Samaroo v. Aviva General Insurance, 2023 CanLII 17705

Citation: Samaroo v. Aviva General Insurance, 2023 ONLAT 20-013169/AABS

Licence Appeal Tribunal File Number: 20-013169/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:

Sabrina Samaroo

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR: Michael Beauchesne

APPEARANCES:

For the Applicant: Ilona Agivaeva, Counsel

For the Respondent: Kristofer Angle, Counsel

HEARD: By way of written submissions

BACKGROUND

2The applicant was involved in an automobile accident on March 1, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule (Schedule).¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal—Automobile Accident Benefits Service (Tribunal)—for resolution of the dispute.

ISSUES

3The issues to be decided in this hearing are as follows:

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

ii. Is the applicant entitled to psychological services in the amount of $1,920.53, proposed by Inline Rehabilitation Centre Inc., in a treatment plan dated August 2, 2018?

iii. Is the applicant entitled to physiotherapy services in the amount of $3,948.91 proposed by Inline Rehabilitation Centre Inc., in a treatment plan dated March 11, 2019?

RESULTS

4The applicant’s injuries are predominantly minor and subject to treatment within the $3,500.00 MIG limit.

5The applicant is not entitled to the treatment plans.

ANALYSIS

Removal from the MIG

6The Divisional Court requires² the applicant to bear the onus of proving, on a balance of probabilities, that she should be removed from the MIG. The applicant contends that physical and psychological injuries she sustained in the collision—as well as a pre-existing condition—should remove her from the MIG.

Physical injuries

7The applicant submits her chronic pain—which she defines as pain lasting “longer than the expected duration for a given injury and which lasts for more than six months”—demonstrates she should be removed from the MIG. She notes Dr. Pamela Punungwe (her family physician) described her pain as chronic on “several occasions”, and points to Dr. Punungwe’s clinical notes and records of May 23, 2019 and May 1, 2021, as evidence of such.

8The respondent argues the applicant never received a chronic pain diagnosis from any medical practitioner—including from Dr. Punungwe—and that there is no medical evidence to support the applicant’s pain is chronic in nature.

9The evidence establishes Dr. Punungwe used the word “chronic” to describe the “onset” of the applicant’s “worsening” lower back pain in her May 2019 report. Her notes made in May 2021 say the same thing. However, I agree with the respondent that chronic pain is not noted in the diagnosis section of either report. In addition, both sets of records, entered two years apart, plan a similar course of treatment that includes physiotherapy, heat and ice applications, and over-the-counter pain medication. Although Dr. Punungwe’s records note the applicant’s pain at these intervals, they do not mention a referral to a chronic pain specialist or other changes to the treatment plan owing to pain with chronic symptomology.

10Further, I do not accept the applicant’s position that her pain is chronic because the symptoms have persisted longer than six months and exceed the duration expected for the injury. This is because an applicant who claims chronic pain to be removed from the MIG, must also show this pain has resulted in a functional impairment (i.e. limitations). Where there is no formal diagnosis of chronic pain, such as in this case, the Tribunal has adopted the six criteria outlined in the American Medical Association (AMA) Guides as an interpretive tool for evaluating chronic pain claims. However, neither the applicant nor the respondent made any submissions on the six criteria. In fact, the applicant’s submission does not rely on any evidence of functional impairments or limitations arising from chronic pain.

11In short, I am not persuaded the applicant suffers from chronic pain. Her submissions on the matter were not supported by the medical evidence put before me. I therefore do not find the applicant should be removed from the MIG due to chronic pain.

Psychological injuries

12The applicant submits the accident caused psychological injuries that consist of a specific phobia and an adjustment disorder that were diagnosed in a report co-authored by Dr. Valery Kleinman (psychologist) and Ms. Snezana Djuric (psychometrist) on April 5, 2018. These diagnoses, according to the applicant, are described in that report as “provisional”.³

13The respondent argues this report cannot be relied upon because it is unclear who arrived at these diagnoses, and because the report provides no details of any objective testing. The respondent also maintains that Dr. Terra Seon’s (psychologist) s. 44 Insurer’s Examination report (dated October 16, 2018) should carry more weight because it is consistent with the clinical notes and records of the applicant’s family physician.

14It is well accepted that psychological injuries warrant removal from the MIG because the definition of minor injury in the Schedule does not include psychological impairments.

15The April 2018 report—described by the assessors as a psychological screening despite the applicant being referred for a psychological assessment—was completed one month after the accident. The purpose of the screening was unclear to me, and there is no mention of any psychometric testing being conducted, despite the involvement of a psychometrist. At the time of the screening, the applicant reportedly avoided driving whenever she could, and experienced anxiety when she was driving. She described intrusive thoughts about the accident—and getting hit again—while driving. The report did indeed mention a provisional diagnosis of a specific phobia, but there is no mention of an adjustment disorder in this report, as claimed by the applicant.

