Citation: Tambyah v. Economical Insurance Company, 2022 ONLAT 20-009392/AABS

Licence Appeal Tribunal File Number: 20-009392/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:

Sudesh Tambyah

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake, Vice Chair

APPEARANCES:

For the Applicant:

Sevda Guliyeva, Paralegal

For the Respondent:

Suzanne Armstrong, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1The applicant, Sudesh Tambyah, was injured in an automobile accident on November 9, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (Schedule)¹ from Economical Insurance Company, the respondent.

2The respondent denied the applicant’s claims for various medical benefits and determined that all of the applicant’s injuries fit the definition of a “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) for resolution of the dispute.

3A case conference was held on January 12, 2021 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 MIG?

(ii) Is the applicant entitled to chiropractic treatment recommended by Dr. Dan Shlepakov, chiropractor, as follows:

(a) $2,925.60 in a treatment plan (OCF-18) dated February 5, 2019?

(b) $2,907.00 in an OCF-18 dated May 17, 2019?

(c) $1,923.04 in an OCF-18 dated August 28, 2019?

(iii) Is the applicant entitled to $1,995.00 for a psychological assessment recommended by Dr. Harinder Mrahar, psychologist, in an OCF-18 dated January 15, 2019?

(iv) Is the applicant entitled to psychological treatment as follows:

(a) $4,314.20 recommended by Dr. Aparna Sekhar, psychologist, in an OCF-18 dated February 20, 2019?

(b) $4,314.20 recommended by Dr. Mrahar in an OCF-18 dated August 9, 2019?

(v) 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 I not consider the applicant’s submissions beyond the permitted 15-page limit as provided for in the Tribunal’s January 12, 2021 Case Conference Report and Direction.

6The respondent’s request that I not consider the applicant’s submissions beyond page 15 is denied. While the applicant did not address this requested relief in his reply submissions, the respondent provided no evidence or submissions as to how it was prejudiced by the applicant filing submissions in excess of the permitted page limit. As a result, I considered the totality of the applicant’s hearing submissions in forming my decision.

RESULT

7I find that the applicant has met his burden of proving that he did not sustain a minor impairment as a result of the accident and, therefore, he is entitled to benefits beyond the MIG limit. The applicant is also entitled to the following treatment plans plus interest in accordance with s. 51 of the Schedule:

(i) The January 15, 2019 OCF-18 for a psychological assessment; and

(ii) $1,355.47 of the February 20, 2019 OCF-18 and $1,131.05 of the August 9, 2019 OCF-18 for psychological treatment.

8The applicant is not entitled to the February 5, 2019, May 17, 2019, and August 28, 2019 OCF-18s for chiropractic treatment.

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, among other things, that their accident-related impairments fall outside the definition of “minor injury.”

11I find that the applicant has proven on a balance of probabilities that his accident-related impairments require treatment beyond the MIG. The applicant was diagnosed with a concussion by his family physician, Dr. Nirmala Gengatharan, on November 24, 2018.³ I am not persuaded by the respondent’s submissions that the January 9, 2019 clinical note and record (CNR) entry in which Dr. Gengatharan reported “concussion/headache” indicates that Dr. Gengatharan was uncertain as to the cause of the applicant’s reported complaints. This submission does not recognize the clear diagnosis of a concussion made by Dr. Gengatharan in his November 24, 2018 CNR entry. As the definition of a minor injury in the Schedule does not include a concussion, I find that the applicant’s accident related injuries are not minor and, as a result, he is entitled to treatment beyond the MIG limits.

12Sections 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.

13The applicant bears the onus of proving entitlement to the proposed treatment and assessment plans by proving that the disputed OCF-18s are reasonable and necessary on a balance of probabilities.

