Licence Appeal Tribunal File Number: 21-004348/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:
Carlton Dixon
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Linda To, Paralegal
For the Respondent:
April Snow, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Carlton Dixon (“C.D.”), the applicant, was involved in an automobile accident on October 8, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). C.D. was denied benefits by the respondent, Aviva, 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 C.D. entitled to a medical benefit in the amount of $2,042.36 for massage and chiropractic services recommended by Complete Rehab Centre in a treatment plan submitted on February 9, 2021, and denied on February 10, 2021?
ii. Is C.D. entitled to a cost of examination expense in the amount of $2,460.00 for a chronic pain assessment recommended by Complete Rehab Centre in a treatment plan submitted on January 28, 2021, and denied on January 29, 2021?
iii. Is C.D. entitled to a medical benefit in the amount of $1,816.74 for chiropractic services recommended by Complete Rehab Centre in a treatment plan submitted on November 18, 2021, and denied on November 29, 2021?
iv. Is C.D. entitled to interest on any overdue payment of benefits?
RESULT
3C.D. has not demonstrated that the disputed treatment plans are reasonable and necessary.
ANALYSIS
OCF-18 dated February 9, 2021in the amount of $2,042.36
OCF-18 dated November 18, 2021 in the amount of $1,816.74
4In order to receive payment for a medical or rehabilitation benefit under the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the treatment is reasonable and necessary. The analysis should identify the reasonableness of the treatment goals, how the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.
5C.D. submits that the medicals support that the treatment plans are reasonable and necessary. He relies on the records of his family physician, Dr. Gin, who recommends physiotherapy. He also points to his dependence on prescription medication, that being―Apo-Naproxen, Cyclobenzaprin, Oxtcodone, and Zopiclone.
6He further submits that having not reached maximum medical recovery, the treatment plans are reasonable and necessary. His position is that his pain is not resolved, and the treatment plans provide grounds for why the recommended treatment is reasonable and necessary, therefore, the plans are reasonable and necessary.
7In response, Aviva argues that the two treatment plans are similar in terms of the goals―pain reduction; increased range of motion; increase in strength; increase cardiovascular fitness levels; increase endurance and flexibility; improve motor control or lumbopelvic and cervicothoracic muscles; return to activities of normal living; and return to pre-accident work activities.
8It submits that there is no improvement indicated since the previous treatment plan, under Part 9, other than indicating that C.D. was feeling some relief with facility-based care and attending therapy. Its position is that the subjective comments do not address whether the goals of the treatment are being met.
9In support of its determination, Aviva relies on the March 19, 2021 report of s. 44 insurer examination assessor, Dr. Jugnundan, general practitioner, who opined that C.D. had functional range of motion in the neck; shoulders, elbows; wrist; and hands. Dr. Jugnundan did not observe any objective findings of significant muscular tenderness or neurological findings. Dr. Jugnundan concluded that ongoing treatment was not reasonable and necessary, and that there was no more significant benefit than that of a self-directed exercise program.
10In addition, Aviva relies on the August 24, 2020 s. 44 report of general practitioner, Dr. Fung, who opined that the objective clinical findings did not support any substantive ongoing accident-related musculoskeletal or neurological impairments. Dr. Fung further opined that additional facility-based treatment more than four years after the accident for soft tissue injuries was not reasonable and necessary.
11I agree with Aviva.
12During the assessment with Dr. Fung, C.D. reported that as of August 2020, he had improved 80%, with not having received any treatment since May 2019. At the time of the January 2021 treatment plan, C.D. had not made any accident-related pain complaints for over six months. C.D. further reported to Dr. Fung that he had returned to engaging in most of his pre-accident activities of daily living at the time the treatment plans were submitted. I also note that Dr. Gin’s records and the Disability Certificate, support that C.D. sustained soft tissue injuries, and I note that the neck and right knee injures had resolved by February 2018.
13Further, submissions are not evidence, and C.D. fails to point me to any argument or evidence that establishes that he has satisfied the reasonable and necessary test on a balance of probabilities. Other than referring me to the treatment plans, Dr. Gin’s records and his own self-reporting are not persuasive, objective evidence that supports his claims. Lastly, Dr. Gin recommends physiotherapy, which I find is a different treatment modality than chiropractic treatment and massage therapy. C.D. does not direct me to any evidence that Dr. Gin’s recommendations support that treatment plans for a different treatment modality can be considered reasonable and necessary.
