Citation: Konevetsky v. Aviva General Insurance, 2024 ONLAT 22-001161/AABS

Licence Appeal Tribunal File Number: 22-001161/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:

Marina Konevetsky

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Ilia Estrah, Counsel

For the Respondent: Ashley Panzarella, Paralegal

HEARD: By Way of Written Submissions

OVERVIEW

1Marina Konevetsky (the "applicant") was involved in an automobile accident on October 31, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by Aviva General Insurance (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:

1. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline ("MIG") limit?
2. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Downsview Healthcare Inc., in a treatment plan/OCF-18 ("OCF-18") submitted on October 12, 2021, and denied on October 15, 2021?
3. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by H M Medical Network Ltd., in an OCF-18 submitted on October 28, 2021, and denied on November 1, 2021?
4. Is the applicant entitled to $1,487.60 for massage therapy and chiropractic treatment services, proposed by Mackenzie Medical Rehabilitation Centre in an OCF-18 submitted on May 26, 2021, and denied on June 9, 2021?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

I. The applicant's injuries fall outside of the MIG due to her chronic pain. II. The applicant is entitled to the OCF-18, dated May 26, 2021, for massage therapy and chiropractic services, in the amount of $1,487.60, plus interest in accordance with s. 51 of the Schedule. III. The applicant is entitled to the OCF-18 for a psychological assessment, plus interest in accordance with s. 51 of the Schedule. IV. The applicant is not entitled to the OCF-18 for a chronic pain assessment.

ANALYSIS

The Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly a minor injury. Section 3(1) defines a "minor injury" as "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."

5An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

6In all cases, the burden of proof lies with the applicant.

7The applicant submits that she should be removed from the MIG due to her chronic pain and psychological impairments.

8The respondent submits that the applicant sustained predominately minor injuries as a result of the accident, and that she has not provided compelling medical evidence that her injuries fall outside of the MIG.

The applicant is removed from the MIG on the basis of her chronic pain condition

9I find that the applicant has demonstrated that she has a chronic pain condition that warrants removal from the MIG and its $3,500.00 limit on treatment.

10The applicant submits that the pain she has been experiencing to her neck, back and bilateral shoulders has become chronic. Furthermore, the applicant submits that she has sought consistent treatment from her family physician, Dr. Arthur, Staroselsky, and she was referred to Dr. Y (Tom) Chen, physiatrist, and Dr. Sev Perelman, pain consultant. Lastly, the applicant submits that she meets most of the six criteria for assessing claims to a chronic pain condition listed in the 6th edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment (the "Guides"). To this end, the applicant relies upon the records of Dr. Staroselsky, Dr. Chen, and Dr. Perelman.

11The respondent submits that the applicant did not attend the hospital following the accident and did not seek medical attention from her family physician, Dr. Staroselsky until approximately a month after the accident. Moreover, the respondent submits that the applicant sustained sprain/strain injuries as demonstrated by the records of Dr. Staroselsky. Lastly, the respondent submits that the applicant must show her chronic pain causes functional impairment and disability, not only ongoing pain, which she has not done so. To support its position, the respondent relies on the s. 44 reports of Dr. Greg Gelman, medical physician, dated January 23, 2014, Dr. Paul Kominek, chiropractor, dated June 10, 2014, and Dr. Deborah Rabinovitch, physiatrist dated July 29, 2021.

12The respondent also raised a causation issue with respect to the applicant's left shoulder pain. The test to determine causation is the "but for" test, one that provides that causation is a factual determination made on a balance of probabilities. The applicant must show that she would not have suffered the injuries "but for" the accident. The cause meeting that test need not be the major cause or sufficient in itself to have caused the injuries at issue. The injuries do not need to be "the cause" of the accident, but at least "a necessary cause" (see: Sabadash v. State Farm et al., 2019 ONSC 1121).

13The respondent submits that the applicant did not complain of left shoulder pain until several years following the accident, and therefore these complaints are not related to the accident.

