Mirzazadeh v. Aviva Insurance Company, 2024 CanLII 13092

Citation: Mirzazadeh vs Aviva Insurance Company, 2024 ONLAT 21-012666/AABS

Licence Appeal Tribunal File Number: 21-012666/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:

Bahara Mirzazadeh

Applicant

and

Aviva Insurance Company

Respondent

DECISION

ADJUDICATOR: Janet Rowsell

APPEARANCES:

For the Applicant: Saloumeh Baghbani, Counsel

For the Respondent: Brittanny K Tinslay, Counsel

HEARD: By way of written submissions

OVERVIEW

1Bahara Mirzazadeh, the applicant, was involved in an automobile accident on February 11, 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.

2On February 11, 2018, the applicant was seat-belted while driving on Highway 400, when her vehicle slid as a result of winter weather conditions, as the applicant changed lanes. The car rolled over according to the police report, hitting the guard rail, landing on it wheels. The applicant hit her head on the steering wheel of the car in the process.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $2,460.00 for a chronic pain assessment proposed by Healthmax Physiotherapy in a treatment plan dated October 18, 2019?

ii. Is the respondent liable to pay an award under section 10 of O.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

4The applicant is entitled to $2,460.00, for a Chronic Pain Assessment, proposed by Healthmax Physiotherapy in a treatment plan dated October 18, 2019.

5The applicant is entitled to interest on any overdue payment of benefits respecting the Treatment Plan/ OCF-18 for $2,460.00 for a chronic pain assessment proposed by Healthmax Physiotherapy in a treatment plan dated October 18, 2019.

6The 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. While I find the OCF-18 for the chronic pain assessment to be reasonable and necessary, the applicant has not demonstrated that Aviva’s conduct meets the threshold to warrant a section 10 award.

Legal Analysis

The Treatment Plan for a chronic pain assessment, proposed by Healthmax Physiotherapy in the amount of $2,460.00 dated October 18, 2019?

7I find that the applicant has met her burden showing the chronic pain assessment recommended by Marco Curcio, Chiropractor, dated October 18, 2019, is a reasonable and necessary expense which the applicant is entitled to. I have considered the applicant’s evidence in the Clinical Notes and Records (CNRs) of the family physician, Dr. Lawrence Kwan, and Dr. Flor Fakour. For reasons which follow, I find that the Insurance Examination (IE) report of Dr. Paul Tepperman, an occupational health physician, does not adequately consider the CNRs of the family physician, Dr. Fakour, and Dr. Kwan, causing me to accord less evidentiary weight to Dr. Tepperman’s opinion relating to the treatment plan for a chronic pain assessment.

8By reason of the findings of the section 44 IE insurance psychological examination of Dr. Kerry Lawson, the applicant’s injuries were determined by the respondent to fall outside the MIG from a psychological perspective as stated in the explanation of benefits by Aviva Insurance Company, dated March 23, 2020.

9To 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 bears the onus of proving on a balance of probabilities that the proposed treatment plan is reasonable and necessary.

10As stated by the Tribunal in Z.K. v. Allstate Insurance Company Canada, 2020 CanLII 106429 (ON LAT): “In order to find whether a cost of examination is reasonable and necessary, all that is required is some evidence of a need to investigate what the assessment is seeking. In the case of a chronic pain assessment, proof of a chronic pain diagnosis or chronic pain syndrome is not required but evidence that the condition may be prevalent would be sufficient to warrant an assessment.”

11The applicant submits the relevance of the American Medical Association (AMA) Guide (Sixth Edition), as referenced by Dr. Roger Lam, who prepared a section 25, Chronic Pain Assessment. The applicant submits that a chronic pain assessment is necessary to determine why her physical pain from the accident is not improving, approximately one year and eight months post-accident, in addition to identifying the barriers to recovery, to determine appropriate treatment. Marco Curcio, Chiropractor, proposed in a treatment plan dated October 18, 2019, addressing injury and sequelae, including the applicant’s neck, upper back, lower back and chronic headaches. The goals of the treatment plan are to identify barriers to recovery, and to make treatment recommendations. The assessment is proposed over an eight-week period.

