Citation: Sivapalan v. Aviva General Insurance Company, 2023 ONLAT 21-002466/AABS

Licence Appeal Tribunal File Number: 21-002466/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:

Saraniya Sivapalan

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR: Leo Demarce

APPEARANCES:

For the Applicant: Saraniya Sivapalan, Applicant Alexei Antonov, Counsel

For the Respondent: Nabila Majidzadeh, Counsel

HEARD: In Writing July 28, 2023

OVERVIEW

1Saraniya Sivapalan, the applicant, was involved in an automobile accident on September 28, 2018, 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, Aviva, 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 by the Schedule and subject to a $3,500.00 treatment limit under the Minor Injuries Guideline (MIG)?

ii. Is the applicant entitled to receive medical benefits in the amount of $1,866.33 for physical rehabilitation therapy, recommend by Toronto Healthcare Clinic in a treatment plan submitted February 23, 2021?

iii. Is the applicant entitled to receive cost of examination in the amount of $2,000.00 for psychological assessment recommended by Toronto Healthcare Clinic in a treatment plan submitted March 15, 2021?

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

v. Is the applicant entitled to an award under RRO 664 because the respondent unreasonably withheld or delayed payment of the benefits?

vi. Is the respondent entitled to $250 in costs pursuant to Rule 19 of the Common Rules of Practice and Procedure?

RESULT

3I find that the applicant has not met their onus to establish that their accident-related injuries fall outside of the MIG.

4I find that the medical benefit in the amount of $1,866.33 for physical rehabilitation therapy is not reasonable or necessary as it falls outside of the MIG.

5I find that the cost of examination in the amount of $2,000.00 for a psychological assessment is not reasonable or necessary as it falls outside of the MIG.

6I find that there is no interest due as there is no overdue payment of any benefits.

7I find that the applicant is not entitled to an award because there were no payments of benefits unreasonably withheld or delayed.

8I find that the respondent is not entitled to $250 for costs pursuant to rule 19 of the Common Rules of Practice and Procedure.

ANALYSIS

Minor Injury Guideline

9Section 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

10An 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

11The applicant submits that she should be removed from the MIG because, as a result of the accident, she sustained a psychological impairment as well as chronic pain with functional impairment.

12I am not persuaded that the applicant has proven on a balance of probabilities that she has sustained a psychological impairment or chronic pain with functional impairment as a result of the accident such that removal from the MIG is warranted.

13The applicant submits that her psychological impairment is well-documented throughout her medical records. The applicant provides a psychological assessment conducted by Helen Ilios, M.A., RP and supervised by Dr. Jacqueline Brunshaw, Ph.D., Psych on May 28, 2021. In this assessment, the diagnosis provided is: 1) Adjustment Disorder with Anxiety; and 2) Specific Phobia (driving, being a passenger, being a pedestrian).

14The applicant submits that Dr. Minnella, Dr. Yee and Dr. Lambotharan all corroborate these diagnoses. Dr. Minnella noted that the applicant has been experiencing difficulties relating to nervousness and anxiety post-accident and recommended a psychological screening. The applicant asserts that Dr. Yee noted the applicant’s complaints. The applicant then claims that family physician Dr. Lambortharan’s clinical notes and records are replete with notations emphasizing her ongoing anxiety/reactive depression post-accident and that there were no psychological or emotional issues preceding her involvement in the subject accident.

15The respondent submits an assessment from psychologist Dr. Deborah Cowman Ph.D., C. Psych dated June 2, 2021, who submits that the applicant is reporting little by way of accident-related emotional distress, apart from some persistent driving nervousness. Dr. Cowman relates that the applicant does not feel she needs treatment for this and feels that she is improving as she persists in driving. Dr. Cowman then reports that the applicant said that she does not feel she needs any psychological treatment, and that this was consistent with the findings of the assessment.

16The respondent argues that the visit to Dr. Lamborathan was over three years post-accident, so where the applicant made complaints, it argues that it cannot be said that they were because of the subject accident. It was at the case conference that the applicant was made aware that there are no medical records to support any of the disputes in the application. The respondent argues that the visit to the family doctor on September 27, 2021 was made after the case conference held by the Tribunal, which occurred on August 11, 2021. The respondent further notes that Dr. Lamborathan did not recommend the treatment in the OCF-18’s in dispute.

17In review of Dr. Lamborathan’s clinical notes and records, I find that they carry little to no weight. There are only three visits after the subject accident. The third visit discusses complaints of anxiety, neurosis, hysteria, neurasthenia, obsessive-compulsive neurosis, reactive depression, PTSD, anxiety and jaw pain. This visit occurs after the applicant was made aware at a case conference by the respondent that they did not have any corroborating clinical notes and records to support their claims.

18The respondent submits an assessment from psychologist Dr. Deborah Cowman Ph.D., C. Psych dated June 2, 2021, who submits that the applicant is reporting little by way of accident-related emotional distress, apart from some persistent driving nervousness. Dr. Cowman relates that the applicant does not feel she needs treatment for this and feels that she is improving as she persists in driving. Dr. Cowman then reports that the applicant said that she does not feel she needs any psychological treatment, and that this was consistent with the findings of the assessment.

19I find that the applicant has not satisfied the burden of proof that she has sustained a psychological impairment because of the motor vehicle accident.

20I give little weight to Dr. Lamborathan’s notes as stated in paragraph 17 above. It is also noted that there has not been any medication or other modality prescribed by the family doctor other than over the counter medication.

21I also give little weight to the assessment made by Dr. Brunshaw. Most of the complaints stem from the applicant’s claim that she is in pain, causing her to lose sleep, lose interest in activities, have low energy and suffer a great deal of neck and shoulder pain.

