Licence Appeal Tribunal File Number: 20-014222/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:
Craig Ricketts
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Laura Goulet
WRITTEN SUBMISSIONS:
Applicant:
Naman Nanda, Articling Student
Respondent:
Jonathan White, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Craig Ricketts, the applicant, was involved in an automobile accident on November 23, 2018, 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 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 a non-earner benefit of $185.00 per week from December 28, 2018, to November 23, 2020?
ii. Is the applicant entitled to $4,364.46 for chiropractic services, proposed by Essential Physio Rehabilitation Inc. in a treatment plan/OCF-18 (“plan”) dated May 2, 2019?
iii. Is the applicant entitled to $1,889.00 for an orthopedic assessment, proposed by Essential Physio Rehabilitation Inc. in a plan dated August 23, 2019?
iv. Is the applicant entitled to $2,000.00 for a chronic pain assessment, proposed by Downsview Healthcare Inc. in a plan dated January 29, 2021?
v. Is the applicant entitled to $13,223.59 for a chronic pain treatment plan, proposed by Downsview Healthcare Inc. in a plan dated April 24, 2021?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
3The matter was originally scheduled to be heard by way of a videoconference hearing. The applicant brought a motion dated November 2, 2022, to convert the format to a written hearing. The motion was granted. The applicant advised in his motion that he was withdrawing the issue of entitlement to a non-earner benefit (i above).
RESULT
4The applicant is not entitled to the treatment plans for chiropractic services, an orthopedic assessment and chronic pain treatment.
5The applicant is entitled to the treatment plan for a chronic pain assessment.
6The applicant is entitled to interest on any overdue payment of benefits.
PROCEDURAL ISSUE
7In his submissions, the applicant sought an award under s. 10 of Reg. 664. This was not listed as an issue in dispute in the Case Conference Report and Order (“CCRO”) dated October 4, 2021, or in the applicant’s motion dated November 2, 2022. The respondent submits that the claim should be dismissed. Since this was not listed as an issue in dispute in the CCRO, and the applicant did not bring a motion to add this as an issue, I decline to address the applicant’s request for a special award.
ANALYSIS
8To 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.
The applicant is not entitled to the treatment plan for chiropractic services
9I find that the applicant has not demonstrated that the treatment plan for chiropractic services is reasonable and necessary.
10The treatment plan dated May 2, 2019, was proposed by Dr. Ashley Narula, Chiropractor. The goals of the plan are to return the applicant to a pre-accident level of function and pre-accident activities of daily living. The plan proposes 16 sessions of chiropractic treatment, 16 sessions of functional and training exercise, 16 sessions of physical rehabilitation, 16 sessions of massage therapy, and 16 sessions of acupuncture. Dr. Narula indicates that the applicant continues to experience neck pain, mid back pain, low back pain, headaches, anxiety, stress, and a fear of driving. There is no indication of any improvement since the end of the previous treatment plan.
11I find the evidence indicates that the applicant attended the hospital on November 25, 2018, complaining of pain on the right side of his neck, left shoulder, and back. An x-ray of the cervical spine the same day showed no fractures or soft tissue swelling. Dr. Aneesh Chhabra diagnosed the applicant with neck sprain and prescribed Acetaminophen and Advil.
12The applicant saw various doctors at MCI The Doctor’s Office for treatment. He sought the following treatment after the accident:
i. November 29, 2018: the applicant reported neck and back pain to Dr. Reginald Gorczynski. Dr. Gorczynski assessed “Inflammation post MVC,” prescribed Arthrotec and Baclofen, and advised the applicant to apply gentle heat.
ii. January 15, 2019: the applicant reported headaches and pain in the trapezius region. Dr. Gorczynski assessed whiplash injury (chronic). Dr. Gorczynski requisitioned an ultrasound of the bilateral shoulders and an x-ray of the shoulders, and prescribed Naproxen and Cyclobenzaprine. The results dated February 13, 2019, revealed that the AC joints, bilateral shoulders, and upper right back were all normal.
iii. June 14, 2021: the applicant attended to see Dr. Mohammed Asmal for a physical examination, reporting chronic pain and stiffness. Dr. Asmal did not make an assessment with respect to the applicant’s complaints of pain.
iv. September 26, 2021: the applicant attended to see Dr. Sania Hakim for blood work and a booster as he was planning to go to truck driving school. He advised he had an old back injury, cannot do heavy lifting but he can do light work and driving was not an issue.
v. March 28, 2022: the applicant attended to see Dr. Asmal, reporting that he was unable to work due to chronic back, neck and shoulder pain. Dr. Asmal completed a form for Ontario Works. In response to a question, Dr. Asmal indicated “no,” the applicant was not a regular patient of his. In response to the question: “If yes, how frequently have you seen this patient in the past 2 years?” Dr. Asmal responded, “chronic shoulder, neck & lower back pain.”
