Baheeran v. Security National Insurance Company
Licence Appeal Tribunal File Number: 20-013521/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:
Kanesapillai Baheeran
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Sofia Ahmad
APPEARANCES:
For the Applicant:
Alexei Antonov, Counsel
For the Respondent:
Adrianna Klukowska, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Kanesapillai Baheeran, the applicant, was involved in an automobile accident on November 5, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
3At the beginning of the hearing the parties came to a resolution on several issues in dispute. The following are the issues:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500 limit in the Minor Injury Guideline? (RESOLVED)
ii. Is the applicant entitled to $2,575.12 for chiropractic services, proposed by Downsview Healthcare Inc. in a treatment plan (OCF-18) dated November 5, 2018? (RESOLVED)
iii. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by Downsview Healthcare Inc. in a treatment plan (OCF-18) dated February 22, 2021? (RESOLVED)
iv. Is the applicant entitled to $1,075.12 for a chronic pain assessment, proposed by Downsview Healthcare Inc. in a treatment plan (OCF-18) dated January 29, 2021?
v. Is the applicant entitled to $13,223.59 for a chronic pain program, proposed by Downsview Healthcare Inc. in a treatment plan dated March 18, 2021?
vi. Is the applicant entitled to a s. 10 Award under, Regulation 664?
vii. Is the applicant entitled to interest on all overdue payments of Accident Benefits in accordance with s. 51 of the Schedule?
4In summary the applicant has been removed from the Minor Injury Guideline and two treatment plans have been approved. Now, the applicant seeks two other treatment plans plus interest and a special award.
RESULT
5Based on the totality of the evidence before me, I find:
i. Issues 1, 2 and 3 have been resolved.
ii. The chronic pain assessment is not reasonable and necessary.
iii. The chronic pain program is not reasonable and necessary.
iv. As there are no outstanding benefits, the applicant is not entitled to interest or an award.
ANALYSIS
Is the applicant entitled to $1,075.12 for a chronic pain assessment and $13,223.59 for a chronic pain program?
6For the following reasons I find that the treatment plans are not reasonable and necessary.
7The applicant has the onus to show, on a balance of probabilities, that the treatment plans are reasonable and necessary through corroborating and compelling evidence.
Report of Interventional Pain Specialist
8The applicant relies on the report of Dr. Dima Rozen, Interventional Pain Specialist, dated March 3, 2021 to support the disputed treatment plans. I noted the following in the report:
i. The doctor relies mainly on the applicant’s subjective complaints of pain;
ii. There is very brief reference to physical testing in this report, yet the doctor diagnoses the applicant with: chronic cervical and lumbar myofascial pain, post-traumatic headaches and chronic pain syndrome;
iii. During this assessment, the doctor noted that the applicant did not exhibit pain behaviours and that he walked with a normal gait and sat with normal posture. The doctor further states that the applicant had no obvious deformities;
iv. The doctor noted that the applicant presented with full range of motion of the neck in all six directions and the examination of the applicant’s shoulders was unremarkable; and
v. The doctor noted that reflexes, motor strength, and sensation were intact in all areas. The doctor does note some minor limits on extension and flexion of the back. This was the full extent of the doctor’s objective observations from the physical examination of the applicant.
Insurer’s Examination Report
9Dr. Seung-Jun Lee, Family Physician conducted a verbal interview and physical examination of the applicant on October 17, 2022. This family physician produced a report about this interview and examination, and I noted the following:
i. The applicant reported to the doctor that he had last attended physical therapy sometime in 2019;
ii. The applicant told the doctor that he does not take any medication for pain and that he has had a “60% to 70% improvement since the motor vehicle accident”. The applicant makes this statement almost 18 months after Dr. Dima Rozen’s report in which she diagnosed chronic cervical and lumbar myofascial pain, chronic post-traumatic headaches and chronic pain syndrome;
iii. The applicant reported to the doctor intermittent right shoulder and lower back pain, but he denied any tingling, numbness, weakness or radiating pain in these areas;
iv. The applicant admitted to the doctor that he is independent with activities of daily living. He can clean his apartment, which he shares with his wife. The applicant stated that he has been instructed on a home-exercise program which he completes regularly;
v. The doctor physically examined the applicant. The doctor noted there was nothing remarkable in the applicant’s neck, back and shoulders. Further, the doctor noted that the applicant demonstrated full lumbar and cervical extension and flexion; and
vi. The doctor concludes his report with “during the physical examination, there were no valid indicators to support ongoing accident related musculoskeletal injury or impairment”.
Other Considerations
10The applicant was working full time as an industrial mechanic at KG Packaging at the time of the subject accident. He returned to work two days after the accident and has continued to work since then in the same role.
11The applicant has not provided updated clinical notes and records of his family physician regarding his chronic pain, to support the reasonableness and necessity of his treatment plans.
Conclusions
12From Dr. Seung-Jun Lee’s report, the applicant’s limitations in cervical and lumbar spine flexion and extension seem to have resolved in the 18 months since Dr. Dima Rozen’s examination.
13I give more weight to Dr. Seung-Jun Lee’s report than that of Dr. Dima Rozen. Dr. Lee considers both subjective and objective evidence regarding the applicant’s chronic pain diagnosis by Dr. Dima Rozen, and Dr. Lee concluded that the applicant does not currently suffer from chronic pain.
14I give less weight to this report of Dr. Dima Rozen, as it was produced over two years ago versus the more recent report of the insurer’s examination.
15Dr. Seung-Jun Lee addressed both treatment plans in dispute in his report. He opined that the plan dated March 18, 2021 is neither reasonable nor necessary. He also opined that the partially approved plan dated January 29, 2021 is considered neither reasonable nor necessary.
16I agree with the respondent that as of the date of this most recent examination, October 17, 2022, the applicant is fully functional at work and at home. The applicant does not have any ongoing limitations with his activities of daily living. He is not taking any pain medication and he is managing any remaining symptoms with an in-home exercise program.
17I find that the applicant is not experiencing pain to such an extent that the treatment plans in dispute are reasonable or necessary.
Available Treatment
18I note that the applicant has been approved for $5,124.88 in treatment, yet he has only incurred $879.00 worth of treatment.
19Based on the information available through the Health Claims for Auto Insurance system, the applicant was last treated on December 29, 2018. The respondent notes that the applicant has not been treated for three years.
20The applicant stated to Dr. Amena Syed, Psychologist that he “would not like to resume [physical] treatment as he feels that his pain is manageable”.
21I agree with the respondent that the lack of treatment utilized suggests that the applicant does not need further treatment.
Lack of Supporting Evidence
22The applicant has failed to provide contemporaneous and relevant evidence to support his chronic pain claim, including updated clinical notes and records from his family physician or other treating practitioners.
23In weighing the evidence, I do not find that the applicant has provided compelling and contemporaneous evidence to support the reasonableness and necessity of the treatment plans in dispute.
ORDER
24As a result of the above and on a balance of probabilities, I find that:
i. The chronic pain assessment is not reasonable or necessary.
ii. The chronic pain program is not reasonable and necessary.
iii. As there are no outstanding benefits, the applicant is not entitled to interest or an award under Regulation. 664.
Released: September 12, 2023
__________________________
Sofia Ahmad
Adjudicator