14The applicant did not provide reply submissions, however, in her initial submissions, she summarized the records of Dr. Staroselsky, dated August 7 and November 30, 2019.

15The applicant has not established on a balance of probabilities that the accident was a necessary cause of her left shoulder pain. I acknowledge the applicant's submission, that she started complaining of left shoulder pain in the entry, dated August 7, 2019, because she has overcompensated that body part since 2013, however, the records of Dr. Staroselsky, do not support her position.

16First, the applicant did not report that she had left shoulder pain to Dr. Staroselsky until September 29, 2014 (approximately a year after the accident), despite attending his office on November 27, 2013, and December 19, 2013. Moreover, on September 29, 2014, while Dr. Staroselsky noted that the applicant reported right shoulder pain after the accident, he also noted that the applicant had left shoulder pain of an "insidious onset over a period of several weeks." I place significant weight on this entry, as Dr. Staroselsky did not provide a medical opinion of whether this left shoulder pain was linked to the subject accident, and the applicant herself reported that she had right shoulder pain from the accident.

17Second, after September 29, 2014, the applicant did not report left shoulder pain again until August 27, 2019 (not August 7, 2019, as stated in the applicant's submissions) and was referred to two specialist, Dr. Chen and Dr. Perelman for her right shoulder only during this time period. On August 10, 2015, the applicant met with Dr. Chen, and it was noted that she was referred for her right upper limb discomfort. More importantly, while the applicant self-reported symptoms to her right shoulder and arm, she advised Dr. Chen that there were no similar symptoms affecting her left arm. On September 17, 2015, and May 18, 2016, when the applicant met with Dr. Perelman, she only reported right shoulder pain from this accident, and she was diagnosed with right rotator cuff syndrome with impingement.

18Also, while, on August 27, 2019, the applicant self-reported to Dr. Staroselsky that the left shoulder pain started approximately one year ago, and that there was no history of trauma to the left shoulder/arm, there is no reference to whether this pain was caused by the applicant overcompensating with her left shoulder as alleged in her submissions. In fact, there is no reference to this accident at all in this entry.

19Once again, on November 30, 2019, there is no reference to the accident, nor did Dr. Staroselsky provide an opinion of what is causing the left shoulder pain. In my view, the gap of nearly five years of reporting left shoulder pain again undermines the applicant's position that the accident was a necessary cause of the applicant's left shoulder pain, especially since there is no medical opinion that it was caused by the accident.

20Third, the applicant has not referred me to a medical opinion that rebuts or undermines Dr. Rabinvitch's opinion that the applicant's left shoulder pain is not related to this accident, due to the delayed onset of the complain. I acknowledge that, on November 2, 2021, Dr. Perelman noted that the applicant was referred for left shoulder pain, which the applicant self-reported began after the accident. However, Dr. Perelman did not provide an opinion of whether the accident caused this left shoulder pain, and as noted above, in the previous entries, dated September 17, 2015, and May 18, 2016, there was no reference to left shoulder pain.

21To sum up, I find that the applicant has not established on a balance of probabilities that her left shoulder pain was a necessary cause of this accident.

22Now turning to the applicant's right shoulder pain, which the parties agree stemmed from the accident, I find that the applicant has led sufficient evidence that she has suffered from ongoing pain since the accident. I am alive to the respondent's position that there is a gap in Dr. Staroselsky's records because between April 2015 to November 2021, as the applicant only reported right shoulder pain on eight occasions. Despite the gap in reporting, the records of Dr. Staroselsky show that the applicant continued to present with right shoulder pain despite taking the prescribed medicine including Vimovo, Arthrotec, Voltaren cream, and Antiphlog cream, as well as receiving therapy and injections, and having been referred to two specialists to treat her right shoulder pain.

23Moreover, while Dr. Staroselsky did not diagnose the applicant with chronic pain, he discussed the option of steroid injections if the pain persisted with the applicant on December 19, 2013, and September 29, 2014. Ultimately, Dr. Staroselsky referred the applicant to Dr. Chen, on April 20, 2015, for right shoulder pain. In my view, the records demonstrate that despite the medication and treatment, the right shoulder pain has persisted and as a result, Dr. Staroselsky referred the applicant to a physiatrist.

