Licence Appeal Tribunal File Number: 21-011242/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:
Nicole Loorkhoor
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
VICE-CHAIR:
Brett Todd
APPEARANCES:
For the Applicant:
Gjergji Laloshi, Counsel
For the Respondent:
Ibrahim Farag, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Nicole Loorkhoor (the “applicant”) was involved in a motor vehicle accident on October 14, 2016 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva Insurance Canada (the “respondent”) denied two treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The following substantive issues are in dispute:
Is the applicant entitled to $2,200.00 for a chronic pain assessment, recommended by Rozen Medical Professional Corporation in a treatment plan/OCF-18 dated January 20, 2020?
Is the applicant entitled to $7,742.29 for chronic pain treatment, recommended by Vladimir Levitin Polyclinic Rehabilitation Institute in a treatment plan/OCF-18 dated November 24, 2020?
Is the applicant entitled to $600.00 for transportation expenses, recommended by Vladimir Levitin Polyclinic Rehabilitation Institute in a treatment plan/OCF-18 dated November 24, 2020?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
3NOTE: In submissions, the applicant withdrew an award claim that was listed in the case conference report and order (“CCRO”) dated July 20, 2022 that set this matter down for a written hearing.
RESULT
4I find that:
i. The applicant is entitled to $2,200.00 for the chronic assessment treatment plan dated January 20, 2020, plus interest in accordance with s. 51 of the Schedule.
ii. The applicant is entitled to $7,742.29 for the chronic pain treatment plan dated November 24, 2020, plus interest in accordance with s. 51 of the Schedule.
iii. The applicant is not entitled to $600.00 for the transportation expenses treatment plan dated November 24, 2020, nor interest.
ANALYSIS
5To be entitled to a treatment 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. The applicant should identify treatment goals, how these goals would be met to a reasonable degree, and that the overall costs of achieving them are reasonable.
6I find that the applicant is entitled to the treatment plan for a chronic pain assessment in the amount of $2,200.00 dated January 20, 2020. She is also entitled to interest, pursuant to s. 51 of the Schedule.
7This treatment plan, authored by Dr. Dima Rozen, general practitioner, of The Pain Clinic in Toronto, is for a chronic pain assessment. It lists as the injury and sequelae: chest pain; injury of muscle and tendon of the abdomen, lower back, pelvis, and thorax; sprain and strain of the cervical and thoracic spine, and other unspecified parts of the lumbar spine and pelvis; abdominal and pelvic pain; headache; nausea; and emotional shock and stress. Goals of this plan include pain reduction, increased range of motion, and increased strength, all to allow the applicant to return to pre-accident normal living and work activities.
8The applicant submits that the chronic pain assessment has been substantiated due to regular visits to her family doctor for pain since the accident in 2016. She argues that this necessitated a medical investigation to determine the causes of chronic pain. Further, she challenges the respondent’s insurer examination (“IE”) report that was the basis of the denial of this plan, claiming that it was not thorough, lacked a proper analysis, and was overly vague in its findings and conclusions. And the applicant also claims that the denial of this plan was sent from the insurer 12 days after it was submitted, not within 10 days as prescribed by s. 38(8) of the Schedule.
9The respondent counters that the applicant has not established that she has chronic pain through meeting at least three of the six criteria set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”), so the assessment is not reasonable and necessary.
10I am persuaded that the applicant has demonstrated that this plan is reasonable and necessary, mainly because her submitted medical evidence indicates that her injuries may have progressed to a condition of chronic pain. The extent and the duration of her symptoms were well chronicled, to the point where an assessment to investigate chronic pain was a reasonable next step in her treatment of accident-related injuries.
11Specifically, clinical notes and records (“CNRs”) submitted by the applicant demonstrate that:
i. The applicant attended the emergency department at Brampton Civic Hospital on at least three occasions from the day of the accident to November 2021, each time reporting the same severe chronic back pain resulting from the accident.
ii. The applicant attended appointments with Dr. Ihsan Waraich, family physician, on at least six occasions between April 22, 2017 (when she first became a patient of the doctor) and April 21, 2018. Although the applicant addressed unrelated health concerns during these visits, she regularly complained of neck and back pain connected to the subject accident. Dr. Waraich also observed muscle stiffness and decreased range of motion with regard to the applicant’s neck. He noted “chronic” pain in records of least three appointments, and connected this to the accident. Dr. Waraich also prescribed naproxen and Tylenol #3 for pain starting in April 2017 and provided refills afterward, along with prescriptions for physiotherapy.
iii. From September 24, 2018 to October 10, 2020, the applicant had appointments with Dr. Oyerinde Olanrewaju, family physician, on at least nine occasions. She presented the same consistent complaints of upper and lower back pain, neck pain, and headaches, all as a direct result of the accident. Dr. Olanrewaju noted decreased spinal flexion and extension, back and neck tenderness, and mechanical back pain and spasms. He prescribed baclofen and Tylenol.
iv. Lastly, there is the chronic pain assessment itself, which was conducted by Dr. Rozen on January 20, 2020. In the resulting report, Dr. Rozen diagnosed the applicant with chronic cervical and lumbar myofascial pain, chronic abdominal pain, and chronic cervicogenic headaches. In all, he found the applicant to meet a diagnosis of chronic pain syndrome with associated sleep and mood impairment.
