Citation: Nader v. Aviva Insurance Canada, 2024 ONLAT 22-010891/AABS

Licence Appeal Tribunal File Number: 22-010891/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:

Hemn Nader

Applicant

and

Aviva Insurance Canada

Respondent

DECISION

ADJUDICATOR:

Laura Goulet

APPEARANCES:

For the Applicant:

Hufriz Turel, Paralegal

For the Respondent:

Nabila Majidzadeh, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Hemn Nader, the applicant, was involved in an automobile accident on May 23, 2019, 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 Canada, 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 $13,223.59 for a multidisciplinary chronic pain treatment program, proposed by Downsview Healthcare, Dr. Louvish, in a treatment plan/OCF-18 (“plan”) submitted on May 22, 2021 and denied on August 19, 2021?

ii. Is the applicant entitled to $2,546.80 for chiropractic services, proposed by Downsview Healthcare, Dr. Pavacic, in a plan submitted on March 5, 2022 and denied on May 12, 2022?

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

RESULT

3The applicant is not entitled to $13,223.59 for a multidisciplinary chronic pain treatment program as it is not reasonable and necessary.

4The applicant is not entitled to $2,546.80 for chiropractic services as it is not reasonable and necessary.

5The applicant is not entitled to interest on any overdue payment of benefits.

ANALYSIS

6Sections 15 and 16 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant as long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

7The applicant bears the onus of proving entitlement to the proposed treatment by demonstrating the benefits are reasonable and necessary on a balance of probabilities. 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 to achieve them are reasonable.

The OCF-18 for a multidisciplinary chronic pain treatment program is not reasonable and necessary

8I find that the applicant has not proven on a balance of probabilities that the OCF-18 for a multidisciplinary chronic pain treatment program is reasonable and necessary.

9The applicant submits that as a result of the accident, he suffers from continuous serious and lasting physical injuries including chronic pain in his spine, lumbar pain radiating to his legs, neck pain, shoulder pain and post-traumatic migraine headaches, as well as a number of psychological injuries. He relies on his family doctor records, a Disability Certificate (OCF-3), his regular attendance at physical rehabilitation therapy, two psychological reports and the report of Dr. Dimitri Louvish, to support his position. The applicant submits that since he is currently out of the Minor Injury Guideline (“MIG”) with proven Chronic Pain Syndrome, he is entitled to the proposed multidisciplinary chronic pain treatment program.

10The respondent takes the position that the medical records do not support a need for this treatment and that the applicant has not established that he suffers from chronic pain symptoms as a result of the accident.

11The applicant submits that within a month after the accident, he attended to see his family physician, Dr. Aaron Jesin, due to pain. Dr. Jesin recommended physical rehabilitation therapy. This is not supported by the clinical records. Although the doctor made a note that there was a request from a lawyer for clinical notes starting on May 23, 2016, the first clinical note filed indicates that the applicant attended to see Dr. Jesin on August 15, 2019 and there were “no concerns.” There is no mention of an accident. The applicant attended to see Dr. Jesin again on February 3, 2020 for a complete physical. There is a reference to an accident on May 23, 2019, followed by “no complaints”. There is an indication the applicant has occasional headaches. Dr. Jesin indicated in a note, dated May 4, 2021, that the applicant has not seen him since February 2020. This evidence does not support the applicant’s claim.

12The applicant provided a letter from Dr. Jesin indicating that he was retiring at the end of January 2022 and that he would continue to see his patients until that time within his abilities. The applicant submits that he could not visit Dr. Jesin before he retired, as Dr. Jesin was working part time and did not take in many patients, and this is why the applicant depended on his clinic for treatments. This does not address the fact that from the date of the accident on May 23, 2019 to February 2020, the applicant only attended to see Dr. Jesin twice and did not make any complaints about the accident. The applicant did not see Dr. Jesin after February 2020 and before his retirement almost two years later, at the end of January 2022.

13An OCF-3 was prepared by Dr. Johnnie Walker, Chiropractor, on June 18, 2019, indicating that the applicant suffered from sprain and strain of the lumbar spine and sacroiliac joint. There is an indication that he is substantially unable to perform the essential tasks of his employment as a result of the accident and within 104 weeks of the accident. However, a clinical note dated June 1, 2019 from Dr. Walker indicates that the applicant has been feeling better, maybe 20% better, with reduced pain and greater range of motion and that he feels more comfortable moving around. The next and final entry, dated June 15, 2019, indicates that the applicant was better after the last visit and had not been able to come in sooner due to being busy with work. Further, the applicant had increased range of movement, ease of movement and decreased pain. The applicant argues that the OCF-3 is for initial diagnoses, and, at times, the pain symptoms take time to develop. The applicant does not point to any medical evidence to support this proposition.

14The applicant submits that he has been attending physical rehabilitation therapy regularly once or twice per week. Records were provided of sessions from May 2019 to January 2023 for heat therapy, massage, aquamassage, and laser acupuncture from Downsview Healthcare Clinic. I have taken these into account, however, the fact that the applicant has been attending for regular treatment is only one factor to be considered in a determination of whether further treatment is reasonable and necessary.

