Citation: Sanghera vs. Pembridge Insurance Company, 2020 ONLAT 19-011051/AABS

Released Date: 10/20/2020

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:

Prabhjit Sanghera

Applicant

and

Pembridge Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

PANEL:

Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant:

Prabhjit Sanghera, Applicant

Ilia Estrah, Counsel

For the Respondent:

Maia Abbas, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant (“P.S.”) is a 30-year-old woman who was involved in an automobile accident on August 22, 2017. While stopped at a red light, the car she was operating was sideswiped on the driver’s side by a garbage truck attempting to merge into her lane.

2Due to the damage to P.S.’s vehicle, she was unable to exit on the driver’s side. Emergency services attended the scene and took P.S. to hospital by ambulance. Following diagnostic imaging of her spine and shoulder, she was diagnosed with soft tissue injuries.¹

3P.S. sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The respondent (“Pembridge”) denied P.S. certain benefits because it placed her within the Minor Injury Guideline (“MIG”). P.S. disagreed with this decision and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for a resolution of the dispute.

ISSUES TO BE DECIDED

4I am to decide the following issues:

i. Did P.S. sustain predominantly minor injuries as defined under the Schedule? If not, then:

ii. Is P.S. entitled to $1,817.42 for physiotherapy in a Treatment and Assessment Plan (OCF-18) dated March 25, 2019?

iii. Is P.S. entitled to $2,198.79 for psychological treatment in a Treatment and Assessment Plan (OCF-18) dated June 11, 2019?

iv. Is P.S. entitled to $2,200.00 for a chronic pain assessment in a Treatment and Assessment Plan (OCF-18) dated June 10, 2019?

v. Is P.S. entitled to interest on any overdue payment of benefits?

RESULT

5I conclude that the accident-related injuries P.S. sustained are not predominantly minor as defined in the Schedule. Specifically, she sustained psychological injuries that have resulted in significant functional impairment. On that basis alone, she is entitled to seek medical and rehabilitation benefits beyond the $3,500.00 monetary limit in the MIG.

6P.S. is entitled to receive payment for all three Treatment and Assessment Plans (OCF-18s) in dispute: for physiotherapy services, psychological treatment, and a chronic pain assessment. She is also entitled to receive interest on these amounts, calculated in accordance with s. 52(5) of the Schedule.

ANALYSIS

Issue i: Did P.S. sustain predominantly minor injuries?

7The MIG establishes a framework for the treatment of minor injuries. Section 3(1) of the Schedule defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for minor injuries to $3,500.00.

8A claimant bears the onus of establishing, on a balance of probabilities, that her injuries are not predominantly minor and fall outside the treatment limit in the MIG.²

Soft tissue injuries

9As noted above, P.S. sustained soft tissue injuries to her neck, shoulder and back areas as a result of the accident.

10The August 28, 2018 Disability Certificate (OCF-3) prepared on P.S.’s behalf lists her injuries as whiplash associated disorder, chronic post-traumatic headaches, low back pain, malaise and fatigue, muscle strain – multiple sites, injury of tendon at neck level, strain and sprain of the lumbar spine, and strain and sprain of the shoulder joint.³ These injuries fall within the definition of “minor injury” in the Schedule.

11However, P.S. argues that she sustained injuries and impairments as a result of the accident that are not restricted to minor injuries or their clinically associated consequences or sequelae. Namely, she submits that her injuries include psychological impairments and chronic, debilitating pain - injuries that are not minor and warrant treatment and assessment outside the MIG.

Psychological injuries

12P.S. submits she sustained psychological impairments as a result of the accident that warrant treatment outside the MIG. She submits that this Tribunal has removed individuals from the MIG based on their psychological symptomatology alone,⁴ and that, in addition to severe psychological symptoms, she has diagnosed psychological impairments.

13For the following reasons, I conclude that P.S. suffered psychological impairments as a result of the accident that warrant her removal from the MIG.

