Citation: Bartlett v. Aviva General Insurance, 2023 ONLAT 21-007197/AABS

Licence Appeal Tribunal File Number: 21-007197/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:

Wendy Bartlett

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Lisa Yong

APPEARANCES:

For the Applicant:

Kateryna Vlada, Counsel

For the Respondent:

Jonathan Beiles, Counsel

HEARD: In Writing

OVERVIEW

1Wendy Bartlett, the applicant, was involved in an automobile accident on May 8, 2019, 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 General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was removed from the MIG on September 25, 2019. The applicant has optional benefits with a cap of $1,000,000.00. As of May 8, 2020, the respondent has paid the applicant the amount of $613.57 in medical and rehabilitation benefits. The applicant has access to collateral benefits from another insurance company under WSIB from a previous workplace accident.

3The applicant submits that as a result of the subject motor vehicle accident, she sustained an exacerbation of all pre-existing physical injuries, in particular causing a right shoulder tear. The applicant submits that her pre-existing injuries, which were sustained at her workplace two months prior to the subject accident, were improving, and that she was on track to return to work. Due to the subject accident, the applicant submits that she has been experiencing ongoing physical and psychological impairments.

4The respondent’s position is that the applicant’s injuries were not caused by the accident, but rather, by the prior workplace injury.

ISSUES

5The issues in dispute are:

i. Is the applicant entitled to $2,000.00 for a chronic pain assessment, proposed by Toronto Health in a treatment plan denied on December 19, 2019?

ii. Is the applicant entitled to $1,406.80 for physiotherapy, proposed by Toronto Health in a treatment plan denied on February 27, 2020?

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

RESULT

6I find that the applicant is not entitled to a chronic pain assessment and physiotherapy and therefore interest is not payable.

ANALYSIS

Position of the parties on causation

7The applicant did not make specific submissions on causation and did not submit any reply submissions to speak to the causation issues raised by the respondent. However, based on the applicant’s submissions, the applicant argues that the subject accident exacerbated her pre-existing injuries sustained from a prior workplace accident, including a right shoulder tear. She submits that the subject accident also led to pain in other areas such as her neck, mid-back and lower back.

8The respondent submits that the applicant has not provided sufficient evidence showing a causal link between the subject accident and any worsening of her pre-existing right shoulder pain or causation of new injuries. The respondent also submits that the applicant has failed to produce any compelling medical evidence to refute Dr. Chris Aldridge’s finding, in his s.44 Insurer Examination (“IE”) report dated February 28, 2020, that any impairment that the applicant may suffer specific to the right shoulder was attributable to her workplace accident on March 13, 2019, rather than the subject accident.

The accident was a necessary cause of the applicant’s injuries

9I find that the accident was a necessary cause of the applicant’s injuries.

10The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities (Sabadash v. State Farm et al., 2019 ONSC 1121 at para. 31). The applicant must show that she would not have suffered the injuries “but for” the accident. The cause meeting that test need not be the major cause. Further, the accident need not be the only cause of the impairment but a necessary cause. (Sabadash).

11While I acknowledge the time period between the workplace accident on March 13, 2019 and the subject accident on May 8, 2019 were close, I am persuaded by the CNRs from the applicant’s family doctor, Dr. Margaret Haddad and the CNRs from the treating physicians at Sunnybrook Health Sciences Centre. These CNRs demonstrate that the subject accident was a necessary cause to her physical injuries, including:

i. On May 19, 2019 (after the workplace accident), the applicant’s family doctor, Dr. Margaret Haddad, diagnosed the applicant with a right shoulder strain and “R/o ligament injury”, which I take to mean “ruling out ligament injury”. The x-ray and ultrasound of the right shoulder confirmed that it was normal except for minor degenerative changes at the AC joint. There was no fracture or tears. On April 11, 2019, Dr. Haddad diagnosed the applicant with rotator cuff tendonitis and recommended physiotherapy and pain medication as needed. These CNR entries demonstrate that the applicant sustained a right shoulder injury and Dr. Haddad opined that medication and physiotherapy would be suitable and sufficient methods of treatment;

ii. On May 9, 2019 (day after the accident), Dr. Haddad assessed and diagnosed the applicant as “mva with possible concussion; refer to carc [Canadian Active Rehabilitation Centre]. Discussed signs of worsening concussion and to seek immediate help should they develop”;

