Applicant's claim for chronic pain assessment is reasonable and necessary - 17-002213 v Aviva Insurance Canada, 2018 CanLII 13190 (ON LAT)

June 11, 2018, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

17-002213 v Aviva Insurance Canada, 2018 CanLII 13190 (ON LAT)

Date of Decision: February 26, 2018
Heard Before: Adjudicator Brian Norris

ACBs and MEDICAL ASSESSMENT: applicant given clear notice of termination of benefits but chose not to respond to notifications; applicant makes case for chronic pain assessment as it is reasonable and necessary

The applicant was injured in a car accident on July 1, 2014 and sought benefits from Aviva  but when Aviva refused to pay for certain attendant care benefits and costs of examinations the applicant applied to the LAT.

Issues:

1. Is the applicant entitled to attendant care benefits in the amount of $1,424.24 per month for the period July 14, 2014 to March 30, 2015?
2. Is the applicant entitled to payments for the costs of examinations recommended as follows;
   1. $2,200.00 for a chronic pain assessment submitted in a treatment plan dated October 28, 2015; and
   2. $2,200.00 for an orthopaedic assessment submitted in a treatment plan dated October 26, 2015?
3. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

1. The applicant is not entitled to any attendant care benefits in addition to that which they have already received.
2. The applicant is entitled to the chronic pain assessment dated October 28, 2015.
3. The applicant is not entitled to the orthopaedic assessment submitted in a treatment plan dated October 26, 2015.

The applicant was in the backseat of a car which was struck by another vehicle on the passenger-side. The applicant suffered fractures to the 4th and 5th ribs on the right side and a fractured pelvis. The applicant was later diagnosed with disc herniation which affected the left S1 nerve. The applicant claims entitlement to attendant care benefits for the period July 8, 2014 up to and including March 29, 2015 totalling $14,954.52.

Aviva agreed to fund attendant care services for the period October 31, 2014, when they received a Form 1, until February 4, 2015, when Aviva denied the benefits on the recommendation of Aviva’s insurance examination assessor. The total amount of attendant care benefits paid to the claimant to-date is $4,522.12. The applicant disputes Aviva’s denial of the remaining $10,432.40 in attendant care benefits.

In October 2015, the applicant submitted two treatment and assessment plans requesting approval for a chronic pain assessment and an orthopaedic assessment. Aviva denied funding for the assessments and now the applicant disputes those denials.

The parties agreed that the monthly amount of attendant care benefits available to the applicant is $1,424.24. There is no dispute regarding the provider’s professional qualifications. The dispute is what is the period of ACB entitlement for the applicant?

The applicant takes the position that they are entitled to attendant care services incurred for the period July 8, 2014 up to and including March 29, 2015. The applicant submitted evidence in the form of a Discharge Report from St. Joseph’s Health Centre indicating the use of crutches upon discharge from the hospital and an Attendant Care Needs Assessment Report and Form 1 dated September 13, 2014.

Aviva submits that the period of entitlement starts when it received the Form 1 on October 31, 2014. This date of receipt is also noted in a letter dated April 23, 2015 from Aviva to the applicant, which is part of the applicant’s evidence. It is Aviva’s position that the applicant is only entitled to attendant care benefits for the period from October 31, 2014 when it received the Form 1, to February 4, 2015, when Aviva denied the benefits on the recommendation of Aviva’s insurance examination assessor. Aviva directs me to section 42(5) of the Schedule which states that an insurer may, but is not required to, pay an expense incurred before an assessment of attendant needs is submitted.

Upon review of the submissions and evidence the Adjudicator found that the applicant provided the Form 1 on October 31, 2014 and is entitled to attendant care benefits starting on that date. The applicant was provided with Aviva’s submissions outlining this position and the applicant chose not to provide any refuting submissions, nor did the applicant provide any evidence to suggest that the Form 1 was submitted on a date other than October 31, 2014.

Period of entitlement: When does it end?

The applicant submits that $20,060.00 of attendant care services were received from July 8, 2014, the time of discharge from the hospital, to March 30, 2015. The applicant claims entitlement to $14,954.52 of the expenses, in accordance with the Form 1 dated September 13, 2014. The applicant submits that all the criteria in section 3(7)(e) of the Schedule has been met, making the $14,954.42 an incurred expense per the Schedule. 

Aviva submits that the applicant’s entitlement to an attendant care benefit ended on February 4, 2015 pursuant to Aviva’s letter dated January 15, 2015. In the letter, Aviva advised the applicant it would stop paying for attendant care benefits incurred after February 4, 2015 on the recommendation found in Aviva’s insurer’s examination report. Aviva submits that the applicant was completely independent with personal care at the time of the denial and refers to an Attendant Care Assessment Report dated January 15, 2015 as evidence of the applicant’s independence with personal care.

