Citation and File Number
Licence Appeal Tribunal File Number: 21-015599/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.
Parties
Between:
Jin Ma Applicant
and
Security National Insurance Company Respondent
Decision
Adjudicator: Julia Fogarty
Appearances:
For the Applicant: Kateryna Vlada, Counsel
For the Respondent: Michael Rattray, Counsel
Heard: In Writing
OVERVIEW
1Jin Ma, the applicant, was involved in an automobile accident on January 12, 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, Security National 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 $2,486.00 for a chronic pain assessment proposed by Dr. Michael Gofeld of A&B Medical Assessments in a OCF-18 dated October 5, 2021?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The chronic pain assessment is reasonable and necessary; and
4Interest is payable on this treatment plan from the period of 30 days after it is incurred, at the rate set out in the Schedule, compounded monthly and prorated by day until the overdue balance is paid in full.
ANALYSIS
5To 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.
6Taking the legal test set out above into account, I now look to assess if a chronic pain assessment proposed by the applicant is reasonable and necessary.
Chronic Pain Assessment proposed by A&B Medical Assessments
7I find that the applicant has met the burden of proof to establish that the treatment plan is reasonable and necessary.
8The applicant has highlighted through submissions to the tribunal a history of medication and complaints of pain over a significant period of time warranting further investigation. I cannot consider the family doctor’s records to the exclusion of all other records as determinative proof that the applicant was not experiencing pain. When the records of the primary care physician are considered in conjunction with the records of Galatea Medical or Dr. Svetlana Gabidulina, the applicant is clearly describing his pain to another professional while still taking pain medication prescribed by his primary care physician over an extensive period of time. As such, I find there is sufficient evidence to warrant the further investigation into the nature of the issue of chronic pain.
What are the goals of the treatment?
9A review of the OCF-18 submitted by Dr. Michael Gofeld, physician, provides the following details:
i. The severity of the applicant’s injuries is affecting activities of daily living. Further limitations to be identified with assessment.
ii. It is unknown if the applicant is suitable for modified employment.
iii. Goals are identified to be:
a. Pain reduction;
b. Increase in strength;
c. Return to activities of normal living; and
d. Restore pre-injury functional capacity and be able to return to activities of normal living.
10Under additional comments, Dr. Gofeld sets out the following information about goals he seeks to achieve with a chronic pain assessment on page 9 of the OCF-18:
i. An assessment with a chronic pain specialist is to determine the exact nature of the patient’s syndrome and to arrange an appropriate multidisciplinary pain management program to assist in patient’s recovery process.
The purpose of a chronic pain assessment is to establish current diagnosis(-es), extent of the injuries, prognoses and recommendations for the recovery.
The patient is experiencing pain in activities that involve extending, bending, lifting and carrying. Static postures, sustained standing and walking, and other prolonged activity also aggravate symptoms. The patient finds difficulty in performing housekeeping tasks and other activities of daily living.
Considering the above noted factors, the incomplete resolution of the patient’s symptoms, and the amount of time that has passed since the accident, an assessment with a chronic pain specialist is beneficial in determining the exact nature of the patient’s syndrome. In effect, an appropriate multidisciplinary pain management program should be arranged to assist in the patient’s recovery progress.
How would the goals be met to a reasonable degree?
11Dr. Gofeld details that progress towards those goals will be evaluated as follows:
i. “Progress will be monitored and evaluated; as well as to which extent there is a return to pre-accident level of functioning. Progress will also be evaluated with the help of verbal and visual pain scales, activity of daily living functions assessment, and physical reassessment. Pain indications through ROM testing, and strength testing. Subjective and objective methods will be utilized.”
12Dr. Gofeld had not identified barriers to recovery or provided any recommendations and/or strategies to overcome any barriers in the OCF-18.
Pain in the applicant’s records
13The applicant attended the emergency room on the day of the accident, following which, on January 24, 2018, he followed up with his family doctor. In this visit he expresses issues with pain, is prescribed massage therapy and received a prescription for pain medication.
