Citation: Yokhanna v. Western Assurance Company, 2021 ONLAT 19-013699/AABS

Release date: 2021/03/09

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:

Flaurence Yokhanna

Applicant

and

Western Assurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Daniella Cohen, Paralegal

For the Respondent:

Brenda Lockwood, Counsel

HEARD:

by way of written submissions

OVERVIEW

1The applicant, Flaurence Yokhanna (“Ms. Yokhanna”), was injured in an automobile accident on August 14, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Western Assurance Company (“Western Assurance”), the respondent.

2Western Assurance denied Ms. Yokhanna’s claims for various treatment plans because it had determined that all of Ms. Yokhanna’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).² As a result, Ms. Yokhanna submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on June 1, 2019 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:

(i) Are Ms. Yokhanna’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

(ii) If Ms. Yokhanna’s injuries are not considered to be predominantly minor:

(a) Is Ms. Yokhanna entitled to $3,948.91 for psychological services recommended by Inline Rehabilitation Centre as set out in a treatment plan (“OCF-18”) dated January 24, 2019, and denied on October 18, 2019?

(b) Is Ms. Yokhanna entitled to $3,191.25 for physiotherapy recommended by Inline Rehabilitation Centre as set out in an OCF-18 dated July 11, 2019, and denied on October 18, 2019?

(c) Is Ms. Yokhanna entitled to $1,920.53 for a psychological assessment recommended by Inline Rehabilitation Centre as set out in an OCF-18 dated December 13, 2018, and denied on October 18, 2019?

(d) Is Ms. Yokhanna entitled to interest on any overdue payment of benefits?

RESULT

5I find that Ms. Yokhanna’s injuries from the accident are not predominantly minor as a result of chronic pain and, therefore, Ms. Yokhanna is not subject to treatment within the MIG. Ms. Yokhanna is not entitled to the three OCF-18s in dispute as she failed to prove that they were each reasonable and necessary on a balance of probabilities and, therefore, no interest is payable.

ANALYSIS

The Minor Injury Guideline (“MIG”)

6The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

7Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain. It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.³

8I find that Ms. Yokhanna has met her onus by proving on a balance of probabilities that her injuries caused by the accident are more than predominantly minor as a result of chronic pain. Therefore, Ms. Yokhanna is entitled to treatment outside of the MIG for her impairments caused by the accident.

Chronic Pain

9Ms. Yokhanna’s position is that her injuries as a result of the accident are outside of the MIG because they constitute a chronic pain condition resulting from her chronic back pain, neck pain, bilateral shoulder pain, headaches and post-traumatic headaches.

10Western Assurance submitted that chronic pain, if caused by soft tissue injuries, is, by definition, within the MIG.⁴ Western Assurance submitted that Ms. Yokhanna’s injuries are not outside of the MIG because her pain was caused by her soft tissue injuries and also because she does not suffer from any ongoing functional impairment and not a single assessor diagnosed Ms. Yokhanna with chronic pain.

11I disagree with Western Assurance’s submissions that chronic pain that is sequelae to soft tissue injuries is, by definition, within the MIG. In the reconsideration decision of T.S. v. Aviva General Insurance Canada,⁵ the Executive Chair of the Tribunal held that the definition of minor injury in s. 3(1) of the Schedule does not encompass an impairment such as chronic pain.⁶ The Executive Chair further described chronic pain as, “ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury or more than 3 to 6 months, and which adversely affects the individual's well-being.”⁷

12While I am not bound by other Tribunal decisions, I find that T.S. v. Aviva is persuasive in determining whether or not an applicant suffers from chronic pain and if, as a result, they should be removed from the MIG. In addition to the principles outlined in T.S. v. Aviva, the Tribunal has also consistently found that where pain is severe, constant and causes functional impairment, an applicant may be removed from the MIG. Additionally, removal from the MIG for chronic pain does not require a diagnosis of chronic pain or chronic pain syndrome by a physician.

13In this matter, Ms. Yokhanna consistently complained of pain in her lower back, neck, left shoulder which radiated down into her left elbow and wrist, left knee, left ankle and headaches. Ms. Yokhanna’s pain complaints in these areas also persisted well beyond the 3 to 6-month post-accident period. For example, Ms. Yokhanna saw her family doctor, Dr. Antoinette Mikhail, regarding her pain complaints fourteen times in the period of one year and four months after the accident until December 9, 2019, which is the end of the clinical notes and records (“CNRs”) that have been submitted for the hearing.