24Subsequently, the applicant met with Dr. Chen on August 10, 2015, who noted that despite various treatments, the pain persisted. Notably, Dr. Chen conducted a physical examination, which revealed giveaway weakness in the applicant's right shoulder, which was seen in all directions, and reduced active range of motion in the upper limbs. Tenderness was also noted to her sub-occipital area, upper trapezius, and supraspinatus origin. Significantly, while Dr. Chen did not diagnose the applicant with chronic pain, he recommended pain block injections and referred her to a chronic pain physician. In my opinion, the recommendation of injections and a referral to a chronic pain physician, supports a finding that the applicant has chronic pain. My finding is further supported by the referral form, where Dr. Chen noted that the applicant had "MVA chronic pain + R."

25Next, the applicant met with Dr. Perelman, on September 17, 2015, who noted that as a result of her right shoulder pain, she developed limitations with lifting, carrying, reaching, domestic duties, and social activities. Dr. Perelman conducted a physical examination for her right shoulder which revealed several functional deficits, including, tenderness, decreased internal rotation, limited abduction, and positive results on numerous testing, such as the empty can test, resisted abduction test, resisted internal rotation test, resisted external rotation test; resisted supination test; and the drop arm test. Once again, while Dr. Perelman did not diagnose the applicant with chronic pain, he injected her with both a cortisone and a nerve block injection.

26On May 18, 2016, the applicant met with Dr. Perelman once again, and it was noted that the previous injections improved her daily functioning, albeit her pain continued to affect her sleep. Objective testing continued to reveal positive/abnormal results in her right shoulder. As a result, Dr. Perelman injected the applicant with another round of cortisone and nerve block injections to her right shoulder.

27Ultimately, on July 10, 2017, Dr. Chen concluded that the applicant continued to have poor sleep as a result of daily chronic pain. While I agree with the respondent that Dr. Chen also noted that the pain was confirmed to be soft tissue in nature, I disagree that this means that the applicant does not have chronic pain. It is clear from Dr. Chen's entry that although he noted that the applicant had a soft tissue injury, he also noted that the applicant has daily chronic pain and recommended that she continue with a chronic pain clinic.

28Even after the cortisone and nerve block injections, the applicant continued to report ongoing pain to Dr. Staroselsky on March 24, 2017, February 11, 2021, May 31, 2021, July 9, 2021, and September 13, 2021. While I further acknowledge that Dr. Staroselsky referred the applicant back to Dr. Perelman for left shoulder pain. Dr. Perelman also noted that the applicant had pain in both shoulders, albeit the left shoulder was worst at that time.

29Moreover, Dr. Perelman noted that the applicant's pain resulted in sleeping difficulties, headaches, memory loss, concentration difficulties, nausea, fatigue, depression, anxiety and irritability, and that the applicant was using occasional Voltaren injections. Objective testing to her right shoulder continued to reveal positive results for: impingement testing, Hawkin's testing, Neer's test, and the drop arm test. As a result, Dr. Perelman diagnosed the applicant with chronic pain and myofascial pain syndrome of the right and left rhomboid region and trapezius region.

30In conclusion, I find that the applicant has led sufficient evidence that she suffered from ongoing pain since the accident. While I agree with the respondent that there are gaps in reporting, the clinical notes and records of Dr. Staroselsky, Dr. Chen and Dr. Perelman establish, that in the 10 years after the accident, the applicant continued to report ongoing pain to her right shoulder, which persisted despite the treatment to date, including injections. Moreover, both Dr. Chen and Dr. Perelman noted that the applicant had chronic pain, which required both cortisone and nerve block injections.