13The applicant submits that the respondent denied the plan on May 14, 2019, on the basis that the applicant’s injuries were within the Minor Injury Guideline (“MIG”), however he was subsequently removed from the MIG on June 7, 2019. The applicant argues that once he was removed from the MIG, the respondent had an obligation to re-evaluate the treatment plan. I find that the respondent did re-evaluate the plan, because they denied the treatment plan on June 7, 2019, on the same day the applicant was removed from the MIG for a psychological condition. The denial was based on a report prepared by Dr. Michael Hanna, Physician, dated May 17, 2019, after he conducted a musculoskeletal examination of the applicant on April 22, 2019. Dr. Hanna concluded that the treatment plan is not reasonable and necessary.
14I place significant weight on Dr. Hanna’s report because it addresses whether the chiropractic treatment would result in an improvement to the applicant’s condition. Dr. Hanna indicated that the applicant reported no improvement of his symptoms since the accident with multi-disciplinary physical therapy. Dr. Hanna diagnosed the applicant with Whiplash Associated Disorder – WAD II, and Myofascial sprain/strain of the thoracic and lumbar regions because of the accident. He concluded that the passive treatment set out in the plan would not assist the applicant for soft tissue injuries at this juncture and noted that the same treatment previously did not effect a change in the applicant’s symptomology.
15I have also considered the Chronic Pain Consultation Report submitted by the applicant that was prepared by Dr. Dmitri Louvish, Physician, after an assessment on March 13, 2021. The applicant reported that physical rehabilitation therapy provided some relief with respect to his post-accident pain, on a transient basis, with relief lasting 1-2 days following therapy, and then the pain would return. After a review of the applicant’s medical documentation and a physical assessment, Dr. Louvish was of the opinion that the treatment plan dated May 2, 2019 is reasonable and necessary. I place little weight on the opinion of Dr. Louvish as it relates to this treatment plan, because his assessment was conducted over one year and ten months after the treatment plan was proposed.
16I find that clinical notes and records similarly do not support the applicant’s position. Upon a review of the clinical notes and records of the applicant’s attendance at the hospital after the accident, and for two subsequent visits to a doctor prior to the submission of the treatment plan on May 2, 2019, I find that there are no recommendations from these physicians for chiropractic treatment, functional and training exercise, physical rehabilitation sessions, massage therapy, or acupuncture. Further, I note that x-ray and ultrasound results dated February 13, 2019, revealed that the applicant’s AC joints, bilateral shoulders and upper right back were all normal. I have also considered that on April 22, 2019, the applicant reported to Dr. Hanna that there was no improvement of his symptoms since the accident with multi-disciplinary physical therapy. Dr. Narula also did not indicate that the applicant had improved since the end of the previous treatment plan.
17Considering that the applicant’s treating physicians did not recommend the treatment sessions set out in the treatment plan, Dr. Hanna’s opinion that that the passive treatment set out in the plan would not assist the applicant for soft tissue injuries, as well as the fact that I find there is insufficient evidence of improvement based on previous treatment, I find that the applicant has not demonstrated on a balance of probabilities that this treatment plan is reasonable and necessary.
The applicant is not entitled to the treatment plan dated August 23, 2019 for an orthopedic assessment
18I find that the applicant has not established that the treatment plan for an orthopedic assessment is reasonable and necessary.
19The treatment plan for an orthopedic assessment dated August 23, 2019, was proposed by Dr. Tajedin Getahun, Orthopedic Physician. The goals of the plan are pain reduction, increased range of motion, increase in strength, and to return to activities of normal living. The cost of the plan includes an orthopedic assessment, a file and medical document review, and preparation of a report.
