Citation: Lechumanan v. The Co-operators General Insurance Company, 2022 ONLAT 20-006035/AABS

Licence Appeal Tribunal File Number: 20-006035/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, R.S.O. 1990, c I.8, in relation to statutory accident benefits.

Between:

Sukumar Lechumanan

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake, Vice Chair

APPEARANCES:

For the Applicant: Sevda Guliyeva, Paralegal

For the Respondent: Amanda Lennox, Counsel

HEARD: By Way of Written Submissions

Overview

1The applicant, Sukumar Lechumanan, was injured in an automobile accident on June 29, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from The Co-operators General Insurance Company, the respondent.

2The respondent denied the applicant’s claims for various medical and rehabilitation benefits because it had determined that all of the applicant’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 (MIG).² As a result, the applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

3A case conference was held on October 22, 2020 and the matter proceeded to a written hearing.

Issues in Dispute

4The following issues are to be decided:

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

(ii) Is the applicant entitled to $1,449.70 ($3,643.68 less $2,193.98 approved) for chiropractic treatment and massage therapy recommended by Mediwise Healthcare Solutions Inc. in a treatment plan (OCF-18) dated August 11, 2018?

(iii) Is the applicant entitled to chiropractic treatment recommended by Mediwise Healthcare Centre as follows:

(a) $2,921.42 in an OCF-18 dated September 27, 2018?

(b) $3,225.80 in an OCF-18 dated November 29, 2018?

(c) $5,308.16 in an OCF-18 dated March 11, 2019?

(iv) Is the applicant entitled to $1,920.53 for a Psychological Assessment recommended by Dr. Harinder Mrahar in an OCF-18 dated July 30, 2018?

(v) Is the applicant entitled to psychological treatment recommended by Dr. Harinder Mrahar as follows:

(a) $4,463.96 in an OCF-18 dated September 6, 2018?

(b) $3,865.38 in an OCF-18 dated December 17, 2018?

(vi) Is the applicant entitled to interest on any overdue payment of benefits?

Procedural Issue – Length of Submissions

5In its hearing submissions, the respondent requested that the Tribunal not consider the applicant’s submissions beyond the permitted 10-page limit as provided for in the Tribunal’s October 22, 2020 Case Conference Report and Order.

6The respondent’s request that I not consider the applicant’s submissions beyond page 10 is denied as the respondent:

(i) Also exceeded the 10-page submission limit;

(ii) Failed to comply with the Tribunal’s order requiring submissions to be double-spaced; and

(iii) Provided no evidence or submissions as to how it was prejudiced by the applicant filing submissions in excess of the permitted page limit as it too violated the Tribunal’s October 22, 2020 Case Conference Report and Order regarding two hearing submission format requirements.

Result

7I find that the applicant has met his burden of proving that his accident-related impairments warrant removal from the MIG on the basis of a psychological impairment. The applicant is entitled to the following plus interest in accordance with s. 51 of the Schedule:

(i) The unapproved portion of the August 15, 2018 OCF-18;

(ii) The July 30, 2018 OCF-18 for a psychological assessment;

(iii) $1,820.98 of the September 6, 2018 OCF-18; and

(iv) $1,646.41 of the December 17, 2018 OCF-18.

8The applicant is not entitled to the September 27, 2018, November 29, 2018, and March 11, 2019 OCF-18s.

Analysis

The Minor Injury Guideline (MIG)

9The 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.

10Section 18(1) 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 with a functional impairment.

11I find that the applicant has met his burden of proving on a balance of probabilities that his accident-related impairments require treatment beyond the MIG on the basis of a psychological impairment.

Psychological Impairment

12Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.”

13The applicant relied upon a September 3, 2018 Psychological Assessment report by Dr. Harinder Mrahar, psychologist,³ in which Dr. Mrahar diagnosed the applicant with moderate depressive episode and an adjustment disorder (with anxiety).⁴ Dr. Mrahar made these diagnoses following a clinical interview with the applicant and administration of several psychometric tests. On the Beck Depression Inventory-II (BDI-II) and the Beck Anxiety Inventory (BAI) questionnaires, the applicant’s scores indicated a moderate range of depression and a severe range of anxiety.⁵ The applicant’s score on the Pain Patient Profile was in the average range for depression and anxiety and in the above average range for somatic problems when compared to other pain patients.⁶ The applicant was also administered the BDI-II and the BAI as part of an April 17, 2019 Psychological Progress Report, also authored by Dr. Mrahar,⁷ in which the applicant’s scores fell within the mild range on the BDI-II for depression and on the severe level on the BAI for anxiety.⁸