12All of the above, in my view, supports that the applicant was experiencing accident-related neck and back pain to such an extent and such a duration as to warrant a chronic pain assessment. The applicant’s consistent reporting of her symptoms to multiple physicians over such a significant length of time—in combination with the observations, prescriptions, and diagnoses by these physicians—serve to demonstrate that the chronic pain assessment is reasonable and necessary.
13I do not find the respondent’s arguments compelling, largely as they focus on disproving that the applicant suffered from chronic pain when the issue is actually whether the applicant demonstrated enough symptoms of pain and sequelae to warrant a chronic pain assessment. The respondent failed to address this key distinction sufficiently in submissions. I agree with the respondent that some of the CNRs reflect the applicant’s self-reporting and that Dr. Waraich did not formally diagnose the applicant with chronic pain. But these arguments are not entirely relevant here, as they speak more to making a diagnosis of chronic pain than making a determination if it was reasonable to order an assessment to investigate chronic pain symptoms.
14Further, I agree with the applicant regarding the lack of thoroughness of the IE report that the respondent relied upon to deny this plan. Dr. Sabrina Ming-Wai Tu, general practitioner, found in her August 18, 2020 report that the applicant demonstrated pain-focused behaviour and symptom magnification during an in-person examination. Dr. Tu further concluded that the applicant sustained soft-tissue injuries in the accident, that she had likely reached maximum medical improvement, and that a chronic pain assessment was unwarranted as additional medical intervention would only “further precipitate her pain-focused behaviour.”
15However, Dr. Tu did not review any of the applicant’s CNRs from treating physicians or the chronic pain assessment report. I find this to be a significant omission that causes me to assign limited weight to Dr. Tu’s report. Knowledge of the applicant’s consistent reporting of her symptoms of pain to at least three physicians may well have impacted on Dr. Tu’s conclusions, particularly with regard to pain-focused behaviour and symptom magnification.
16As I have found this plan to be reasonable and necessary, it follows that I do not need to provide a ruling on any possible contravention of s. 38(8) of the Schedule by the insurer concerning a late denial notice.
17For the above reasons, the applicant is entitled to the treatment plan for a chronic pain assessment, plus interest pursuant to s. 51 of the Schedule.
18I find that the applicant is entitled to the treatment plan for chronic pain treatment in the amount of $7,742.29 dated November 24, 2020. She is also entitled to interest, pursuant to s. 51 of the Schedule. I find that the applicant is not entitled to the treatment plan for transportation expenses in the amount of $600.00 also dated November 24, 2020, nor interest.
19This chronic pain treatment plan was completed by Dr. Vladimir Levitin, chiropractor, and Erin D. Langis, psychologist, of the Polyclinic Rehabilitation Institute. It lists the same treatment goals as noted in the chronic pain assessment plan described above, and further contains the specific notation that this treatment plan is to “[p]rovide rehabilitation protocols as indicated in this OCF-18 and as recommended by Dr. Rozen in his Chronic Pain Assessment report dated May 20, 2020.” The plan recommends 12 sessions each of rehabilitation/aquatic therapy, biofeedback (passive and active), and cognitive behavioural therapy, along with eight sessions of massage therapy, a TENS unit, an initial assessment, and a psychological progress assessment.
20The transportation expenses treatment plan is directly connected to the chronic pain treatment recommendations. This plan consists of 12 “assistance for attendance” sessions to transport the applicant to and from the Polyclinic Rehabilitation Institute for the treatment noted in the other plan.
21The applicant submits that both plans are reasonable and necessary for largely the same reasons as those noted for the chronic pain assessment. However, she expands this rationale to include the recommendations as listed by Dr. Rozen in that chronic pain assessment. And the applicant further claims that transportation expenses are being requesting in accordance with s. 15(1)(g) of the Schedule because her injuries prevent her from driving a vehicle or taking public transportation to the Polyclinic Rehabilitation Institute for treatment.
22Further, the applicant argues that these plans should be payable due to the respondent’s contravention of s. 38(8) of the Schedule. This section holds that an insurer shall provide notice of the denial of any treatment and assessment plan withing 10 business days of receipt. A contravention triggers s. 38(11)(2) of the Schedule, which mandates that an insufficient or late notice requires an insurer to pay for any goods, services, assessments, and examinations received starting on the 11th business day after the insurer received the application.
