Citation: Ramcharran v. Aviva General Insurance Company, 2023 ONLAT 20-009438/AABS

Licence Appeal Tribunal File Number: 20-009438/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:

Elizabeth Ramcharran

Applicant

and

Aviva General Insurance Company

Respondent

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Farid Mahdi, Counsel

For the Respondent: James Kolumbus, Counsel

HEARD: By Way of Written Submissions

1Elizabeth Ramcharran (the “applicant”) was involved in a motor vehicle accident on April 20, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva General Insurance Company (the “respondent”) denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant submits that she sustained neck, left shoulder, and low back injuries in the accident and suffers from a chronic pain condition and a psychological impairment as a result. As chronic pain and psychological impairments are not included in the definition of a minor injury in the Schedule, she claims that this warrants treatment outside of the Minor Injury Guideline (the “MIG”) and its $3,500.00 limitation. She is also claiming entitlement to four treatment plans and interest on all overdue benefits, along with an award due to allegations that the respondent has unreasonably withheld benefits.

3The applicant acknowledges in her submissions that the MIG limit of $3,500.00 has been exhausted. As a result, she must be found to warrant treatment outside of the MIG to be entitled to the treatment plans in dispute.

4Aviva counters that the applicant has failed to submit sufficient evidence to prove that she sustained injuries in the accident that are not predominantly minor in nature. As a result, the respondent holds that she should remain within the MIG and that she is correspondingly not entitled to the treatment plans, nor interest. The respondent also asserts that its actions were in accordance with the Schedule and that since no benefits are owing, it is not liable to pay an award.

ISSUES IN DISPUTE

5The following issues are in dispute:

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 of the MIG?
Is the applicant entitled to $109.74 ($1,309.74 less $1,200.00 approved) for chiropractic services, recommended by One Life Wellness in a treatment plan/OCF-18 dated July 26, 2018?
Is the applicant entitled to $1,342.48 for chiropractic services, recommended by One Life Wellness in a treatment plan/OCF-18 dated December 6, 2018?
Is the applicant entitled to $2,179.22 for a psychological assessment, recommended by Community Health and Counselling Services Inc. in a treatment plan/OCF-18 dated April 8, 2020?
Is the applicant entitled to $2,530.00 for psychological services, recommended by Community Health and Counselling Services Inc. in a treatment plan/OCF-18 dated April 8, 2020?
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

RESULT

6I find that:

i. The applicant has demonstrated that she suffers from a psychological impairment as a direct result of the accident. As psychological impairment is not included in the Schedule’s definition of a minor injury, she is no longer subject to treatment within the MIG and its $3,500.00 limit.

ii. The applicant is entitled to the treatment plans for a psychological assessment and for psychological services, both dated April 8, 2020, as she has demonstrated them to be reasonable and necessary. She is entitled to interest on all overdue and incurred benefits with regard to these treatment plans in accordance with s. 51 of the Schedule.

iii. The applicant is not entitled to the treatment plans for chiropractic services dated July 26, 2018 and December 6, 2018, as she has not demonstrated them to be reasonable and necessary. It follows that as there are no benefits owing on these plans, no interest is payable.

iv. The respondent is not liable to pay an award.

ANALYSIS

The Minor Injury Guideline (“MIG”)

7I find that the applicant has demonstrated that she suffers from a psychological impairment, which warrants removal from the MIG and its $3,500.00 limit.

8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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.” An insured person 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.

9The onus is on the applicant to show, on a balance of probabilities, that her injuries fall outside the MIG. In this instance, the applicant submits that she suffers from a chronic pain condition and psychological injuries as a result of the accident, warranting her removal from the MIG. She relies on the clinical notes and records (“CNRs”) of Dr. Mahadeo Balkissoon, family physician; reports by Dr. Sogoal Kachooie, physiatrist, dated September 20, 2021 and January 12, 2022; and a psychological assessment report conducted by Sathis Kumar Srinivasan, psychotherapist, under the supervision of Erin D. Langis, psychologist, dated May 4, 2020.

10In response, Aviva relies on a multidisciplinary assessment insurer’s examination (“IE”) report dated October 14, 2020. Two separate medical reports are included here. Dr. Esmat Dessouki, physiatrist, examined the applicant regarding the MIG claim and the two chiropractic treatment plans in dispute on August 12, 2020. Dr. Godwin Lau, psychologist, examined the applicant on September 20, 2020 with regard to the MIG and to assess the reasonable and necessary nature of the psychological treatment plans. Both physicians also provided paper review addendums dated November 17, 2020.