14For the reasons that follow, I find that the applicant is not entitled to the February 5, 2019, May 17, 2019, and August 28, 2019 OCF-18s for chiropractic treatment but that he is entitled to the January 15, 2019 OCF-18 for a psychological assessment as well as $1,355.47 of the February 20, 2019 OCF-18 and $1,131.05 of the August 9, 2019 OCF-18 for psychological treatment.

a) Chiropractic Treatment

15There are three OCF-18s in dispute seeking chiropractic treatment dated February 5, 2019, May 17, 2019, and August 28, 2019. All three OCF-18s were completed by Dr. Shlepakov and listed the following goals: pain reduction; increased strength; increased range of motion; to return to activities of normal living; and to return to pre-accident work activities. The February 5, 2019 OCF-18 also listed the goals of implementation of a rehabilitation program (exercises), to provide the tools to foster patient self-management, to provide hope that recovery will be faster, and to assist in the patient’s ability to self-manage pain, psychological symptoms, and cognitive problems. The May 17, 2019 OCF-18 also included the goals of restoring function, teaching the applicant how to control his pain, focusing on returning to previous activities of daily living, and providing tools to foster the applicant’s self-management. Finally, the August 28, 2019 OCF-18 listed the following additional goals: to develop and implement strategies to maintain focus and concentration as well as diminish vehicular anxiety; to provide advice, education, and reassurance that intensive physical therapy helps to recover to pre-accident level of function; and to renew hope and energy to participate in daily life.

16The February 5, 2019 and May 17, 2019 OCF-18s sought sixteen 1-hour treatment sessions with Dr. Shlepakov, and sixteen 30-minute treatment sessions with Dr. Alexander Kipershlak, chiropractor, for a total of 32 treatment sessions each over an 8-week period. The August 28, 2019 OCF-18 sought sixteen 30-minute sessions each with Dr. Shlelpakov and Dr. Kiperslack for a total of 32 treatment sessions over an 8-week period.

17I find that the applicant has failed to prove the three disputed OCF-18s for chiropractic treatment are reasonable and necessary on a balance of probabilities. Dr. Gengatharan only prescribed physiotherapy and massage at various times to the applicant. Dr. Gengatharan did not prescribed chiropractic treatment. Further, both the clinical notes and records (CNRs) from the Scarborough Medical Centre as well as the Re-examination Assessment Reports included in the additional comments portion of each of the disputed OCF-18s showed little if any reduction in pain of the applicant’s headaches, cervical spine, and lumbar spine and no increases in ranges of motions. Therefore, there is no evidence that the ongoing treatment was achieving the stated goals of pain reduction and/or increased range of motion. There is no other evidence before me that the proposed treatment would meet any of the other stated goals or compelling contemporaneous evidence in support of the treatment plans. For these reasons, the applicant is not entitled to the February 5, 2019, the May 17, 2019, and the August 28, 2019 OCF-18s.

b) Psychological Assessment

18The January 15, 2019 OCF-18 sought funding for a psychological assessment to be completed by Dr. Mrahar. A December 29, 2018 Psychological Status Evaluation Report was included in the disputed treatment plan. The report stated that the applicant was screened by Sachkaran Sidhu, qualifying psychological associate, under the supervision of Dr. Mrahar. The report noted that the applicant expressed sadness, irritability, anger, increased stress, financial stress, and anxiety. The applicant reported that due to constant pain and changes in his mood he avoids engaging in leisure activities such as socializing with friends, playing basketball, and going out for dinners. The applicant also noted difficulties in focus and concentration and forgetting things easily. The applicant was given the provisional diagnoses of an adjustment disorder (with mixed anxiety and depressed mood) and specific (situational) phobia (driving) in the report.