14Accordingly, I find that C.D. has not demonstrated that the treatment plans for chiropractic treatment are reasonable and necessary.
OCF-18 dated January 28, 2021in the amount of $2,460.00
15C.D.’s request for funding for a chronic pain assessment is denied.
16In support of his claim, C.D. relies on a chronic pain assessment report from Dr. Karmy, dated February 24, 2021, and the records of Dr. Gin. Having already considered the records of Dr. Gin above, I will turn to the report of Dr. Karmy. C.D. reported to Dr. Karmy that he had returned to work, but with difficulties. C.D. reported that his pain is prolonged by standing sitting, repetitive bending, lifting, reaching and repetitive use of his upper limbs. C.D. described experiencing chronic headaches and chronic neck; right shoulder; lower back; and right knee pain. Dr. Karmy diagnosed him with various chronic pain issues, opining that the prognosis of a full recovery was poor due to chronic pain. Dr. Karmy recommended a chronic pain program and treatment for both physical and psychological problems.
17In response, Aviva submits that there is little by way of evidence that supports that C.D. had ongoing functional impairment as a result of the accident. It points to the six criteria of the AMA Guides, with at least three needing to be met for a diagnosis of chronic pain. Those criteria being:
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 non-organic illness behaviours.
18I agree with Aviva that the AMA Guides are a useful tool in analyzing whether an insured suffers from chronic pain resulting in functional impairment. However, I find that relying on the AMA Guides criteria to determine whether a chronic pain assessment (conducted to determine if an insured suffers from chronic pain) is an inappropriate application of the AMA Guides criteria.
19The purpose of an assessment is to determine whether a condition exists. For an insured, their onus is to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment. Once such an investigation has been conducted, then, the applicability of the AMA Guides should be relied on to demonstrate whether or not there is a level of functional impairment that exists, in accordance with the requirements under the AMA Guides to demonstrate same.
20Problematic for C.D. is his reliance on Dr. Karmy’s report. First, the report was conducted by way of videoconference, and Dr. Karmy provides no explanation as to how examinations were performed or what methods were implemented to reach his conclusions. Second, there is a contradiction between the minimal impairments that Dr. Karmy’s examination revealed, and yet, he concludes that C.D. suffers from a variety of chronic pain issues. There is no explanation of how the examination, by way of videoconference, supported the diagnoses, or how the accident was the cause. Further, Dr. Karmy’s references to case law as it pertains to chronic pain, bring into question the neutrality of his position as an independent assessor. Lastly, although Dr. Karmy indicates he reviewed Dr. Gin’s records, his diagnoses appear to contradict such a review.
21For example, Dr. Karmy made the following diagnoses:
i. Chronic post-traumatic headache - C.D. had no complaints of headaches;
ii. Chronic mechanical right shoulder pain aggravated by accident – C.D. had no issues with his right shoulder in February 2021; and
iii. Persisting symptoms of traumatic brain injury – C.D. did not sustain a head injury or concussion. Further, diagnosing a brain injury is outside of Dr. Karmy’s area of expertise.
22For the reasons above, I place little weight on Dr. Karmy’s report, as I do not find that it is persuasive, there is no corroborative evidence to support any of the findings in the report, and Dr. Karmy’s diagnoses seem to be out of line with the records of Dr. Gin. Lastly, C.D. has not directed me to any objective evidence, or persuasive argument that the goals of the treatment plans are reasonable, are being met to a reasonable degree or that the costs of achieving the goals are reasonable.
23Consequently, I find that C.D. is not entitled to funding for the treatment plan for a chronic pain assessment.
Interest
24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
25C.D. is not entitled to any of the claimed treatment plans; therefore, no interest is payable.
ORDER
26C.D. has not demonstrated that the treatment plans are reasonable and necessary. No interest is payable.
27The application is dismissed.
Released: June 23, 2023
Derek Grant
Adjudicator```