14The respondent relied upon an October 15, 2018 Psychological Insurer’s Examination (IE) Report by Dr. Gerald Dancyger, psychologist.⁹ In his report, Dr. Dancyger concluded that the information obtained during the clinical interview and psychological test results did not reveal a substantial psychological impairment as a result of the accident.¹⁰ Dr. Dancyger, however, reported that the scores on the testing provided to the applicant were invalid such that his test results could not be interpreted,¹¹ not that they did not reveal a substantial psychological impairment. For example, Dr. Dancyger reported that the applicant’s test scores on the Personality Assessment Inventory (PAI) was invalid,¹² the results of the Structured Inventory of Malingered Symptomatology (SIMS) test showed a significant degree of symptom exaggeration,¹³ and the Green’s Non-Verbal Medical Symptom Validity Test (NV-MSVT) showed poor effort and an exaggeration of cognitive difficulties.¹⁴ Dr. Dancyger also reported that the applicant stated he was emotionally “okay” despite reporting issues with fatigue due to poor sleep.¹⁵

15In considering the two reports, I place greater weight on Dr. Mrahar’s report and diagnoses for several reasons. First, the tests administered by Dr. Dancyger do not measure or test for anxiety and/or depression. The PAI test “attempts to understand an individual’s personality traits and characteristics,”¹⁶ the SIMS test is used for the detection of malingering across a variety of clinical and forensic settings,¹⁷ and the NV-MSVT is used as an objective measure of symptom validity.¹⁸ Simply put, one will not find an impairment if one does not test for it.

16Second, Dr. Dancyger, as well as the respondent in its submissions, placed significant weight on the applicant’s report that he was “emotionally okay” and that he failed to report “any other” emotional issues that were concerning to him aside from sleep difficulties and daytime fatigue. Dr. Dancyger, however, fails to reconcile the significant weight placed on the applicant’s statement in relation to Dr. Dancyger’s opinion that the applicant’s test results suggest that he exaggerated his complaints and that he “can distort his clinical presentation.”¹⁹

17Finally, the applicant’s self-reports and psychological testing results on the BDI-II and the BAI, which were relied upon by Dr. Mrahar and administered on two occasions, are more consistent with the applicant’s reports to his family physician, Dr. A.K. Ahluwalia, that he was having sleep difficulties, was waking up worried, and felt down.²⁰

18I am also not persuaded by the respondent’s submission that the applicant’s psychological complaints were clinically associated sequalae to his minor injuries.²¹ The respondent submitted that when the applicant completed physiotherapy in April 2019, the applicant’s psychological complaints also resolved and, therefore, the applicant’s psychological complaints were clinically associated sequalae. This submission, however, is not supported by the evidence. On May 3, 2019, the applicant complained to Dr. Ahuwalia that he was feeling down. Additionally, Dr. Mrahar reported in his April 17, 2019 Psychological Progress Report²² that the applicant continued to experience symptoms of depressed mood and anxiety although with less intensity such that twelve additional treatment sessions were recommended.²³

19For all of these reasons, I place greater weight on Dr. Mrahar’s report including his opinion and diagnoses of the applicant with a moderate depressive episode and an adjustment disorder (with anxiety) as a result of the accident. Therefore, the applicant has proven on a balance of probabilities that he sustained a psychological impairment as a result of the accident and, as a result, is entitled to benefits outside of the MIG limits.

20Sections 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.

21I find that the applicant has met his burden of proving that the following treatment plans, or portions thereof, are reasonable and necessary on a balance of probabilities:

(i) The unapproved portion of the August 15, 2018 OCF-18;

(ii) The July 30, 2018 OCF-18 for a psychological assessment;

(iii) $1,820.98 of the September 6, 2018 OCF-18; and

(iv) $1,646.41 of the December 17, 2018 OCF-18.

22The applicant, however, is not entitled to the September 27, 2018, November 29, 2018, and March 11, 2019 OCF-18s for chiropractic treatment.