11Below, I separately review the applicant’s claims to suffer a psychological impairment and chronic pain.

Does the applicant suffer from a psychological impairment?

12I am persuaded on a balance or probabilities by the applicant’s claim that she suffers from a psychological impairment as a result of the accident. As such a condition is not included in the definition of a minor injury in the Schedule, this warrants her removal from the MIG and its $3,500.00 limit on treatment.

13I prefer the report of Mr. Srinivasan due to its thorough nature and its diagnoses, and assign it a great deal of weight. He covered a wide range of testing with the applicant, including the Beck Depression and Beck Anxiety Inventories, along with the Severity Measure for Specific Phobia (Adult), Post-Traumatic Stress Disorder Checklist (PCL 5), Pain Disability Index, Pain Catastrophizing Scale, and Injustice Experiences Questionnaire tests. Mr. Srinivasan also conducted a thorough clinical interview with the applicant that addressed specific symptoms in detail, including a fulsome account of her vehicular phobia, her sleep issues, and how anxiety about her injuries has turned into obsessive worries about her health, driving, and future. As a result of testing and the interview, Mr. Srinivasan diagnosed the applicant with a class 3 (moderate) level of impairment, due to other specified trauma, and stressor-related disorder (adjustment-like disorder with prolonged duration of more than six months), along with somatic symptom disorder with predominant moderate pain.

14Additionally, I find that Dr. Lau largely supports the assessment of Mr. Srinivasan in his IE report, even if his conclusions do not. Although Dr. Lau chose not to diagnose the applicant with any psychological disorder as a result of the accident and further held that her condition fell within the MIG, these decisions stand at odds with his actual findings. In the body of the report, he wrote that testing scores put the applicant in the mildly depressed range on the Beck Depression Inventory, the mildly anxious range on the Beck Anxiety Inventory, and the moderately hopeless range on the Beck Hopelessness Scale. Dr. Lau further found that the applicant’s personality indicated dependent, compulsive, and paranoid tendencies, and that she reported an above average level of affective distress on the Multidimensional Pain Inventory. Dr. Lau noted briefly that these results were inconsistent with the applicant’s “normal clinical presentation” during his assessment, but these comments were not backed up with evidence such as testing for malingering or symptom magnification (which he does not seem to have conducted). Dr. Lau does not explain the contrast between his test results and observations and his apparent unwillingness to make a diagnosis. This all seems contradictory, and I assign his conclusions little weight as a result.

15For the reasons noted above, I find that the applicant has demonstrated that she suffers from a psychological impairment that is not included in the definition of a minor injury in the Schedule. She is entitled to treatment outside of the MIG.

Does the applicant suffer from chronic pain?

16I am not convinced by the applicant’s claim that she suffers from chronic pain as a result of the accident.

17First, no medical practitioner has diagnosed the applicant with chronic pain. Although applicant submissions characterize Dr. Kachooie as a chronic pain specialist, his initial assessment report—completed following a phone interview with the applicant on September 20, 2021—notes that the applicant was referred to him by Dr. Balkissoon because of a presumed need for an injection to address left shoulder bursitis pain. Dr. Kachooie concluded that the applicant had left shoulder, upper back, and neck pain, and recommended an in-person assessment. In his second appointment with the applicant, held on January 12, 2022, Dr. Kachooie expanded on his initial diagnosis, citing neck and left arm pain likely secondary to whiplash and myofascial pain. All are minor injuries as defined in the Schedule. He prescribed Baclofen, a muscle relaxant, along with physiotherapy, and discussed the possibility of trigger point injections if these methods did not prove successful. At no point in his records does Dr. Kachooie mention the presence of chronic pain, let alone diagnose the applicant with a chronic pain condition. There is also no evidence that the applicant saw the physician beyond these two appointments.

18Second, the applicant does not fully support her claim to suffer from at least three of the six criteria used to assess chronic pain listed in the 6^th edition of the American Medical Association’s (“AMA”) Guides to the Evaluation of Permanent Impairment (the “Guides”). At least three of the following six criteria must be met to support a diagnosis of chronic pain according to the Guides (which I accept as a useful tool for the evaluation of chronic pain by this Tribunal, while also noting that meeting its standards is not necessary to demonstrate the existence of chronic pain):

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse, or family;

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contacts;

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs;

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

19Here, the applicant submits that she meets criteria i, ii, iii, iv, and vi of the Guides as listed above. I do not entirely agree, for the following reasons.

