Licence Appeal Tribunal File Number: 22-011832/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:
Oana Velescu
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR: Kathleen Wells
APPEARANCES:
For the Applicant: Anna Marie-Musson, Counsel
For the Respondent: Thulasi Kandiah, Counsel
HEARD: By way of written hearing
OVERVIEW
1Oana Velescu, the applicant, was involved in an automobile accident on May 8, 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 Company of 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:
1 Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Toronto Healthcare Inc. in a treatment plan/OCF-18 (“plan”) dated August 7, 2021?
2 Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by Downsview Healthcare Inc. in a plan dated April 17, 2023?
3Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
4Is the applicant entitled to interest on any overdue payment of benefits?
3In her submissions, the applicant confirmed that issue 2 as listed in the Case Conference Report and Order (“CCRO”) dated July 7, 2023 is no longer an issue in dispute.
RESULT
4I find that the applicant is not entitled to the disputed treatment plans, interest, or an award, and I dismiss the application.
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.
The applicant is not entitled to the chronic pain assessment treatment plan dated August 7, 2021
6I find that the applicant has not demonstrated on a balance of probabilities that the treatment plan for a chronic pain assessment dated August 7, 2021, is reasonable and necessary.
7The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.
8The applicant submits that she is entitled to a medical benefit in the amount of $2,200.00 for a chronic pain assessment proposed by Toronto Healthcare Inc. in an OCF-18 dated August 7, 2021, which identified ongoing neck, upper back, and shoulder pain, as well as headaches, and dizziness as a result of the motor vehicle accident. The applicant relies on the OCF-18 prepared by Dr. Dmitri Louvish, physician, and Dr. Domenic Minnella, chiropractor, and the CNRs of Dr. Rubina Roqueyya, family physician. Additionally, the applicant relies on medical articles from the International Headache Society and the Canadian Family Physician.
9The respondent submits that the applicant has not met her burden to prove that the August 7, 2021, chronic pain assessment is warranted because the applicant has not provided sufficient evidence to support the contention that she is experiencing chronic pain. The respondent relies on the Insurer’s Examination Report (IE) of Dr. Alborz Oshidari, physiatrist, dated May 2023, which included a summary of Dr. Oshidari’s previous IE conducted in January 2020.
10I find that the applicant provided limited medical evidence to support the OCF-18. The CNRs of Dr. Roqueyya reveal that the applicant first complained of neck and shoulder pain to her family doctor on July 7, 2020, more than one year after the accident, and again on September 9, 2020, October 28, 2020, and February 20, 2021. The evidence shows that the applicant was referred to a rheumatologist and a neurologist and had been referred for physiotherapy. However, the applicant did not direct me to CNRs or reports from Dr. Roqueyya or other health care providers to corroborate the OCF-18 diagnosis of chronic pain. Further, the applicant did not direct me to evidence that she complained to her family physician of any functional impairment or of any pain in the 6 months prior to the submission of the OCF-18 that would substantiate grounds for further investigation of accident-related chronic pain.
11The applicant further submits that Dr. Oshidari had previously misdiagnosed the applicant’s headaches as tension headaches in his Section 44 assessment in 2020. The applicant relies on two articles from the International Headache Society and The Canadian Family Physician Guideline for primary care management of headache in adults to dispute Dr. Oshidari’s findings. I place little weight on these articles, which are not supported by any additional medical evidence from any of the applicant’s care providers. Absent any other contemporaneous corroborating evidence to support the applicant’s self-reports of headaches to the OCF-18 assessors or Dr. Oshidari, such as a complaint of headaches to the applicant’s family doctor, or a diagnosis of headaches from another provider, I am not satisfied that the applicant has established that there are grounds for further investigation of chronic headache pain.
12For the reasons above, I find that the applicant has not met her onus to establish on a balance of probabilities that there are grounds to believe that a condition exists to warrant a chronic pain assessment. Accordingly, the applicant is not entitled to the treatment and assessment plan dated August 7, 2021.
The applicant is not entitled to the chronic pain assessment treatment plan dated April 17, 2023.
13I find that the applicant has not demonstrated on a balance of probabilities that the chronic pain assessment treatment plan dated April 17, 2023, is reasonable and necessary.
14The applicant submits that she is entitled to the chronic pain assessment proposed in the OCF-18 prepared by Dr. Grigory Karmy of the Downsview Health Clinic, dated April 17, 2023, because the applicant is experiencing chronic headaches and dizziness that have impaired her ability to participate in certain activities of daily living.
15In addition to the OCF 18 and the CNRs of Dr. Roqueyya, the applicant also relies on the Insurer’s Examination Report (IE) of Dr. Shari Schwartz, psychologist, which found that the applicant was suffering from a psychological impairment and resulted in the applicant being removed from the MIG in 2023. The applicant also relies on the psychological report of Dr. Jacqueline Brunshaw, dated October 6, 2023.
16The applicant contends that Dr. Oshidari’s findings in his 2023 IE report are contradictory with respect to the applicant’s back and shoulder pain and the applicant’s complaint of dizziness and are inconsistent with Dr. Schwartz’s findings.
17Even if I were to agree with the applicant and give no weight to Dr. Oshidari’s findings, I am not persuaded that the applicant has met her onus to prove that a chronic pain assessment is warranted. I agree with the respondent that the applicant has not proven on a balance of probabilities that a chronic pain assessment is warranted because the applicant has not provided sufficient evidence to establish that the applicant is experiencing headache pain as a result of her accident-related injuries.
18In reaching this conclusion I note that in her report, Dr. Brunshaw noted that the applicant reported additional sites of pain, and additional difficulties related to function at home. As the respondent noted, the report was based on an interview conducted by Mr. Ibrahim Atasever, MACP candidate. However, I find that Dr. Brunshaw did not meet with the applicant or review the applicant’s medical records, and neither Dr. Brunshaw nor Mr. Atasever are qualified to make a diagnosis of chronic pain. As such, I afforded Dr. Brunshaw’s report little weight.
19I also note that Dr. Schwartz conducted an in-person Section 44 psychological assessment on May 10, 2023, which included psychometric testing, an interview, and a review of the applicant’s medical records. While Dr. Schwartz made no diagnosis with respect to pain, the IE report reveals that the applicant reported to Dr. Schwarz that she experienced intermittent pain in various sites, including back pain that affected her when walking and sitting, and headaches that interfered with her sleep. The applicant attributed her difficulty in completing household chores to dizziness.
20I find that while the applicant has been consistent in reporting specific pain symptoms to her OCF-18 assessors and in her Section 44 physiatry and psychological assessments, the applicant has not directed me to any evidence of having raised her chief complaints of headaches and dizziness to her family doctor or any other treating physician in the 4 years following the immediate aftermath of the accident. Further, the applicant has described her back, neck, and shoulder pain as intermittent, and has not directed me to any corroborating evidence that she complained to her family doctor or any other treating medical provider of back, neck or shoulder pain since February 2021.
21As a result, I find that the applicant has not established on a balance of probabilities that she is entitled to the April 17, 2023, treatment and assessment plan.
Interest
22As no payments are due, no interest is owing.
Award
23As no submissions were made by the applicant referencing an award under s.10 of Reg.664, I find that there is no basis upon which to consider an award in this matter.
ORDER
24I find that:
1 The applicant is not entitled to the treatment plans in dispute.
2 The applicant is not entitled to interest.
3 The applicant is not entitled to an award.
4 The application is dismissed.
Released: January 10, 2025
Kathleen Wells
Adjudicator