19Despite the respondent’s denial of the psychological assessment, the applicant underwent and incurred a psychological assessment with Dr. Aparna Sekhar, psychologist, which resulted in the February 19, 2019 Psychological Assessment Report.⁴ The applicant reported to Dr. Sekhar that he experiences disruptive sleep due to increased pain, difficulty with sleep onset,⁵ fatigue, increased use of marijuana, increased appetite and weight gain, sadness, irritability, anger, increased stress and anxiety, loss of confidence, feels numb, apathetic, and disconnected, a desire to be more engaged in his life as a new father, difficulties concentrating and with his short-term memory, anxiousness as a driver, and an avoidance of driving with a preference that his spouse drives.⁶

20The applicant was also administered several psychometric tests as part of Dr. Sekar’s assessment. On the Beck Depression Inventory (BDI-II), the applicant’s score revealed a severe level of depressive thoughts or feelings and an endorsement of suicidal ideation without intent to carry out such thoughts. On the Beck Anxiety Inventory (BAI), the applicant’s score exhibited a severe level of anxiety disturbance, and on the Pain Patient Profile (P3), the applicant’s scores were in the above average range for depression, anxiety, and somatization.⁷ The applicant’s score on the Post-Traumatic Stress Disorder (PTSD) Check List (PCL-5) met the criterion requirements for a diagnosis of post-traumatic stress disorder⁸ and his score on the Severity Measure for Specific Phobia – Adult test fell within the severe range for driving phobia.⁹ As a result of the applicant’s assessment, Dr. Sekhar diagnosed the applicant with post-traumatic stress disorder and a moderate depressive disorder.¹⁰ Dr. Sekhar recommended sixteen 1.5-hour psychotherapy sessions using cognitive behavioural therapy.¹¹

21In maintaining its position that the proposed psychological assessment was not reasonable and necessary, the respondent relied upon the March 14, 2019 Independent Psychological Insurer’s Examination (IE) Evaluation Report by Dr. Godwin Lau, psychologist.¹² The applicant reported to Dr. Lau that he had difficulties sleeping, he was emotionally down, he felt tired, his short-term memory was not as good as it was pre-accident, he was driving far less than pre-accident and he does so with anxiety, and that he was taking marijuana twice a day for pain relief and to calm his mood.¹³

22The applicant was also administered several psychometric tests as part of his assessment with Dr. Lau. On the BAI, the applicant’s score was in the severely anxious range, on the BDI-II, the applicant’s score was within the severely depressed range, and on the Beck Hopelessness Scale, the applicant’s score was in the severely hopeless range.¹⁴ In the end, however, Dr. Lau confirmed that the applicant had complaints of residual emotional distress from the accident but opined that the applicant did not sustain a psychological impairment or diagnosis as a result of the accident.¹⁵ Dr. Lau remarked that the applicant’s extremely elevated psychometric test results were inconsistent with his relatively normal clinical presentation. Dr. Lau also stated that despite the applicant obtaining a valid profile on the Millon Clinical Multiaxial Inventory III (MCMI III), there was an “indication” of symptom magnification.¹⁶

23I place greater weight on Dr. Sekhar’s report and opinions over that of Dr. Lau for two reasons. First, I find that the weight attributed by Dr. Lau to an “indication” of symptom magnification over that of his finding that the applicant obtained a valid profile on the MCMI III test to be contradictory and unexplained. Further, even if I accepted that the applicant displayed magnified symptoms on the psychometric testing completed by Dr. Lau, the applicant’s scores fell within the severe range in all the tests. Dr. Lau fails to opine on whether the applicant’s scores could still have fallen within the moderate or even mild ranges when accounting for some symptom magnification. This is a significant gap in Dr. Lau’s report, especially given Dr. Lau’s comments that the applicant had residual emotional distress from the accident.

24Second, I am persuaded by the reasons and finding in R.K. v. Unifund Assurance Company (R.K. v. Unifund)¹⁷ as relied upon by the applicant. In R.K. v. Unifund, the Tribunal found that the applicant sustained a psychological impairment because of the accident without evidence of continuous psychological complaints made to the applicant’s family doctor.¹⁸ In that matter, Adjudicator Boyce made his determination by placing greater weight on the applicant’s consistent attendance for treatment, the applicant’s continuous psychological complaints to her assessors and practitioners, the applicant’s psychological diagnoses, and the fact that the applicant incurred the costs of the psychological assessment after it was denied by the respondent than on the absence of corroborating family physician records.¹⁹