20Criteria i: I am not persuaded that the applicant used prescription drugs beyond the recommended duration, or that she abused such drugs or demonstrated a dependence on them or other substances. She does not seem to have taken much medication at all for pain resulting from the accident, either over the counter or by prescription. Evidence before me shows that the applicant was prescribed Baclofen by Dr. Kachooie, but other than this she took over-the-counter Advil, Tylenol, and Robaxacet, and used CBD drinks and marijuana for pain relief. As of her examination by Dr. Lau on September 20, 2020, the applicant reported she was only using an anti-inflammatory medication on an as-needed basis.

21Criteria ii: There is insufficient evidence to demonstrate that the applicant excessively depended on health providers or family as a result of chronic pain. She visited Dr. Balkissoon just nine times between May 10, 2018 and September 8, 2021, which does not show an excessive dependence on her family doctor, at least in my view. It is also impossible to determine why the applicant visited Dr. Balkissoon, as his submitted CNRs are all handwritten and difficult to decipher. The applicant saw Dr. Kachooie on just two occasions. And while the applicant was examined by Mr. Srinivasan, she did not attend any sessions of psychological therapy. Little evidence has been adduced to demonstrate an excessive dependence on family, either, beyond reporting to both Mr. Srinivasan and the IE assessors that she has had to rely on family—primarily her mother—with housekeeping chores and looking after her children. At the same time, however, the applicant continued to work as a registration clerk in a hospital, and began working a second job of some 15-20 hours per week in a family medical clinic in July 2019. This, to me, is incongruent with a claim of being impaired to such a degree that the applicant required family to look after her home and children. It also suggests that she needed this help because she was working two jobs, not because of accident-related impairments.

22Criteria iii: Although the applicant alludes to meeting this criteria, she has produced little objective evidence that would support such a claim of secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain. She commented to assessors about no longer being able to do as much housework, look after her children, or be as physically active as she was before the accident. But these are entirely self-reported claims with insufficient backing in the medical evidence to validate a claim of physical deconditioning. The applicant also speaks to being self-reliant in most ways. She told Dr. Lau on September 20, 2020 that she could look after all self-care tasks, could carry light weights, was doing light cooking, laundry, cleaning, and grocery-shopping, was fine with walking and standing although she could not sit for long, and that she was presently working the two jobs mentioned above. This level of functionality and activity do not support claims to secondary physical deconditioning.

23Criteria iv: I find that the applicant has supported her claim of experiencing withdrawal from social milieu, including work, recreation, or other social contacts. The applicant is thorough and consistent in describing the role that physical pain and vehicular anxiety have affected her recreational and social activities. She tells Mr. Srinivasan, for example, that these factors had caused her to curtail such pursuits by an estimated 60 per cent since the accident and that she was particularly frustrated over not being able to spend time out with her son as she had before the accident. She reiterated these concerns and frustrations to all of the medical practitioners who examined her, and I see no reason to doubt her claims. While this is also largely self-reporting, the applicant is more consistent in her accounts here than she was when she spoke to assessors regarding her level of physical activity, as in the Dr. Lau example noted immediately above.

24Criteria v: The applicant has not substantiated that she has failed to restore her pre-injury function after a period of disability to the point where she is unable to pursue work, family, or recreational needs. Although the applicant submits that she has curtailed an estimated 60 per cent of her recreational and social activities post-accident, there is no objective support for this claim. And, as noted above, the applicant did return to her former job after the accident and even took on a second job.

25Criteria vi: I find that the applicant has supported her claim to have developed psychosocial sequelae, including anxiety, fear-avoidance, depression, or nonorganic illness behaviour as a result of the accident. The evidence for this finding can be found in the reports of Mr. Srinivasan and Dr. Lau, which I detail above in the section on the applicant’s psychological impairment claims.