14On January 20, 2018 the applicant starts treatment with Galatea Medical, with the expressed goal in his intake form being the decrease of pain and the areas to be treated are his back as well as his shoulders. The records show many treatments over an extended period of time. For example:
i. April 14, 2018 notes low back pain and myospasm of the upper trapezius and levator scapulae;
ii. June 11, 2018 notes that he feels increased pain;
iii. July 7, 2018 notes that he expressed he feels better after a massage; and
iv. March 9, 2019 there is a further note detailing pain that is listed as intermittent again in the same areas since the accident. That same note states the goal of treatment is the decrease of pain and flags that he has trouble sleeping.
15During the Covid-19 pandemic, on December 9, 2020, at a follow up visit the applicant again expresses pain issues. The applicant’s doctor adds a prescription of Lyrica to his Tylenol and requests an X-Ray of lumbar area.
16It is the position of the applicant that the treatment plan is reasonable and necessary because his treatments provided him with short-term pain relief and increased his ability to participate in activities of daily living. He elaborates that chronic pain is an ongoing or recurring pain that lasts beyond the usual course of injury or more than 3 to 6 months. This pain adversely impacts the applicant’s well-being and the applicant suggests that his medical records corroborate recurrent complaints spanning four years.
17The applicant further submits that a chronic pain finding is a legal test which does not require a medical diagnosis. He submits that his psychological conditions as well as debilitating headaches, neck pain, and radiculopathy have become chronic in nature and that his symptomology are consistent with a chronic pain determination.
18The applicant points to the decisions in Colica v. Wawanesa (2023 ONLAT 20-000160/AABS) and Rai-Roopnarine v. Aviva (2021 CarswellOnt 11814) in support of his position that “consistent reporting of chronic pain in various records” paired with the OCF-18 itself is enough to find a chronic pain assessment necessary.
19The respondent submits that is the treatment plan is not reasonable and necessary because the applicant was removed from the Minor Injury Guideline on the basis of adjustment disorder, a psychological condition, which is unrelated to a physical injury. As such, in the opinion of the respondent, treatment plans underpinning physical treatment modalities are not substantiated by the records nor are they reasonable. The respondent highlights R.K. v. RBC General Insurance Company (2019 ONLAT 18-008904/AABS) and A.A. v. Aviva Insurance Company (2020 ONLAT 19-005040/AABS) as corroborating caselaw for this position.
20The respondent submits that Dr. Sangita Sharma, a chronic pain specialist, found the applicant did not present with chronic pain syndrome and that Dr. Svetlana Gabidulina’s assessment of the applicant should be discounted because she is a psychologist and her comments on the applicant’s subjectively reported physical pain falls outside the scope of her professional expertise.
21The respondent submits that in the clinical notes and records of Dr. Asifa Saleem, the applicant’s family doctor, for the period of January 12, 2014 to May 24, 2022 there is only one reference to post-accident pain on December 9, 2020 for which he was prescribed Lyrica and Tylenol. The respondent submits that if the applicant’s pain was so severe, the records of his family physician should reflect those complaints rather than the unrelated medical issues raised by the applicant at subsequent visits.
22The respondent submits that the recurring complaints referred to by the applicant are subjective reports made in two clinical notes over a 5-year period. Based on this information, the respondent does not believe the applicant has met the burden of proof to establish his claim.
How are the overall costs of achieving the goals reasonable?
23The respondent highlights in their submissions that the disputed treatment plan was completed by Dr. Gofeld for a total body assessment and document support activity. According to correspondence provided by the respondent to the applicant, dated October 21, 2021, this assessment was denied due to a lack of compelling medical documentation supporting its necessity. The respondent further suggests a conflict of interest since the party who completed the assessment also proposed the assessment rather than the treatment plan being recommended by the applicant’s family doctor.
Interest
24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
25The applicant submits that since he is entitled to the chronic pain assessment he is also entitled to interest on the cost of the assessment.
26The respondent submits that all denials accorded with the Schedule and thereby no interest is owed.
27I find that interest is payable on the chronic pain assessment treatment plan at issue from the period of 30 days after it has been incurred at the rate set out in the Schedule, compounded monthly and prorated by day until the overdue balance is paid.
ORDER
28I find that:
i. The chronic pain assessment is reasonable and necessary; and
ii. Interest is payable on this treatment plan from the period of 30 days after it is incurred, at the rate set out in the Schedule, compounded monthly and prorated by day until the overdue balance is paid in full.
Released: January 23, 2024
Julia Fogarty Adjudicator