Stacey Draper v. Aviva Insurance Company of Canada, 2023 CanLII 47533

Licence Appeal Tribunal

Citation: Draper v. Aviva Insurance Company of Canada, 2023 ONLAT 20-008750/AABS

Licence Appeal Tribunal File Number: 20-008750/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:

Stacey Draper

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Michael Yermus, Counsel Sherzod Karimov, Counsel

For the Respondent: Shivani Mehta, Counsel

HEARD: By way of written submissions

OVERVIEW

1Stacey Draper, the applicant, was involved in an automobile accident on June 27, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $2,200 for a chronic pain assessment recommended by Oshawa Physiotherapy and Rehabilitation Centre in a treatment plan dated February 10, 2020?

ii. Is the applicant entitled to $9,007.32 for chronic pain treatment recommended by Oshawa Physiotherapy and Rehabilitation Centre in a treatment plan dated May 28, 2020?

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

iv. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payments to the Applicant?

RESULT

3The applicant is not entitled to the treatment plans in dispute. She is not entitled to interest as no benefits are payable. She is not entitled to an award under O. Reg. 664.

ANALYSIS

4To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

Chronic Pain Assessment

5The applicant has not proven on a balance of probabilities that a chronic pain assessment is reasonable and necessary.

6The applicant has a significant pre-accident medical history including fibromyalgia, chronic pain, carpal tunnel syndrome, depression, cervical spine degenerative disc disease, and arthritis. She had pain to her neck, shoulders, back, knees, elbow, and left hand for many years. She also experienced headaches and fatigue. She was receiving chiropractic treatments and had been referred for massage therapy. She visited her family physician regularly and was seen by Dr. Sarco, physiatrist, for her fibromyalgia in August 2017. She worked 4-5 hours per day as a house cleaner.

7After the accident, the applicant experienced pain in her shoulders, back, pelvis, and neck. At times her symptoms were associated with brain fog, headaches, and poor concentration and focus. She also had left-sided numbness. The records indicate that she took some time off work and returned in November 2018. Her family physician, Dr. Albrecht, referred her for physiotherapy and massage therapy. The last record from Dr. Albrecht that mentions accident-related issues was from May 16, 2019, when the applicant had complaints of left shoulder pain.

8The applicant attended Lifemark for physiotherapy and massage, but found it was not helpful. She began receiving this same treatment at Guelph Medical Place in January 2019, however the last record is from February 2019. She also continued to see her chiropractor until August 2019.

9It appears that the applicant’s pre-accident symptoms were at least temporarily exacerbated by the accident. However, past August 2019, there is nothing in the clinical notes and records to suggest that she was still experiencing those symptoms. The applicant changed family physicians in December 2020 and, despite seeing her frequently, never mentions the accident or any of her previous pain symptoms. The applicant was also never referred back to Dr. Sarco or any other physiatrist or pain specialist after the accident.

10There is very limited information in the records as to the applicant’s functionality as a result of her accident-related pain. The notes from an occupational therapist at Lifemark in August 2018 indicate that she was independent in her self-care, housekeeping, and caregiving tasks, although some tasks were difficult (e.g. laundry, outdoor maintenance, heavier cleaning). According to the records from Guelph Medical Place from January 2019, she had returned to her regular work hours and duties, although she required frequent position changes and had low back pain with prolonged standing. It appears that the applicant now owns a courier company and does delivery and office work full time. There is no information as to when she changed jobs, or whether it was as a result of the accident.

11The applicant submitted an OCF-18 for a chronic pain assessment on February 10, 2020, which was denied by the respondent. The OCF-18 lists the applicant’s pre-accident conditions as fibromyalgia and chronic pain. It also indicates that her accident-related impairments do not affect her employment tasks, but do affect her activities of daily life. The goal of the treatment plan was to identify barriers to recovery and available treatment options.

12The applicant argues that her work duties were modified as a result of the accident, and further to s. 16 of the Schedule, the treatment plans in dispute satisfy the “purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into the labour market”. However, the OCF-18 in dispute notes that the applicant’s employment was no longer affected by her accident-related impairments. The evidence is that she works full time.

13I am not sure why, considering the applicant had stopped attending treatment entirely, was working full time, and had stopped speaking with her doctor about accident-related injuries, she was referred for a chronic pain assessment. I find that there is insufficient evidence in the clinical notes and records that a chronic pain assessment was warranted at the time the OCF-18 was submitted. However, despite the denial, the applicant attended the assessment on February 21, 2020 with Dr. Razvi, and relies on the resulting report as evidence that the assessment was reasonable and necessary.

14Dr. Razvi is a family physician and chronic pain clinician. Dr. Razvi diagnosed the applicant with chronic pain syndrome, cervicogenic headaches, myofascial cervical and lumbar spine pain, possible concussion, whiplash associated disorder, mood disorder (depression with features of posttraumatic stress disorder), sleep apnea, and general deconditioning secondary to those diagnoses. He stated that these diagnoses were directly related to the accident, and recommended treatment in a multidisciplinary setting.