14Ms. Yokhanna also consistently reported her pain to Dr. Raymond Zabieliauskas, physiatrist, in the three insurer’s examination (“IE”) physiatry assessments that Dr. Zabieliauskas completed on Ms. Yokhanna. In his December 12, 2018 Physiatry IE Assessment report,⁸ Dr. Zabieliauskas noted that Ms. Yokhanna reported occasional headaches, pain in her left shoulder that extended down into her left wrist, pain on the left side of her body that she rated as 8-9/10 in intensity, pain in her parathoracic and paralumbar musculature, constant pain across the lower lumbar area with radiation into her left leg with an intensity rating of 8-9/10 and pain in the left ankle.⁹ Further, on examination, Ms. Yokhanna reported pain and discomfort to Dr. Zabieliauskas in the following areas:

(i) At the base of the left nuchal musculature with left lateral rotation and neck extension;

(ii) In left shoulder abduction and at the end range of internal rotation;

(iii) left wrist extension with localized pain over the top of the left wrist and tenderness to palpation over the dorsum of the left wrist;

(iv) in her lower lumbar area primarily with forward flexion and to a lesser degree with back extension; and

(v) during compression of the lower lumbar facet joints on each respective side which reportedly caused lower back pain especially on the left side.¹⁰

15Ms. Yokhanna made substantially similar pain complaints to Dr. Zabieliauskas in his October 8, 2019 Physiatry IE Assessment Report.¹¹ Ms. Yokhanna also reported a worsening of her radiation of her lower lumbar pain as it now was down both lower extremities whereas in her prior December 2018 assessment with Dr. Zabieliauskas, it was only down her left leg.¹² Ms. Yokhanna’s pain complaints upon examination were also substantially similar but with the addition of tenderness to palpation over the extensor surface of the left elbow, pain in her back with lateral flexion and pain in the base of the left nuchal musculature with bilateral neck rotation as opposed to just left lateral rotation.¹³ Dr. Zabieliauskas’ October 16, 2019 Physiatry IE Assessment report contains no new or additional information regarding Ms. Yokhanna’s pain complaints or pain on examination.

16Dr. Zabieliauskas diagnosed Ms. Yokhanna with a cervical strain WAD II, a left shoulder strain as well as a thoracolumbar strain as a result of the accident in his December 12, 2018 report.¹⁴ In this report, he also stated that Ms. Yokhanna may have also sustained mild patellofemoral strains.¹⁵ Dr. Zabieliauskas does not provide a diagnosis in his October 8, 2019 report and his diagnosis in his October 16, 2019 report remains unchanged from his initial diagnoses, except he appears to accept that Ms. Yokhanna did in fact sustain mild patellofemoral strains as a result of the accident.¹⁶

17As Dr. Zabieliauskas’ December 12, 2018 and October 8, 2019 IE reports were completed for the purposes of Ms. Yokhanna’s entitlement to other benefits not in dispute in the hearing, Dr. Zabieliauskas did not opine as to whether or not Ms. Yokhanna’s injuries were minor in these two reports. Dr. Zabieliauskas did state in both reports, however, that although he did not discount the fact that Ms. Yokhanna was continuing to experience some residual pain, that, “any soft tissue injuries or strains that would have occurred at the time of the motor vehicle accident would have healed in the ensuing 2 to 3 months.”¹⁷

18In his October 16, 2019 IE report, Dr. Zabieliauskas opined that Ms. Yokhanna’s injuries as a result of the accident would be treated within the MIG.¹⁸ I give Dr. Zabieliauskas’ opinion little weight as to whether or not Ms. Yokhanna’s injuries are “minor” for the purposes of the Schedule for the following reasons:

(i) Dr. Zabieliauskas provided no explanation regarding his opinion that Ms. Yokhanna’s injuries fell within the MIG except for stating that there was no pre-existing condition that would prevent her from recovering within the MIG limits;

(ii) Dr. Zabieliauskas stated, “there are currently no objective clinical findings to support her subjective voiced complaints,”¹⁹ without any discussion as to why or how Ms. Yokhanna’s reports of pain upon examination did not constitute clinical findings; and

(iii) Dr. Zabieliauskas provides no comment, discussion or analysis as to whether or not Ms. Yohkanna suffered from chronic pain as a result of the accident which may remove her from the MIG.