12The respondent relies on the section 44, IE insurance examination report of Dr. Paul Tepperman, an occupational health physician, and submits that, the applicant does not meet the criteria in the AMA guide. In correspondence dated November 11, 2019, and January 17, 2020, the respondent states that pursuant to section 44 of the Schedule, the applicant is required to attend insurance examinations.

13The respondent denied the proposed treatment plan for a chronic pain assessment, in the explanation of benefits dated March 23, 2020, citing as the basis for denial, the March 10, 2020, section 44 IE assessment report of Dr. Tepperman. For reasons which follow, I find that the report of Dr. Tepperman does not adequately consider the clinical notes and records (CNRs) of the family physician, Dr. Flor Fakour, and Dr. Lawrence Kwan, causing me to give Dr Tepperman’s opinion less weight in relation to the determination of whether the treatment plan for a chronic pain assessment is reasonable and necessary.

14Dr. Paul Tepperman, reviewed the clinical notes and records of the family doctor, and only reports entries describing soft tissue injuries. He fails to include reference to a diagnosis by Dr. Fakour dated October 1, 2019, and February 3, 2020, which states that the applicant was diagnosed with chronic pain. I find Dr. Tepperman’s assessment that minor soft tissue injuries represent the extent of the applicant’s injuries, should be an opinion accorded less evidentiary weight given the omission of any consideration of the chronic pain diagnosis by Dr. Fakour. Dr. Tepperman also comments that the applicant does not have any pre-existing conditions affected by the accident without recognizing the back strain documented in the CNRs in June 2015, confirmed by diagnostic testing.

15Dr. Tepperman does not address in his report, the applicant requiring prescription pain medication as evidenced in the CNR’s. On February 28, 2018, the applicant met with her family physician Dr. Lawrence Kwan who prescribed Tylenol with Codeine, to address soft tissue injuries, that the applicant described post-accident. The applicant described to Dr. Fakour, on January 23, 2019, almost one year after the accident that she continues to experience neck and shoulder pain, which she stated is addressed with non-prescription Advil and massage that is inadequate to address the pain. Dr. Fakour prescribed meloxicam for pain relief. The applicant’s complaints of pain in her neck and upper back were described to Dr. Fakour on February 3, 2020, as persisting two years post-accident. Dr. Fakour prescribed Lyrica, and Dr. Fakour ordered an MRI. The section 44 IE psychological assessment of Dr. Kerry Lawson describes the applicant prescribed an antidepressant as a result of psychological injuries.

16Because of the deficiencies noted above, I do not accept Dr. Tepperman’s opinion that there is no clinical indication for a chronic pain assessment, since he states that the applicant had no physical impairment. Dr. Flor Fakour on October 1, 2019, opined in the CNRs that the applicant experiences chronic pain, a year and eight months following the accident.

17Dr. Mehdi Lotfalizadeh recommended in his section 25 psychological assessment a chronic pain assessment for the purpose of ascertaining what triggers the applicant’s chronic pain and what might support the applicant in coping with the pain. On October 1, 2019, the applicant described to Dr. Fakour that everyday she was in extreme pain in her shoulder and upper back, which radiates to her lower back.

18Dr. Tepperman states that the applicant does not have pre-existing medical conditions exacerbated by the accident. However, prior to the accident the applicant submits that she experienced back strain, which showed on diagnostic imaging of her lumbar spine, that her lower lumbar facet joints had mild stress related sclerotic reaction. I give Dr. Tepperman’s assessment less weight since it does not address information in the CNRs which contradicts his diagnosis. For that reason, I place less weight on his opinion regarding the utility of the treatment plan proposing a chronic pain assessment than I do on the opinions offered by other healthcare providers such as the family physician, Dr. Flor Fakour, Psychologist, Dr. Kerry Lawson, and Psychologist, Dr. Mehdi Lotfalizadeh.

