Citation: Subramaniam v. Aviva General Insurance, 2024 ONLAT 22-006524/AABS

Licence Appeal Tribunal File Number: 22-006524/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:

Stephanie Subramaniam

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Stephanie Subramaniam, Applicant

For the Respondent:

Michal Baura, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Stephanie Subramaniam, the applicant, was involved in an automobile accident on February 6, 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 General Insurance, 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 predominately minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline ("MIG") limit?

ii. Is the applicant entitled to the following treatment plans:

i. $2,200.00 for a psychological assessment, submitted by Dr. Leon Steiner on September 6, 2019 and denied September 9, 2019;

ii. $3,641.09 for psychological treatments, submitted by Dr. Leon Steiner on January 16, 2020 and denied February 3, 2020;

iii. $1,553.72 for chiropractic treatments, submitted by Dr. Afshin Maskan on February 7, 2020 and denied March 11, 2020;

iv. $1,102.48 for chiropractic treatments, submitted by Dr. Afshin Maskan on July 26, 2019 and denied August 7, 2019; and

v. $2,200.00 for a chronic pain assessment, submitted by Dr. Tajedin Getahun on June 15, 2022 and denied June 17, 2022?

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

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant's accident-related injuries are outside of the MIG as she suffers a psychological impairment.

4The applicant is entitled to $2,200.00 for a psychological assessment, submitted by Dr. Leon Steiner on September 6, 2019 and denied September 9, 2019.

5The applicant is entitled to $3,641.09 for psychological treatments, submitted by Dr. Leon Steiner on January 16, 2020 and denied February 3, 2020.

6The applicant is not entitled to $1,553.72 for chiropractic treatments, submitted by Dr. Afshin Maskan on February 7, 2020 and denied March 11, 2020.

7The applicant is not entitled to $1,102.48 for chiropractic treatments, submitted by Dr. Afshin Maskan on July 26, 2019 and denied August 7, 2019.

8The applicant is not entitled to $2,200.00 for a chronic pain assessment, submitted by Dr. Tajedin Getahun on June 15, 2022 and denied June 17, 2022.

9The applicant is entitled to interest in accordance with s. 51 of the Schedule.

10The applicant is not entitled to an award pursuant to Reg. 664.

ANALYSIS

Application of the Minor Injury Guideline

11Section 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."

12An 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.

13The applicant submits that she should be removed from the MIG as she has sustained post-traumatic headaches, she is experiencing psychological symptoms and impairments, and she has pre-existing back injuries and injuries from the accident which have become chronic.

14The respondent submits that the applicant belongs in the MIG, and relies on its s. 44 assessment reports, the records of the applicant's family physician, the fact that the applicant was involved in a second accident on February 27, 2021, and the fact that the applicant has not exhausted the $3,500 available to her under the MIG.

15I find that the applicant sustained a psychological injury as a result of the accident, and therefore she does not belong within the confines of the MIG.

16The applicant was assessed by a psychologist, Dr. Leon Steiner, on December 11, 2019. Dr. Steiner indicated that after the accident, the applicant felt shock, anxiety, panic, anger, sadness, and distress. She was having difficulty sleeping, her mind was wandering, she felt tired and had low energy, she was experiencing flashbacks and intrusive thoughts, her appetite had changed, and she felt sad, irritable, and impatient. Dr. Steiner noted that the applicant was more anxious since the accident, especially in a vehicle, and had only driven once since then. He diagnosed her with adjustment disorder with mixed anxiety and depressed mood, and specific phobia – situational phobia. He recommended 12-16 sessions of psychotherapy over 3-4 months.

17The applicant underwent s. 44 assessments with Dr. Terra Seon, psychologist, on August 6, 2020, and Dr. Irina Safir, general practitioner, on December 9, 2020. Dr. Safir noted that the applicant reported a fear of driving, and that she felt emotional when driving through the area where the accident occurred. Dr. Safir deferred comment with regard to the applicant's mental health concerns.

18Dr. Seon opined that the applicant had not suffered a "substantial psychological impairment", and she "denied any significant psychological impairment that negatively interfered with her social, occupational, or overall level of functioning". She acknowledged that the applicant had symptoms of vehicular nervousness and mild emotional adjustment difficulties, but stated that the applicant's "presentation is not of the magnitude to warrant a psychological diagnosis." Dr. Seon's opinion was that the applicant's psychological injuries were considered to be minor, and as such the MIG would apply.

