Persaud v. Chubb Insurance Company of Canada, 2023 CanLII 34472

Citation: Persaud v. Chubb Insurance Company of Canada, 2023 ONLAT 21-001612/AABS

Licence Appeal Tribunal File Number: 21-001612/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:

Damian Persaud Applicant

and

Chubb Insurance Company of Canada Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Peter Cimino, Counsel For the Respondent: Alon Barda, Counsel

Heard by way of written submissions

OVERVIEW

1Damian Persaud, the applicant, was involved in an automobile accident on January 31, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Chubb Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

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

ii. Is the applicant entitled to $2,180.00 for a psychological assessment, proposed by Whitby Wellness, in a treatment plan submitted May 15, 2020 and denied on July 14, 2020?

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

3A further treatment plan in the amount of $1,902.86 proposed by Athletes Sports Medicine Centre was initially stated by the applicant in his submissions as being in dispute. Both parties subsequently advised that this issue was withdrawn and is no longer in dispute.

RESULT

4The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The treatment plan in dispute is not reasonable and necessary and no interest is payable.

ANALYSIS

Applicability of the Minor Injury Guideline

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

6An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

7The applicant submits that he suffers from chronic pain and psychological impairments, and thus should be removed from the MIG. The respondent disagrees.

Does the applicant have a psychological impairment?

8I find that the applicant does not have an accident-related psychological impairment such that the MIG would not apply.

9The applicant relies on the diagnoses listed in the report of Geeta Srikanth, registered psychotherapist, and Dr. Rick Lindal, psychologist, dated July 21, 2020. The assessor is noted to be Ms. Srikanth, and Dr. Lindal is listed as a supervisor. The report states “it is this examiner’s clinical opinion that Mr. Persaud is suffering from the following Mood Disorders, in accordance with the diagnostic criteria of the DSM-V”, and the diagnoses are listed as Major Depressive Disorder with Anxious Distress (Moderate), and Specific Phobia, Situational Type (driving/passenger related). Differential diagnoses are noted to be Post-Traumatic Stress Disorder and Somatic Symptom Disorder with Predominant Pain.

10The respondent’s position is that it remains unclear what exactly Dr. Lindal supervised, and if he was even present for the assessment. Psychotherapists are not licenced to make diagnoses in Ontario. The psychological diagnoses would have had to have been made by Dr. Lindal, and not Ms. Srikanth. However, the report uses wording such as: “this examiner”, “in my opinion”, “I hope”, “the credentials of the examiner”, appearing to refer to one individual. The report does not identify who the author or examiner is, who conducted the testing, and whether it was Ms. Srikanth or Dr. Lindal who made the diagnoses and expressed opinions. I agree that this puts the foundation of the report on shaky ground and calls into question the reliability of its findings.

11Further, the findings in the report of Ms. Srikanth and Dr. Lindal are not corroborated by the medical records in evidence. On February 1, 2019, the date after the accident, the applicant is noted to be anxious by a physician at Windsor Medical Clinic. No further psychological symptoms are noted until February 3, 2020, when the applicant was prescribed 30 capsules of Cymbalta by his family physician, Dr. Damiano Serio. However, there is no indication of what condition the Cymbalta is being prescribed for, no diagnosis is offered, and there is no mention of psychological difficulties. Dr. Serio’s notes from other visits by the applicant similarly do not diagnose an accident-related psychological impairment or link the applicant’s complaints to the accident. On February 6, 2020, the applicant reports being anxious about an entirely separate health condition unrelated to the accident. On April 3, 2020, the applicant was provided with a prescription for 90 capsules of Cymbalta, although once again, there is no indication as to what it was prescribed for. There were no further visits between April 3, 2020 and January 19, 2021. The note from the visit on January 19, 2021 is the last medical record before me, and it was for a health condition unrelated to the accident.

12Conversely, the report of Ms. Srikanth and Dr. Lindal mentions quite severe psychological symptoms such as continuous feelings of depression and being anxious most of the time. They note that the applicant experiences panic attacks, flashbacks of the accident, frightening dreams, night sweats, and fear in traffic. None of these symptoms were mentioned anywhere in the applicant’s contemporaneous medical records.

