Citation and Parties
Licence Appeal Tribunal File Number: 21-005525/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:
Leonid Zvonkin
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Kateryna Vlada, Paralegal
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Leonid Zvonkin, the Applicant, was involved in an automobile accident on September 27, 2016, 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 Aviva Insurance Company, the Respondent, 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 a medical benefit in the amount of $2,000.00 for a chronic pain assessment recommended by Downsview Healthcare Inc. in a treatment plan/OCF-18 dated April 6, 2019?
ii. Is the Applicant entitled to a medical benefit in the amount of $2,575.12 for chiropractic services recommended by Downsview Healthcare Inc. in a treatment plan/OCF-18 dated April 16, 2019?
iii. Is the Applicant entitled to a medical benefit in the amount of $12,293.41 for a chronic pain program recommended by Downsview Healthcare Inc. in a treatment plan/OCF-18 dated September 10, 2019?
iv. Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3The Applicant is not entitled to the disputed plans for a chronic pain assessment, chiropractic services, or a chronic pain program.
4No benefits are owing, therefore no interest is payable.
BACKGROUND
5The Applicant first sought medical attention a few days after the accident, at a walk-in clinic. X-rays of his neck revealed osteoarthritic changes, he was diagnosed with whiplash and referred to physiotherapy. A whole body bone scan dated October 28, 2016 revealed degenerative changes, but no acute abnormality.
6The Applicant attended the hospital in November 2016 for anxiety. The psychiatrist, Dr. Moss, noted that he had experienced multiple losses in recent years, as well as the motor vehicle accident. He reported a sudden onset of severe anxiety and fear of dying, and depressed mood. The diagnostic impression was panic disorder and bereavement. Dr. Moss suggested the family doctor consider a trial of SSRI and a referral to psychiatry for further care.
7In 2017 the Applicant was diagnosed with post-traumatic stress disorder, a panic disorder, agoraphobia, and adjustment disorder with depressed mood, and counselling was recommended.
8An ultrasound of the right shoulder dated April 5, 2018, revealed a partial thickness tear and mild tendinopathy. X-rays of the cervical spine of the same date revealed degenerative disc disease. An MRI of the low back dated April 13, 2019 revealed multilevel degenerative changes with mild foraminal stenosis.
9Clinical notes and records of the family doctor, Dr. Livshin were provided but are illegible. Of the dozens of pages of notes provided, only two entries were transcribed. The first, approximately four years post-accident, dated September 10, 2020 indicates that he had pain in his neck, shoulder, and lower back since the accident. He found it difficult to get moving in the morning, but once he got going the pain becomes tolerable and he could go on with his life. He reported a 40-50% improvement with his function. On examination, range of movement of his neck and back was noted to be full but painful on resistance. Dr. Livshin recommended a home exercise program. The second entry dated September 21, 2020 and indicates deteriorated back pain radiating to hip and knee. The doctor diagnosed osteoarthritis of both knees, ordered x-rays, and suggested support stockings.
ANALYSIS
10The onus is on the Applicant to demonstrate that the treatment and assessments he seeks are reasonable and necessary as a result of the accident.
Chronic Pain Assessment
11I find that the Applicant has not established that the chronic pain assessment is reasonable and necessary as a result of the accident because the Applicant does not exhibit the symptoms typically associated with a chronic pain condition that would warrant an assessment. The Tribunal has considered chronic pain condition in the context of the American Medical Association Guides, or alternatively, ongoing persistent pain accompanied by a functional impairment.
12The Applicant has not established that his ability to function is adversely affected by pain. The Applicant underwent a psychological assessment with Dr. Kleiman's dated April 25, 2017 and reported ongoing pain but denied any specific functional limitations. The disability certificate dated April 4, 2019 indicates that he returned to work. He told various assessors that he continued to assist his wife with her travel agency and drive her to appointments. The musculoskeletal assessment report from Dr. Hanna dated March 4, 2020 indicates that the Applicant reported independence with his personal care and pre-accident housekeeping tasks, and that he continued to enjoy his pre-accident leisure activities, albeit at a reduced frequency.