20I am not persuaded by the applicant’s submissions because he essentially lists injuries that he sustained as a basis for the treatment plan and submits that pain relief is a legitimate goal for treatment. The applicant submits that the treatment plan is reasonable and necessary based on his physical impairments, as outlined in the clinical notes and records and various assessment reports. The applicant points out that he was diagnosed with whiplash injury (chronic) and was recommended physiotherapy on June 15, 2019, only two months before the treatment plan was prepared. Upon a review of the clinical notes and records, I find that this diagnosis was in fact made on January 15, 2019, less than two months after the accident, and over seven months prior to the preparation of the treatment plan. Further, I find that the applicant and Dr. Gorczynski discussed the applicant’s attendance at physiotherapy, and the fact that the physiotherapist recommended an ultrasound. The doctor did not recommend physiotherapy. The applicant also points out that he reported the following injuries to his family doctor because of the accident: headaches, tight shoulders, uncomfortable neck, and pain to the trapezius region.
21I am not persuaded by the applicant’s submission that he reported to Dr. Louvish that he feels relieved from pain after his physical rehabilitation therapy. This report was made to Dr. Louvish during an assessment on March 13, 2021, one year and seven months after the proposed treatment plan. As indicated above, on April 22, 2019, the applicant reported to Dr. Hanna that there was no improvement of his symptoms since the accident with multi-disciplinary physical therapy, and in the proposed plan dated May 2, 2019, Dr. Narula did not indicate that the applicant had improved since the end of the previous treatment plan. In the circumstances, I find the applicant’s submissions do not adequately address how the goals of the treatment plan would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
22Further, upon a review of the applicant’s clinical notes and records, I find that his treating physicians did not make a recommendation for an orthopedic assessment.
23I am persuaded by Dr. Hanna’s Musculoskeletal Paper Review dated October 16, 2019, addressing whether this treatment plan is reasonable and necessary because his conclusion is consistent with the findings from the results of the x-ray and ultrasound dated February 13, 2019, which revealed that the applicant’s AC joints, bilateral shoulders and upper right back were all normal. On a consideration of the applicant’s OCF forms, various reports, as well as the applicant’s clinical notes and records and his in-person assessment on April 22, 2019, Dr. Hanna is of the opinion that the applicant sustained no more than a sprain/strain type injury to his neck and back. There was no evidence of radiculopathy, myelopathy, neuropathy, or permanent impairment. He concluded that an orthopedic assessment was not reasonable and necessary.
24Without a recommendation from one of the applicant’s treating physicians or sufficient evidence that the goals of the treatment plan would be met to a reasonable degree, I find that the applicant has not established on a balance of probabilities that this treatment plan is reasonable and necessary.
The applicant is not entitled to the plan for chronic pain treatment
25I find that the applicant has not established that the plan for chronic pain treatment is reasonable and necessary.
26The chronic pain treatment plan dated April 24, 2021, was proposed by Dr. Louvish. The goals of the plan are pain reduction, increase in strength, to address general deconditioning, to return to activities of normal living, and to return to pre-accident work activities. The plan proposes a review of file materials, consultation with treatment providers, 12 psychotherapy sessions, 20 sessions of chiropractic rehabilitation, 20 sessions of a functional exercise program, 10 sessions of spinal decompression therapy, 20 sessions of laser therapy, 15 sessions of massage therapy, a medical follow-up assessment, a chronic pain progress report, 6 sessions of shockwave therapy (back), 15 sessions of mobilization, 2 sessions of education, and 6 sessions of shockwave therapy (neck), over a ten week period.
27The applicant submits that he meets all six criteria for diagnosing Chronic Pain Syndrome in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008 (“Guides”).
28While the Guides are not binding on me, this Tribunal has long held that they provide a helpful tool for the evaluation of chronic pain. The Guides provide that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:
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 behaviors.
29Based on the evidence before me, I find that the applicant has not met criterion i, ii, iii and v:
i) I find that the applicant was not dependant on drugs, nor did he use prescription drugs beyond the recommended duration. The prescription summary that was filed by the applicant indicates that the applicant only filled prescriptions for pain medication on two dates between February 7, 2019, and October 19, 2022, namely on February 7, 2019, and on December 19, 2019.
