Licence Appeal Tribunal File Number: 23-001090/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:
Lyudmila Ivanenko
Applicant
and
Aviva Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Kateryna Vlada, Counsel
For the Respondent:
Ibrahim Farag, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Lyudmila Ivanenko, the applicant, was involved in an automobile accident on August 23, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The 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
3The issues in dispute are:
i. Is the applicant entitled to $2,486.00 for a chronic pain assessment, proposed by A&B Medical Assessment, in a treatment plan, dated July 18, 2022?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is not entitled to the treatment plan for a chronic pain assessment and no interest is payable.
PRELIMINARY ISSUE:
Respondent’s request to dismiss is denied and the Applicant’s late written submissions will be considered
5The respondent’s request to dismiss the applicant’s submissions due to the applicant failing to comply with the written submission deadline is denied and the applicant’s written submissions will be considered by the Tribunal.
6The Case Conference Report and Order (“CCRO”) dated October 11, 2023, ordered the applicant to provide her submissions by no later than 30 calendar days prior to the written hearing on May 31, 2024.
7The applicant provided her submissions to the Tribunal and the respondent on May 6, 2024. Since the applicant’s submissions were due on May 1, 2024, the respondent submits that it had less time to review the evidence and file responding submissions.
8Although the applicant did not make any reply submissions to explain the reason why her submissions were late or to address any prejudice to the respondent, I am exercising my discretion and including the applicant’s submissions in the hearing record. I find that dismissing this application without determining its merits is not appropriate as there is no evidence that any of the circumstances set out in Rule 3 of the Licence Appeal Tribunal Rules, 2023, would apply.
9Further, the respondent has not made any submissions that the applicant abandoned the proceeding. The applicant filed her submissions, albeit 5 days late, which I find demonstrates that she has not abandoned the proceeding. Further, I am accepting the applicant’s late-filed and served submissions into evidence. The respondent has not provided any evidence of the prejudice that it would suffer if I were to accept the applicant’s submissions as filed. Despite the applicant’s late filing and service, there is no evidence that the respondent was unable to respond to the applicant’s submissions fully.
10I accordingly deny the respondent’s request to dismiss the applicant and accept the parties’ submissions as filed.
ANALYSIS
The applicant is not entitled to the treatment plan for a chronic pain assessment
11I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for a chronic pain assessment.
12The applicant claims entitlement to $2,486.00 for a chronic pain assessment, proposed by A&B Medical Assessment in a treatment plan, dated July 28, 2022. I note that while the issues in dispute indicate the date of the treatment plan as July 18, 2022, the Insurer’s Examination (“IE”) report dated October 14, 2022, lists the date as July 28, 2022. A copy of this treatment plan was not provided by the applicant in her submissions to confirm the date of the treatment plan but as the date was listed in the CCRO, I will use the date of July 18, 2022.
13To receive payment for a treatment plan under 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 that the goals of the treatment are reasonable, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
14The applicant submits that she is entitled to the treatment plan in dispute because her physical and psychological injuries are chronic in nature. She relies upon the clinical notes and records (“CNRs”) of Dr. Natan Khotianov, family physician, which support her ongoing complaints of low back pain, neck pain, shoulder pain, as well as difficulty sleeping. As a result of the applicant’s complaints, Dr. Khotianov referred her for various examinations and consultations with specialists. The applicant relies upon the reports of Dr. Lesley Corrin, neurologist, who she saw on May 3, 2021, and Dr. Dima Rozen, interventional pain medicine specialist, who she saw on May 4, 2021. The applicant further submits that following the accident, she received physiotherapy, massage therapy, chiropractic therapy and other treatment modalities at St. Catherine’s PhysioHeal, but these interventions have only provided her with temporary relief from her symptoms.
15In addition to her physical complaints, the applicant further submits that she sustained significant chronic psychological impairments in the accident. She relies upon the August 10, 2022 report of Dr. Mandeep Kaur Singh, psychologist, which diagnosed her with an adjustment disorder with mixed anxiety and depressed mood, persistent; major depressive disorder, single episode, severe; somatic symptom disorder, with predominant pain, persistent, moderate; and specific phobia, situational type (travelling in motor vehicles).
16The respondent submits that the applicant is not entitled to a chronic pain assessment. It relies upon the October 14, 2022 Insurer’s Examination (“IE”) report of Dr. Seung-Jun Lee, general practitioner, and Dr. Sadiq Hassan, psychiatrist, which concluded that the chronic pain assessment was not reasonable and necessary. Dr. Lee concluded that the applicant only sustained minor injuries as a result the accident and that during the physical examination, there were no valid indicators to support ongoing accident-related musculoskeletal injury or impairment. Dr. Hassan concluded that the applicant suffers from an adjustment disorder with mixed anxiety and depressed mood and recommended cognitive behaviour therapy to aid in her recovery.