19The relevance of the psychosocial and psychological sequelae after the accident, described by Dr. Kerry Lawson as DSM—V diagnosis of Adjustment Disorder with mixed anxiety and depression, moderate, is worthy of consideration for the purpose of the sixth criterion of the AMA Guides. Both Dr. Mehdi Lotfalizadeh in his section 25 assessment and Dr. Kerry Lawson, in large measure, agree on the applicant’s psychological diagnosis. Dr. Mehdi Lotfalizadeh makes a recommendation for a chronic pain assessment to help develop an understanding of the applicant’s physical pain, and how the applicant can cope with her accident-related pain. Dr. Lawson, prepared a section 44, IE insurance psychological examination of the applicant, dated February 25, 2020, where she diagnosed specific trauma – and stressor related disorder- adjustment like disorder; somatic symptoms disorder, predominant pain, persistent; specific phobia, situational type (Driver and Passenger). As stated, Dr. Lawson stated that the applicant meets the necessary criteria for the DSM—V diagnosis of adjustment disorder with mixed anxiety and depression, moderate. He also provides a differential diagnosis of Major Depressive Disorder with anxious distress. Dr. Lawson opined that the applicant remains vulnerable to the development of a Somatic Symptom Disorder as well as possibly the development of a driving phobia.

20I accept the diagnosis of Dr. Lawson because it is in agreement with the CNR’s of Dr. Fakour and the section 25 psychological assessment report of Dr. Lotfalizadeh, dated October 31, 2019. Dr. Lotfalizadeh diagnoses the applicant with somatic symptom disorder, with predominant pain, persistent; adjustment like disorder with prolonged duration of more than six months, specific phobia, situational type. As described, Dr. Lotfalizadeh makes recommendations including for a chronic pain assessment to help develop an understanding of the applicant’s physical pain, and what triggers the applicant’s pain, and recommendations on how the applicant can cope with her accident-related pain.

21The Tribunal has adopted the American Medical Association (AMA) Guide (Sixth Edition), as an interpretative tool for evaluating chronic pain claims in the absence of a formal diagnosis. The AMA Guide states that at least three of the following six criteria must be present for a diagnosis of chronic pain syndrome to be established:

(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 contacts;

(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 need; and;

(vi) Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

22I find that the applicant’s post-accident employment challenges demonstrate the application of criteria 3 of the AMA guide, which is secondary physical deconditioning, as well as criteria 4, withdrawal from social milieu, including work; and criteria 5, which is the failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient. The respondent submits that the applicant returned to her pre-accident level of activity, returning to her employment following the accident. I find the applicant for reasons stated, and as diagnosed by Dr. Lawson and Dr. Lotfalizadeh, has developed psychosocial sequelae after the accident as set forth in the AMA Guide’s criteria six.

23I find that the respondent’s submission is an oversimplification of the applicant’s employment experience post-accident, which is elsewhere described as adversely affected. Dr. Roger Lam prepared a section 25, Chronic Pain Assessment, where he described that the applicant is employed full-time at Telus Mobility, working from home. The applicant submits to Dr. Lam that her functionality has been affected as an outcome of the accident and as a result tasks cause physical pain, including prolonged sitting, lifting heavy objects, and that her sleep is interrupted by physical pain. The applicant’s work involves sitting for prolonged periods. The applicant submits that the ongoing pain affects customer service resulting in her losing patience with customers and incorrectly processing transactions. The report by Dr. Roger Lam opines that the applicant’s functionality is affected by the accident, as does the psychological report of Dr. Lotfalizadeh. Dr. Lotfalizadeh recommends a driving anxiety assessment in order to discover the means to assist the applicant in returning to her pre-accident functioning level.

24I find that Dr. Lam’s report supports the applicant’s submission that the treatment plan for a chronic pain assessment is reasonable and necessary, and in addition that Dr. Lam’s report is corroborated by the psychological report of Dr. Lotfalizadeh. Dr. Lam opined that three years following the accident, the applicant continues to suffer physical and psychological disturbance directly related to the accident. Before the accident, the applicant did not have any difficulties performing her activities of daily living independently, however, as opined by Dr. Lam and Dr. Lotfalizadeh, the applicant currently has difficulties with the tasks of daily life.