13The Applicant has not demonstrated that he meets three of the six criteria in the AMA Guides. He did not provide a prescription summary, and the two transcribed notes from the family doctor do not include prescription pain medication. The evidence does not support that he is excessively dependent on health care providers or family members, he has not directed me to evidence of secondary physical deconditioning, withdrawal from social milieu or failure to restore pre-injury function. He did sustain a psychological impairment.
14The evidence does not support that the Applicant experienced ongoing persistent pain accompanied by a functional impairment, nor has he met three of the six criteria of the AMA Guides. Given that he did not exhibit symptoms associated with a chronic pain condition that would warrant assessment, I find the plan is not reasonable and necessary.
Chronic Pain Treatment and Chiropractic Treatment
15The September 10, 2019 OCF-18 for $12,293.41 recommends psychological counselling sessions, chiropractic, massage, exercise and other rehabilitation treatments with the aim to reduce pain, increase strength and range of motion, and return to activities of normal living. The injuries listed include sprain and strain of the cervical spine, lumbar spine and pelvis, chronic post-traumatic headache, shoulder lesion, symptoms and signs involving emotional state, other chronic pain, radiculopathy lumbar region, and non-organic sleep disorder.
16The Applicant submits that the OCF-18 is reasonable and necessary to address his accident-related impairments. He relies on the August 8, 2019 chronic pain assessment report from Dr. Karmy. Dr. Karmy diagnoses post-traumatic fibromyalgia, mild traumatic brain injury, chronic post-traumatic headaches, chronic mechanical neck, low back, and right shoulder pain, sacroiliac joint dysfunction, chronic pain syndrome, sleep disorder, and mood disorder with driving anxiety as a result of the accident, and recommended treatment in a multidisciplinary setting.
17Overall, I found Dr. Karmy's report uncompelling. The traumatic brain injury diagnosis is somewhat perplexing given that it doesn't appear that concussion or head injuries were identified anywhere else. Dr. Karmy did not review any other medical evidence prior to completing his report, instead he relied solely on the self-reports and subjective complaints of the Applicant. He diagnosed the Applicant with chronic pain syndrome without reviewing any medical records or conducting an analysis pursuant to the criteria set out in the AMA Guides.
18I place weight on the insurer's examination report prepared by Dr. Hanna dated March 24, 2020. Dr. Hanna reviewed voluminous medical records in preparing his report, including hospital records, imaging reports, and the family doctor's notes. Dr. Hanna noted that the Applicant discontinued treatment in 2017 and was instructed on a home exercise program. The Applicant reported independence with personal care, mobility, and housekeeping tasks without limitation, and continued to enjoy his pre-accident leisure activities, albeit at a reduced frequency. On examination the Applicant demonstrated full ranges of motion. Dr. Hanna diagnosed whiplash (WAD II), myofascial sprain and strain type injuries to the neck, back, and right shoulder. Dr. Hanna recommended self-directed exercise. Dr. Hanna's recommendations are also consistent with that of the family doctor, as noted above.
19With respect to the psychological component of this treatment plan, while I accept that the Applicant sustained psychological impairments as a result of the accident, treatment plans for psychological treatment were already approved but remain unused. The Applicant did not provide any reply submissions, and failed to explain why further psychological treatment is reasonable and necessary when he has not consumed any of the treatment already approved.
20I find the Applicant has not met his burden to prove that the chronic pain program or the plan for chiropractic services was reasonable or necessary.
Interest
21No benefits are owing or overdue, therefore no interest is payable pursuant to s. 51 of the Schedule.
ORDER
22The Applicant is not entitled to the disputed plans for a chronic pain assessment, chiropractic services, or a chronic pain program.
23No benefits are owing, therefore no interest is payable.
eleased: August 4, 2023
Kate Grieves
Adjudicator