16The October 2018 s. 44 report was completed seven months post-accident. The stated purpose of the examination, in part, was to determine if the applicant suffered minor accident-related injuries (i.e. MIG determination). The applicant underwent three psychometric tests during her three-hour appointment. At the time of this examination, the applicant was still reporting symptoms of vehicular nervousness on occasion, but denied experiencing any significant symptoms of anxiety, avoidance, or fear. She denied any panic symptomology as a driver or passenger in a vehicle. She stated her symptomology was worse initially following the accident, but noted gradual improvement with the passage of time. The assessor’s impression was that the applicant’s presentation was “not of the magnitude to warrant a psychological diagnosis in direct relation to the injuries sustained in the accident.”

17In my view, the evidence of both the applicant’s and the respondent’s reports, when taken together, does not support a psychological injury or impairment.

18Although a diagnosis was offered in Dr. Kleiman and Ms. Djuric’s report, I’m mindful of its provisional nature and the implicit need for further investigation to qualify that diagnosis. Dr. Seon’s examination, completed six months later, provided further investigation and included psychometric testing. This 12-page report is, in my opinion, a much more comprehensive and insightful assessment than the one-page screening report offered by the applicant. I also have more confidence in Dr. Seon’s report because, unlike the screening report, it had a clear purpose that was directly relevant to the MIG determination. The clinical impression offered by Dr. Seon was that no psychological disorders or diagnoses were evident and I see no reason to interfere on the evidence before me.

19Given the applicant did not speak to any corroborating evidence of psychological complaints or symptomology in her submissions and evidence brief, I can only conclude the applicant’s initial psychological symptoms had resolved to the point of not constituting injury or impairment at the time of her assessment with Dr. Seon. As such, I decline to remove the applicant from the MIG on the basis of psychological injury or impairment.

Pre-existing condition

20The applicant submits she was 16-weeks pregnant at the time of the accident, and that this pre-existing condition poses a barrier to her recovery that cannot be overcome within the MIG. The applicant describes her pregnancy as well-documented and reported to her family physician on multiple occasions before and after the accident.

21The respondent argues the applicant has not produced “any evidence whatsoever” of a pre-existing condition that would remove her from the MIG. The respondent relies on Superintendent’s Guideline No. 01/14, produced by the Financial Services Commission of Ontario (FSCO) in February 2014. This guideline characterizes a pre-existing condition as “an extremely limited instance.”

22Section 18(2) of the Schedule requires compelling evidence of a pre-existing condition. This must be evidence documented by a health practitioner prior to the accident. And the condition must prevent the insured person from achieving maximal recovery if subjected to the $3,500.00 limit.

23Although there are no pre-accident clinical notes or records in evidence, I accept the applicant was indeed pregnant 16 weeks prior to the accident because of corroborating evidence in the family physician’s notes and the emergency report of her afternoon hospital visit the day of the accident. However, the applicant’s submission did not point me to any compelling evidence—documented by a health practitioner—that shows her pregnancy prevents maximal recovery under the MIG. For example, the applicant did not speak to evidence of her pregnancy being aggravated by the accident, or of different treatments being needed to support her pregnancy as a result of the accident.

24It is not enough for the applicant to rely on her pregnant condition to be removed from the MIG. She also needs to provide compelling medical evidence to show this condition prevents maximal recovery if subjected to the MIG limit of $3,500. This is underscored in both section 18(2) of the Schedule and the FSCO Superintendent’s Guideline provided by the respondent, which says: “The existence of any pre-existing condition will not automatically exclude a person’s impairment from … (the MIG).”

25In short, I find the applicant has failed to demonstrate she meets the test to be removed from the MIG under section 18(2) of the Schedule. Due to a lack of compelling evidence, I am not persuaded the applicant’s pregnancy prevents her from achieving maximal recovery under the MIG. I therefore find the applicant should not be removed from the MIG due to a pre-existing condition.

Entitlement to psychological and physiotherapy treatment plans

26As the MIG limits have been exhausted, an analysis of the reasonableness and necessity of the treatment plans is not required. The applicant is not entitled to the treatment plans because the applicant remains in the MIG.

ORDER

27The application is dismissed.

Footnotes

1. 1Effective September 1, 2010 (including amendments effective June 1, 2016).
2. 2Scarlett v. Belair, 2015 ONSC 3635
3. 3The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), provides for a provisional diagnosis when the clinician thinks a particular disorder is present, but realizes more information is required to be confident of a specific diagnosis.