August 11, 2018 OCF-18 – Chiropractic Treatment and Massage Therapy

23The August 11, 2018 OCF-18 was completed by Dr. Kuldip Rakkar, chiropractor, and sought funding for chiropractic treatment and massage therapy. The goals of the treatment plan are pain reduction, increase in strength, increased range of motion, and a return to activities or normal living. The OCF-18 also included a reassessment report which stated that the applicant’s range of motion was reduced in all planes in his lumbar spine as well as in his right shoulder. Dr. Rakkar opined that the applicant was suffering from a sprain/strain of his lumbar and thoracic spine, as well as a sprain/strain to his right shoulder and right knee. Dr. Rakkar also noted that the applicant complained of non-restorative sleep as a result of pain which affected all aspects of his life and that he is not able to “do things around the house like before.” Dr. Rakkar reported that treatment provided the applicant with temporary relief but that his prognosis was poor.

24The respondent partially approved the treatment plan on August 15, 2018 for the amount of $2,193.98 with no explanation as to how this amount was arrived at or which treatment it approved or denied.

25Despite the respondent’s partial denial of the treatment plan, the applicant continued with his physical treatment. When comparing the applicant’s August 11, 2018 and September 27, 2018 Chiropractor Assessments Reports from Mediwise Healthcare Centre,²⁴ the applicant’s range of motion in his lumbar spine improved in all planes except the right and left rotation. The applicant’s right shoulder range of motion also improved in all planes. Additionally, the applicant’s reported level of pain decreased in his thoracic and lumbar spine, his left knee, and his right shoulder. From this evidence, it is clear that the proposed treatment was meeting at least two of the stated goals of pain reduction and increased range of motion.

26The respondent submitted that I should find that the proposed treatment plan was not reasonable and necessary based on the opinion of Dr. Gihan Perera, physiatrist, in his October 15, 2018 Physiatry Insurer’s Examination (IE) Assessment Report.²⁵ In his report, Dr. Perera found that there was no evidence of an accident-related musculoskeletal impairment.²⁶ However, Dr. Perera also opined that the applicant sustained a WAD-II neck strain and a lumbosacral spine musculoligamentous strain and sprain injuries as a result of the accident.²⁷ Further, Dr. Perera’s measurement of the applicant’s active cervical ranges of motion were all less than normal as was the applicant’s lumbar forward flexion range of motion. Dr. Perera, however, appears to dismiss these findings stating that the applicant’s active cervical and lumbar ranges of motion were self-restricted secondary to reports of pain.²⁸ There is no evidence or information in Dr. Perera’s report though that provides any support for his opinion that the applicant sustained no impairments as a result of the accident simply because the applicant’s range of motion was reduced as a result of pain and discomfort. For this reason, I give little weight to Dr. Perera’s report and opinion.

27On the evidence, I find that the applicant has met his burden of proving that the unapproved portion of the August 15, 2018 treatment plan is reasonable and necessary on a balance of probabilities.

September 27, 2018, November 29, 2018, and March 11, 2019 OCF-18s

28The September 27, 2018 OCF-18 was completed by Dr. Rakkar and sought funding for eighteen chiropractic treatment sessions over nine weeks. Dr. Rakkar included a reassessment report dated September 17, 2018 in this treatment plan. Dr. Rakkar noted that the applicant is responding well to treatment but that he often feels pain radiating into the left leg which limits him from doing his activities of daily living. As such, Dr. Rakkar recommended “continued therapy and home stretching,” as well as further imaging of the applicant’s lumbar spine.

29The November 29, 2018 OCF-18 was completed by Dr. Bohdan Osoba, chiropractor, and sought funding for eighteen chiropractic treatment sessions over nine weeks. Dr. Osoba reported that there has been some improvement in terms of the applicant’s range of motion as well as some temporary relief from pain with therapy.

30The March 11, 2019 OCF-18 was completed by Dr. Rakkar and sought funding for 32 1-hour chiropractic treatment sessions along with 32 additional chiropractic treatment sessions 30-minutes or less in duration. The estimated duration of this treatment plan was nine weeks. Dr. Rakkar reported in this OCF-18 that the applicant was responding well to treatment but that his activities of daily living, as well as prolonged sitting and standing, aggravated his condition.

31The goals of the September 27, 2018, November 29, 2018, and March 11, 2019 treatment plans were pain reduction, increase in strength, increased range of motion, and to return to activities of normal living.

