Shanmugasundaram v. Aviva General Insurance Company, 2022 CanLII 23409

DECISION

Citation: Shanmugasundaram v. Aviva General Insurance Company, 2022 ONLAT 20-004473/AABS

Licence Appeal Tribunal File Number: 20-004473/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:

Janani Shanmugasundaram

Applicant

and

Aviva General Insurance Company

Respondent

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: David J Levy and Adam B. Kuciej, Counsel

For the Respondent: Jessica Bacopulos, Counsel

Written Hearing: Heard by way of written submissions

OVERVIEW

1Janani Shanmugasundaram (“the Applicant”) was involved in an automobile accident on September 16, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016). The Applicant was denied certain benefits by the Aviva General Insurance Company (“the Respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES

2The issues in dispute to be decided are:

1. Is the Applicant entitled to an income replacement benefit of $358.27 per week from June 9, 2018 to May 3, 2019?
2. Is the Applicant entitled to $2,557.60 for chiropractic services and massage recommended by Dr. Salayeva in a treatment plan (OCF-18) dated May 12, 2018?
3. Is the Applicant entitled to the balance of $547.68 for psychological services recommended by Dr. Aghamohseni in a partially approved treatment plan (OCF-18) dated December 22, 2017?
4. Is the Applicant entitled to $2,324.80 for chiropractic services and massage recommended by Dr. Salayeva in a treatment plan (OCF-18) dated January 17, 2019?
5. Is the Applicant entitled to the balance of $1,570.97 for psychological services recommended by Dr. Aghamohseni in a partially approved treatment plan (OCF-18) dated October 9, 2019?
6. Is the Applicant entitled to $2,000.00 for an occupational therapy assessment recommended by Elsa Poon in a treatment plan dated May 19, 2020?
7. Is the Applicant entitled to $2,010.00 for medical services recommended by Dr. Wilderman in a treatment plan (OCF-18) dated July 30, 2020?
8. Is the Applicant entitled to interest on any overdue payment of benefits?
9. Is the Respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

BACKGROUND

3The Applicant was the front seat passenger of a vehicle which struck a left-turning vehicle in an urban intersection. The police report from the accident lists no injuries and the Applicant sought no medical attention at the scene of the accident. She went to a physiotherapy clinic a few days later, on September 19, 2018. There, she was assessed by a physiotherapist and kinesiologist who determined that she sustained a predominantly minor injury and treatment was recommended, pursuant to the Minor Injury Guideline (“the MIG”).

4The Applicant then went to her family physician, Dr. U. Hack, almost two weeks following the accident and complained of headaches, back, shoulder, neck, and right ankle pain. Dr. Hack gave the Applicant pain medication, referred her for imaging and to physiotherapy treatment, and advised her to follow up in a week. Ultrasound imaging found mild anterior spurring at L3 but showed normal results otherwise. The Applicant did not follow up as advised but met with Dr. Hack on March 8, 2018 with complaints of left-sided neck pain and lingering back pain. The Applicant was given additional pain medication, but no changes to her treatment were recommended.

5The Applicant participated in a psychological assessment pre-screen on December 22, 2017, which was between her first two post-accident visits to Dr. Hack. The pre-screen report states that the Applicant reported difficulty sleeping at night as well as feelings of stress and anxiety and that a full psychological assessment is recommended.

6To me, the evidence shows that the Applicant’s predominant accident-related injury is the anxiety and depression she developed following the accident. A May 29, 2018 report by insurer’s examination (“IE”) assessor, Dr. M. Saghatoleslami, psychologist, concluded that the Applicant suffered from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, due to the accident. In a June 27, 2018 report by L. Abbaszedeh, supervised by Dr. Aghamohseni, the Applicant was diagnosed with a Major Depressive Disorder, Somatic Symptom Disorder with Predominant Pain, and vehicular phobia.

7From a physical perspective, the Applicant sustained neck, shoulders, and back sprain and strain-type injuries. She also complained of right ankle pain. To her, the pain is now chronic and permanently disabling.

