Subramaniam v. Aviva General Insurance, 2022 CanLII 20126

Citation: Subramaniam v. Aviva General Insurance, 2022 ONLAT 20-005405/AABS

Licence Appeal Tribunal File Number: 20-005405/AABS

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:

Vaikunthavasan Subramaniam

Applicant

and

Aviva General Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Rajwant Bamel, Counsel

For the Respondent:

Kristofer Angle, Counsel

HEARD:

By Way of Written Submissions and by Videoconference – November 22 & December 7, 2021 & February 18, 2022

REASONS FOR DECISION AND ORDER

BACKGROUND

1Vaikunthavasan Subramaniam ("applicant") was involved in an automobile accident on May 29, 2018 ("accident"). The applicant sought benefits from Aviva General Insurance ("respondent") pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2Benefits were denied by the respondent. The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal") for dispute resolution.

ISSUES

3The issues to be decided in this hearing are:

i. Is the applicant entitled to the cost of examination in the amount of $2,000.00 for a psychological assessment, recommended by Dr. Andrew Shaul, in a treatment plan submitted December 6, 2018, and denied on December 17, 2018 ("psychological assessment")?

ii. Is the applicant entitled to the cost of examination in the amount of $1,981.70 for a driver's rehabilitation assessment, recommended in a treatment plan submitted by Dr. Andrew Shaul, of Toronto Healthcare Clinic on July 5, 2018, and denied on July 9, 2018 ("driver's rehabilitation assessment")?

iii. Is the applicant entitled to a medical benefit in the amount of $13,166.56 for medical services (established in the case conference as a multi-disciplinary chronic pain program), recommended by Toronto Healthcare Clinic submitted on February 13, 2019, and denied on February 20, 2019 ("multidisciplinary chronic pain program")?

iv. Is the applicant entitled to a medical benefit in the amount of $3,784.82 for psychological services recommended by Dr. Andrew Shaul submitted on September 30, 2019, and denied on October 4, 2019 ("psychological services")?

v. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

vii. The applicant is asking for costs.

RESULT

4The applicant is not entitled to the cost of the psychological assessment, the psychological services, drivers rehabilitation assessment or the multidisciplinary chronic pain program. No award is made. No interest is payable. No costs are awarded to the applicant. The applicant's application is dismissed.

LAW

5Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.²

ANALYSIS

Positions of the Parties

6The applicant submits that the psychological assessment, the psychological services, driver's rehabilitation assessment, and the multidisciplinary chronic pain program are all reasonable and necessary because of the physical and mental health injuries suffered by the applicant in the accident as evidence by his various medical reports and records submitted at this hearing.

7The respondent submits that the disputed treatment plans are not reasonable or necessary.

Is the Applicant Entitled to the Psychological Assessment?

Is the Applicant Entitled to the Psychological Services?

8After considering all of the evidence, submissions and cases put forward by the applicant I find that the applicant is not entitled to this psychological assessment or to the psychological treatment because the applicant has not provided any persuasive evidence to meet his burden of proof that either treatment plan is reasonable and necessary for injuries suffered as a result of the accident.

9The report from the applicant's psychological assessment with Dr. Shaul shows that it was conducted by Helen Ilios, a psychotherapist "under the supervision of" Dr. Shaul, psychologist. The treatment plan does not propose that a psychotherapist would be involved in the assessment. Further, the report does not adequately describe the psychotherapist's involvement, or explain how Dr. Shaul can render a psychological diagnosis in circumstances where it appears unlikely that he ever spoke at any length with the applicant, and appears to have not brought any of his professional skills directly to the assessment of the applicant. As a result, this assessment adds nothing to the understanding of the applicant's medical condition post-accident and its content, cost and utility is neither reasonable nor necessary and I give this assessment no weight.

10Because the psychological assessment bearing the signature of Dr. Shaul is unreliable for the reasons given above, this treatment plan for psychological services to the applicant is significantly undermined, and I give no weight to this treatment plan for proposed psychological services by Dr. Shaul.

11Further, Drs. Debow and Sethi, respondent's psychiatrists, assessed the applicant and were unable to render accident-related diagnoses. I prefer the opinions of Drs. Debow and Sethi because of the specialized education, training and experience of both of these physicians, and because they are consistent with each other. Dr. Shaul's interaction with the applicant in regard to accident-related issues appears minimal, if any.

12Still further, during his assessment with Dr. Sethi, the applicant reported that his mental health concerns resolved after he received therapy mandated by the Ministry of Transportation and with medication.

13There is little support in the applicant's medical records for the applicant's submission that this psychological assessment or treatment is reasonable and necessary. Although in the June 6, 2018 OCF-3 disability certificate, the applicant's chiropractor Dr. Khaira indicates "behaviour – symptoms and signs involving emotional state", as a chiropractor Dr. Khaira, like Dr. Minnella, the applicants other chiropractor, is not qualified to diagnose these issues.

14The applicant did not point to any other persuasive medical records about accident-related mental health issues.

15The applicant self-reported to Dr. Sethi that his mental health concerns resolved after he received therapy mandated by the Ministry of Transportation and with medication.