22The diagnosis of Specific Phobia (driving, being a passenger, being a pedestrian) appears to be derived solely from the Accident Fear Questionnaire (AFQ). The report states that on the AFQ there is a measure of avoidance of vehicular and accident-related situations due to fear and distress. The applicant’s score was above the range for individuals identified as suffering from a specific phobia, which suggests that her travelling-related fears are indicative of post-traumatic stress.

23I find that the diagnosis hinges entirely on one interview. When I weigh the report against the entirety of the evidence it is lacking. Rather, based on the evidence before me, I find that the applicant:

i. Continued to work post-accident;

ii. Continued to obtain her Bachelor of Commerce degree at university post-accident;

iii. Continued to participate in activities such as basketball and football, which is how she broke her finger post-accident, according to the assessment by Dr. Yee.

24Base on these factors I am persuaded that the applicant does not have a psychological impairment. The applicant was able to participate in work, school and sports post-accident and demonstrates on a long-term and continuous basis her ability to engage socially.

Chronic Pain with Functional Impairment – the applicant has not met the burden of proof

25The Tribunal has repeatedly adopted the approach of assessing an applicant’s claim of chronic pain against the six criteria described in the American Medical Association Guides (AMA Guides), which state that at least three of the following criteria must be met for a diagnosis:

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; and

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

26I find that the applicant has not met the burden of proof for any of these criteria and does not suffer from chronic pain as described in the AMA Guides.

27In lieu of the AMA Guides, the applicant relies on Semih v. Aviva Ins. Co., 2022 CanLII 27252 (ON LAT), where the applicant relied on a doctor’s report to justify removal from the MIG based on chronic pain, as well as various other medical documents that identified ongoing pain and reduced function. The applicant points to the report from Dr. Yee that diagnoses the applicant with residual symptomatology related to myofascial strains of the cervical spine. Along with that report, the applicant states that “all of the other records indicate that the applicant has lingering pain post-accident”. The applicant does not identify specific reports other than Dr. Yee’s diagnosis. This argument would require corroborating evidence from other “various” medical documents identifying ongoing pain.

28When applying the criteria from the AMA Guides I find that the applicant does not meet the criteria for chronic pain.

i. The applicant does not abuse drugs or other substances.

ii. The applicant relies on family to assist in certain household chores but that is not considered to be an excessive dependence.

iii. The applicant did not show physical deconditioning due to disuse or fear-avoidance of physical activity due to pain. She broke her finger playing sports in 2019, post-accident.

iv. The applicant provides no proof of withdrawal from social milieu or other social contact. She was able to work as a crew trainer for McDonalds on weekends for 12 to 16 hours a week. She also interned at GM as a human resource coordinator in 2019 to 2020. She has hopes of getting a job in HR. She completed her studies and obtained a Bachelor of Commerce degree.

v. The applicant has not shown an inability to pursue work so there is no failure to restore pre-injury function, and there has been no period of disability.

vi. It is possible that the applicant may have some anxiety or other psychosocial sequelae after the initial incident.

29I find that the applicant does not meet at least three of the criteria which must be met for a diagnosis of chronic pain as described in the AMA Guides and therefore has not demonstrated that she suffers from accident-related chronic pain that justifies removal from the MIG.

30I find that the medical benefit in the amount of $1,866.33 for physical rehabilitation therapy is not reasonable or necessary as it falls outside of the MIG.

31I find that the cost of examination in the amount of $2,000.00 for a psychological assessment is not reasonable or necessary as it falls outside of the MIG

Interest

32Interest does not apply on the payment of any overdue benefits pursuant to s. 51 of the Schedule as there are no benefits payable.

Award

33The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. There is no award payable as there were no benefits unreasonably withheld.

Request for Costs by the Respondent

34I am not satisfied that the applicant’s conduct has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith as required by Rule 19 of the Rules.

35The respondent asserts that the applicant was unprepared, lacked evidence, and as a result completely lacked respect for the Tribunal and its resources. The respondent further submits that the applicant should not be allowed to file a LAT Application when it is not ready to do so.

36The applicant submits that the respondent did not cite any case law to support its request for costs, or to any factors in rule 19.5 to justify its request.

37In deciding whether to order costs and the amount of costs to be ordered, the Tribunal shall consider all relevant factors including: the seriousness of the misconduct; whether the conduct was in breach of a direction or order issued by the Tribunal, whether or not a party’s behaviour interfered with the Tribunal’s ability to carry out a fair, efficient, and effective process; prejudice to other parties; and the potential impact an order for costs would have on individuals accessing the Tribunal system.

38While I found that the evidence presented by the applicant did not support her position on a balance of probabilities, that is not sufficient reason to order costs. The respondent primarily points to the applicant’s lack of preparedness at the case conference and asserts that the applicant should not have filed an application when they were not ready to do so. However, the applicant did present a case at this written hearing and presented the evidence that was at their disposal.

39I find that the applicant did not act unreasonably, vexatiously, or in bad faith and the request for costs is dismissed.

ORDER

40The applicant’s injuries are predominantly minor as defined by the Schedule and subject to a $3,500 treatment limit under the MIG.

41The applicant is not entitled to receive medical benefits in the amount of $1,866.33 for physical rehabilitation therapy, recommend by Toronto Healthcare Clinic in a treatment plan submitted February 23, 2021.

42The applicant is not entitled to receive cost of examination in the amount of $2,000.00 for a psychological assessment recommended by Toronto Healthcare Clinic in a treatment plan submitted March 15, 2021.

43The applicant is not entitled to interest on any overdue payment of benefits.

44The applicant is not entitled to an award under Reg. 664 because the respondent did not unreasonably withhold or delay payment of benefits.

45The Respondent’s request for $250 in costs pursuant to Rule 19 is denied.