Citation: Gayadeen v. Aviva Insurance Company of Canada, 2024 ONLAT 21-004980/AABS

Licence Appeal Tribunal File Number: 21-004980/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:

Sean Gayadeen

Applicant

and

Aviva Insurance Company of Canada

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Alexei Antonov, Counsel

For the Respondent: Yann Grand-Clement, Counsel

HEARD: In Writing

OVERVIEW

1Sean Gayadeen, the applicant, was involved in an automobile accident on March 14, 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, Aviva Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The following issues are to be decided:

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 and in the Minor Injury Guideline?

ii. Is the applicant entitled to $204.78 ($1,300 less approved $1,095.22) for physiotherapy, proposed by LV Rehab in a treatment plan denied on June 28, 2019?

iii. Is the applicant entitled to $4,967.02 for physiotherapy, proposed by LV Rehab in a treatment plan denied on August 24, 2020?

iv. Is the applicant entitled to $2,200 for psychological assessment, proposed by LV Rehab in a treatment plan denied on September 14, 2020?

v. Is the applicant entitled to $2,200 for chronic pain assessment, proposed by LV Rehab in a treatment plan denied on October 14, 2020?

vi. 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?

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

RESULT

3I find that:

i. The applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG;

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The applicant is not entitled to interest; and

iv. The applicant is not entitled to an award.

ANALYSIS

Applicability of the Minor Injury Guideline ("MIG")

4The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in s. 3(1) of the Schedule as, "one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury."

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

6An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

7It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.

8The applicant submits that he sustained psychological impairments and chronic pain as a result of the accident.

The applicant did not suffer psychological injuries that warrant removal from the MIG

9I find that the applicant has not provided sufficient evidence to demonstrate that his psychological impairments justify treatment beyond the MIG.

10An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

11In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

12The applicant relies on the psychological report of Ms. Natalia Zhukova, psychotherapist, under the supervision of Dr. Kenneth Keeling, psychologist dated December 7, 2020. The applicant expressed difficulty with concentration, forgetfulness, and increased frustration. Ms. Zhukova, diagnosed the applicant with "stressor related disorder- adjustment like disorder with prolonged duration of more than six months." The applicant also relies on the independent medical evaluation report, dated September 15, 2022, of Dr. Igor Wilderman, physician, that diagnoses the applicant with psychological impairments, including: depression, anxiety, and post-traumatic stress disorder. It should be noted that Dr. Wilderman is not qualified to make specific psychological diagnoses, as his speciality is family medicine, as referenced by the College of Physicians and Surgeons of Ontario, and he is not a psychologist.

13The respondent relies on the psychological assessment of Dr. John Lee, psychologist, dated November 26, 2020. Dr. Lee opened that the applicant was not suffering from any psychological impairment that would warrant removal from the MIG. Furthermore, the respondent submits that the clinical notes and records ("CNRs") of the applicant's family doctor, Dr. David Venturi, reveal no significant psychological complaints, referrals to therapy or prescription medication.

14After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that he suffers from a psychological impairment as a result of the accident that would remove him from the MIG. I provide more weight to the medical evidence of Dr. Lee who is a psychologist, who conducted and prepared his own report regarding the applicant's post-accident psychological state, over that of Ms. Zhukova, a psychotherapist. Furthermore, I attribute little weight to the psychological diagnosis of Dr. Wilderman, finding this outside his medical expertise and the lack of corroborating medical evidence of psychological impairments. Lastly, I was not presented with any medical evidence that the applicant has been referred for a therapy or medication.

15As a result, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that she has a psychological injury resulting from the accident that would warrant her removal from the MIG.

The applicant has not established chronic pain warranting removal from the MIG

16I find that the applicant does not suffer from functional impairment as a result of accident-related chronic pain.

17In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects his day-to-day or work function. The pain must be continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person's function, or whether the pain is bearable without treatment will not meet the applicant's burden to show that chronic pain is more than mere sequelae from his soft tissue injuries.

18The applicant submits that he should be removed from the MIG as he has ongoing pain in his left shoulder and knee, and lower back that has persisted for months. In support of his chronic pain syndrome claim, the applicant relies on the independent medical evaluation report of Dr. Wilderman. Dr. Wilderman diagnosed the applicant with chronic pain syndrome, which has prevented him from partaking in daily activities, caregiving tasks, and housekeeping. The applicant also relies on the OCF-3 dated March 18, 2019, by Ushma Patel, chiropractor, that indicated the applicant's sprains and strains have caused the applicant to suffer a complete inability to carry on a normal life.

19The respondent submits that the applicant does not rely on any objective medical evidence to establish chronic pain warranting removal from the MIG. The respondent relies on the March 15 and March 22, 2019 CNR's of Dr. Venturi that diagnosis the applicant's accident injuries as whiplash, and sprains/strains. This is consistent with the diagnosis in the assessment report dated November 1, 2020 of Dr. Alan Kruger, physician, who found the applicant suffered from soft tissue sprains and strains.

20The respondent raises concerns with the diagnosis of Dr. Wilderman, submitting that a diagnosis of chronic pain is outside his medical expertise. The respondent relies on Mahmoodian v. Aviva Insurance Company of Canada, 2023 CanLII 26944 ONLAT where the Tribunal put little weight on a pain diagnosis made by Dr. Wilderman, who is not a chronic pain specialist.

21The respondent also references the American Medical Association Guides ("AMA Guides"). The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal's decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. The AMA Guides provides that you can be diagnosed with chronic pain when you have three or more of the six factors. The respondent submits, that the applicant did not provide evidence to demonstrate any of the six factors were met: prescription medication, excessive dependence on others, secondary physical conditioning, withdrawal from social milieu, failure to restore pre-injury function, or the development of psychosocial sequalae. In reply submissions, the applicant states that family members have had to intervene to assist the applicant in caregiving activities and housekeeping services, but the applicant provided no evidence to support this.

22I am not persuaded that the applicant demonstrated that his accident-related soft tissue injuries, confirmed by the medical evidence, had a detrimental impact on his functionality. Although Dr. Wilderman diagnosed the applicant with chronic pain syndrome, I find this diagnosis is unsupported by the medical evidence. Even if I did accept Dr. Wilderman's chronic pain diagnosis, I am persuaded that for chronic pain to be more than just sequelae from soft tissue injuries it must be of such a severity that it causes suffering and distress accompanied by functional impairment or disability.

23I note that the CNRs of Dr. Venturi did not refer the applicant to a specialist, did not advance further medical intervention, and did not prescribe medication. Therefore, I am persuaded by the consistent medical evidence of Dr. Venturi and Dr. Kruger that the applicant's accident-related injuries are soft tissue sprains and strains and there is nothing that would prevent the applicant from achieving maximum recovery if subject to the MIG. As such, I am not convinced on a balance of probabilities that the applicant suffers from chronic pain with functional impairment because of the accident that would remove him from the MIG.

24The applicant is not entitled to the disputed treatment plan because I have found the applicant is subject to the MIG and the plan proposes treatment outside of the MIG limit. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.

Interest

25Given that there are no overdue payments of benefits, the applicant is not entitled to interest pursuant to s. 51.

Award

26Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled. To be liable for an award, the insurer's conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. There are no benefits payable, so the applicant is not entitled to an award.

ORDER

27The applicant is dismissed, and I find that:

i. The applicant's injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

ii. The treatment plans in dispute are not payable;

iii. The applicant is not entitled to interest; and

iv. The applicant is not entitled to an award.