32I find that the applicant has not met his onus of proving on a balance of probabilities that these three treatment plans are reasonable and necessary for the following reasons:

(i) Dr. Ahuwalia noted throughout the period pertaining to these three OCF-18s that the applicant was still attending physiotherapy. However, Dr. Ahuwalia made no recommendation for ongoing chiropractic treatment;

(ii) The goals of pain reduction and increased range of motion were no longer being met. In comparing the September 17, 2018 Reassessment Report to the March 11, 2019 Reassessment Report, the applicant’s reported pain levels only marginally decreased regarding his headaches and his lower back. All other pain reports were consistent or increased. Additionally, the only appreciable increase in the applicant’s range of motion between the two reports was in his right shoulder (flexion and abduction). All other ranges of motion measured were consistent or only showed a minimal increase;

(iii) The applicant’s location of pain changed from his right knee to his left knee between the September 27, 2018 Reassessment Report and the March 11, 2019 Reassessment Report; and

(iv) There is no evidence before me as to why the applicant required such an increase in the number of treatment sessions as proposed in the March 11, 2019 OCF-18 to over seven sessions per week on average from his previous treatment frequency.

33For all of these reasons, the applicant is not entitled to the September 27, 2018, November 29, 2018, and March 11, 2019 OCF-18s.

July 30, 2018 OCF-18 – Psychological Assessment

34The July 30, 2018 OCF-18 was completed by Dr. Mrahar and sought funding for a psychological assessment. The goals of the treatment plan were to assist with pain management, adjustment, depression, and anxiety, to return to activities of normal living, and to conduct a full psychological assessment to submit an OCF-18 for psychological treatment if needed.

35I find that the applicant is entitled to this treatment plan as it is both reasonable and necessary. The applicant underwent the proposed psychological assessment with Dr. Mrahar despite the respondent’s denial. Dr. Mrahar’s report following the assessment was the basis upon which the applicant was diagnosed with psychological impairments as a result of the accident that entitled him to treatment beyond the MIG limits. The only submissions advanced by the respondent that the proposed psychological assessment was not reasonable and necessary was based upon Dr. Dancyger’s October 15, 2018 report. However, I did not place as much weight on Dr. Dancyger’s report as I did for Dr. Mrahar’s report for the reasons discussed in paragraphs [15] to [17] above. As a result, the applicant is entitled to the July 30, 2018 treatment plan.

September 6, 2018 and December 17, 2018 OCF-18s – Psychological Treatment

36There are two treatment plans in dispute for psychological treatment. The first is dated September 6, 2018 and the second is dated December 17, 2018. Both were completed by Dr. Mrahar and the goals of both treatment plans were to reduce pain, to help with pain management, to return to pre-accident status, to reduce anxiety and depressed mood, and to address the applicant’s emotional impairments to develop pain management and coping skills.

37The September 6, 2018 treatment plan relied upon Dr. Mrahar’s September 3, 2018 report to support the proposed treatment. In his report, Dr. Mrahar recommended sixteen 1.5 hour sessions of cognitive behaviour therapy to treat the applicant’s moderate depressive episode and adjustment disorder (with anxiety) by assisting the applicant to cope with his pain, anxiety, and depressive symptoms.²⁹ Moreover, Dr. Mrahar opined that without treatment, the applicant’s symptoms may worsen and could present a barrier to his physical recovery.³⁰

38The December 17, 2018 OCF-18 included Dr. Mrahar’s December 10, 2018 Psychological Progress Report in support of the proposed treatment. Dr. Mrahar reported that the applicant’s treatment has assisted the applicant in feeling more comfortable with self-expression in spite of current challenges and that he is ready to make some positive changes. The applicant has also been successful in using relaxation count breathing techniques as he has felt more relaxed and less anxious and that his sleep has improved by using sleep management techniques. Dr. Mrahar recommended an additional fourteen 1.5-hour treatment sessions to help the applicant refine, adopt, and consolidate all of the new strategies he has been practicing to help him better cope with his pain as well as with his associated cognitive and emotional difficulties as his improvement was still in the early stages. Dr. Mrahar was confident that the applicant had made progress and demonstrated that with the support and guidance of a professional, he could continue to improve his level of functioning, both physically and emotionally.

39The respondent solely relied upon Dr. Dancyger’s October 15, 2018 report to dispute the reasonableness and necessity of both the September 6, 2018 and December 17, 2018 treatment plans, which I give little weight to for the reasons set out in paragraphs [15] to [17] above.

40On the evidence, I find that the proposed treatment of cognitive behavioural therapy as set out in the September 6, 2018 OCF-18 is reasonable and necessary based upon Dr. Mrahar’s diagnoses and treatment recommendations in his September 3, 2018 report. I also find that proposed treatment sessions as set out in the December 17, 2018 OCF-18 are reasonable and necessary based upon Dr. Mrahar’s December 10, 2018 Psychological Progress Report. Nevertheless, I find that the proposed amount of both treatment plans is not reasonable.