19I also do not agree with Western Assurance that Ms. Yokhanna does not suffer from any ongoing functional impairment. This submission is, in fact, in direct contradiction to the October 8, 2019 Psychological IE Assessment report by Dr. Douglas Saunders, psychologist.²⁰ In this report, Ms. Yokhanna reported to Dr. Saunders that bending, lifting, sitting or standing more than 30 minutes, walking more than an hour and sleeping in certain positions aggravates her pain.²¹ Ms. Yokhanna also reported sharing household chores with her husband prior to the accident such as general cleaning, cooking, grocery shopping, laundry and childcare duties whereas post-accident, she only performed lighter household chores with bending and lifting limitations due to pain.²² Ms. Yokhanna noted that her husband now performs the remainder of the household chores and that she also goes out less frequently with friends to avoid pain aggravation from standing or sitting for long periods of time.²³ In the end, while Dr. Saunders opined that Ms. Yokhanna did not meet the criteria for a diagnosis of a clinical impairment as a result of the accident, he noted that behaviourally, Ms. Yohhanna is “more limited in her daily functioning.”²⁴

20Ms. Yohanna’s reports of her husband completing the heavier household chores and being more socially withdrawn as a result of her pain post-accident is consistent with her reports to Dr. Rod Day, psychologist, in his December 12, 2018 Psychology IE Assessment report,²⁵ to Ms. Snezana Djuric, qualifying psychotherapist, in the January 30, 2019 Psychological Assessment report²⁶ and to Dr. Zabieliauskas in his December 12, 2018 IE report²⁷ and in his October 8, 2019 IE report.²⁸ Ms. Yokhanna also reported pain with moving and bending and not being able to complete her household duties to Dr. Mikhail on October 1, 2018, February 25, 2019 and August 13, 2019 and, most recently to Dr. M.K. Joseph Kwok, orthopaedic surgeon, on January 14, 2020.²⁹

21For all of the reasons set out above, I find that Ms. Yokhanna’s injuries as a result of the accident are not predominantly minor as a result of chronic pain that was ongoing well beyond the 3 to 6-month post-accident period and it caused Ms. Yokhanna functional limitations. Therefore, Ms. Yokhanna’s injuries as a result of the first accident are not subject to treatment within the MIG and, as a result, I must now consider Ms. Yokhanna’s entitlement to the disputed treatment plans.

22Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

23I find that Ms. Yokhanna has failed to meet her onus of proving entitlement to the three treatment plans in dispute as she has not proven that they are each reasonable and necessary on a balance of probabilities.³⁰

24The January 24, 2019 OCF-18 was completed by Dr. Csumrik and did not seek funding for psychological services as set out in the Tribunal’s June 1, 2020 Case Conference Report and Order as well as in Ms. Yokhanna’s application. Instead, this OCF-18 sought funding for fourteen sessions of chiropractic treatment that included acupuncture, fourteen exercise sessions with a chiropractor, fourteen sessions of massage therapy, a total body assessment and completion of the OCF-18 in the total amount of $3,948.91. The goals of this treatment plan were pain reduction, increased range of motion, increase in strength and a return to activities of normal living.

25The July 11, 2019 OCF-18 was completed by Dr. Jospeh Csumrik, chiropractor, and did not seek funding for physiotherapy as set out in the Tribunal’s June 1, 2020 Case Conference Report and Order. Instead, the treatment sought was for twelve sessions of chiropractic treatment that included acupuncture, twelve exercise sessions with a chiropractor, twelve sessions of massage therapy, a total body assessment and completion of the OCF-18 in the total amount of $3,191.25. The goals of this treatment plan were pain reduction, increased range of motion, increase in strength and a return to activities of normal living.

26The December 13, 2018 OCF-18 was completed by Dr. Anna Prudovski, psychologist, and sought funding for a psychological assessment with Dr. Valery Kleiman, psychologist, in the total amount of $1,920.53. The goals of this treatment plan were to identify the psychological sequelae of the accident and to plan treatment as well as a return to activities of normal living.

27All three treatment plans were denied by Western Assurance by way of an Explanation of Benefits (“OCF-9”) dated October 18, 2019. The OCF-9 referred to the October 16, 2019 Physiatry Assessment Report by Dr. Zabieliauskas, the October 16, 2019 Psychology Assessment Report by Dr. Saunders and a third IE report by Dr. Charanjit Sandhu as these assessors all concluded that Ms. Yokhanna’s injuries were predominantly physical in nature and fall within the definition of a minor injury as described in the MIG. On this basis alone, Western Assurance advised that the three disputed treatment plans were not considered reasonable and necessary and, as a result, it would not fund these OCF-18s as Ms. Yokhanna’s medical and rehabilitation benefits under the MIG had been reached.

Chiropractic Treatment, Acupuncture, Exercise Sessions and Massage Therapy

28Both parties made very little submissions on the reasonableness and necessity of the treatment plans for chiropractic treatment, acupuncture, exercise sessions and massage therapy. The submissions that were made regarding these treatment plans focused on Ms. Yokhanna’s injuries falling, or not falling, within the MIG.

