Barrett v. Aviva Insurance Company of Canada, 2024 CanLII 15897

Citation: Barrett v. Aviva Insurance Company of Canada, 2024 ONLAT 22-001634/AABS

Licence Appeal Tribunal File Number: 22-001634/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:

Ricardo Barrett

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Kate Grieves

APPEARANCES:

For the Applicant: Maria Papadopoulos, Paralegal

For the Respondent: Nicholas Maida, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Ricardo Barrett (the “applicant”) was involved in an automobile accident on November 30, 2020, 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 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 applicant indicated in his submissions that the claims for a cognitive assessment, functional ability evaluation, orthopaedic assessment and biopsychosocial assessment were withdrawn.

3The issues in dispute are:

i. Is the applicant entitled to a medical benefit in the amount of $2,416.63 for chiropractic services proposed by Alma Rehab in a treatment plan dated June 25, 2021?

ii. Is the applicant entitled to a medical benefit in the amount of $2,095.57 for chiropractic services proposed by Alma Rehab in a treatment plan dated August 18, 2021?

iii. Is the applicant entitled to a medical benefit in the amount of $2,737.69 for chiropractic services proposed by Alma Rehab in a treatment plan dated October 15, 2021?

iv. Is the applicant entitled to a medical benefit in the amount of $2,416.53 for chiropractic services proposed by Alma Rehab in a treatment plan dated June 25, 2021?

v. Is the applicant entitled to medical benefit in the amount of $2,200.00 for a chronic pain assessment proposed by Ontario Independent Assessment Centre in a treatment plan dated June 9, 2021?

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

RESULT

4The applicant is not entitled to the treatment plans for chiropractic services.

5The applicant is entitled to the chronic pain assessment, with interest payable in accordance with the Schedule.

PROCEDURAL ISSUES

6The respondent submits that the applicant, in his initial submissions, improperly relied on two exhibits (tabs 8 and 9) that were not previously disclosed to the respondent. I agree with the respondent, and have excluded them from my analysis, on the basis that they were never provided to the respondent prior to the applicant’s written submissions. They were not listed on the applicant’s case conference summary. The Case Conference Report and Order indicates that the parties were ordered to disclose any documents not previously disclosed upon which they intend to rely within 60 days of the case conference.

7Pursuant to Rule 9.4 of the Common Rules of Practice and Procedure a party may not rely on a document as evidence if the party fails to comply with any rules, directions or orders with respect to disclosure.

8The applicant made no reply submissions, so the respondent’s submission is unchallenged. There is no evidence that the records were properly disclosed to the respondent, nor is there any explanation for failing to disclose them.

ANALYSIS

9The treatment plans in dispute are similar and propose services including chiropractic treatment, physiotherapy, massage therapy and exercise 1-2 times a week.

10The applicant referred to prior case law that held that care which relieves physical pain and therefore improves function is a legitimate medical and rehabilitative goal. The applicant submits that he found the treatment he received helpful, and therefore he should be entitled to the disputed physical treatment.

11He submits that his pre-existing chronic low back pain and somatic symptom disorder have prevented him from recovering within the “expected one-year healing time”. It is not clear to me who indicated that the expected healing time is one year. Dr. Chaudry indicated that the expected healing time is actually 9-12 weeks. While I agree that his pre-existing low back pain could have delayed his healing time, as noted by Dr. Chaudry, he was not demonstrating any functional limitation of the low back. Further, the applicant wasn’t actually diagnosed with a somatic symptom disorder. Dr. Marco Chiodo, psychologist, in his report dated April 1, 2021 noted subsyndromal features of a somatic symptom disorder, meaning he did not meet the full diagnostic criteria of the disorder.

12I am not persuaded that the applicant has met his burden to prove that the treatment plans in dispute for chiropractic services are reasonable and necessary.

13The applicant attended a walk-in clinic on the date of the accident and reported shoulder pain. The applicant told Dr. Chaudry that the doctor arranged imaging (x-rays and ultrasounds) which showed no pathology. The applicant missed one day from work and then resumed his job as tire technician, repairing forklifts and industrial machines.

14The clinical notes and records of Dr. Mohamed Meghji, who appears to be the family doctor, indicate that the applicant was diagnosed with chronic back strain prior to the accident in May 2019, and was prescribed Tylenol and Baclofen. The applicant did not return to see Dr. Meghji until March 2022 when he reported having been in the accident, and experiencing pain in his shoulder and mid to low back. The applicant reported that he had been going to physiotherapy, but had no improvement. Dr. Meghji noted that the prior imaging revealed normal results and the applicant was doing a lot of heavy lifting at work. The examination revealed no tenderness, his gait was normal and he demonstrated normal ranges of motion. Dr. Meghji prescribed naproxen and told him to follow up if it didn’t improve in a week or two. There is no indication that the applicant followed up with Dr. Meghji.