14P.S. relies on the August 26, 2019 psychological assessment report of Ms. Sara Gharibi, Master of Psychology candidate, acting under the supervision of Dr. Fahimeh Aghamohseni, Psychologist. Ms. Gharibi conducted five psychodiagnostic tests indicating, in some areas, severe levels of psychological impairment. Ms. Gharibi found moderate levels of depression and severe levels of anxiety. She diagnosed P.S. under three DSM-5 classifications: Major Depressive Disorder - Single Episode, Somatic Symptom Disorder, and Specific Phobia - Situational (vehicular related).⁵

15In corroboration of Ms. Gharibi’s and Dr. Aghamohseni’s findings, P.S. refers me to the December 6, 2019 Chronic Pain and Accident Benefits Report of Dr. Nayyar Razvi, a family physician whose practice focuses on the assessment and management of chronic pain. In the course of his assessment, Dr. Razvi made clinical observations relevant to P.S.’s psychological condition, specifically:

i. P.S. catastrophizes her pain, which is a risk factor for pain chronicity; contributes to heightened levels of emotional distress; and for which the primary treatment is cognitive behavioural therapy;

ii. P.S. exhibits symptomatology for depression and general deconditioning;

iii. P.S. continues to exhibit symptoms of distress;

iv. P.S.’s mood disorder continues to be a barrier to recovery.⁶

16Although Dr. Razvi’s evidence predominantly relates to the issue of P.S.’s chronic pain, as a general practitioner with expertise in the assessment and management of chronic pain, I give weight to his observations about the degree to which P.S.’s pain manifests in psychological symptoms.

17Pembridge relies on the November 20, 2019 Psychological Report of Dr. Amena Syed, Psychologist, for its position that P.S.’s psychological condition does not warrant treatment outside of the MIG. However, Dr. Syed reported that P.S. presented with a poor degree of self-control over her pain experience and with maladaptive beliefs surrounding her pain. She noted that P.S. feels disabled and will self-limit her activities in the presence of pain.⁷ Significantly, Dr. Syed’s own psychodiagnostic testing revealed heightened levels of impairment serious enough to merit a DSM-5 diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood.⁸

18However, rather than conclude from P.S.’s reports that her psychological impairment was as a result of the accident, Dr. Syed opined that the cause of P.S.’s condition could be pain from a pre-existing left shoulder injury, a 2018 motor vehicle accident that P.S. did not disclose to her, or her “active pregnancy” (P.S. became pregnant with her first child in the Spring of 2019).⁹

19P.S. submits that there is nothing in the medical evidence to suggest that her pain-related psychological complaints stem from a pre-existing shoulder injury or from her pregnancy. She submits that there were no subjective concerns or psychological sequelae in the clinical notes and records of her family physicians afforded to Dr. Syed for review suggesting a link to either condition.

20In June 2020, P.S. visited her family physician, Dr. Kaur, for pain management in pregnancy, but Dr. Kaur’s notes specify “back pain post-MVA” as the cause of her complaints.¹⁰ P.S. submits that, by all clinical accounts, her pregnancy was healthy and not a source of unusually heightened stress.

21The causation defence raised by Pembridge is unconvincing. I reject the conclusion made by Dr. Syed that P.S.’s psychological condition was due to her “active pregnancy.”¹¹ In reaching this conclusion, Dr. Syed observes that P.S.’s “frustration due to her infertility” cannot be discounted as a cause of her psychological symptoms, and later attributes them to her “active pregnancy”. These strike me as contradictory and implausible causes of P.S.’s levels of psychological impairment.

22In her report, Dr. Syed characterized the “abeyance of psychological concerns” in P.S. for nearly two years as “unexplainable”.¹² Pembridge points to the absence of any psychopathology in the clinical notes and records of either of P.S.’s family physicians as evidence that the accident did not cause P.S.’s psychological complaints. However, throughout the two year period in question, P.S. consistently reported her pain to both her treating practitioners and assessors.

23It is clear from both the psychological assessments of Drs. Aghamoseni and Syed that P.S.’s psychological condition is inextricably linked to her chronic and debilitating physical pain. I am not troubled by the lack of notations as to psychosocial symptoms in the records of Dr. Fahim and Dr. Kaur. There is sufficient medical evidence to establish that the subject accident is the cause of P.S.’s psychological impairments, and nothing to corroborate causation of the nature Dr. Syed describes.

24Pembridge submits that P.S. was in another motor vehicle accident in July of 2018, and that her failure to mention this second accident to some of her treating practitioners and assessors should raise doubt about the veracity of her claims about the cause of her impairments. P.S. invites a different conclusion from the absence of the July 2018 accident in P.S.’s reports to health care providers: it was minor, she sustained no injuries as a result of it, and she has not commenced any accident benefit claims in relation to it. She reported the accident to Dr. Fahim on the following day, who noted that P.S. was “fine but for the back”.¹³ I accept P.S.’s submissions about the July 2018 accident and find no basis to conclude that it was the cause of her impairments.