29Nevertheless, I find that Ms. Yokhanna has failed to prove on a balance of probabilities that the January 24, 2019 and the July 11, 2019 OCF-18s are reasonable and necessary. The only recommendation for physical treatment from Ms. Yokhanna’s family doctor, Dr. Mikhail, from in or about the time that these treatment plans were submitted to Western Assurance for consideration³¹ was for physiotherapy and neither of these treatment plans sought funding for that treatment modality. Ms. Yokhanna has not directed me to any other contemporaneous evidence where chiropractic treatment, acupuncture, exercise sessions with a chiropractor and massage therapy was recommended for her impairments.

30For completeness, I give little weight to Dr. Zabieliauskas’ October 16, 2019 Physiatry Assessment Report in determining the reasonableness and necessity of the January 24, 2019 and July 11, 2019 treatment plans. While the burden never shifts to Western Assurance to disprove Ms. Yokhanna’s entitlement to the two treatment plans, Dr. Zabieliauskas did not provide an opinion as to the reasonableness and necessity of the January 24, 2019 and July 11, 2019 OCF-18s. Instead, he simply stated the treatment plans were “not applicable” given his opinion that Ms. Yokhanna’s injuries were within the MIG. Dr. Zabieliauskas provided no other reasons or discussions regarding the reasonableness and necessity of the January 24, 2019 and July 11, 2019 OCF-18s in his report.

31For the reasons set out above, I find that Ms. Yokhanna is not entitled to the January 24, 2019 and July 11, 2019 OCF-18s as she has failed to prove on a balance of probabilities that they are both reasonable and necessary.

Psychological Assessment

32The December 13, 2018 OCF-18 in dispute sought funding for a psychological assessment. In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, Ms. Yokhanna still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary.³² To do so, Ms. Yokhanna must point to objective evidence that there are grounds to suspect she has the condition for which she seeks the assessment. On the evidence, I find that Ms. Yokhanna has failed to satisfy that onus and, therefore, she is not entitled to the psychological assessment as it is not reasonable and necessary.

33Ms. Yokhanna submitted a Psychological Status Evaluation report in the additional comments portion of the December 13, 2018 OCF-18 by Ms. Noga Luztky-Cohen, psychometrist, supervised by Dr. Kleiman. This report stated that Ms. Yokhanna was seen for a psychological screening on September 19, 2018 and was provisionally diagnosed with an adjustment disorder with depressed mood and specific phobia, situational (driving/travelling related). The report noted that a full psychological assessment was required to determine the extent of Ms. Yokhanna’s psychological impairment, her rehabilitation needs and to guide her treatment.

34Despite Western Assurance’s denial of the December 13, 2018 OCF-18, Ms. Yokhanna went ahead with the psychological assessment and was assessed by Ms. Snezana Djuric, a qualifying psychotherapist, under the supervision of Dr. Kleiman on January 30, 2019 which resulted in a Psychological Assessment report³³ of the same date. In this report, Ms. Yokhanna is diagnosed with specific phobia, situational (driving and passenger related).³⁴

35In denying funding for the psychological assessment, Aviva relied upon the October 8, 2019 Psychological Assessment report by Dr. Saunders.³⁵ Following his assessment of Ms. Yokhanna, Dr. Saunders opined that Ms. Yokhanna did not meet the criteria for a clinical psychological impairment diagnosis as a result of the accident.³⁶

36The conclusions of the January 30, 2019 report and Dr. Saunders’ October 8, 2019 report are contradictory. However, after analyzing all of the evidence before me, I place greater weight on Dr. Saunders’ opinion for the following reasons:

(i) Dr. Saunders’ opinion is more consistent with the evidence that Ms. Yokhanna made no psychological complaints to her family physician, Dr. Mikhail, at any time post-accident. I also disagree with Ms. Yokhanna’s submissions that Dr. Mikhail diagnosed her with severe depression and anxiety or that Dr. Mikhail referred her to participate in any mental health counselling;³⁷

(ii) Dr. Saunders’ opinion and report is also more consistent with two other psychological IE assessment reports by Dr. Rod Day, psychologist. In his first report dated December 12, 2018,³⁸ Dr. Day opined that there was “no significant index MVA-related psychological condition or impairment currently present”³⁹ and that Ms. Yokhanna did not meet full diagnostic criteria for any DSM-5 psychological disorder diagnosis related to the accident.⁴⁰ Dr. Day confirmed that his opinion remained unchanged in his January 25, 2019 Psychological IE Assessment Addendum report⁴¹ following a paper-review of additional documents submitted by Ms. Yokhanna;

