Licence Appeal Tribunal File Number: 22-012830/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:
Kiesingar Gunn
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Nicole Walker, Counsel
For the Respondent:
Lauren Kolarek, Counsel
HEARD:
In Writing
OVERVIEW
1Kiesingar Gunn, the applicant, was involved in an automobile accident on December 18, 2017, 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, Certas Home and Auto Insurance Company, 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 $9,024.34 for chronic pain treatment services, proposed by Prime Healthcare Inc. in a treatment plan/OCF-18 (“plan”) dated December 6, 2021?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to $9,024.34 for chronic pain treatment services.
4No award is granted.
5As no benefits are overdue, the applicant is not entitled to interest.
ANALYSIS
Chronic Pain Treatment Plan
6In order to receive payment for a treatment and assessment plan under the Schedule, the applicant bears the burden of demonstrating that it is reasonable and necessary. To do so, the applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable.
7The applicant contends the treatment plan is both reasonable and necessary to reduce his pain, increase range of motion, and return to activities of normal living.
8He provided evidence of the motor vehicle accident in question, as well as a prior history of neck and back pain. The applicant submitted a variety of clinical notes and records from his general physician, and from Prime Health Care, a chiropractic clinic, all of which I have considered.
9I have considered the treatment plan in dispute and reviewed the evidence provided by the applicant. The plan recommended a variety of treatments, including physiotherapy, massage, laser, ultrasound, and psychological treatments. The stated goal was to reduce overall pain and ‘return to activities of normal living.’
10To support the approval of the treatment plan, the applicant relied upon the evidence of a chronic pain assessment, conducted by Dr. Grigory Karmy in late November 2018. Dr. Karmy made numerous diagnoses including Post-Traumatic Fibromyalgia, Post-Concussion Syndrome, Chronic Post-Traumatic Headache, and Chronic Post-Traumatic Pain in the applicant’s wrists, elbows, and knees.
11Dr. Karmy also opined that the applicant suffered from post-accident psychological impairments, which contribute to the pain.
12The respondent’s position is that the treatment plan is not reasonable. It submitted that the applicant reported an improvement in his condition in January 2018, and had returned to work full time. It submitted that the applicant had largely recovered from his accident-related impairments, originally diagnosed as a sprain/strain of his lumbar and cervical spine.
13The respondent further submitted that the treatment plan was submitted in December 2021, more than three years after the date of the assessment with Dr. Karmy.
14The respondent also questions Dr. Karmy’s initial assessment. The respondent submits that Dr. Karmy is licensed as a general physician, and has not completed a residency or received a board certified designation in any specialty. The respondent argues that Dr. Karmy is not qualified to make any diagnoses of a psychological nature.
15The respondent also submits that Dr. Karmy diagnosed elbow pain, knee pain and shoulder pain without sufficient supporting medical evidence.
16I find that applicant’s submission, pointing to the chronic pain assessment, does not establish entitlement to the treatment plan. I find this for several reasons.
17The assessment contains several diagnoses which are not supported by other supporting medical evidence, such as elbow pain, knee pain and shoulder pain. The onus is on the applicant to prove, on the balance of probabilities, an injury caused by the accident. After carefully reviewing the file in its entirety, I found insufficient corroborating medical evidence in the applicant’s submission which reinforces his argument.
18Secondly, there is a three-year gap between the chronic pain assessment and the recommendation in the treatment plan at issue. During those three years, the applicant provided insufficient evidence that he was continuing to suffer from chronic pain.
19The applicant submitted no medical evidence from the applicant’s primary care physician, Dr. Sameh Ekladious, between the dates of April 12, 2018 (approximately four months after the accident) and November 16, 2019 (23 months after the accident.)
20Furthermore, the applicant provided clinical notes and records from Dr. Ekladious from November 16, 2019 to January 5, 2024. In those notes, on page 139, I noted the applicant visited his doctor with a complaint of back pain on August 4, 2023. In those notes, Dr. Ekladious reports “No Hx (history) of trauma.” I find this relevant because it speaks to the applicant’s claim of ongoing back pain stemming from the motor vehicle accident.
21Finally, the applicant did not submit evidence that he found it necessary to seek treatment for three years after the initial diagnosis.
22I conclude from the evidence submitted that the applicant had returned to work full time, and did not seek medical treatment for pain during this three year window. Since the applicant is working full time, I am not convinced that the treatment plan is necessary. The stated goal of this treatment plan was a ‘return to normal living.’ His ongoing employment in a physically demanding position says he has already achieved that goal.
23For these reasons, I find the treatment plan is not reasonable or necessary. The applicant has not met the onus of establishing that the treatment plan is reasonable and necessary.
Interest
24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are due, no interest is awarded.
Award
25The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant did not provide particulars on an award within thirty days of receiving the adjuster’s log notes, as per the Case Conference Report and Order. Since benefits were not unreasonably withheld, an award is not granted.
ORDER
26For the reasons outlined above, I find that:
i. The applicant is not entitled to $9,024.34 for a chronic pain treatment plan, proposed by Prime Healthcare Inc., dated December 6, 2021.
ii. The respondent is not liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
iii. The applicant is not entitled to interest on any overdue payment of benefits.
Released: October 22, 2024
Jeff Chatterton
Adjudicator