26For the above reasons, I find that the applicant has met only criteria iv and vi as listed in the AMA Guides, not the three required to support a diagnosis of chronic pain. With that said, as I have already written, this is just a useful means with which to evaluate such a claim, not a standard that must be met by the Tribunal. However, the Guides assessment does not stand alone. As noted at the start of this analysis, the applicant has never been diagnosed with chronic pain by any medical practitioner. Dr. Balkissoon did not see the applicant very often in the wake of the accident, did not prescribe any medication, and his CNRs are largely illegible. Dr. Kachooie diagnosed the applicant with soft-tissue injuries that fit within the MIG. And Dr. Dessouki concluded in his IE report that there was no evidence of musculoskeletal impairment warranting removal from the MIG.

27Taken together, the above evidence forms enough of a basis for me to conclude that the applicant has not met her burden and demonstrated that she suffers from a chronic pain condition.

The Treatment Plans

28To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

29In regard to all four of the treatment plans in dispute here, the applicant and respondent rely on the same evidence detailed above, plus the treatment plans themselves.

Is the applicant entitled to the psychological treatment plans dated April 8, 2020?

30I find that the applicant is entitled to the treatment plan for a psychological assessment and the treatment plan for psychological services, both dated April 8, 2020. The applicant is also entitled to interest in accordance with s. 51 of the Schedule.

31The treatment plan for a psychological assessment in the value of $2,179.22 was completed by Mr. Langis and Mr. Srinivasan. It recommended a psychological assessment to review emotional, life-management, and psychosocial issues experienced by the applicant as a result of the accident. The treatment plan for psychological services in the amount of $2,530.00 was also completed by Mr. Langis and Mr. Srinivasan, and it included a recommendation of 12 one-hour sessions of psychological therapy and a full-body examination to treat adjustment disorders, problems related to life-management difficulties, and problems related to psychosocial circumstances experienced as a result of the accident.

32As already noted above in paragraphs, the report of Mr. Srinivasan supports that the applicant experienced psychological issues and sequelae as a direct result of the accident. It is clear to me that the need for a psychological assessment is well founded. And the assessment itself, which was incurred by the applicant, provides a strong basis for the recommended sessions of psychological therapy.

33Again, I find that Dr. Lau’s report supports the findings of Mr. Srinivasan in all but his final conclusions. As with his refusal to provide a diagnosis despite the results of his testing and his observations of the applicant, Dr. Lau concluded that the treatment plans were not reasonable and necessary. He also noted that the applicant told him that she did not see “any need for such intervention,” by a psychiatrist or a psychologist, although it is not specified what is meant by “intervention” here. Regardless, Dr. Lau’s conclusions about the reasonable and necessary nature of the treatment plans are contradictory to the majority of his report, so I assign them little weight.

34Correspondingly, I find the psychological treatment plans to be reasonable and necessary. The applicant is entitled to the value of both plans, along with interest on any incurred amounts.

Is the applicant entitled to the chiropractic treatment plans dated July 26, 2018 and December 6, 2018?

35I find that the applicant has failed to demonstrate that the treatment plans for chiropractic services dated July 26, 2018 and December 6, 2018 are reasonable and necessary. She is not entitled to the amount of either plan or interest.

36The July 26, 2018 treatment plan in the total amount of $1,309.74 ($1,200.00 of which was approved, leaving $109.74) completed by Dr. Carmen Leung, chiropractor, included a recommendation of 14 sessions of manipulation and eight sessions of physical therapy. The December 6, 2018 plan in the amount of $1,342.48 was also completed by Dr. Leung and featured the recommendation of eight sessions of manipulation and six sessions of physical therapy. Each plan noted the same injuries to be treated, including whiplash associated disorder and the sprain and strain of the cervical, thoracic, and lumbar spine. Pain relief, increased range of motion, and a return to normal work and the activities of normal living were the goals of each plan.

37Although I have found the applicant to warrant treatment outside of the MIG for her psychological injuries and sequelae, she has not demonstrated that this physical treatment is reasonable and necessary. Virtually all of the medical evidence submitted indicates that the applicant sustained soft-tissue injuries in the accident that were appropriately treated with physiotherapy funded within the MIG. Dr. Kachooie found that the applicant’s neck and left arm pain were likely secondary to whiplash and myofascial pain. While Dr. Kachooie recommended physical therapy in his January 12, 2022 report, he did not specifically endorse these plans for chiropractic and physical manipulation. He actually devoted more space in this report to recommendations about ergonomics, aerobic exercise to reduce soft-tissue pain, and the possible benefit of traction, the use of a TENS machine, acupuncture, and shock wave treatment.