(iii) In his December 12, 2018 report, Dr. Day also noted that Ms. Yokhanna reported that her vehicular anxiety was progressively abating. In Dr. Saunders’ report, some ten months later, Ms. Yokhanna denied suffering any vehicular anxiety as a driver or passenger which suggests to me that Dr. Day’s report of Ms. Yokhanna’s progressive abating of her vehicular anxiety was correct at the time it was made as it was what ultimately occurred;

(iv) It is also unclear whose opinion is reflected in the January 30, 2019 Psychological Assessment report and who ultimately diagnosed Ms. Yokhanna with specific phobia, situational (driving and passenger related). The January 30, 2019 report stated that Ms. Yokhanna was interviewed and assessed by Ms. Djuric under the supervision of Dr. Kleiman.⁴² However, the report also stated that the assessment, “included a clinical interview and the following report is based on information derived from this interview.”⁴³ No details were provided on what Dr. Kleiman’s supervision entailed. However, if Ms. Yokhanna only met with Ms. Djuric for the interview and not Dr. Kleiman, I am unclear as to how the diagnosis was made given that the report stated it was based on the interview and Ms. Djuric, the interviewer, cannot make a diagnosis as a qualifying psychotherapist; and

(v) I find that Ms. Yokhanna’s diagnosis of specific phobia, situational (driving and passenger related) in the January 30, 2019 Psychological Assessment report is contradictory to the information provided in the report itself. For example, Ms. Yokhanna’s scores on the psychological testing conducted revealed only mild anxiety, minimal riding avoidance and minimal accident-related concerns.⁴⁴ Additionally, Ms. Yokhanna also reported feeling comfortable driving at the time of her assessment and the report noted, “she stated that the first month she was feeling anxious while driving, whereas now she is completely ‘confident.’”⁴⁵

37For all of the reasons set out above, I place greater weight on Dr. Saunders and ultimately Dr. Day’s opinions given the issues with the January 30, 2019 Psychological Assessment report and also because their opinions are more in line with the absence of any psychological complaints made by Ms. Yokhanna to her family physician post-accident. As a result, I find that Ms. Yokhanna is not entitled to the psychological assessment as she has failed to prove on a balance of probabilities that it is reasonable and necessary.

Interest

38As there are no benefits owing, no interest is payable.

CONCLUSION

39For the reasons outlined above, I find that Ms. Yokhanna:

(i) Did not sustain predominantly minor injuries as defined under the Schedule a result of chronic pain and, therefore, Ms. Yokhanna is not subject to treatment within the MIG;

(ii) Is not entitled to the three OCF-18s in dispute as she failed to prove that they were reasonable and necessary on a balance of probabilities and, therefore, no interest is payable.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
4. 4Written Submissions of the Respondent, para. 33.
5. 52018 CanLII 83520 (ON LAT) (“T.S. v. Aviva”).
6. 6Ibid. at para. 20.
7. 7Ibid. at para. 23.
8. 8Respondent’s Document Brief, tab 1.
9. 9Ibid. at page 5.
10. 10Ibid. at page 6.
11. 11Respondent’s Document Brief, tab 14.
12. 12Ibid.
13. 13Ibid. at page 7.
14. 14Supra note 8 at page 7.
15. 15Ibid.
16. 16Supra note 11 at page 8.
17. 17Supra note 8 at page 7 and supra note 11 at page 9.
18. 18Supra note 11 at page 8.
19. 19Ibid. at page 8.
20. 20Respondent’s Document Brief, tab 15.
21. 21Ibid. at page 5.
22. 22Ibid.
23. 23Ibid. at pages 5-6.
24. 24Ibid. at page 8.
25. 25Respondent’s Document Brief, tab 10, page 5 and 7.
26. 26Applicant’s Brief of Documents, tab 10, page 3.
27. 27Supra note 8 at page 5.
28. 28Supra note 11 at page 7.
29. 29Applicant’s Brief of Documents, tab 12.
30. 30Supra note 3.
31. 31See Dr. Mikhail’s clinical notes and records entries dated January 10, 2019 and August 13, 2019, Applicant’s Brief of Documents, tab 1.
32. 32Supra note 4.
33. 33Supra note 26.
34. 34Ibid. at page 8.
35. 35Supra note 20.
36. 36Ibid. at page 8.
37. 37Applicant’s Submissions, para. 28.
38. 38Supra note 25.
39. 39Ibid. at page 12.
40. 40Ibid.
41. 41Respondent’s Document Brief, tab 10.
42. 42Supra note 26 at page 2.
43. 43Ibid.
44. 44Supra note 26 at page 6.
45. 45Ibid. at page 3.