15I find that there are significant issues with Dr. Razvi’s report. Dr. Razvi did not appear to have reviewed any medical records prior to preparing his report. He did not include a list of medical documents reviewed, and in fact stated that he did not have copies of any x-ray or MRI reports. He wrote that the applicant’s past medical history was “unremarkable”, aside from an accident in 2006 that resulted in some neck and back pain that had almost resolved completely by the time this accident occurred. He also wrote that after the accident, the applicant was assessed by a specialist who diagnosed her with fibromyalgia. This is entirely inaccurate. The applicant was assessed by a specialist prior to the accident and diagnosed with fibromyalgia. She had a significant pre-accident medical history which is outlined above. Fibromyalgia and chronic pain were listed as pre-accident conditions in the OCF-18 proposing the chronic pain assessment, so it stands to reason that Dr. Razvi did not review that document either.

16With respect to the applicant’s functionality, Dr. Razvi mentions that certain activities were limited (for example, he states that the applicant is severely limited in child-rearing), but does not identify which tasks the applicant has difficulty with or why. He notes that the applicant has limitations with her ability to bathe, shower, and dress, but does not explain what those limitations are. No other medical practitioner has indicated that the applicant is limited in completing her self-care tasks.

17Dr. Razvi also states the following with respect to the applicant’s ability to work: “She is currently employed in her own business. She does house cleaning and cleans approximately 2-3 houses daily. She has been unable to return to her work cleaning houses. She his [sic] currently delivering Amazon packages occasionally by herself as well as subcontracting to deliver the packages.” This is obviously a confusing statement. Further, Dr. Razvi concludes that the applicant’s impairments continuously prevent her from engaging in substantially all tasks of her employment. If the applicant is working full time, she is not likely to be prevented from engaging in substantially all the tasks of her employment. Dr. Razvi does not elaborate on this issue at all, and it remains a mystery what the applicant is prevented from doing at work.

18Finally, Dr. Razvi’s diagnoses are difficult to accept. Dr. Razvi even states in a subsequent paragraph that the applicant needs a proper diagnosis with respect to her mood disorder and high degree of suspicion of sleep apnea. Listing those conditions as diagnoses directly related to the accident is inaccurate if they are only suspected diagnoses. He further states that the applicant developed chronic pain syndrome directly as a result of the accident, without reviewing any medical records or conducting an analysis pursuant to the AMA Guides.¹ He did not provide any reasons for this diagnosis and of course did not know that the applicant was already experiencing fibromyalgia with diffuse neck and back pain prior to the accident. Dr. Razvi also diagnosed a “possible concussion”. None of the applicant’s treating professionals have ever made this diagnosis, and there is no indication that the applicant struck her head in the accident. Again, Dr. Razvi does not explain the reasoning behind this diagnosis at all.

19For those reasons, I place very little weight on the report of Dr. Razvi.

20The respondent relies on the s. 44 reports of Dr. Lawson, psychologist, and Dr. Khaled, general practitioner. Dr. Khaled opines that a chronic pain assessment is not reasonable and necessary, as there is no evidence that the applicant sustained a chronic pain disorder as a direct result of the soft tissue injuries sustained in the accident. He also stated that from a functional perspective, she does not meet the criteria of a chronic pain disorder. Dr. Lawson diagnosed the applicant with Major Depressive Disorder with anxious distress, and indicated that she was vulnerable to developing a Somatic Symptom Disorder and Passenger Phobia.

21The applicant takes issue with the qualifications of the respondent’s s. 44 assessors. She states that Dr. Khaled’s professional career has been in family medicine, and he is unqualified to opine on matters related to chronic pain. She also points to two cases where she argues that Dr. Lawson’s opinions were not accepted.

22The respondent submits that the applicant failed to give notice that she was challenging the qualifications and reports of the s. 44 assessors 10 days prior to the hearing, pursuant to Rule 10.4 of the LAT Rules of Practice and Procedure. I note that the applicant is not seeking to exclude the reports of Dr. Khaled or Dr. Lawson pursuant to Rule 10.4, and instead asks that the Tribunal assign them no weight. In fact, the respondent was also keen to point out issues with Dr. Razvi’s report without resorting to Rule 10.4. The parties could have requested relief under Rule 10.4 but did not, so the reports have not been excluded from the evidentiary record.

