Licence Appeal Tribunal File Number: 22-002054/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:
Jeffery Williams
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Ludmilla Jarda
APPEARANCES:
For the Applicant:
Yanira E Monterroza, Paralegal
For the Respondent:
Stefan Sistilli Sguazzin, Counsel
HEARD:
By Written Submissions
OVERVIEW
1Jeffery Williams (the “applicant”) was involved in an automobile accident on December 18, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Aviva Insurance Company of Canada (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
Is the applicant entitled to $2,000.00 for a chronic pain assessment, proposed by Downsview Healthcare Inc. in a treatment plan that was denied on August 4, 2020?
Is the applicant entitled to interest on any overdue payment of benefits?
RELIEF
3For the reasons that follow, I find that the applicant is not entitled to $2,000.00 for a chronic pain assessment nor interest.
PROCEDURAL ISSUE
4In its written submissions, the respondent asserts that the sole issue in dispute in this application is the applicant’s entitlement to $2,000.00 for a chronic pain assessment and interest. The respondent indicates that the balance of the treatment plans identified in the case conference report and order (“CCRO”) dated February 2, 2023 and addressed at paragraphs 20-23 and 25-27 of the applicant’s written hearing submissions was resolved as part of a partial settlement in July 2023 and is no longer in dispute.
5The applicant did not oppose the respondent’s assertion in his reply submissions, despite having the opportunity to do so.
6Accordingly, I accept that the sole issue in dispute is the applicant’s entitlement to a chronic pain assessment and interest, and that the balance of the treatment plans identified in the CCRO has been resolved and is no longer in dispute.
ANALYSIS
The Treatment Plan
7To receive payment for the disputed treatment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefits are 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.
8The applicant submits that the treatment plan for a chronic pain assessment is reasonable and necessary. He argues that he likely suffers from chronic pain syndrome and that he meets three out of six criteria outlined in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “AMA Guides”).
9The applicant relies on the disputed treatment plan completed by Dr. Grigory Karmy, the clinical notes and records (“CNRs”) of his family physicians, Dr. Shirley Ostroff and Dr. Mohamed Asmal, a Disability Certificate (OCF-3) dated December 27, 2019 completed by Dr. Oleksandr Pivtoran, chiropractor, an insurer examination psychology assessment report dated July 24, 2020 completed by Dr. Kelly McCutcheon, psychologist, a psychological report dated October 20, 2020 completed by Dr. Jacqueline Brunshaw, psychologist, and a Driver/Passenger/Pedestrian Rehabilitation Evaluation Report dated May 2, 2021 completed by Dr. Brunshaw.
10In response, the respondent submits that the applicant failed to discharge his onus to prove that the disputed treatment plan is reasonable and necessary. The respondent further submits that the applicant does not meet three out of six AMA Guides criteria. The respondent relies on an insurer examination physician assessment report dated July 16, 2020 completed by Dr. Eric Silver, family physician, and Dr. McCutcheon’s July 24, 2020 report.
$2,000.00 for a chronic pain assessment is not reasonable and necessary
11I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated June 25, 2020 for a chronic pain assessment in the amount of $2,000.00 is reasonable and necessary.
12The treatment plan proposes a chronic pain assessment to evaluate the extent of the applicant’s chronic injuries and psychological complaints and to provide a prognosis and recommendations for recovery.
13I find that there is insufficient evidence to support that there were grounds to suspect that the applicant suffered from chronic pain when the treatment plan was submitted. According to the OCF-3, the applicant sustained the following injuries as a result of the accident: concussion, cervical sprain/strain, lumbar spine strain/sprain, post-traumatic headache, shoulder sprain/strain of joints and ligaments (left), thoracic sprain/strain, post concussive syndrome, dizziness, acute stress reaction, and symptoms and signs involving his emotional state.
14Although the applicant argues that Dr. Karmy indicated in the disputed treatment plan that he suffers from chronic pain, there is insufficient evidence to support that the applicant suffers from this medical condition. Indeed, the diagnostic imaging of the applicant’s head, left shoulder, and cervical spine dated December 19, 2019 was unremarkable. While the applicant complained of neck and left shoulder pain to Dr. Asmal on a few occasions before submitting the treatment plan, no diagnosis was identified in Dr. Asmal’s clinical notes.
15Further, the applicant’s assertion that Dr. Asmal confirmed on March 8, 2021 that he likely suffered from chronic pain syndrome is inaccurate and inconsistent with Dr. Asmal’s clinical note. While the applicant’s subjective complaints were described as “chronic”, Dr. Asmal did not make a diagnosis, nor did he make reference to chronic pain syndrome.
16I also find