25Pembridge submits I should reject the evidence of Ms. Gharibi and Dr. Aghamohseni in favour of Dr. Syed’s report because Ms. Gharibi is a Master of Psychology candidate and Dr. Syed is a psychologist, and because Ms. Gharibi did not conduct validity testing. However, the validity testing Dr. Syed conducted confirmed that P.S. presented with a general profile of “genuine responding” when assessed for the likelihood of feigning psychiatric illness. She “attended appropriately and responded consistently” and “answered in a reasonably forthright manner.”¹⁴ The results of Dr. Syed’s validity testing support the clinical findings of psychological impairment of both Dr. Syed and Ms. Gharibi and Dr. Aghamohseni. In addition, they give weight to the symptoms and social history P.S. reported to Dr. Syed during the assessment, including her reports as to the cause of her pain-related functional impairments.

26I find that P.S. suffers from documented psychological impairments that by their nature fall outside the definition of a “minor injury” in the Schedule, and that those impairments are a result of the subject accident. P.S. is entitled to seek treatment beyond the $3,500.00 monetary limit in the MIG.

Chronic pain

27P.S. submits that she suffers from debilitating chronic pain that warrants removal from the MIG. Pembridge takes the position that P.S. suffered only minor, soft tissue injuries as a result of the accident and denies that P.S.’s pain complaints are a basis for treatment beyond the MIG.

28As I have determined that P.S. is removed from the MIG based on her psychological injuries and impairments, it is not necessary for me to decide whether her complaints of accident-related chronic pain justify removal from the MIG.

29I consider the parties’ submissions on the issue of chronic pain as they relate to the reasonableness and necessity of the disputed Treatment and Assessment Plans (OCF-18s) below.

Issue ii: Is P.S. entitled to $1,817.42 for physiotherapy services?

30On a balance of probabilities, I find the expenses associated with the proposed physiotherapy services to be reasonable and necessary. As such, P.S. is entitled to $1,817.42 for the cost of the disputed services.

31Section 15(1) of the Schedule provides in part that: “medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident”. The insured person bears the onus of establishing the reasonableness and necessity of a proposed treatment or assessment.

32To be considered reasonable and necessary, an insured person must prove that the Treatment and Assessment Plan (OCF-18) identifies reasonable treatment goals capable of being met to a reasonable degree, and that the overall costs of achieving these goals are reasonable.¹⁵

33A Treatment and Assessment Plan (OCF-18) on its own is not proof of the reasonableness or necessity of the expenses claimed within it. An insured person must provide objective medical evidence to substantiate the reasonableness and necessity of the proposed treatment.¹⁶

34Pembridge submits that it denied the disputed treatment plans because P.S.’s injuries were predominantly minor and because the treating records did not support her complaints of chronic pain as a result of the accident.¹⁷ Pembridge maintains that P.S. has failed to prove that physiotherapy was reasonable and necessary.

35The treatment goals identified in the March 25, 2019 Treatment and Assessment Plan (OCF-18) for physiotherapy treatment included: pain reduction, increased range of motion, increase in strength, increased endurance, and a return to activities of daily life and pre-accident work activities.¹⁸

36There is evidence that P.S.’s accident-related injuries significantly impaired her physical functioning. At the time of the accident, she was employed full-time as a truck driver. She returned to work two weeks after the accident, but on reduced hours due to her inability to sit for long period of time. She stopped work altogether in September 2019 due to pain from prolonged sitting.¹⁹

37P.S.’s sleep is of reduced quality and duration compared to before the accident, and she often wakes as a result of her physical pain. Ms. Gharibi and Dr. Aghamohseni documented that P.S.’s accident-related impairments have impacted her functioning in the areas of work, household maintenance, personal care, physical fitness and social relationships.²⁰

38P.S.’s family physician recommended that she pursue physiotherapy for her accident-related injuries.²¹ She has actively participated in her rehabilitation, attending treatment at Dev Wellness Rehabilitation Centre from August 23, 2017 to December 4, 2019.²²

39I find that the treatment goals identified in the disputed Treatment and Assessment Plan (OCF-18) are legitimate and reasonable.

40P.S. reported that physiotherapy was providing her with relief from pain and that she was finding it helpful.²³ Based on the clinical notes and records from Dev Wellness documenting her progress in physical therapy, I conclude that the treatment goals cited in the OCF-18 were being met to a reasonable degree.²⁴

41Pembridge has made no submissions on the costs associated with the proposed treatment, and I find nothing in evidence to indicate that they are unreasonable.