31The applicant has also established that her chronic right shoulder pain has resulted in functional limitations. As noted above, Dr. Perelman, on September 17, 2015, noted that the applicant had limitations with lifting, carrying, reaching, domestic duties, and social activities. Also, on September 13, 2021, Dr. Perelman noted that the applicant's pain resulted in sleeping difficulties, headaches, memory loss, concentration difficulties, nausea, fatigue, depression, anxiety and irritability. As well, Dr. Staroselsky, Dr. Chen and Dr. Perelman have noted that the applicant has abnormal or positive results on numerous tests for her right shoulder, as well as tenderness.

32I also acknowledge the respondent's position that on July 29, 2021, the applicant reported to Dr. Rabinvitch that she was independent with her personal care, continued shared responsibility for household work, returned to all social/recreational activities, obtained her driver's licence, and returned to full time employment. However, the applicant also reported to Dr. Rabinvitch, that she continued to require assistance with putting on overhead tops, and that her nephew performed the heavy cleaning and her husband assisted with cooking and laundry, as she was only able to do light cooking and cleaning. Moreover, the applicant reported to Dr. Rabinvitch that there was no requirement for lifting in her current occupation in a bakery. In any event, I place more weight on the records of Dr. Chen and Dr. Perelman, who have noted limitations as a result of the applicant's chronic pain.

33Similarly, I am not persuaded by the opinions of Dr. Gelman and Dr. Kominek that the applicant only sustained soft tissue injuries that are in the MIG. First, the reports were completed in 2014, and therefore are outdated. Second, their opinions are not consistent with the contemporaneous medical records of Dr. Staroselsky, Dr. Chen and Dr. Perelman. Lastly, I place more weight on the records of the applicant's treating practitioners, as they would have more intimate knowledge than the s. 44 assessors.

34Additionally, I find that the applicant does meet the criteria in the Guides. While the Guides are not incorporated into the Schedule or otherwise binding on this Tribunal to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth 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; and

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

35I largely agree with the applicant's submission, and find that she meets three of these criteria, specifically, criteria i, ii, and vi. The CNRS from Dr. Staroselsky, and the prescription summary from Shoppers Drug Mart, show significant use of Diclofenac from March 31, 2018 to July 13, 2022, which satisfies the first criteria.

36As noted above, the applicant visited Dr. Staroselsky, on numerous occasions from November 2013 to 2021, was referred to two specialists for her right shoulder pain and received both cortisone and nerve block injections. In my view, this satisfies the criterion ii of the Guides.

37Finally, the applicant has produced evidence of the development of psychosocial sequelae following the accident, as on September 13, 2021, Dr. Perelman noted that the applicant had depression, anxiety, and irritability as a result of her pain. I acknowledge the respondent's reliance on the s. 44 report of Dr. Alfonso Marino, psychologist, who opined that the applicant endorsed some adjustment related difficulties, but these did not meet the DSM-V criteria for a diagnosis. However, the applicant does not need to establish that she has a DSM-V diagnosis in order to meet criterion vi, and she has demonstrated that she has a psychosocial sequelae, including depression, and anxiety, as noted in Dr. Perelman records.

38Therefore, I find that the applicant has demonstrated that she suffers from a chronic pain condition and is removed from the MIG on this basis. As I have determined that the applicant is removed from the MIG on the basis of her chronic pain condition, I do not need to consider whether her psychological impairments will remove her from the MIG.

Conclusion and Treatment Plans in Dispute

39Since the applicant is removed from the MIG, she can apply for medical and rehabilitation benefits above the MIG limits.

40To receive payment for a treatment and assessment plan pursuant to sections 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 a chronic pain assessment in the amount of $2,460.00 submitted on October 28, 2021

41I find that the applicant has not met her burden to establish entitlement to the proposed chronic pain assessment.

42With respect to the OCF-18 dated October 28, 2021 for a chronic pain assessment, I find that the applicant has not provided any evidence why an additional chronic pain assessment is needed. I note that both prior to and after the OCF-18 was submitted, the applicant was already under the care of Dr. Perelman. Dr. Perelman has met with the applicant on three occasions, made several diagnoses (as indicated above), and provided a plan of care for the applicant, including injections, and other treatment options.