15The applicant has not provided any of the treatment records from Alma Rehab to support his claim for further treatment.

16The applicant underwent an insurer’s examination (“IE”) with Dr. Ijaz Chaudhry, physician, on April 12, 2021 (in respect of a different benefit). The applicant reported that he went to a walk-in clinic after the accident and had x-rays of his wrist, arm, back and shoulder, and an ultrasound of his chest and wrist, but all were unremarkable. The applicant reported that his personal care and household chores were not affected by the accident, he continued to work but avoided heavy lifting. Dr. Chaudhry examined the applicant, and noted that range of motion and strength testing presented normal findings across most joints, with limitation of the left arm. Dr. Chaudhry diagnosed soft tissue injuries to the right knee, right wrist, cervical spine, left shoulder, and lumbar spine. Dr. Chaudhry concluded that there was no evidence of impairment of function based on his evaluation.

17Dr. Chaudry’s diagnosis is largely consistent with the physical injuries identified on the disability certificate dated December 3, 2020.

18Dr. Chaudry completed a paper review report, dated June 15, 2021, in which he opined on the reasonableness and necessity of a functional capacity evaluation. He noted that the expected healing time to reach maximum medical improvement is between 9 to 12 weeks. He noted that the applicant had pre-existing low back pain which may contribute to a delay in healing his low back symptoms, however, per his assessment the applicant did not have any range of motion limitations of his back.

19This is consistent with the occupational therapy assessment report dated August 27, 2021 completed by Ms. Vinita Tandon, in which the applicant demonstrated normal ranges of motion, with the exception of the left shoulder which he declined to have examined.

20The applicant underwent a second assessment with Dr. Chaudhry report dated August 31, 2021, with respect to a treatment plan in dispute (issue i). The applicant reported that he had been attending treatment twice a week since the accident, and that he found it helpful but that “it is a temporary fix”. He continued to work and complete his activities as previously reported. The examination again revealed mostly normal findings. Given the time elapsed since the accident and no medical evidence to the contrary (such as imaging or other reports), there was no evidence of pathology that could be attributed to the accident. Dr. Chaudhry concluded that the applicant had suffered soft tissue injuries that were treated with a sufficient course of formal therapy, and no further formal therapy was required for his accident related injuries.

21Beyond infrequent attendance at a physician’s office, and unremarkable imaging performed shortly after the accident, the applicant has little evidence to support functional impairment warranting further chiropractic treatment. Given Dr. Chaudry’s conclusions, I find that that the plans proposing further chiropractic treatment are not reasonable or necessary.

Chronic Pain Assessment

22The onus is on the applicant to prove that the assessment is reasonable and necessary and that there is a link between the assessment sought and an accident-related impairment. Section 25(1) of the Schedule provides that an insurer shall pay reasonable fees for the preparation of an assessment.

23The applicant submits that he meets the criteria for chronic pain syndrome outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th edition 2008 (“AMA Guides”). The Guides set out set out that at least three of the following six criteria must be met in order to qualify for a diagnosis of chronic pain syndrome:

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 heath 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 to 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 non-organic illness behaviours.

24While no doctor or treatment provider has diagnosed him with a chronic pain condition as a result of the accident, I find that the applicant satisfies at least three of the criteria, such that he meets the criteria for chronic pain syndrome. He meets the first criteria for abuse of or dependence on drugs or other substances per Dr. Susan Mackenzie’s (psychiatrist) opinion that his increased cannabis use to cope with his anxiety and to aid with sleep was an “emerging cannabis use disorder”. The applicant also demonstrated fear-avoidance of physical activity due to pain: he declined to perform some of the examinations during the occupational therapy assessment due to pain, and per the report of Dr. Chiodo, had stopped exercising due to his pain and fear of re-injury. He meets the criteria for development of psychological sequelae, having been diagnosed with multiple psychological disorders by both Dr. Chiodo and Dr. Mackenzie, including adjustment disorder with mixed anxiety and depressed mood, and post traumatic stress disorder.

25Having found that the applicant meets the criteria for chronic pain syndrome as a result his accident-related impairments, I find that a chronic pain assessment is reasonable and necessary to evaluate the applicant’s condition and formulate recommendations to assist in the alleviation of his symptoms. I further find the overall cost reasonable, at $2,000.00 for the assessment and $200.00 for the documentation fee, within the maximum payable for assessments per s. 25(5)(a) of the Schedule.

Interest

26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the cost of the chronic pain assessment.

ORDER

27The applicant is not entitled to the treatment plans for chiropractic services in dispute.

28The applicant is entitled to the chronic pain assessment, with interest.