25I find that the applicant meets the criteria of the AMA Guide, one, three, four, five and six. Dr. Lam opined that the applicant displays numerous signs of experiencing chronic pain, on the basis of secondary deconditioning due to disuse and fear avoidance behaviours which is corroborated in the psychological report of Dr. Lawson and Dr. Lotfalizadeh. Dr. Lam and Dr. Lotfalizadeh describe that the applicant was active in sports of soccer and going to the gym before the accident. The applicant developed a use dependence on prescription drugs as described, in conformity with criterion one of the AMA Guide. Dr. Lam describes that the applicant currently shows behaviour from secondary physical deconditioning due to disuse and fear avoidance behaviour (Third criteria in the AMA Guide). The applicant has withdrawn form her social milieu, reporting to Dr. Lam and Dr. Lotfalizadeh, withdrawing from activities as a result of her ongoing pain resulting from the accident (Fourth criteria of the AMA Guide). The applicant meets Criteria 5 of the AMA Guide, which is the failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient. Finally, as described, the applicant has experienced psychosocial difficulties, as corroborated in the psychological report of Dr. Lawson and Dr. Lotfalizadeh (Sixth criteria of the AMA Guide).

26Dr. Lam stated that the applicant satisfies at least three criteria of the AMA Guides, 4th Edition, which finding I agree with considering the information in the CNRs of Dr. Fakour, Dr. Kwan, and the psychological assessment of Dr. Lawson and Dr. Lotfalizadeh. As stated, the CNRs describe that the applicant was regularly prescribed pain medication by her family physician as a result of the accident, and she sought pain relief for injuries which are a result of the accident (Criteria One of the AMA Guide).

27I find that the applicant has met the onus of demonstrating on a balance of probabilities, the reasonableness and necessity of the treatment plan for a chronic pain assessment, based on the section 25 chronic pain assessment of Dr Roger Lam, the psychological assessment of Dr. Lawson, the psychological report of Dr. Lotfalizadeh, and the CNRs of the applicant’s family physicians. My findings are also supported by the applicant meeting five of the AMA guide’s criteria listed above and referenced relating to the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs (Criteria One AMA Guide); secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain as described in the report of Dr Lam and Dr. Lotfalizadeh (Criteria Three AMA Guide); the applicant reporting to Dr. Lam and Dr. Lotfalizadeh withdrawing from work and social activities as a result of her ongoing pain resulting from the accident (Fourth criteria of the AMA Guide); Criteria 5 of the AMA Guide, which is the failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient. Finally, the applicant experiences the development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors (Criteria Six AMA Guide).

INTEREST

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that the applicant is entitled to the treatment plan in dispute for a Chronic Pain Assessment, interest is payable by the respondent in relation to that treatment plan once incurred.

AWARD

29The 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.

30The applicant sought an award under section 10 of O. Reg. 664, submitting that Aviva unreasonably withheld and delayed the payment of benefits. I find an award is not appropriate. Aviva denied the treatment plan under section 38 on the basis of the section 44 Insurance Examination report of Dr. Paul Tepperman. The test for a section 10 award is whether the insurer’s behavior is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. While I find the OCF-18 for the chronic pain assessment to be reasonable and necessary, the applicant has not demonstrated that Aviva’s conduct meets the threshold to warrant a section 10 award.

ORDER

31The applicant is entitled to a Chronic Pain Assessment, in the amount of $2,460.00 proposed by Healthmax Physiotherapy in a Treatment Plan/ OCF-18, dated on October 18, 2019.

32The applicant is entitled to interest on any overdue payment of benefits respecting the Treatment Plan/ OCF-18 for $2,460.00 proposed by Healthmax Physiotherapy dated October 18, 2019.

33The 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. While I find the OCF-18 for the chronic pain assessment to be reasonable and necessary, the applicant has not demonstrated that Aviva’s conduct meets the threshold to warrant a section 10 award.