23With respect to Dr. Lawson, the respondent states that the applicant took the first case it relied on out of context, and further failed to provide a correct citation or a copy of the second case, so the context cannot be determined. I agree with the respondent. In the one case cited properly (and thus retrievable), Dr. Lawson’s opinion was given less weight based on the facts of the case and the specifics of their report, and not because of overarching issues with them as a practitioner.²

24The applicant also points out that in Meady v. Greyhound Canada Transportation Corp., 2012 ONSC 657 [Meady], Dr. Lawson agreed that the plaintiff in that case exhibited chronic pain syndrome, but preferred to use the term somatoform disorder. The applicant states that Dr. Lawson has drawn a distinction in this case in order to please the respondent, where he did not do so in Meady. I do not agree with the applicant. Dr. Lawson states that the applicant is vulnerable to developing Somatic Symptom Disorder, but did not diagnose her with it. It cannot be said that he effectively diagnosed the applicant with chronic pain syndrome.

25I do have some difficulties with Dr. Khaled’s opinion regarding chronic pain syndrome. He does not appear to have expertise in the area of chronic pain, nor does he complete an analysis pursuant to the AMA Guides. While I do not give much weight to his conclusion regarding chronic pain, I find Dr. Khaled’s report helpful in that it fills in evidentiary gaps that the applicant has not provided (for example, that she owns a courier company and is working full time).

26The burden is on the applicant to show that this assessment was warranted. I do not find that Dr. Razvi’s report, without corroborating medical evidence, is enough to meet this burden. I find that the applicant has failed to prove on a balance of probabilities that a chronic pain assessment was reasonable and necessary.

Chronic Pain Treatment

27I find that the applicant has not proven on a balance of probabilities that the treatment plan for multidisciplinary chronic pain treatment is reasonable and necessary.

28The OCF-18 for multidisciplinary chronic pain treatment includes a psychological assessment and treatment, 24 sessions of physical rehabilitation with a physiotherapist, 12 sessions of “therapy” with a physiotherapist, and 12 sessions of chiropractic treatments. I note that there is no information as to the distinction between physical rehabilitation and therapy, both of which are to be provided by a physiotherapist. The goals of this treatment are listed as preventing pain from controlling the applicant’s activities of daily living, and to allowing her to return to her activities of normal living. The box next to the goal of returning to pre-accident work was not checked.

29It appears that the applicant’s theory behind the proposed treatment is based primarily on the report of Dr. Razvi, which I have already assigned very little weight to. The applicant does not make submissions as to why each of the therapy modalities listed in the treatment plan are reasonable and necessary. She instead states that the medical records substantiate the need for the treatment generally, and that the treatment helped facilitate her reintegration into the labour market. She also argues that the treatment is reasonable for the management of her ongoing pain.

30Aside from Dr. Razvi’s report, there is no evidence that the applicant was suffering from accident-related pain requiring the proposed physical therapy at the time the treatment plan was submitted. The last time either of the applicant’s family physicians recommended physical therapy was December 28, 2018. She stopped attending physiotherapy and massage therapy in February 2019. She stopped talking to her family physicians about accident-related issues by May 2019. She was seeing a chiropractor before and after the accident, and appears to have stopped visiting entirely in August 2019.

31The applicant’s argument that therapy helped facilitate the applicant’s return to the workforce does not impact whether further physical therapy is warranted. If she has been able to work full time since stopping her treatments, that is no longer a treatment goal. That goal was not even listed on the OCF-18.

32While I agree that pain relief is a legitimate goal for treatment, the applicant must provide evidence that the proposed therapy will help reach that goal. Further, the applicant must show that her pain is as a result of the accident. The only person recommending treatment is Dr. Razvi, who has no knowledge of her pre-accident medical conditions. In fact, the records indicate that she did not see improvement with physiotherapy at Lifemark, and she found exercises to be aggravating. I find that the applicant has not met her burden of proof with respect to the proposed physical treatment.

33Finally, with respect to the psychological assessment and treatment, the respondent submits that upon receiving the report of Dr. Lawson, it advised the applicant that it would fund a psychological assessment once a separate treatment plan was received. This is because Dr. Lawson did not believe that psychotherapy should be provided to the applicant in the context of a chronic pain management program as she was not diagnosed with chronic pain. The respondent also advised the applicant that if she was interested in psychological treatment, she should submit a treatment plan for that as well. An OCF-18 was submitted by Dr. Ladak, psychologist, for an assessment and was approved by the respondent on December 16, 2020. Despite this approval, the respondent submits that the applicant has not yet attended the assessment, and no treatment plan has been submitted for psychological treatment.

34If the applicant was interested in a psychological assessment and treatment, it stands to reason that she would have completed this after it was approved by the respondent. I see no reason why, if the applicant is entitled to this assessment and treatment outside of a chronic pain program, she should also be entitled to it within a chronic pain program, especially where there is not enough evidence that she has developed a chronic pain condition as a result of this accident.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, interest does not apply.

Award

36The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have not found any benefits to be payable, there is no basis for an award.

ORDER

37The applicant is not entitled to a chronic pain assessment or multidisciplinary chronic pain treatment. She is not entitled to interest as no benefits are payable. She is not entitled to an award under O. Reg. 664.

Footnotes

1. 1American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008.
2. 2P.S. v. Allstate Insurance, 2020 CanLII 87980 (ON LAT)