17The applicant did not provide the Tribunal with a copy of the treatment plan in dispute in her submissions. Despite the respondent pointing this out in its responding submissions, the applicant has failed to provide any reply submissions to address this argument or bring a Notice of Motion seeking to introduce the evidence.
18In addition, I find that the applicant has not addressed the goals of the treatment plan in her submissions which is an integral part of the analysis to support that the chronic pain assessment is reasonable and necessary. As a result, I am unable to assess the goals of the treatment plan or confirm what is being sought in the treatment plan in dispute, as the applicant did not provide the necessary evidence to undertake the analysis even after the respondent pointed out the deficiency in the applicant’s evidence. Therefore, I find that the applicant has not proven on a balance of probabilities that the treatment plan is reasonable and necessary and, as such, is not entitled to the treatment plan in dispute.
19Even though the treatment plan was not filed with the Tribunal, I would still find that the applicant is not entitled to the treatment plan in dispute based on the submissions filed for the following reasons.
20I would find that the applicant has not provided sufficient medical evidence to support that she suffers from chronic pain. While the applicant submits that the chronic pain assessment is reasonable and necessary because she suffers from chronic pain, there are no contemporaneous CNRs from her treating practitioners to support this diagnosis or any ongoing complaints at the time the subject treatment plan was submitted.
21I would find that while the applicant relies upon the CNRs of Dr. Khotianov, family physician, in support of her position that she continued to complain of ongoing pain, I find that her last appointment with Dr. Khotianov was on March 30, 2021, which was more than a year before the date of the treatment plan. I would find that there are no updated CNRs provided by the applicant to support that she continued to see her family physician after this date with ongoing complaints or contemporaneous with the recommendation for a chronic pain assessment over a year later on July 28, 2022.
22I would also find that the May 3, 2021 report of Dr. Corrin, neurologist, does not support a finding that the applicant suffers from chronic pain. I would find that the report of Dr. Corrin concluded that the nerve conduction studies/EMG of the lower extremities are normal and there was no evidence of a lumbosacral radiculopathy or peripheral nerve entrapment involving the lower extremities. No diagnosis or recommendations were made by Dr. Corrin.
23Upon review of the May 4, 2021 report of Dr. Rozen, interventional pain medicine specialist, I would agree with the respondent that there is no mention of the accident nor a diagnosis of chronic pain. I would find that the report notes that the applicant had a 4-month history of low back pain. Dr. Rozen notes that there is no past medical/surgical history which we know to be erroneous based on the applicant’s pre-accident CNRs submitted. Under assessment, he notes “low back pain due to a combination of degenerative disc and myofascial pain.” Dr. Rozen does not make a diagnosis of chronic pain or attribute the applicant’s pain to the accident. While it is noted in the report that the applicant consented for peripheral nerve blocks, I would find that there are no CNRs indicating whether the applicant received nerve blocks or was seen again by Dr. Rozen for a further assessment.
24I would also find that the applicant’s submission that she attended for physical therapy two to three times per week following the accident is not supported by the CNRs from St. Catherine’s PhysioHeal. Upon review of the CNRs provided by the applicant, her treatment sessions were not weekly but two to three times a month at most, and the last treatment received was on August 13, 2021. While the applicant stated in her submissions, that her treatment was discontinued due to insufficient insurance funding, the applicant has not provided any documentation to support that any physical treatment was denied by the respondent. Again, I find that there are no contemporaneous records supporting the applicant’s ongoing physical complaints at the time the subject treatment plan was submitted.
25I would find the October 14, 2022 IE report of Dr. Lee, general practitioner, relied upon by the respondent, persuasive. Dr. Lee assessed the applicant’s injuries shortly after the treatment plan in dispute was submitted. He conducted a full physical assessment of the applicant and concluded that she sustained minor soft tissue injuries including a cervical and lumbar myofascial sprain/strain and there were no valid indicators to support ongoing accident-related musculoskeletal injury or impairment. He found that a chronic pain assessment was not reasonable and necessary.
26I would further find the opinion of Dr. Hassan, psychiatrist, in her IE report dated October 14, 2022, persuasive. While Dr. Hassan, concluded that the applicant suffered a psychological impairment, she recommended ongoing cognitive behaviour therapy and concluded that a chronic pain assessment was not reasonable and necessary. According to the applicant’s submissions, she attended for psychological counselling from January 20, 2023 to May 1, 2023, which was approved by the respondent.
27For the reasons set out above, I find that the applicant has not met her onus of proving on a balance of probabilities that she is entitled to the treatment plan for a chronic pain assessment.
Interest
28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is not entitled to the disputed treatment plan, no payment is overdue, and thus no interest is payable.
ORDER
29For the reasons outlined above, I find that the applicant is not entitled to the treatment plan for a chronic pain assessment and no interest is payable. The application is dismissed.
Released: January 9, 2025
Melanie Malach
Adjudicator