ii) I find that the applicant has not exhibited excessive dependence on health care providers or his family. The applicant submits that he has been dependant on his family to help with his activities of daily living since the accident, as reported to his assessors Dr. Kozina and Dr. Louvish. The applicant resides with his mother and her husband, as he did prior to the accident. He reported that he had to stop doing housekeeping tasks after the accident, he remains independent in completing self-care tasks, but he moves more slowly. In the conclusion of Dr. Louvish’ report, he indicated that the applicant “has difficulties doing housekeeping tasks around the house in a timely fashion.” The applicant reported to Dr. Hanna that he has remained independent with all aspects of his pre-accident chores; however, he experiences exacerbation of pain while conducting them. In the circumstances I find that the applicant does not exhibit excessive dependence on his family. Further, with respect to health care providers, the applicant only attended for appointments with a doctor in relation to the accident on four occasions between November 29, 2018, and March 28, 2022, which I do not find to be excessive.
iii) The applicant submits that the reports of Dr. Kozina and Dr. Louvish mention that his physical activity has been greatly affected due to accident-related injuries. I find that this is insufficient evidence of secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain because these complaints were only made to assessors who proposed treatment plans at issue. I find that the applicant did not make similar complaints to his treating physicians. The clinical notes and records of the applicant’s treating physicians do not speak to physical deconditioning or fear-avoidance of physical activity due to pain. The applicant reported that he cannot work due to chronic pain, however, he was not working at the time of the accident.
v) The applicant submits that the assessment reports and the Disability Certificates mention that his post-accident activities of daily living and functional abilities have been “limited.” I am not satisfied that this demonstrates a failure to restore pre-injury function after a period of disability, such that his physical capacity is insufficient to pursue work, family, or recreational needs because these reports were prepared by assessors who proposed treatment plans at issue, and the applicant did not report similar issues to his treating physicians. Although the applicant reported being unable to work on March 28, 2022, as noted above, the applicant was not working at the time of the accident.
30The applicant relies of the Chronic Pain Consultation Report of Dr. Louvish dated March 17, 2021. Dr. Louvish diagnosed the applicant with cervical whiplash myofascial injury, left shoulder post-traumatic impingement syndrome, right shoulder myofascial injury, left upper extremity myofascial injury, thoracic spine myofascial injury, lumbar spine myofascial injury with post-traumatic discogenic pathology causing left-sided L5-S1 radiculopathy, post-traumatic migraine type headaches, psychological distress (anxiety, stress, fear and hypervigilance when he is a driver or a passenger in a vehicle, and depressed mood), post-traumatic disturbance, and difficulties with memory and concentration. Dr. Louvish concludes that the applicant “appears to have developed chronic pain syndrome.”
31I place little weight on the report of Dr. Louvish for several reasons. I note that Dr. Louvish’s Acknowledgement of Expert’s Duty does not indicate that he is a chronic pain specialist. Further, I note that one of the goals of the treatment plan proposed by Dr. Louvish is to return to pre-accident work activities. The applicant was not employed at the time of the accident. Finally, as pointed out by the respondent in their submissions, Dr. Louvish diagnosed left shoulder post-traumatic impingement syndrome and radiculopathy in the neck, cervical and lumbar spine as a result of the accident, even though the February 13, 2019 ultrasound of the applicant’s AC joints, shoulders and right upper back were all normal.
32I place more weight on Dr. Hanna’s report dated March 3, 2021. Dr. Hanna assessed the applicant on February 18, 2021, and completed a musculoskeletal examination Insurer’s Examination report addressing the treatment plan for a chronic pain assessment. I note that Dr. Hanna has postgraduate training in chronic pain. He has certification and training, including hands-on use of the Guides, and has been accepted as an expert witness in chronic pain. After a review of the applicant’s medical documentation as well as a physical assessment, Dr. Hanna diagnosed the applicant with myofascial sprain/strain of the cervical, thoracic, and lumbar regions. He noted that the applicant presented with a full range of motion of the neck and back. He presented with tenderness on palpation of the cervical, thoracic, and lumbar regions. His neurological examination was unremarkable. Further, there was no evidence of radiculopathy, myelopathy, or neuropathy. He concluded that the applicant did not meet the diagnostic criteria for the diagnosis of chronic pain syndrome.
33I place little reliance on the applicant’s submission that he has been diagnosed with chronic pain by his treating physicians. On January 15, 2019, Dr. Gorczynski assessed whiplash injury (chronic). This was less than two months after the accident. On June 14, 2021, when the applicant attended to see Dr. Asmal for a physical examination, the applicant reported chronic pain and stiffness. Dr. Asmal did not make an assessment in that regard. On March 28, 2022, after the applicant reported that he was unable to work due to chronic back, neck and shoulder pain, Dr. Asmal completed a form for Ontario Works indicating that the applicant was unable to work due to chronic back, neck, and shoulder pain. Dr. Asmal only met with the applicant on two occasions after the accident. As such, I find that Dr. Asmal was not in a position to diagnose the applicant with chronic pain.