The applicant was provided with an opportunity to reply but did not make submissions refuting Aviva’s evidence that the applicant was independent with personal care as of January 15, 2015. The only evidence before me in support of the need for attendant care beyond February 4, 2015 are the Statement(s) of Attendant Care Services Provided, which cover the period July 8, 2014 to March 31, 2015.

The Adjudicator reviewed all of the evidence and found that considering the notice provided by Aviva, the period of entitlement ends on February 4, 2015.

What is payable?

The applicant submitted a Form 1 to Aviva which entitles the applicant to an attendant care benefit up to $1,424.24 per month. The period of entitlement spans from October 31, 2014 up to and including February 4, 2015, which is 3 months and 5 days.

The applicant claims entitlement to a chronic pain assessment recommended in a treatment plan dated October 28, 2014. The goals of the treatment plan are to design and develop strategies to assist with pain management and resolution and to improve everyday functioning. The applicant submits that conducting a chronic pain assessment is consistent with the recommendation in a Psychological Assessment Report dated February 15, 2015. The applicant also submits that an Orthopaedic Surgery Assessment Report dated November 26, 2014, commissioned by Aviva, confirms that the applicant’s impairment is pain related. Lastly, the applicant submits that the multidisciplinary medical and legal assessment and post-104 IRB determination report dated June 5, 2017 recommends that the applicant address physical, psychosocial, and cognitive components of activity routines—which the applicant submits would have been addressed in the disputed chronic pain assessment.

Aviva submits that a chronic pain assessment is not reasonable and necessary. It submits that the applicant’s impairments in range of motion of the neck, shoulders and lower back are pain related and do not warrant a chronic pain assessment. It also submits that the applicant does not meet the criteria for Post-Traumatic Stress Disorder, major depression, or a specific anxiety disorder, which it indicates could render the treatment plan reasonable and necessary.

Entitlement to payment for the cost of examinations is governed by section 25(1)3 of the Schedule. This section establishes that an insurer shall pay for reasonable fees charged by a health care practitioner for reviewing and approving a treatment plan under section 38, including any assessment necessary for that purpose.

The Adjudicator reviewed the evidence and determined  that a chronic pain assessment is necessary. The evidence confirms that the applicant had on-going pain-related reduction in range of motion of the neck, shoulders and low back. The evidence also confirms that the applicant was diagnosed with psychological injuries. The evidence provided by the applicant is credible, the complaints contained in the evidence are consistent, and when assessed altogether, the evidence supports the need for a chronic pain assessment. The combination of psychological and physical injuries can lead to chronic pain syndrome and warrant further investigation. The fees proposed for the assessment are reasonable as they are in accordance with section 25(5) of the Schedule.

The applicant claims entitlement to an assessment proposed October 26, 2015. In submissions to the Tribunal, the applicant characterized the assessment as both a “whole body assessment” and a “psychological assessment”.  The applicant submits that the multidisciplinary medical and legal assessment and post-104 IRB determination report dated June 5, 2017 recommends that the applicant address physical, psychosocial, and cognitive components of activity routines—which the applicant submits would have been addressed in the disputed orthopaedic assessment. The applicant also submits that the insurer’s examination report supported continued psychological counselling and that, as a psychiatrist, the insurer’s assessor is therefore not qualified to render an opinion on the merits of the balance of the orthopaedic assessment.

Aviva’s position is that the orthopaedic assessment is not reasonable and necessary because the applicant’s impairments in the range of motion in the neck, shoulders, and lower back were pain-related.

The Adjudicator determined that the applicant suffered from psychological and physical injuries which are lingering and warrant further investigation in the form of a chronic pain treatment plan. The goal of the orthopaedic assessment is to get a better understanding of the applicant’s physical injuries and to help the applicant increase functionality. This is unnecessary. The medical records, as highlighted by the applicant, include diagnostic imaging which reveals a disc herniation with associated mass effect on the left S1 nerve root. The records are clear about the applicant’s physical injuries.  It is the applicant’s combination of ongoing pain and psychological injuries which are restricting functionality. Additionally, the chronic pain assessment will establish a diagnosis, the extent of the applicant’s injuries, and make recommendations for recovery.

Considering the evidence, submissions, and that the chronic pain assessment to be reasonable and necessary, the orthopaedic assessment is not reasonable and necessary.

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