13There is no reference to the records of Dr. Serio in the report, and no indication that any records were reviewed by Ms. Srikanth and Dr. Lindal. There is no mention of other health issues that were causing the applicant distress. Their conclusions appear to have been based solely on the applicant’s self-report, which does not line up with what he was telling Dr. Serio, or how Dr. Serio was treating his complaints. There is no mention of the applicant taking Cymbalta at the time of the assessment either; Ms. Srikanth and/or Dr. Lindal only note that he was taking medication for pain and inflammation. Further, the report states that the applicant experiences “continuous pain (i.e. pain 24 hours per day and 7 days per week)”, which is not in keeping with what he told Dr. Serio, who noted his pain around that time to be “intermittent” and “on/off”. There is a significant disconnect between this report and the medical records.

14I therefore give little weight to the report of Dr. Srikanth and Dr. Lindal. The only other reliable evidence before me are the medical records from a walk-in clinic and Dr. Serio, and there is very little indication in those records that the applicant suffers from a psychological impairment stemming from the subject accident. I find that the applicant has not proven on a balance of probabilities that he has a psychological impairment such that the MIG would not apply.

Does the applicant have a chronic pain condition?

15I find that the applicant does not have a chronic pain condition such that the MIG would not apply. There are very few references to “chronic pain” in the clinical notes of Dr. Serio, and it is not clear in the records whether that is a formal diagnosis, or documentation of the applicant’s self-reporting.

16In any event, the applicant has not provided evidence as to how his pain impacts his function, the severity of his pain, the frequency of his pain, or whether he meets any of the six criteria under the AMA Guides that the Tribunal has used as an assistive tool to evaluate chronic pain claims. On January 3, 2020, Dr. Serio notes that the applicant’s back pain is intermittent. On April 3, 2020, he notes that the applicant’s low back pain was on/off. Once again, there are no clinical notes and records provided past this date that refer to anything other than an unrelated health condition. The significant gap in the records and the apparent transient nature of the pain raises doubt as to its chronicity, and Dr. Serio’s notes do not indicate how (if at all) his pain may have been impacting his function. The applicant has therefore not met his burden of proof on this ground.

Is the applicant entitled to the psychological assessment proposed by Whitby Wellness?

17I find that the applicant has not met his burden of proving that the psychological assessment is reasonable and necessary. As noted above, aside from the report of Ms. Srikanth and Dr. Lindal, the only medical records that mention psychological difficulties are the reference to the applicant being anxious the day after the accident, the two prescriptions for Cymbalta, and the reference to anxiety about an unrelated medical condition. There was no psychological diagnosis made by Dr. Serio, or even a query of a diagnosis, and it is not clear what the Cymbalta is treating or whether it is accident-related. Dr. Serio did not refer the applicant for psychological treatment, despite making referrals to other specialists. Where the applicant was comfortable discussing anxiety stemming from another health condition with Dr. Serio, the absence of accident-related psychological complaints also undermines the need for the treatment.

18I give very little weight to the s. 44 report of Dr. Ralph Lubbers. He conducted a paper review only, and states, “I am unable to provide recommendations based solely on a file review from a psychological/mental health perspective”. His view of whether the psychological assessment is reasonable or necessary is, by his own admission, of little to no value.

19While appreciating that assessments are, by their nature, speculative, the applicant must still prove that there is some accident-related condition to be investigated through the claimed assessment. As the applicant has not led any such evidence to satisfy his onus to prove that the psychological assessment is reasonable and necessary, I find that he is not entitled to it.

Is the applicant entitled to interest?

20Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are owing, no interest is payable.

ORDER

21The applicant has not met his onus in establishing entitlement to treatment outside the Minor Injury Guideline. The applicant has also not met his onus in establishing that the treatment plan in dispute is reasonable and necessary. Since no benefits are owing, no interest is payable.