16Based on the totality of the evidence, I find that the applicant is not entitled to the cost of this physiotherapy treatment as it is not reasonable and necessary for injuries suffered as a result of the accident.

Is the Applicant Entitled to the Drivers Rehabilitation Assessment?

17After considering all of the evidence, submissions and cases put forward by the applicant, I find that the applicant is not entitled to the drivers reintegration assessment because the applicant has not provided any persuasive evidence to meet his burden of proof that it is reasonable and necessary for injuries suffered as a result of the accident.

18The applicants driving record filed by the respondent shows that his driver's licence was suspended as a result of a criminal conviction at the time this driver's rehabilitation assessment was proposed. As a result, I find that driving rehabilitation assessment is not reasonable and necessary as the applicant was legally precluded from driving at the relevant time. Further, the applicant did not point to any evidence establishing that he has ever taken appropriate action to reinstate his driver's licence subsequent to January 11, 2020, the end date of the suspension period.

19The onus remains is on the applicant to establish that the driving rehabilitation assessment is reasonable and necessary. Entitlement to medical benefits is not automatic but must be established by appropriate evidence. I find that the applicant has not done so here.

Is the Applicant Entitled to the Multidisciplinary Chronic Pain Program?

20The respondent approved the proposed physical treatment contained in this treatment plan prior to this hearing in the amount of $10,760.16, leaving $2,406.40 in dispute. The disputed amount relates to psychological treatment as part of the chronic pain treatment plan.

21After considering all of the evidence, submissions and cases put forward by the applicant, I find that the applicant is not entitled to the balance of $2,406.40 because, the applicant has not provided sufficient evidence to meet his burden of proof that it is reasonable and necessary for injuries suffered as a result of the accident.

22Although the applicant relies on the January 9, 2019 report of Dr. Jacobs of Jacobs Pain Centre, I give this report little weight because Dr. Jacobs does not explain the applicant's alleged psychological impairment, or the need for this psychological assessment or treatment. The applicant did not point to any other persuasive evidence in support of this disputed portion of the treatment plan.

23I prefer the March 15, 2019 assessment of respondent's psychiatrist Dr. Sethi who assessed the applicant specifically in relation to the psychological treatment aspect of this proposed treatment. Again, during his assessment with Dr. Sethi the applicant reported that his mental health concerns resolved after he received therapy mandated by the Ministry of Transportation and with medication. Dr. Sethi did not render a DSM-5 diagnosis and opined that this psychological treatment is not reasonable and necessary. I prefer the opinion of Dr. Sethi given his specialized expertise, education and experience with psychological issues and his specific assessment of the applicant in regard to this portion of the proposed treatment.

24The onus remains on the applicant to establish that this portion of the treatment is reasonable and necessary. I find that the applicant has not done so here.

Award

25Section 10 of Regulation 664 provides that the Tribunal may make an award in addition to awarding benefits and interest if the respondent has unreasonably withheld or delayed payments.

26In summary, the applicant submits that the respondent unreasonably withheld or delayed payments and an award is warranted because the respondent did not approve of or pay for benefits that the respondent clearly needed, made arbitrary, high-handed and unfounded denials of benefits claimed by the applicant, and failed to adjust the applicants claim on a good faith basis or even an evidentiary basis. The applicant also submits that respondent's behaviour was unreasonable, excessive, impudent, stubborn, inflexible, unyielding or immoderate and the respondent did not adjust the file in a fair and even-handed manner, but only had regard to the medical reports of its independent assessors and ignored the applicant's medical evidence.

27The respondent submits that an award is not warranted because it made decisions on the applicants claims based on the medical and other evidence it had at the time, and that all medical information was fairly weighed as its adjuster Robert McFarlane testified on his cross-examination. The respondent denies it unreasonably withheld or delayed payments and denies it acted in an arbitrary, high-handed manner lacking good faith as alleged by the applicant. The respondent also submits that the mere fact that it did not approve all claims submitted by the applicant does not mean that the denials were made in bad faith.

28I decline to make an award. On the evidence before me, I cannot find that the respondent unreasonably withheld or delayed payments to the applicant.

29The respondent denied the plans for the reasons it expressed which was not unreasonable given the reports it received from its assessors and the other information on file. It is clear from the evidence, that the respondent continued to adjust the applicant's claims as it is required to do as updated medical and other information became available, and in doing so, has not unreasonably withheld or delayed payments.

Interest

30As no benefits are payable, no interest is payable.

Costs

31The applicant requests costs but fails to set out specific reasons why costs should be awarded. I am not satisfied that there is any basis on which costs are appropriately claimed, or on which it can be said that the respondent's conduct has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as amended. No costs are awarded to the applicant.

ORDER

32For the reasons outlined above, the applicant is not entitled to the cost of the psychological assessment, the psychological services, drivers rehabilitation assessment or the multidisciplinary chronic pain program. No award is made. No interest is payable. No costs are awarded to the applicant. The applicant's application is dismissed.

Footnotes

1. 1O. Reg. 34/10.
2. 2Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.).