19By the time the applicant was assessed by Dr. Seon, she had resumed driving on a daily basis, however she still reported nervousness in a vehicle, and was worried that she would be involved in another accident. She was also nervous as a pedestrian. Dr. Seon noted that the applicant was tearful on occasion during the assessment. The applicant became upset when having to recall the details of the accident. Her mood could decline on occasion, and she experienced random anxious symptoms, but she denied "significant depressive or anxious symptomatology" that interfered with her overall level of functioning. On testing, although she scored in the average range for depression, anxiety, and somatization on the Pain Patient Profile (P-3), there were potential symptoms of irritability, frustration, moodiness, and tension. It was noted that she may feel somewhat threatened and vulnerable. On the Brief Battery for Health Improvement (BBHI-2), which was considered to be valid, Dr. Seon noted that the applicant had a moderately high level of somatic complaints, and a reported level of pain that was very high compared to those of other patients.

20There are discrepancies between the findings of Dr. Steiner and Dr. Seon, which could be due to the fact that the assessments were completed 8 months apart. For example, by the time of Dr. Seon's assessment, the applicant was no longer experiencing nightmares, flashbacks, or intrusive images, and her sleep had improved. I also note that Dr. Steiner and Dr. Seon administered a completely different battery of tests. Dr. Seon did not comment on Dr. Steiner's findings, despite having reviewed his report.

21I find that I prefer the report of Dr. Steiner to that of Dr. Seon. Dr. Steiner's testing battery was more comprehensive than that of Dr. Seon's. Although Dr. Seon indicated that the applicant had experienced symptoms of anxiety, depression, and nervousness in a vehicle, no tests were administered to specifically evaluate these symptoms. Dr. Seon did not provide any comment on the differences in testing or the results in Dr. Steiner's report. Dr. Seon also stated that the applicant exhibited "no significant symptoms of emotional distress" during her assessment, when in fact she had become "tearful on occasion" (presumably meaning more than once). When crying during an assessment is not considered a sign of significant emotional distress, it causes me to question what Dr. Seon does consider to be significant.

22The fact that the applicant has experienced psychological distress as a result of this accident is corroborated by her medical records, in addition to Dr. Steiner's report. Her family physician, Dr. Ingber, noted on February 8, 2019, that she had an acute stress reaction to the accident. The records from Harwood Wellness note feelings of anxiety on February 14, 2019 and July 25, 2019. At the time of Dr. Steiner's report, December 2019, the applicant had only driven once since the accident, and avoided being a passenger. The applicant's fearfulness in a vehicle was also noted by Dr. Safir.

23I find that on a balance of probabilities, the applicant sustained a psychological injury as a result of the accident. As such, I find that her injuries are not predominantly minor and are therefore not subject to treatment within the MIG.

Is the applicant entitled to $2,200.00 for a psychological assessment, submitted by Dr. Leon Steiner on September 6, 2019 and denied September 9, 2019?

24I find that the applicant is entitled to the cost of the psychological assessment.

25To 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.

26Given my comments above that the applicant sustained a psychological injury as a result of the accident, a psychological assessment was reasonable and necessary to determine the extent of her injuries and determine whether treatment was warranted.

Is the applicant entitled to $3,641.09 for psychological treatments, submitted by Dr. Leon Steiner on January 16, 2020 and denied February 3, 2020?

27I find that the applicant is entitled to this treatment plan.

28The treatment plan in dispute is for 12 sessions of cognitive behavioural therapy with Bavly Kost, a regulated psychotherapist, as well as brokerage, preparation, documentation, and preparation of the treatment plan. The respondent does not make specific submissions regarding the treatment plan itself, aside from stating that Dr. Seon's conclusions should be preferred over Dr. Steiner's. As indicated above, I disagree.

29After determining that the applicant had a diagnosable psychological condition, Dr. Steiner recommended 12-16 sessions of psychotherapy. I find that the 12 sessions proposed in the treatment plan were reasonable and necessary at the time it was submitted.

Is the applicant entitled to $1,553.72 for chiropractic treatments, submitted by Dr. Afshin Maskan on February 7, 2020 and denied March 11, 2020?

30I find that the applicant is not entitled to this treatment plan.

31The applicant submits that she is entitled to this treatment plan because Dr. Safir and Dr. Seon identify functional impairments as a result of the accident. Specifically, the applicant does not complete the household laundry as she cannot walk three sets of stairs, and she performs "bathroom, minimal cleaning". Further, the applicant submits that she is only 50 percent improved, and that ongoing therapy will help her return to pre-accident pain levels as she reports relief with therapy. She also submits that the records of treatment through Sun Life, her extended health provider, support a finding that the treatment plan was necessary.