iii. On May 30, 2019, Dr. Haddad diagnosed the applicant with whiplash, mild concussion and a skin condition, which was unrelated to the accident. Dr. Haddad recommended that the applicant seek advice from the physiotherapist on “concussion protocol treatment as well as for whiplash”. X-ray of the cervical spine confirmed no fractures or soft tissue swelling, but with degenerative changes between C5-6 disc space;

iv. From the CNRs from Sunnybrook Health Sciences Centre, the Upper Extremity Specialty Program – Comprehensive Assessment report dated July 2, 2019 by Dr. Diane Nam, physician, Dr. Nam opined that one of the barriers to the applicant’s right shoulder recovery was the “MVA in May 2019 which flared up the right shoulder pain as well as caused pain in other areas (neck, mid-back, low back)”;

v. On August 4, 2019, an MRI of the right shoulder revealed that the applicant sustained a small focus right shoulder supraspinatus cuff tear and impingement/bursitis; and

vi. In a follow-up assessment report dated September 17, 2019, Dr. Nam and Ms. Deborah Shore, occupational therapist, opined that the right shoulder condition was consistent with the reported mechanism of injury. With reference to an earlier report dated July 2, 2019, Dr. Nam reported that the mechanism of injury involved the initial occurrence of the workplace injury to the right shoulder, caused by lifting heavy bags, and then the occurrence of the subject accident in May 2019.

12Given the time that has elapsed since the accident, I find that the respondent’s IE report dated February 28, 2020 to be unhelpful in the determination of causation because it was not prepared as closely in time as the rest of the applicant’s evidence. I prefer Dr. Haddad’s CNRs and the numerous reports from Sunnybrook Health Sciences Centre as these documents provided more information on the applicant’s condition, and were largely closer in time with the date of the accident and were all generally consistent with the bulk of the medical evidence relating to causation. Moreover, Dr. Haddad was the applicant’s family doctor for both injuries sustained in the workplace accident and the subject motor vehicle accident and was in the best position to assess the relative impact of the two incidents on the applicant’s injuries and impairments.

13For the reasons set out above, I find that the applicant’s right shoulder injury are a necessary result of the accident, and I find that the pre-existing injury would not have been exacerbated but for the accident. The applicant has proven on the balance of probabilities that but for the accident, her right shoulder injury would not have arisen.

14To 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.

Is the applicant entitled to $2,000.00 for a chronic pain assessment, proposed by Toronto Health in a treatment plan submitted December 7, 2019 denied on December 19, 2019?

15I find the treatment plan for a chronic pain assessment is not reasonable and necessary.

16The applicant generally submits that the chronic pain assessment is reasonable and necessary because she has been experiencing ongoing pain for over two years post-accident, as documented in the CNRs by her treating physicians. Her ongoing pain symptoms, which has not dissipated with time, warrants a chronic pain assessment.

17The respondent disagrees and relies on the IE orthopedic assessment report dated February 28, 2020, where Dr. Aldridge opined that the applicant had reached maximal medical recovery with a diagnosis of soft tissue sprain and strain type injuries of the right and left shoulder girdle, lumbar spine and contusions to the knees. The respondent also submits that the applicant did not incur the subject OCF-18 and therefore, is unable to seek reimbursement for the same. Further, the respondent submits that had the applicant’s family doctor, Dr. Haddad, perceived the need for a chronic pain assessment, she would have referred the applicant to a chronic pain specialist under the OHIP system.

18The applicant only made a general submission that the treatment plan is reasonable and necessary but does not specifically provide any pinpoint references to the evidence and explain how it supports her claim. The applicant must direct the adjudicator to the relevant evidence in support of her case and explicitly explain why she meets the reasonable and necessary test based on this evidence. She has failed to do so.