25In this matter, the applicant incurred the psychological assessment²⁰ despite its denial by the respondent and subsequently attended for 28 psychotherapy sessions between March 5, 2019 and February 5, 2020.²¹ Further, while the respondent is correct that no CNRs from his psychotherapy sessions have been submitted as evidence for the hearing, I decline to draw an adverse inference as requested by the respondent on this basis. The applicant did submit an August 9, 2019 Psychological Progress Report by Dr. Mrahar which indicated that the psychotherapy treatment that the applicant was receiving was for accident-related complaints. Therefore, I find that the decision of R.K. v. Unifund is similar to the facts in this matter and I too place greater weight on the fact that the denied psychological assessment was incurred in this matter, resulting psychological diagnoses were made, and the applicant continued to attend for treatment even after it too was denied over the one report of sleep problems in Dr. Gengatharan’s CNRs on January 9, 2019.

26For the reasons set out above, I find that the applicant has proven on a balance of probabilities that the proposed psychological assessment was reasonable and necessary. As a result, the applicant is entitled to this treatment plan.

c) Psychological Treatment

27There are two treatment plans in dispute for psychological treatment. The first is dated February 20, 2019 and the second is dated August 9, 2019. The February 20, 2019 OCF-18 was completed by Dr. Sekhar and the August 9, 2019 OCF-18 was completed by Dr. Mrahar. The goals of the two treatment plans were to reduce the applicant’s anxiety and depressed mood, to improve the applicant’s sleep pattern, pain management and to reduce symptoms, and to increase functional activities and return to activities of daily living. The February 20, 2019 treatment plan relied upon Dr. Sekhar’s February 19, 2019 report to support the proposed treatment. In her report, Dr. Sekhar recommended sixteen 1.5-hour sessions of cognitive behaviour therapy to treat the applicant’s symptoms of depression, anxiety, and driving phobia.²²

28The August 9, 2019 treatment plan relied upon the Psychological Progress Report of the same date by Dr. Mrahar that was included in the disputed treatment plan. Dr. Mrahar reported that the issues addressed during the applicant’s treatment included pain, anxiety, sleep disruptions, trauma symptoms, driving anxiety, and depressive symptoms. Dr. Mrahar reported that the applicant was assisted in developing positive thinking patterns, problem solving, implementation of behavioural activation to improve his mood and have greater social interaction, improving his quality of sleep, and increasing self-confidence in his ability to return to his previous level of efficiency. The applicant was also administered the BDI-II and the BAI and again his scores fell within the severe range for depression and anxiety, respectively. Dr. Mrahar also confirmed the applicant’s diagnosis of PTSD at this time. Dr. Mrahar noted that the applicant made some progress during his initial sixteen treatment sessions but recommended a further sixteen 1.5-hour treatment sessions to provide an opportunity for the applicant to refine, adapt, solidify, and consolidate all the new strategies he has been practicing in order to better cope with his psychological and emotional difficulties.

29The respondent’s position was that, generally, the applicant failed to discharge his onus of proving on a balance of probabilities that the benefits claimed were reasonable and necessary by failing to submit “credible medical evidence to support a need for ongoing treatment.”²³ The respondent failed to direct me to any specific evidence disputing the reasonableness and necessity of the proposed psychological treatment.

30On the evidence, I find that the proposed treatment sessions as set out in the February 20, 2019 OCF-18 are reasonable and necessary based upon Dr. Sekhar’s diagnoses and treatment recommendations in his February 19, 2019 report. I also find that proposed treatment sessions as set out in the August 9, 2019 OCF-18 are reasonable and necessary based upon Dr. Mrahar’s August 9, 2019 Psychological Progress Report. Nevertheless, I find that the proposed amount of both treatment plans is not reasonable.