Issue iii: Is P.S. entitled to $2,198.79 for psychological treatment?

42I find on a balance of probabilities that the Treatment and Assessment Plan (OCF-18) dated June 11, 2019 for the cost of psychological treatment represents reasonable and necessary expenses. P.S. is entitled to receive $2,198.79 for the proposed treatment.

43I have found that P.S. suffered psychological injuries as a result of the accident that warrant her removal from the MIG. I also find that those very same injuries and their resulting impairments, established in the objective medical evidence detailed above, require treatment if P.S. is to return to her pre-accident level of psychological functioning.

44Pembridge submits that P.S. has failed to prove that the proposed psychological treatment is reasonable and necessary. Pembridge submits it denied the disputed treatment plan because it determined P.S.’s injuries were predominantly minor and because the treating records did not support P.S.’s complaints of psychological impairment as a result of the accident.²⁵

45Based on the objective medical evidence discussed above, I conclude that the goals of the proposed psychological treatment, particularly a return to pre-accident levels of psychological functioning, are reasonable.²⁶ Based on P.S.’s active participation in her rehabilitation and her forthright engagement in the preceding psychological assessments, I find that the identified treatment goals are being met to a reasonable degree. I find no basis to conclude that the proposed cost of the proposed treatment is excessive.

46For these reasons, the proposed psychological treatment expenses are reasonable and necessary, and P.S. is entitled to receive payment.

Issue iv: Is P.S. entitled to $2,200.00 for a chronic pain assessment?

47I conclude that the proposed cost of a chronic pain assessment is reasonable and necessary. P.S. is entitled to $2,200.00 for the disputed assessment.

48The record contains ample objective medical evidence that P.S. was experiencing symptoms of accident-related chronic pain accompanied by various functional impairments, both physical and psychological. The underlying causes of P.S.’s pain and its associated impairments require assessment and management.

49P.S. underwent a chronic pain assessment with Dr. Razvi on December 6, 2019, some six months after submitting the disputed Treatment and Assessment Plan (OCF-18).²⁷ Dr. Razvi’s diagnoses included chronic pain syndrome. He recommended that P.S. participate in a chronic pain program to avoid ongoing impairment.

50Pembridge relies on the report of Dr. David Berbrayer, Physiatrist, who conducted a s. 44 Insurer’s Examination of P.S. on July 3, 2019. Dr. Berbrayer considered P.S.’s injuries to be predominantly minor, soft tissue injuries.²⁸ Pembridge submits that Dr. Berbrayer’s report should be preferred over that of Dr. Razvi because his conclusions are more logical, reasonable and compelling.

51P.S. counters that Dr. Berbrayer was not tasked with assessing chronic pain, and that his opinion should not be preferred as it relates to chronic pain syndrome.

52In this case, I have the benefit of referring to the completed chronic pain assessment in my analysis of whether the assessment was reasonable and necessary.

53Dr. Razvi’s diagnoses are supported by objective findings. Dr. Razvi observed palpable tenderness in P.S.’s paraspinal muscles and trapezius and rhomboid areas bilaterally; tenderness at the base of her occiput; pain radiating from her lumbar spine to buttocks; and significant palpable tenderness in the sacroiliac joints bilaterally and in the paraspinal muscles.²⁹ These findings are corroborated in the clinical notes and records of P.S.’s treating practitioners and assessors.

54I give less weight to the opinion of Dr. Berbrayer, who did not test for any organic, neuropathological, psychological or somatic indicators that may have explained his findings of back, neck and shoulder pain and tenderness.

55The goals of the chronic pain assessment as set out in the Treatment and Assessment Plan (OCF-18) are reasonable: to identify barriers to recover [sic] and treatment options available”.³⁰ Given P.S.’s consistent pain reporting and documented pain-related dysfunction, I find that the investigations that were proposed are legitimate.

56P.S. had benefitted from physical rehabilitation at Dev Wellness, but her pain continued to impair her psychological and physical functioning two years after the accident. It is evident that further investigations and treatment were warranted, and Dr. Razvi’s assessment demonstrates that identifying barriers to recovery and available treatment options were goals that were capable of reasonably being met.