INCOME REPLACEMENT BENEFITS (“IRBs”)

8Pursuant to section 5 of the Schedule, IRBs are payable to insured persons who, within the first 104 weeks following the accident, are substantially unable to perform the essential tasks of their pre-accident employment as a result of an impairment. The onus is on the Applicant to prove on a balance of probabilities that she is substantially unable to perform the essential tasks of her employment as a result of the accident.

9The Applicant was employed at a large chain clothing retailer. According to her, the essential tasks of her employment included prolonged sitting or standing, repetitive handling of merchandise at the point of sale and in-store, concentration and dexterity to operate a cash register, and customer interactions. No company-issued job description or similar document was provided for this hearing.

10I find that on the evidence that the Applicant is not substantially unable to perform her essential work tasks.

11No medical professional has opined that the Applicant is unable to work as a result of accident-related injuries and for the period she claims IRBs. The Applicant produced one disability certificate, which was completed by Dr. B. Ng., chiropractor, dated September 29, 2017. That document lists soft-tissue injuries and “other sleep disorders” as the totality of the Applicant’s injuries and anticipates a duration of disability of 9-12 weeks. The CNRs from Dr. Hack include a May 31, 2018 entry that states that the Applicant has not worked since the accident, but that note does not signify that her absence from work is as a result of the accident. To-date, there is no record or note from Dr. Hack that states that the Applicant is unable to work as a result of the accident. No other disability certificate was submitted as evidence for this hearing.

12The Applicant’s psychological assessment reports are uncompelling evidence of an inability to carry out essential work tasks. The report by L. Abbaszadeh and Dr. Aghamohseni dated June 27, 2018 and the progress report by A. Patel, dated October 25, 2018, state that the Applicant would benefit from IRBs because she is not working. Statements like these are unhelpful because they do not attribute the Applicant’s absence from work to a disability and deliver no help for the reader to determine the cause of the Applicant’s absence. Indeed, the Applicant would benefit from receiving IRBs during this period because she stopped working at her place of employment. However, I am not convinced that her absence is as a result of the accident. As the Respondent noted in its submissions, the Applicant stopped working in anticipation that she would be hampered by pain at work. Yet, there is nothing that suggests that the Applicant was unable to work a part-time retail job due to her accident-related injuries and, as noted earlier, there is no evidence that a medical practitioner has confirmed that she is unable to work as a result of the accident. In fact, Dr. Saghatoleslami concluded in the May 29, 2018 report that, although the Applicant sustained an adjustment disorder with mixed anxiety and depressed mood, she did not suffer a substantial inability to perform the essential tasks of her pre-accident employment.

13The Applicant was fit to complete post-secondary school courses and participate in field placements during her social work studies in 2018 and 2019. Transcripts show that the Applicant was completed six courses during the winter 2018 session, two courses during the summer 2018 session, five courses during the fall 2018 session, and three courses during the winter 2019 session. She was also awarded grades of “satisfactory” for her field placements in the winter 2018, fall 2018, and winter 2019 placements. The ability to complete many post-secondary school courses and real-world field placements as a student in the field of social work, without any evidence that she received any accommodations, also suggests that the Applicant is functional and able to sit and/or stand for prolonged periods while in class or in field placements, complete repetitive tasks such as keyboarding and/or note taking, and has the concentration and dexterity to complete her field placements and coursework. To me, this suggests that the Applicant is able complete her essential tasks of a retail salesperson, despite the physical pain or psychological symptoms she reported.

14Lastly, I note that the Applicant never produced her employment file, complete post-secondary school records, and collateral benefits file, despite agreeing to do so. These documents are relevant to the Applicant’s claim. These files would shed light on whether she sought other medical assistance such as accommodations at school or assistive devices to cope with the impairments which she claims are preventing her from completing her essential work tasks.

THE DISPUTED TREATMENT AND ASSESSMENT PLANS

The Chiropractic Treatment Plans Dated December 22, 2017 and May 12, 2018

15The Applicant claims entitlement to these two treatment plans because the plans’ goals of pain reduction, increasing strength and range of motion, and to return the Applicant to her activities of daily living are reasonable and necessary treatment for her ongoing myofascial strains. She highlights that she was diagnosed with non-minor injuries by Dr. Aghamohseni and Dr. Saghatoleslami, suggesting that the MIG ought not be a barrier to her entitlement to these treatment and assessment plans and also submits that they were unreasonably denied based on the improper characterization of her injuries as being within the minor injury definition. The Respondent disagrees and submits that its denials were based on the opinion of Dr. C. Sandhu, occupational medicine physician, who felt that the Applicant should focus on an active independent exercise program instead.