31The August 9, 2019 Psychological Progress Report by Dr. Mrahar stated that the applicant was receiving treatment by Sachkaran Sidhu, qualifying psychological associate, under the supervision of Dr. Mrahar. Treatment provided by Sidhu as opposed to Dr. Mrahar was not proposed in either treatment plan. Sidhu is an unregulated provider under the Financial Services Commission of Ontario’s (FSCO’s) Professional Services Guideline.²⁴ As such, the maximum hourly rate payable for his services without any additional information regarding his qualifications, training, etc. is $58.19 per hour despite the applicant rendering Auto Insurance Standard Invoices (OCF-21s) seeking payment for treatment provided by Dr. Mrahar at the higher hourly rate of $149.61. Further, there is no information to support the separate amounts sought for a mental health test, a mental health assessment, and planning services as proposed on the OCF-18. For these reasons, I find that the applicant is entitled to $1,355.47 of the February 20, 2019 OCF-18 which includes the following:

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

(ii) $931.05 for sixteen 1-hour sessions of psychotherapy (line 2);²⁵ and

(iii) $224.42 for a progress report preparation (line 6).

32The applicant also incurred treatment under the August 9, 2019 OCF-18 despite the respondent’s denial. It is unknown who provided treatment under this plan as no progress report was submitted by the applicant. I also place no weight on the OCF-21s submitted indicating that treatment was provided by Dr. Mrahar given previous OCF-21s were submitted listing Dr. Mrahar as the treatment provider when this was not correct. Therefore, without further information I am prepared to find that the previous hourly rate for unregulated professions of $58.19 that I found payable for the February 20, 2019 OCF-18 is also appropriate regarding this OCF-18. Similar to the February 20, 2019 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. I was also not provided a progress report to support the proposed costs for its completion. For these reasons, I find that the applicant is entitled to $1,131.05 of the August 9, 2019 OCF-18 which includes the following:

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

(ii) $931.05 for sixteen 1-hour sessions of psychotherapy (line 2).²⁶

Interest

33The applicant is entitled to interest in accordance with s. 51 of the Schedule for the January 15, 2019 OCF-18 for a psychological assessment, for $1,355.47 of the February 20, 2019 treatment plan, and for $1,131.05 of the August 9, 2019 treatment plan.

CONCLUSION

34For the reasons outlined above, I find that:

(i) The applicant has met his burden of proving that he did not sustain a minor impairment as a result of the accident and, therefore, he is entitled to benefits beyond the MIG limit;

(ii) The applicant is entitled to the following plus interest in accordance with s. 51 of the Schedule:

(a) The January 15, 2019 OCF-18 for a psychological assessment;

(b) $1,355.47 of the February 20, 2019 treatment plan for psychological treatment; and

(c) $1,131.05 of the August 9, 2019 treatment plan for psychological treatment; and

(iii) The applicant is not entitled to the February 5, 2019, May 17, 2019, and August 28, 2019 OCF-18s for chiropractic treatment.

Released: March 2, 2022

__________________________

Lindsay Lake, Vice Chair

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 Document Brief, tab 5.
4. 4Applicant’s Document Brief, tab 12.
5. 5Ibid. at page 4.
6. 6Ibid. at page 5.
7. 7Ibid. at page 7.
8. 8Ibid. at page 9.
9. 9Ibid. at pages 9-10.
10. 10Ibid. at page 10.
11. 11Ibid. at page 11.
12. 12Document Brief of the Insurer, tab 6.
13. 13Ibid. at page 6.
14. 14Ibid. at page 7.
15. 15Ibid. at page 8.
16. 16Ibid. at page 7.
17. 172019 CanLII 101709 (ON LAT).
18. 18Ibid. at paras. 14-15.
19. 19Ibid. at para. 15
20. 20Applicant’s Document Brief, tab 10E.
21. 21Applicant’s Document Brief, tabs 10G, 10I and 10J.
22. 22Supra note 4 at page 11.
23. 23Submissions of the Respondent, paras. 63-64.
24. 24Superintendent’s Guideline No. 03/14.
25. 25Despite Dr. Sehar’s recommendation for sixteen 1.5-hour treatment sessions, the August 9, 2019 OCF-18 only sought funding for 1-hour treatment sessions.
26. 26Similar to the February 20, 2019 treatment plan, only 1-hour treatment sessions were requested on the August 6, 2019 treatment plan.