December 07, 2017, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Applicant v Aviva, LAT 16-001934 2017 CanLII 69464 (ON LAT)
Decision Date: October 13, 2017
Heard Before: Adjudicator Chris Sewrattan
This is a reconsideration of a decision made on March 15, 2017. In that decision, I decided five issues in dispute. The wrong legal test was applied in considering one of the issues. I return to that issue in this decision to apply the correct legal test.
The following issue is reconsidered:
- Is the applicant entitled to $1,950.00 for a chronic pain assessment recommended in a treatment plan dated March 22, 2016?
- The applicant is entitled to $1,950 for a chronic pain assessment and interest in accordance with s. 51 of the Schedule.
The accident occurred on May 4, 2014, when the applicant was 19. The applicant lost control of his car veered over the curb, through a fence, and into the brick wall of a residential home. He was under the influence of alcohol. He was taken to the police station that night. He was not taken to a hospital. The applicant sought, among other benefits, payment for a chronic pain assessment. Payment was sought from Aviva.
On July 17, 2014, the applicant met with his family who prescribed anti-inflammatory medication and advised to attend physiotherapy and massage therapy. A few weeks later, on August 11, 2014, the applicant met with a chiropractor who diagnosed a sprain and strain of the cervical spine and thoracic spine and lumbar spine and sacroiliac joint, a tension type headache, dizziness and psychological and sleep disorders.
In the first quarter of 2016 the applicant met with two psychologists. One was chosen by him and the other was retained by Aviva for the purpose of determining whether he should receive benefits for a possible psychological impairment. On March 22, 2016, one of the applicant’s doctors submitted a Treatment and Assessment Plan to Aviva for a $1,950 chronic pain assessment.
Prior to the treatment plan for the chronic pain assessment, Aviva had required that the applicant attend an IE to help determine the reasonableness of a different benefit that was being sought at the time conducted by a general practitioner who issued a report following which described he following injuries:
- Myofascial sprain/strain of cervical spine
- Myofascial sprain/strain of the thoracic spine
- Myofascial sprain/strain of the lumbar spine
The report also described some of the applicant’s pain with reference to a Pain Analogue Scale. When Aviva received the treatment plan for the $1,950 chronic pain assessment, it requested a paper review of the applicant to determine whether the chronic pain assessment was reasonable and necessary. A paper review report was issued April 14, 2016. The report concluded that the chronic pain assessment was not reasonable or necessary. The doctor opined that if the applicant suffered from chronic pain syndrome he would have complained to his family doctor about it and would have taken medication that chronic pain sufferers typically seek. The applicant had done neither. The Report also noted that the applicant has visited his family doctor only once in the 2.5 years since the accident. He continues to work (albeit, in a less physically demanding job) and continues to perform activities of daily living.
The only issue currently in dispute before is whether the chronic pain assessment is a reasonable and necessary expense.
The Arbitrator had initially decided the issue in the March 15, 2017 decision by considering whether it is reasonably possible that the applicant suffered from chronic pain syndrome, however, that was only half of the question that I needed to answer, however. The Arbitrator now considered the other half of the question: whether the chronic pain assessment for which the applicant seeks payment is reasonable and necessary.
The Arbitrator reviewed the evidence in light of the second questions and determined that it is more likely than not that the chronic pain assessment is reasonable and necessary for the following reasons:
- the medical evidence sufficiently establishes that the applicant suffers from injuries about his spine.
- an IE doctor’s report dated April 14, 2016 shows that the applicant suffers from myofascial sprains/strains of the cervical spine, thoracic spine, and lumbar spine.
- From these injuries one can reasonably infer that the applicant suffers pain.
- the relative objectivity of Dr. Hanna’s report, together with the applicant’s own evidence, convinced that Arbitrator that the applicant suffers from pain from his spinal injury to such a degree that it is reasonable for him to explore whether he suffers from chronic pain through a chronic pain assessment in dispute.