15Helen Ilios, a Registered Psychotherapist, interviewed the applicant, under the supervision of Dr. Jacqueline Brunshaw, Psychologist, and prepared a Psychological Report. The report indicates that the applicant was interviewed on January 6, 2019 and the report was prepared on January 11, 2019, over four months prior to the accident. These dates appear to be an error since the report does deal with the accident that occurred on May 23, 2019.

16The psychological assessment included an interview with the applicant, followed by three self-report questionnaires which are designed to measure degree of depression, level of anxiety, as well as a wide range of psychological and physical symptoms, including emotional distress from pain. Despite Dr. Brunshaw’s conclusion that an analysis of the test scores appear to indicate that the applicant was experiencing minimal to no levels of emotional distress, Dr. Brunshaw’s places emphasis on the applicant’s self reporting during the interview, which suggests that his psychological and emotional distress is more significant. Apparently based on the applicant’s self reporting alone, Dr. Brunshaw diagnoses him with Specific Phobia (travelling in and around a vehicle) and Features of an Adjustment Disorder (Unspecified). I am not convinced of these diagnoses, as they are not in line with the test scores.

17Helen Ilios, under the supervision of Dr. Brunshaw, assessed the applicant on February 2, 2022 and prepared a Driver / Passenger / Pedestrian Rehabilitation Report dated February 16, 2022. The applicant was interviewed and several tests were administered to assess his level of general and vehicular anxiety, and depression. The test results indicated that the applicant was experiencing non-elevated levels of vehicular anxiety, and that he was not currently experiencing symptoms of a specific phobia in terms of travelling-related fears. The Post-Traumatic Stress Disorder Checklist-5 was administered. Cut-off scores between 31 and 33 indicate probable PTSD. The applicant’s score was 6. In her Summary of Objective Findings, Dr. Brunshaw indicated that an analysis of the applicant’s scores appeared to indicate that he is experiencing low levels of emotional distress, depression, anxiety, and vehicular anxiety.

18Despite these test results, and in light of the applicant reporting during the interview that his emotional distress was more significant, Dr. Brunshaw diagnosed the applicant with Specific Phobia, Situational Type (Vehicular: driver, passenger, pedestrian), Moderate level of severity, and Adjustment Disorder with Mixed Anxiety and Depressed Mood. I am not convinced of these diagnoses, as they are not in line with the test scores.

19Further, there is no evidence that the applicant complained of any psychological issues to any medical professional, including his family physician, prior to these psychological assessments.

20Dr. Kelly McCutcheon, Psychologist, conducted an Insurer’s Examination dated July 27, 2021 and was asked to comment on whether the OCF-18 for a multidisciplinary chronic pain treatment program was reasonable and necessary. Dr. McCutcheon interviewed the applicant and conducted psychometric testing to assess the applicant’s levels of depression, anxiety and somatic preoccupation. When compared with other pain patients, the applicant’s results indicated lower levels of depression and anxiety and average levels of somatization. Other test results indicated a mild range of anxiety and depression. Based on Dr. McCutcheon’s interview and testing of the applicant, she is of the opinion that the applicant is experiencing subclinical symptoms of anxiety and depression, and there is no evidence to indicate the presence of a diagnosable psychological condition as a result of the accident. She concluded that the proposed treatment plan is not reasonable and necessary.

21The applicant submits that Dr. McCutcheon’s opinion that he is experiencing “subclinical” symptoms should not be given any weight since the applicant started to attend for counselling sessions with Dr. Brunshaw at the time Dr. McCutcheon’s report was prepared. The applicant filed counselling session notes that he says “speak for itself.” I have already found, based on Dr. Brunshaw’s two reports, that I am not convinced that the applicant suffered from the psychological conditions that were diagnosed. As such, the fact that the applicant attended for counselling sessions does not detract from my reliance on Dr. MCutcheon’s opinion.

22Dr. Alborz Oshidari, Physical Medicine and Rehabilitation Specialist, also conducted an Insurer’s Examination on August 3, 2021. Dr. Oshidari was asked to comment on the OCF-18 for a multidisciplinary chronic pain treatment program. He concluded that the interventions suggested based on the chronic pain assessment by Dr. Louvish are not reasonable and necessary for the applicant’s uncomplicated soft tissue injury and contusion.

23There is no evidence that the applicant complained of any psychological issues to any medical professional, including his family physician, prior to this psychological assessment.

24Dr. Dimitri Louvish, physician, interviewed and examined the applicant on May 8, 2021 and reviewed the Psychology Assessment Insurer Examination Report of Dr. Monique Costa El-Hage dated December 6, 2019 and the Psychological Report of Dr. J. Brunshaw dated January 11, 2019. Based on the examination and a review of these reports, Dr. Louvish prepared a Chronic Pain Consultation Report dated May 11, 2021. Dr. Louvish indicated that the applicant reported pain symptoms and appeared to be in pain during the physical examination, was walking slowly, and constantly shifting positions. Dr. Louvish concluded that the applicant suffers from Chronic Pain Syndrome due to cervical whiplash myofascial injury, bilateral shoulder myofascial injury, thoracic spine myofascial injury, lumbar spine myofascial injury with post-traumatic discogenic pathology causing bilateral L5-S1 radiculopathy, post-traumatic migraine type headaches, psychological distress, post-traumatic sleep disturbance, and difficulties with memory and concentration.