43As such, from the evidence, it appears that the applicant was already assessed by Dr. Perelman and is under his care for her chronic pain. The applicant has not provided any evidence or submissions as to why an additional assessment is reasonable and necessary.

The applicant is entitled to the cost of a psychological assessment in the amount of $2,200.00, submitted on October 12, 2021

44I find that the applicant has established on a balance of probabilities that the psychological assessment is reasonable and necessary.

45In determining whether an assessment is reasonable and necessary, I note that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing that there are grounds to suspect she has the condition for which she seeks the assessment. I find that the applicant has led sufficient evidence that further investigation into whether she has sustained an accident-related psychological impairment, is warranted.

46As noted above, on September 13, 2021, Dr. Perelman noted that the applicant had depression, anxiety, and irritability as a result of her pain. I acknowledge that in denying the applicant's claim, the respondent relies upon a s. 44 report of Dr. Marino, who opined that the applicant endorsed some adjustment related difficulties, but these did not meet the DSM-5 criteria for a diagnosis. However, this report was completed in 2014, approximately seven years after Dr. Perelman's consultation report.

47I am persuaded that the OCF-18 is reasonable and necessary, first to evaluate the applicant and determine the nature and extent of any psychological condition, and then to treat the psychological symptoms reported to her provider, as noted above.

48The cost of the assessment is also in line with Schedule.

49Accordingly, and for the reasons outlined above, the applicant has demonstrated on a balance of probabilities that this OCF-18 is reasonable and necessary. Interest is payable in accordance with s. 51 of the Schedule.

The applicant is entitled to the OCF-18 dated May 26, 2021, for massage therapy and chiropractic services

50I find that the applicant has provided sufficient evidence to establish that the May 26, 2021, OCF-18 is reasonable and necessary.

51The applicant submits that the treatment is reasonable and necessary as she has chronic pain, and that the treatment will provide pain reduction, increased range of motion, and increased strength.

52In response, the respondent submits that seven and half years had passed since the accident when the proposed OCF-18 was submitted and that Dr. Rabinovitch has opined that the applicant has reached maximum therapeutic benefit.

53I agree with the applicant that the proposed massage services are reasonable and necessary. I place greater weight on the contemporaneous medical record. On November 21, 2021, Dr. Perelman recommended massage therapy as part of the applicant's pain management program. Therefore, while I acknowledge that Dr. Rabinovitch concluded that the applicant has reached maximum therapeutic benefit, I place more weight on the opinion of her treating practitioner, Dr. Perelman.

54I also find that the applicant has led sufficient evidence to establish that the proposed chiropractic services are reasonable and necessary. It is well-settled that pain reduction is a legitimate goal for treatment. In reviewing the medical evidence, I note that on September 13, 2021, Dr. Perelman noted that the applicant found chiropractic treatment to be helpful. Moreover, the applicant produced records from her treating chiropractor, Dr. Alyssa Runyon, who noted on July 16, 2020, and July 21, 2020, that she noted improvement with the treatment.

55As the respondent has not raised issues with the proposed costs associated with this OCF-18. I have no reason to think that the costs associated with the treatment are unreasonable.

56For these reasons, I find that the OCF-18 for massage and chiropractic services is reasonable and necessary, and that the applicant is entitled to this OCF-18 plus interest in accordance with s. 51 of the Schedule.

ORDER

57For the reasons outlined above, I find that:

i. The applicant's injuries fall outside of the MIG due to her chronic pain.

ii. The applicant is entitled to the OCF-18 dated May 26, 2021, for massage therapy and chiropractic services, in the amount of $1,487.60, plus interest in accordance with s. 51 of the Schedule.

iii. The applicant is entitled to the OCF-18 for a psychological assessment, plus interest in accordance with s. 51 of the Schedule.

iv. The applicant is not entitled to the OCF-18 for a chronic pain assessment.