23Here, the applicant submits that the plans were submitted to Aviva on November 24, 2020, but that the insurer did not respond until February 17, 2021, some 89 days later and well after the 10 days as required by s. 38(8) of the Schedule.
24In its response, the respondent states that it continues to hold that this treatment plan is not reasonable and necessary in accordance with the denial letter sent to the applicant on February 17, 2021. In this letter, the conclusions of Dr. Tu were reaffirmed and the plan denied on the basis that the applicant had likely reached maximal medical recovery and would not benefit from chronic pain treatment.
25Also, the respondent denies that these plans are payable due to a contravention of s. 38(8), as no evidence has been provided that they were incurred in the time between the 11th business day after the treatment plan was provided to the insurer and February 17, 2021, when the insurer sent the denial letter to the applicant. It relies on Aviva General Insurance Company v. Catic, 2022 ONSC 6000 at paragraph 18.
26I agree with the respondent with regard to s. 38(8). Although the respondent did not contest that the denial letter was provided after the 10-day period established by the Schedule, I am bound by Catic, which holds that such insufficient denials are payable only “if they are incurred and only for the period during which any denial notice remains outstanding.” The applicant presented no evidence that these plans were incurred before Aviva cured its deficient notice on February 17, 2021. Therefore, I find that she is not entitled to these plans on this basis.
27However, I find that the applicant has met her burden and demonstrated that the treatment plan for chronic pain treatment is reasonable and necessary. I prefer the chronic pain assessment of Dr. Rozen, which is the most comprehensive assessment of the applicant with regard to chronic pain. He conducted an in-person examination of the applicant, performed physical tests to check range of motion and flexibility, reviewed over a dozen sets of records (in contrast to the approach taken by Dr. Tu), and recommended a number of treatment options.
28As a result, I assign significant weight to Dr. Rozen’s report as a whole, and accept his opinion that the applicant suffers from “chronic, permanent, and serious” injuries as a result of the accident, as well as “physical impairments.” Dr. Rozen’s report, bolstered by the other evidence provided in the CNRs described above, satisfies me that this treatment plan is reasonable and necessary.
29I find the respondent’s argument and evidence unpersuasive. I do not agree with the respondent’s assessment of the applicant with regard to the AMA Guides, which hold that a person must satisfy at least three of the following six criteria to warrant a diagnosis of chronic pain:
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 contracts.
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.
vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.
30While the respondent submits that the applicant has not met any of these criteria, I find that the applicant meets three of them, namely #2, #3, and #6, as listed above. In my view, the applicant had enough medical appointments and emergency room visits in the years following the accident to show an excessive dependence on health care providers, fulfilling the requirements of #2. Dr. Rozen found that the applicant’s physical pain had affected all areas of her life and prevented her from participating in normal daily activities, fulfilling #3. And Dr. Tu, the respondent’s primary assessor with regard to these treatment plans in dispute, reported that the applicant displayed significant amounts of fear-avoidance, supporting #3 and fulfilling #6.
31Also, I note that the respondent inaccurately states in submissions that the applicant “must prove” that she meets at least three of the six criteria listed in the AMA Guides to establish chronic pain. While the Guides are a useful tool to utilize when assessing chronic pain, they are not binding on this Tribunal.
32However, I find that the transportation expenses treatment plan has not been well supported by the applicant. No specifics have been provided regarding why the applicant cannot drive herself to the Polyclinic Rehabilitation Institute or why her physical condition is such that she needs to be transported to the clinic by a specialized transport different from public transit or a standard vehicle. No details have been listed regarding the distance between the applicant’s home and the clinic, either. The plan just presents a flat fee of $50.00 per trip, leaving it impossible for me to determine if this is in accordance with the Financial Services Commission of Ontario’s Superintendent’s Guidelines No. 04/16: Transportation Expense Guideline, which governs transportation expenses.
33Accordingly, the applicant is entitled to the treatment plan for chronic pain treatment, along with interest pursuant to s. 51 of the Schedule. The applicant is not entitled to the treatment plan for transportation expenses, nor interest.
ORDER
34I find that:
i. The applicant is entitled to $2,200.00 for the chronic pain assessment OCF-18 dated January 20, 2020, plus interest in accordance with s. 51 of the Schedule.
ii. The applicant is entitled to $7,742.29 for the chronic pain treatment OCF-18 dated November 24, 2020, plus interest in accordance with s. 51 of the Schedule.
iii. The applicant is not entitled to $600.00 for the transportation expenses OCF-18 dated November 24, 2020, nor interest.
Released: September 21, 2023
Brett Todd
Vice-Chair