25I am not convinced by Dr. Louvish’s report that the applicant suffers from Chronic Pain Syndrome. This report was prepared almost two years after the accident and there is no evidence that the applicant made any similar complaints of pain to a treating medical doctor in the intervening time. Further, as pointed out in the respondent’s submissions, there has been no objective medical evidence by way of ultrasound, MRIs, or CT scans to support the diagnoses made by Dr. Louvish. Dr. Louvish made a diagnosis of Chronic Pain Syndrome based on one interview and examination of the applicant almost two years after the accident, and a review of psychological reports, without any supporting medical evidence of physical injuries.

26Further, both parties agree that establishing Chronic Pain Syndrome should be assessed against six criteria described in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008 (“Guides”), which state at least three of the following characteristics must be met:

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.

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

27The applicant submits that he has excessive dependence on health care providers since he continues to depend on the clinic for treatments. Further, he has withdrawn from his social milieu, including work, recreation or other social contracts, since he has become an introvert. The applicant submits that he continues to have ongoing issues which have resulted in his failure to restore pre-injury function, such that his physical capacity is insufficient to pursue work, family, or recreational needs. The applicant also submits that he has met the criteria for development of psychosocial sequelae, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors since he has received psychological counselling.

28I find that the Guides are helpful in assessing whether a person has chronic pain. However, I find that the applicant has not demonstrated that he meets three of the six criteria for chronic pain as set out in the Guides.

29On consideration of the evidence, I find that the applicant has not proven on a balance of probabilities that he suffers depression and anxiety as a result of the accident. The fact that he has received counselling does not, on its own, prove that he has these conditions. In addition, the applicant submits that he has withdrawn from his social milieu, and he continues to have ongoing issues which has resulted in his failure to restore pre-injury function. The applicant did not adduce sufficient evidence to support these assertions, as he relies only on self reporting to assessors. Objective medical evidence such as ultrasound, MRIs, or CT scans, medical records from the applicant’s treating physician, or employment records in support of his claim would have been more compelling. Further, the applicant only attended to see his family doctor on two occasions between 2019 and 2020, and I do not find that regular attendance for treatments at a clinic is indicative of excessive dependence. However, even if I am incorrect in this finding, the applicant would not meet the required threshold of meeting three of the six criteria set out in the Guides by only proving he had excessive dependence on health care providers. As such, I find that the applicant does not meet the criteria for chronic pain as set out in the Guides.

30Taking all of the evidence into consideration, I find that the applicant has not established that he suffers from chronic pain as a result of the accident, or that the OCF-18 for a multidisciplinary chronic pain treatment program is reasonable and necessary.

The OCF-18 for chiropractic services is not reasonable and necessary

31I find that the applicant has failed to prove on a balance of probabilities that the OCF-18 for chiropractic services is reasonable and necessary.

32The applicant submits that his treatment providers made the treatment and assessment recommendations based on their ongoing evaluation of his medical status and injuries and they are expected to know best about his medical conditions. Further, he submits that since he is currently out of the MIG with proven Chronic Pain Syndrome, this treatment plan should be approved. The respondent submits that the applicant has failed to discharge his onus to prove he suffers from chronic pain symptoms as a result of the accident, or that the treatment plan is reasonable and necessary.

33As indicated above, I find that the applicant has not established that he suffers from chronic pain as a result of the accident. The applicant has not provided any objective contemporaneous evidence from a medical doctor, supporting ongoing physical symptoms resulting from the accident. Further, there is no objective evidence supporting an impairment as a result of the accident, such as an ultrasound, MRI or CT scan.

34The applicant makes the argument that the treatment plan was denied when he was under the MIG and that this treatment should be made available to him now that he is out of the MIG. I am not persuaded by this argument, as removal from the MIG does not, on its own, establish that a treatment plan is reasonable and necessary. The applicant still has to prove entitlement.

35The applicant submits that it should be taken into consideration that he has made every effort to minimize his pain symptoms as he has an outstanding balance of $4,344.85 with his treating clinic. The applicant further submits that he took treatments totalling $19,955.74 between July 2019 and 2023 and that “the clinic is not the best place to spend your time unless you require treatments.” I have considered this, however on its own, I find that it is not enough to establish that the treatment plan is reasonable and necessary.

36Taking all of the evidence into consideration, I find that the applicant has not proven on a balance of probabilities that the treatment plan is reasonable and necessary.

Interest

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No treatment plans are payable, therefore the applicant is not entitled to interest.

ORDER

38The applicant is not entitled to $13,223.59 for a multidisciplinary chronic pain treatment program.

39The applicant is not entitled to $2,546.80 for chiropractic services.

40The applicant is not entitled to interest.