal any ongoing complaints of pain.¹⁴ He saw Dr. Saini with regard to complaints about the accident in its immediate aftermath, which resulted in Dr. Saini making recommendations that the applicant seek physical therapy treatment and Dr. Saini signing a Disability Certificate (“OCF-3”) on June 6, 2016.¹⁵ But there is no evidence of visits to Dr. Saini that focus on accident-related concerns after 2016.

19With regard to the chiropractic treatment plan, I prefer the medical evidence provided in the insurer’s examination (“IE”) conducted by Dr. Hashmat Khan and his subsequent report dated May 23, 2019.¹⁶ Dr. Khan diagnosed the applicant with Whiplash Associated Disorder I and a thoracolumbar spine sprain/strain, but found that his clinical examination of the applicant was unremarkable.¹⁷

20I prefer the report of Dr. Khan largely due to his observations that there would be little benefit in continuing the same physical treatment that the applicant had been undergoing from 2017 to 2019. As a result of this, as well as the fact that three years had transpired since the accident, Dr. Khan did not find the chiropractic treatment plan in dispute to be reasonable and necessary.¹⁸

21Given the reasons detailed above, I find that the applicant has not proven that the chiropractic treatment plan in dispute is reasonable and necessary.

$2,200.00 Chronic Pain Assessment, May 9, 2019

22I find that the chronic pain assessment has been proven to be reasonable and necessary.

23Although as noted above, I question the conclusions of the chronic pain assessment, this does not mean that the assessment itself was not reasonable and necessary according to the requirements of the Schedule. An assessment does not have to result in any specific result to be deemed necessary, being diagnostic tools that of course do not have predetermined conclusions.

24I prefer the medical evidence of the applicant, as it shows a clear rationale behind the ordering of the chronic pain assessment. The applicant suffered a number of fractures in his left hand in the subject accident. Dr. Krajden raised the possibility of chronic pain resulting from these fractures as early as May of 2016. The applicant attended physical therapy between 2017 and 2019 that was funded by the insurer. As a result, I do not question that the applicant has suffered an injury and pain as a result of the accident. I also accept that an added diagnostic test in the form of a chronic pain assessment would be reasonable and necessary in order to fully evaluate the applicant given his injuries and pain symptoms.

25I do not find the respondent’s argument compelling. It relies on a paper review of this treatment plan by Dr. Khan dated June 4, 2019, and concludes that the treatment plan is not reasonable and necessary for the same reasons cited regarding the chiropractic treatment plan noted above.¹⁹

26Dr. Khan’s denial of the chiropractic plan actually strengthens the case for the chronic pain assessment. Given that physical therapy was not working, I find it reasonable and necessary to determine the condition of the applicant and to explore other potential options for treatment, such as a chronic pain assessment.

27I cannot accept Dr. Khan’s diagnosis that the applicant has reached maximum medical improvement.²⁰ He devotes very little space in his first IE report to the applicant’s hand fractures, despite noting the applicant’s complaint here with regard to using hand tools during his job as a mechanic.²¹ This is an odd approach, given these fractures are the most serious injuries sustained in the subject accident. As already noted, chronic pain was connected to these fractures as early as May, 2016, in the CNRs of Dr. Krajden. And the fractures were given a significant amount of attention in both of the OCF-18s in dispute as well as in the chronic pain assessment itself.

28I also disagree with the respondent’s additional argument that the chronic pain assessment should be denied because it does not provide a proper breakdown of the hourly rate or number of hours required to complete the assessment. The respondent cites a Tribunal decision in support of its argument.²² I do not find this citation particularly relevant, however, because the adjudicator in that case did not have the complete OCF-18 that was the focus of that dispute.²³ There are no such missing pages in the submissions before me here. Also, although other Tribunal decisions can be informative and helpful, I am not bound by them.

29Furthermore, there is nothing out of the ordinary in the OCF-18 regarding the total amount of the fees charged for this assessment. The amount charged is within the $2,000.00 limit imposed for an assessment in s. 25(5)(a) of the Schedule.

30While the respondent is correct that the chronic pain assessment OCF-18 does not include a complete breakdown of assessment costs, there is no clear requirement in the Schedule to do so. Section 25(3) of the Schedule specifies that an insurer is not liable to “pay expenses related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines.” Since the amount charged here is at the maximum rate, not above it, I see no reason to conclude that any violation has occurred.

31For the above reasons, I find that the chronic pain assessment is medically reasonable and necessary.

Interest

32Pursuant to s. 51 of the Schedule, interest is payable on the overdue payment of benefits. As the applicant is entitled to the chronic pain assessment plan in dispute, it follows that he is also entitled to interest on any incurred amounts with regard to that plan.

ORDER

33For the reasons detailed above, I find that:

i. The applicant is not entitled to the chiropractic treatment plan in the amount of $2,702.11 dated February 25, 2019.

ii. The applicant is entitled to the chronic pain assessment in the amount of $2,200.00 dated December 19, 2018, plus interest on any incurred amounts, pursuant to s. 51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10 (as amended).
2. 2Applicant Submissions, Tab 2 (Brampton Civic Hospital CNRs).
3. 3Ibid. Tab 2, page 6.
4. 4Ibid. Tab 2, page 11.
5. 5Ibid.
6. 6Ibid. Tab 6 (Inline Rehabilitation Accounting Summary).
7. 7Ibid., Tab 8 (OCF-18 of Dr. Khandwalla, February 25, 2019).
8. 8Ibid., Tab 8, page 9.
9. 9Applicant Written Submissions, page 4.
10. 10The applicant cites 16-003921 v. Certas Home and Auto Insurance Co. (ON LAT) and 17-003735 v. Certas Direct Insurance Company (ON LAT).
11. 11Applicant Submissions, Tab 7 (Chronic Pain Assessment of Dr. Robertus, July 13, 2021).
12. 12Ibid., Tab 7, page 12.
13. 13Ibid., Tab 7, pages 13-15.
14. 14Respondent Submissions, Tab 5 (CNRs of Dr. Saini).
15. 15Applicant Submissions, Tab 4 (OCF-3 of Dr. Saini, June 6, 2016).
16. 16Respondent Submissions, Tab 3 (IE of Dr. Khan, May 9, 2019).
17. 17Ibid., Tab 3, page 32.
18. 18Ibid., Tab 3, pages 33-34.
19. 19Ibid., Tab 4 (IE of Dr. Khan, June 4, 2019).
20. 20Ibid., Tab 3, page 33 (IE of Dr. Khan, May 9, 2019).
21. 21Ibid., Tab 3, page 31 (IE of Dr. Khan, May 9, 2019).
22. 22Applicant v. State Farm Insurance Company, 16-004031/AABS (ON LAT).
23. 23Ibid. at paragraph 44.