19Based on the evidence tendered, I am not persuaded that a chronic pain assessment is reasonable and necessary:

i. Despite the applicant’s consistent right shoulder pain complaints to Dr. Haddad, family doctor, there is compelling evidence that the applicant was already receiving medical treatment focusing on the applicant’s right shoulder condition from Dr. Nam and other medical professionals at Sunnybrook Health Sciences Centre since July 2, 2019, under the WSIB coverage;

ii. The CNRs from Dr. Nam are evidence that the applicant has been attending regular appointments for the diagnosis and treatment of her right shoulder injury since July 2, 2019, until April 5, 2022. There were no further CNRs after April 5, 2022, hence it is unclear as to the applicant’s current condition. Nonetheless, the applicant underwent surgery to her right shoulder on November 9, 2021, as recommended by Dr. Nam;

i. Prior to the applicant’s right shoulder surgery, there is compelling evidence that the applicant’s treating doctors have explored various pain medications, including prescribing Tylenol, Advil, Celebrex and Hydromorphone, to address the applicant’s ongoing pain complaints in her right shoulder;

ii. Dr. Nam previously administered subacromial injections to the applicant’s right shoulder to help with her ongoing pain, which provided only temporary relief; and

iii. In Dr. Nam’s CNR dated April 5, 2022 (post-surgery), she reported that the applicant “demonstrated improved right shoulder flexion, extension, abduction and external rotation at 0 abduction range of motion…Functionally, Ms. Barlett continues to improve. She was able to do more weight with average of one point decrease in pain rating… which indicates that her tolerances for functional activities are improving.”

20Given that the applicant was already receiving treatment from Dr. Nam at Sunnybrook Health Sciences Centre for her right shoulder injury since July 2, 2019 and having undergone surgical intervention to her right shoulder in November 2021, and Dr. Nam reported improvement to the applicant’s functionality, I question whether a chronic pain assessment is necessary. I agree with the respondent that it does not appear that the applicant had incurred the cost of the assessment or a referral had been given by the applicant’s family physician prior to the date of the treatment plan. Since the treatment plan was completed in December 2019, when the applicant was already seeing Dr. Nam for treatment and the treatment plan was not incurred, I fail to see how payment for the same would be reasonable and necessary where the applicant already has a diagnosis and has been receiving medical treatment.

21Although Dr. Aldridge’s assessment report predated the applicant’s right shoulder surgery, his findings appear to be consistent with the applicant’s CNRs that the accident-related impairments, which includes the right and left shoulder, lower back and knee pain symptoms, have returned to baseline.

22The goals of the disputed OCF-18 were to evaluate the extent of the applicant’s chronic injuries and psychological complaints; to provide a prognosis and recommendations for recovery; and a functional goal to help the applicant return to activities of normal living. As the applicant has previously received treatment through the Upper Extremity Specialty Program at Sunnybrook Health Sciences Centre by way of medication, injection and surgery, an additional assessment would unlikely add value in these respects. There appears to be little or no disagreement among the medical assessors as to the applicant’s accident-related diagnosis, and the applicant had already been evaluated and treated.

23For the reasons above, I find the applicant has failed to prove on the balance of probabilities that a chronic pain is reasonable and necessary.

Is the applicant entitled to $1,406.80 for physiotherapy, proposed by Toronto Health in a treatment plan/OCF-18 denied on February 27, 2020?

24I find that the subject treatment plan is not reasonable and necessary and therefore the applicant is not entitled to payment of this OCF-18 and interest is not payable.

25The applicant submits that the physiotherapy treatment proposed was reasonable and necessary as the goal was to provide short-term pain relief and increase her ability to participate in activities of daily living. She submits that her injuries are not minor in nature and she has made numerous ongoing complaints of pain post-accident which necessitates treatment.

26The respondent relies on a subsequent s. 44 IE report dated March 9, 2020 by Dr. Aldridge, which was to assess whether the subject OCF-18 was reasonable and necessary. He maintained that the applicant had reached maximal medical recovery.

27I find Dr. Aldridge’s report to be persuasive and it appears to be consistent with the Upper Extremity Specialty Program Treatment reports, in particular the report dated January 23, 2020, where Ms. Jessie DeBoer, physiotherapist, and Ms. Rachel Davies, occupational therapist, opined that the applicant should be discharged from treatment and continue with a home exercise program which allows her to complete her exercise independently. This was also confirmed by Dr. Nam in a follow-up report dated March 31, 2020, where the applicant “reports today that she is completing her home exercise program either daily or every other day”.

28The applicant has not presented compelling and contemporaneous evidence to refute Dr. Aldridge and Dr. Nam’s opinions that the treatment plan is reasonable and necessary.

29Therefore, I find the applicant is not entitled to the subject treatment plan and interest is not payable.

ORDER

30The applicant is not entitled to a chronic pain assessment and physiotherapy and therefore interest is not payable.

31The application is dismissed.