57Pembridge submits that the cost of Dr. Razvi’s assessment was chosen arbitrarily, but it presents no evidence upon which I can conclude that the $2,200.00 claimed was unreasonable. Dr. Razvi’s report was thorough and detailed and the cost claimed is consistent with the fees set out in the Schedule.

Issue v: Is P.S. entitled to interest?

58I have determined that P.S. is entitled to payment in the amount of:

i. $1,817.42 for the cost of physiotherapy services;

ii. $1,196.40 for the cost of psychological services; and

iii. $2,200.00 for the cost of a chronic pain assessment.

59P.S. is entitled to receive interest on the above amounts calculated in accordance with s. 52(5) of the Schedule.

ORDER

60The application is granted with interest.

Footnotes

1. 1Hearing Submissions of the Respondent [“Respondent’s Brief”] Tab B: William Osler report dated August 22, 2017 and Tab C: X-rays dated August 22, 2017.
2. 2Scarlett v. Belair Ins. Co., 2015 ONSC 3635 (Div. Ct.).
3. 3Applicant’s Brief of Documents [“Applicant’s Brief”] Tab 2, p. 5.
4. 417-005751 v. Aviva Insurance Company, 2018 CarswellOnt 19848 at paras. 19-20.
5. 5Applicant’s Brief, Tab 3: Psychological Assessment Report dated August 26, 2019.
6. 6Applicant’s Brief, Tab 4: Chronic Pain and Accident Benefits Report dated December 13, 2019 at p. 13.
7. 7Respondent’s Brief, Tab Q: IE Psychology Report by Dr. A. Syed, dated November 20, 2019, pp. 19-25.
8. 8Respondent’s Brief, Tab Q: IE Psychology Report by Dr. A. Syed, dated November 20, 2019, p. 26.
9. 9Respondent’s Brief, Tab Q: IE Psychology Report by Dr. A. Syed, dated November 20, 2019.
10. 10Applicant’s Brief, Tab 10: Dr. Kaur clinical notes dated June 10, 2020.
11. 11Respondent’s Brief, Tab Q: IE Psychology Report by Dr. A. Syed, dated November 20, 2019, p. 21.
12. 12Respondent’s Brief, Tab Q: IE Psychology Report by Dr. A. Syed, dated November 20, 2019, p. 21.
13. 13Respondent’s Brief Tab 7: Dr. Fahim clinical note dated July 17, 2018.
14. 14Respondent’s Brief, Tab Q: IE Psychology Report by Dr. A. Syed, dated November 20, 2019, pp.16-20.
15. 1517-001007/AABS v Aviva Insurance Canada, 2018 CanLII 2309 (ON LAT) at para. 11.
16. 16YFTL vs. The Co-operators General Insurance Company, 2020 ONLAT 19-002248/AABS at para. 12.
17. 17Respondent’s Brief Tab U: Explanations of benefits dated April 6, 2019 and July 29, 2019.
18. 18Applicant’s Brief, Tab 11i: OCF submitted March 25, 2019 at p. 12.
19. 19Respondent’s Brief, Tab Q: IE Psychology Report by Dr. A. Syed, dated November 20, 2019, p 9.
20. 20Applicant’s Brief, Tab 3: Psychological Assessment Report dated August 26, 2019 at p. 4.
21. 21Applicant’s Brief, Tab 7: Dr. Fahim clinical notes dated December 8, 2017.
22. 22Applicant’s Brief, Tab1: Dev Wellness Rehabilitation clinical notes dated December 13, 2019 at pp. 1-39.
23. 23Respondent’s Brief, Tab Q: IE Psychology Report by Dr. A. Syed, dated November 20, 2019, p 12.
24. 24Applicant’s Brief, Tab 1 Dev Wellness Rehabilitation clinical notes.
25. 25Respondent’s Brief Tab U: Explanations of benefits dated April 6, 2019 and July 29, 2019.
26. 26Applicant’s Brief, Tab 11ii: OCF-18 submitted June 11, 2019 at p. 12.
27. 27Applicant’s Brief, Tab 4: Chronic Pain and Accident Benefits Report dated December 13, 2019.
28. 28Respondent’s Brief, Tab P: IE Physiatry Report by Dr. Berbrayer dated July 3, 2019.
29. 29Applicant’s Brief, Tab 4: Chronic Pain and Accident Benefits Report dated December 13, 2019.
30. 30Applicant’s Brief, Tab 11iii: OCF-18 submitted June 10, 2019 at p. 12.