41The December 10, 2018 Psychological Progress Report by Dr. Mrahar³¹ stated that the applicant underwent treatment despite the respondent’s denial of the September 6, 2018 OCF-18. This treatment, however, was being provided by Mitasha Bhalla, a qualifying psychotherapist, and Emmanuel Joseph Cyriac, a registered social worker, and not by Dr. Mrahar as proposed in the treatment plan. Both Bhalla and Cyriac are unregulated providers under the Financial Services Commission of Ontario’s (FSCO’s) Professional Services Guideline.³² As such, the maximum hourly rate payable for their services without any additional information regarding their qualifications, training, etc. is $58.19 per hour. Further, there is no information to support the separate amounts sought for a mental health test, the mental health assessment, or the planning services. For these reasons, I find that the applicant is entitled to $1,820.98 of the September 6, 2018 OCF-18 which includes the following:

(i) $200.00 for completion of the treatment plan (line 1);

(ii) $1,396.56 for sixteen 1.5-hour sessions of therapy, mental health (line 2); and

(iii) $224.42 for a progress report (line 4).

42The applicant also incurred treatment under the December 17, 2018 OCF-18 despite the respondent’s denial. The treatment was again provided by Bhalla under the supervision of Dr. Mrahar.³³ As there is no information before me as to the nature of the supervision by Dr. Mrahar, my finding remains that the appropriate hourly rate payable for services provided by Bhalla is $58.19. Similar to the September 6, 2018 treatment plan, there is again no information before me to support the proposed amounts sought for a mental health test, the mental health assessment, or the planning services. For these reasons, I find that the applicant is entitled to $1,646.41 of the December 17, 2018 OCF-18 which includes the following:

(i) $200.00 for completion of the treatment plan (line 1);

(ii) $1,221.99 for fourteen 1.5-hour sessions of therapy, mental health (line 2); and

(iii) $224.42 for a progress report (line 4).

Interest

43The applicant is entitled to interest in accordance with s. 51 of the Schedule for the unapproved portion of the August 15, 2018 OCF-18, the July 30, 2018 OCF-18, $1,820.98 of the September 6, 2018 OCF-18, and $1,646.41 of the December 17, 2018 OCF-18.

Conclusion

44For the reasons outlined above, I find that:

(i) The applicant has met his burden of proving on a balance of probabilities that his accident-related impairments warrant removal from the MIG on the basis of a psychological impairment;

(ii) The applicant is entitled to:

(a) The unapproved portion of the August 15, 2018 OCF-18, plus interest in accordance with s. 51 of the Schedule;

(b) The July 30, 2018 OCF-18 for a psychological assessment, plus interest in accordance with s. 51 of the Schedule;

(c) $1,820.98 of the September 6, 2018 OCF-18, plus interest in accordance with s. 51 of the Schedule; and

(d) $1,646.41 of the December 17, 2018 OCF-18, plus interest in accordance with s. 51 of the Schedule.

(iii) The applicant is not entitled to the September 27, 2018, November 29, 2018, and March 11, 2019 OCF-18s.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Applicant’s Submissions, tab 12.
4. 4Ibid. at page 11.
5. 5Ibid. at page 8.
6. 6Ibid.
7. 7Applicant’s Submissions, tab 14.
8. 8Ibid. at page 3.
9. 9Written Submissions of the Respondent, tab 1.
10. 10Ibid. at page 10.
11. 11Ibid. at page 9.
12. 12Ibid. at page 8.
13. 13Ibid.
14. 14Ibid. at page 9.
15. 15Ibid. at page 10.
16. 16Ibid. at page 8.
17. 17Ibid.
18. 18Ibid. at page 9.
19. 19Ibid. at pages 9-10.
20. 20Applicant’s Submissions, tab 6. See clinical notes and records (CNRs) dated July 12, 2018, July 23, 2018, August 30, 2018, and May 3, 2019.
21. 21Written Submissions of the Respondent, para. 41.
22. 22Applicant’s Submissions, tab 14.
23. 23Ibid. at pages 1 and 3.
24. 24Applicant’s Submissions, tab 7.
25. 25Written Submissions of the Respondent, tab 2.
26. 26Ibid. at page 10.
27. 27Ibid. at page 9.
28. 28Ibid.
29. 29Supra note 3 at page 11.
30. 30Ibid.
31. 31Applicant’s Submissions, tab 13.
32. 32Superintendent’s Guideline No. 03/14.
33. 33Supra note 22.