16I find that these treatment and assessment plans are not reasonable and necessary for the Applicant’s accident-related injuries. While I note that the Applicant had lingering pain at the time these plans were proposed, the specialists caring for her recommended that she remain as active as possible. For example, Dr. Hack advised the Applicant to engage in physiotherapy at a visit on September 28, 2017. During a July 19, 2018 visit with Dr. T. Han, physical medicine physician, the Applicant was advised that she should remain as active as tolerable. Likewise, Dr. C. Sandhu, physician, in an October 23, 2019 assessment and report, also advised that the Applicant should focus on an active independent exercise program. Further passive treatment, such as the chiropractic and massage therapy recommended in these plans, is not reasonable and necessary considering Dr. Sandhu’s and Dr. Han’s recommendations for active therapy or exercise.

The Psychological Assessment Plan Dated December 22, 2017

17This plan seeks funding for a psychological assessment and report. The plan includes funding for the following services as part of the assessment: consultation with other healthcare providers, clinical interview, file and medical document review, report preparation, psychological test administration and analysis, and form fees.

18The Applicant claims that the Respondent failed to reply to this treatment and assessment plan in accordance with the Schedule. She also submits that the Respondent’s delay in responding to this treatment and assessment plan resulted in an exacerbation of her psychological injuries. The Respondent submits that it partly approved the treatment plan and responded to it according to the Schedule. To the Respondent, it partly approved the treatment plan because it felt that the assessment could be completed in a total of 10 hours.

19I find that the Respondent replied to the treatment and assessment plan in accordance with the Schedule. Although the plan is dated December 22, 2017, it was submitted on January 18, 2018 and replied to on February 1, 2018. This is within the time limit of 10 business days required by section 38(8).

20I find that the unapproved balance of this treatment and assessment plan is reasonable and necessary. The breakdown of the services provided in the treatment and assessment plan appear reasonable and are within the funding limit provided by section 25(5) of the Schedule. The Respondent’s position that the assessment can be conducted within 10 hours is without any explanation other than because the IE psychologist, Dr. Saghatoleslami, said so. The argument is uncompelling considering that Dr. Saghatoleslami provided no explanation as to why 10 hours is the reasonable amount of time and I defer to the treating healthcare provider to best determine the amount of time required to conduct an assessment and produce the corresponding report. The Applicant is entitled to payment for the assessment, plus interest pursuant to section 51 of the Schedule.

21I acknowledge that the Respondent submits that the assessment was conducted by a social worker, with an hourly rate which is less than that of a psychologist. This issue had no impact on my determination that the goods and services proposed in the psychological assessment plan are reasonable and necessary. In the event of a dispute over amounts payable to a service provider, the Respondent is permitted to seek additional information from service provider pursuant to section 46.2 of the Schedule to clarify the issue and the Professional Services Guidelines provide that the Respondent is not liable to pay more than $58.19 per hour for an unregulated professional, such as a social worker.

The Psychological Treatment Plan dated October 9, 2019?

22The psychological treatment plan proposes 12 sessions, lasting a duration of 90 minutes each. It allocates $897.72 for pre- and post-session preparation and $673.25 for the production of a progress evaluation and report. The Respondent partly approved this treatment plan. It refused to pay for pre- and post-session preparation time and for the progress report.

23The Applicant submits that this psychological treatment plan was denied without any medical reasons and infers that she is entitled to the approved balance of the treatment plan. The Respondent submits that it does not require a progress report and considers pre- and post-session preparation to be a service that is included in the hourly session rate of a psychologist.