38In addition, the applicant’s activities post-accident seem to have negated the goals of these treatment plans when it comes to her returning to normal work and the activities of daily life. The applicant returned to work almost immediately following the accident, took on a second job in 2019, and was still working two jobs as of her assessment by Dr. Lau on September 20, 2020. She reported to a number of assessors that she had gone on multiple vacations since the accident. This suggests that the applicant has reached at least some of the primary goals of this recommended treatment, and as a result I cannot find these chiropractic plans to be reasonable and necessary.

39I also prefer the assessment of Dr. Dessouki. The physiatrist diagnosed the applicant with cervical strain and left shoulder strain as a result of the accident but saw no evidence of musculoskeletal impairment. Like Dr. Kachooie, Dr. Dessouki found that the applicant had sustained a predominantly soft-tissue injury and denied both treatment plans on the basis that they were not reasonable and necessary. I concur, for the reasons reviewed here as well as the rationale noted above addressing chronic pain.

40With that said, I acknowledge that the applicant makes a somewhat valid point about the timeliness of Dr. Dessouki’s report of October 2020. It did arrive two years after the submission of the chiropractic treatment plans in 2018. However, it is the applicant’s burden to demonstrate by a preponderance of evidence that she is entitled to removal from the MIG and to the reasonable and necessary nature of treatment plans. As I have detailed above, the applicant did not do this in 2018, apparently submitting only the treatment plans and the indecipherable CNRs of Dr. Balkissoon as evidence for both claims at that time. I cannot find that the respondent replied late with the IE of Dr. Dessouki, as the applicant had not provided sufficient medical evidence before 2020 to address her burden and justify such medical investigations on the part of the insurer.

41The applicant has not demonstrated that the chiropractic treatment plans are reasonable and necessary. Therefore, she is not entitled to these plans, nor interest.

Award

42I find that the respondent is not liable to pay an award. The applicant has not demonstrated that Aviva unreasonably withheld benefits.

43Section 10 of O. Reg. 664 allows the Tribunal to award a lump sum of up to 50% of the amount to which an insured person is entitled plus interest as applicable if it is found that the insurer behaved in a manner that was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate, and as a result unreasonably withheld benefits.

44Here, the applicant alleges that Aviva is liable to pay such an award because it ignored medical evidence and failed to work as a partner with her, her family doctor, and other health professionals in its failure to remove her from the MIG. She alleges that this act of bad faith forced her to incur substantial out-of-pocket expenses as a result. The applicant makes this argument with the support of references to the insurer’s log notes, which she claims show that Aviva failed to continually adjust her file based on incoming medical records and, in fact, did not review any of the applicant’s medical records. She does not provide submissions regarding the amount of the award sought.

45I am not convinced that the respondent’s conduct rises to the level of being found liable to pay an award. It is well established by this Tribunal that an award claim requires a stringent test showing that the insurer has behaved in an excessive, imprudent, stubborn, inflexible, unyielding, or immoderate manner. The insurer cannot simply “get it wrong.” However, “get it wrong” is just what Aviva did, in my opinion, and even then only partially. There is nothing in the log notes to indicate excessive, imprudent, stubborn, inflexible, unyielding, or immoderate behaviour that would meet the standard of necessitating an award.

46I also do not accept the applicant’s argument that Aviva acted too slowly in ordering the s. 44 IEs. The applicant did not produce sufficient evidence in 2018 to warrant removal from the MIG and the approval of the chiropractic treatment plans. No objective medical evidence supporting these plans was submitted until the report of Dr. Kachooie (as best as I can tell, at any rate, as the CNRs of the applicant’s family physician, Dr. Balkissoon, are largely illegible in their submitted handwritten form) in September 2020. Even then, Dr. Kachooie only diagnosed the applicant with soft-tissue injuries and did not address the treatment plans.

47I find the applicant only provided sufficient supporting medical evidence for her claim for removal from the MIG with her psychological treatment plans and the psychological assessment itself. These were submitted in April 2020, and the insurer responded with the IE assessments in August and September 2020. That is a fast enough response to negate accusations of bad faith.

48For the above reasons, the respondent is not liable to pay an award.

ORDER

49I find that:

i. The applicant’s injuries are not predominantly minor in nature, as she has proven on a preponderance of the evidence that she suffers from a psychological impairment. As a result, she is no longer subject to the MIG and its $3,500.00 limit on treatment.