34With respect to the proposed psychotherapy sessions, I have considered the following evidence.
35Dr. Anna Kozina, Psychologist, assessed the applicant on September 4, 2019, and prepared a Psychological Report dated September 18, 2019. The assessment included a clinical interview, administration of nine psychological tests, and a feedback interview. Dr. Kozina diagnosed the applicant with Major Depressive Disorder, Single Episode, Moderate, Somatic Symptom Disorder with Predominant Pain, Specific Phobia, Situational (vehicular travel), as well as features of Post-traumatic Stress Disorder. Dr. Kozina recommended 12 sessions of cognitive-behavioural oriented psychotherapy.
36Dr. Kelly McCutcheon conducted an Insurer’s Examination on April 25, 2019, and prepared a report dated May 17, 2019, based on an interview as well as having conducted four psychometric tests. Dr. McCutcheon diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood because of the accident. As a result, the applicant was removed from the MIG for psychological concerns and a psychological assessment was approved.
37In the Outstanding Account Summary from Essential Physio Rehabilitation Inc. dated January 26, 2023, referred to by the applicant, I note that he attended for 5 sessions of psychological counselling from November 19, 2019, to March 3, 2020, which were approved of and paid for by the respondent. The applicant did not file any psychological records or reports from the treating psychologist to indicate whether the counselling was helpful or whether additional counselling was warranted. Further, I note that the applicant did not report any psychological concerns to any of his treating physicians. Although Dr. Louvish recommends 12 psychotherapy sessions in the treatment plan, there is no mention in his report dated March 17, 2021, of the psychological counselling sessions the applicant attended between November 19, 2019, and March 3, 2020, and whether the applicant received any benefit from them.
38On a consideration of the evidence, I find that the applicant has not demonstrated that he suffers from chronic pain because of the accident. Further, I find that the applicant has not demonstrated that any further psychological counselling is warranted. As such, I find that on a balance of probabilities the plan for chronic pain treatment is not reasonable and necessary.
The applicant is entitled to the treatment plan for a chronic pain assessment
39The plan for a chronic pain assessment dated January 29, 2021, was proposed by Dr. Grigory Karmy, Chronic Pain Physician. The goals of the plan are to evaluate the extent of the applicant’s chronic injuries and psychological complaints and to provide a prognosis and recommendations for recovery, and to return to activities of normal living.
40The respondent denied this treatment plan based on Dr. Hanna’s report dated March 3, 2021, taking the position that the applicant does not meet the diagnostic criteria for the diagnosis of chronic pain syndrome. Further, Dr. Hanna concluded that the applicant reached maximum medical improvement and that the treatment plan for a chronic pain assessment was not reasonable and necessary. I find that the purpose of the assessment is to determine whether the applicant has chronic pain. As such, the applicant need not establish that he has chronic pain to demonstrate that the treatment plan for this assessment is reasonable and necessary.
41The applicant submits that the treatment plan for the assessment is reasonable and necessary because the applicant has a chronic pain disorder as a result of the accident. He points out that his family doctor diagnosed him with whiplash injury (chronic) and he reported chronic pain to his family physicians.
42I find that based on the applicant’s complaints of pain to the family physicians between November 29, 2018, and March 28, 2022, as well as his reports of pain to his assessors, there are grounds on which to believe that the applicant suffers from physical impairments that would warrant further investigation by way of a chronic pain assessment. I acknowledge that Dr. Hanna opined that the applicant has reached maximum medical improvement, however I find that his ongoing pain complaints after Dr. Hanna’s assessment indicate that he may have a condition that warrants further investigation. As such, I find that the applicant has demonstrated on a balance of probabilities that the treatment plan for a chronic pain assessment is reasonable and necessary.
Interest
43Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue benefits in relation to the treatment plan for a chronic pain assessment.
ORDER
44The applicant is not entitled to the treatment plans for chiropractic services, an orthopedic assessment and chronic pain treatment.
45The applicant is entitled to the treatment plan for a chronic pain assessment.
46The applicant is entitled to interest on any overdue payment of benefits.
Released: December 4, 2024
Laura Goulet
Adjudicator