24I reviewed the evidence and find that the treatment plan was replied to a day later than permitted pursuant to section 38(8). Although the treatment plan is dated October 9, 2019, it was not submitted to the Respondent until about 6 months later, on May 6, 2020. The response dated May 22, 2020 is the 11th business day following receipt. As a result of the delay, and pursuant to section 38(11), the Respondent is liable to pay for the goods and services starting on the 11th business day and ending the following day, when the response was provided. However, the Applicant provided no information about what or when any goods and services were incurred that relate to this treatment plan. I am unable to award anything to the Applicant without knowing what was incurred and when it was incurred because the Respondent’s liability is for services incurred only on May 21, 2020.

25In addition to the above, I find that the Applicant has not met her burden to prove that the unapproved balance of the psychological treatment plan is reasonable and necessary. The Tribunal has previously determined that pre-and post- session preparation is included in the hourly rate of a psychologist and, although I am not bound by other decisions of this Tribunal, I see no reason to depart from those decisions. Further, the Applicant provides no argument in favour of the progress report. As a result, I find that the unapproved balance is not reasonable and necessary.

The In-Home and Chronic Pain Assessment Plans dated May 19 and July 30, 2020

26The Applicant claims entitlement to these assessments on the basis that they were not responded to in accordance with the time provisions outline in section 38(8). She also submits that the assessments are reasonable and necessary because she was diagnosed with somatic symptom disorder and sustained sprain and strain injuries which, to her, persisted.

27The Respondent submits it denied the plans based on Dr. Sandhu’s opinion in the October 23, 2019 IE. It submits that the Applicant is functional, hadn’t visited her family physician since July 2018, and that no new medical information was provided.

28I find that the chronic pain and in-home assessments are not reasonable and necessary as a result of accident related injuries.

29With respect to timing, I agree that the Respondent was untimely with its responses to these treatment plans. The chronic pain assessment plan was submitted on August 4 and replied to on September 30, 2020. The in-home assessment was submitted on May 19 and replied to on July 23, 2020. Both responses are not within 10 business days, as required by section 38(8). The Respondent’s untimely reply entitles the Applicant to the goods and services incurred starting on the 11th business day and ending on the date a proper response is given. Yet, the Applicant never incurred the goods and services during the period of non-compliance. The chronic pain assessment occurred on October 21, 2020 and there is no evidence to show that the in-home assessment ever occurred. Given the above, I find no statutory entitlement to these assessments.

30From a substantive perspective, I find that the Applicant has not met her burden to prove that these assessments are reasonable and necessary. I agree with the Respondent and conclude from the evidence that the Applicant is physically functional and does not require an assessment of her ability to perform her activities of daily living or whether she has chronic pain. She visits her physician infrequently, exhibits no overdependence on prescription pain medication or heath care providers, has functional range of motion throughout her body, and found new work as a social worker by the time these assessments were proposed.

AWARD

31Pursuant to section 10 of O. Reg. 664, the Applicant may be entitled to an award if the Tribunal finds that the Respondent unreasonably withheld or delayed payment of a benefit. An award may be granted where an insurer’s behaviour is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

32I find no award payable for the following reasons.

33Contrary to the Applicant’s submissions, the Respondent did not disregard the that the Applicant was diagnosed with somatic symptom disorder. Instead, when given the psychological pre-screen report and provisional diagnosis by Dr. Aghamohseni, the Respondent exercised its right to examine the Applicant. Seeking an IE following receipt of a psychological assessment pre-screen report, absent any other compelling evidence of a psychological injury, is a reasonable course of action. Further, the Respondent removed the Applicant from the MIG following the IE with Dr. Saghatoleslami, when it was determined that the Applicant sustained an injury which is not a minor injury. Dr. Aghamohseni’s formal diagnosis came only after the IE was conducted and the Applicant was removed from the MIG.

CONCLUSION

34The Applicant was involved in an accident where she sustained sprain and strain injuries as well as psychological injuries. However, her injuries do not raise to the level of severity that they prevent her from completing her essential tasks of employment. Thus, she is not entitled to further IRBs.

35The Applicant is entitled to the unapproved balance of the psychological assessment plan dated December 22, 2017, plus interest pursuant to section 51 of the Schedule.

36The Applicant is not entitled to the remaining treatment and assessment plans.