32I do not find that the records from Sun Life assist the applicant with her argument. All that is shown is that she received 17 sessions of chiropractic treatment between February 14, 2019 and April 11, 2019. No further relevant information is provided.

33The last record of chiropractic treatment before me is from July 25, 2019. The respondent points out that the applicant has only used $840.00 of the accident benefits available to her. She still has $1,360.00 in unused treatment that was previously approved. She advised Dr. Safir and Dr. Seon that she stopped treatment on account of her work schedule and the clinic's hours. It is unclear to me why the applicant could not attend treatment outside of work, even at another clinic, if this treatment was in fact helping her.

34Dr. Safir opined in December 2020 that further facility-based physical rehabilitation was not clinically indicated. Although the applicant relies on Dr. Safir and Dr. Seon's comments about her household tasks, that is not evidence of the efficacy of the proposed treatment. Further, Dr. Seon is a psychologist and did not come to any conclusions regarding the applicant's physical condition or physical rehabilitation.

35While the applicant may be limited in her ability to complete certain household tasks, that does not necessarily mean that the proposed chiropractic treatment will assist with that. There is no evidence before me, outside of the treatment plan itself, that chiropractic treatment would have been beneficial around the time the treatment plan was submitted.

36The applicant has the burden of proving that this treatment plan is reasonable and necessary. She has not met this burden.

Is the applicant entitled to $1,102.48 for chiropractic treatments, submitted by Dr. Afshin Maskan on July 26, 2019 and denied August 7, 2019?

37I find that the applicant is not entitled to this treatment plan.

38As noted above, there is a lack of medical evidence supporting the need for chiropractic treatments at the time this treatment plan was submitted. Dr. Ingber, the applicant's family physician, recommended physiotherapy on February 20, 2019. The last visit with Dr. Ingber in 2019 was July 3. Although the accident was mentioned, there is no indication that Dr. Ingber recommended further physical therapy. The applicant did not see Dr. Inbger again until March 3, 2021, after she sustained injuries in another accident.

39It is difficult, without further information, to determine if further chiropractic treatment at the time this treatment plan was submitted was reasonable and necessary. I accordingly find that the applicant has not met her burden of proof in this regard.

Is the applicant entitled to $2,200.00 for a chronic pain assessment, submitted by Dr. Tajedin Getahun on June 15, 2022 and denied June 17, 2022?

40I find that the applicant is not entitled to this chronic pain assessment.

41A treatment plan was submitted on June 15, 2022 for a chronic pain assessment by Dr. Getahun, orthopaedic surgeon. In determining whether the assessment is reasonable and necessary, I must consider whether it is reasonably possible that the applicant suffers from chronic pain syndrome (R.V. v. Aviva General Insurance, 2019 CanLII 94032). The onus is on the applicant to prove that possibility.

42The applicant submits that this assessment is necessary to determine the appropriate course of treatment and management of unresolved pain arising from the accident. She refers to the treatment plan itself, which states that she is experiencing functional impairments in relation to employment tasks and activities of normal life. The applicant also refers to Dr. Safir's comment that she had only achieved 50% improvement with respect to pain over one year and ten months post-accident. She submits that the s. 44 report of Dr. David Berbrayer should be given very little weight, since he did not consider any clinical notes and records, and does not consider the effect of the applicant's psychological symptoms in assessing whether a chronic pain assessment would be reasonable and necessary. She also submits that the treatment plan is reasonable in light of the chronicity of her complaints more than 3 years post-accident.

43The respondent relies on Dr. Berbrayer's opinion that the applicant sustained soft-tissue injuries with no ongoing objective impairment, and that a chronic pain assessment is not reasonable and necessary. The respondent also notes that after July 3, 2019, the applicant did not visit Dr. Ingber for 20 months, and only did so because she was involved in a second accident on February 27, 2021.

44The respondent further submits that there is no evidence that the applicant suffers from chronic pain syndrome, as outlined in the AMA Guides. I am not bound by the AMA Guides, but find the criteria helpful in this analysis, which are as follows:

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.

45I find that there is a lack of evidence, generally, about the applicant's pain and limitations leading up to the second accident in 2021. Where there is evidence, it does not point to a reasonable possibility of the applicant suffering from chronic pain syndrome. She took prescription medication for less than a month after the accident. She rarely visited her family physician, and went 20 months without doing so until she was re-injured in the second accident. She stopped treatment voluntarily, despite having funds available for more. There is no evidence that she was dependent on anyone, let alone being excessively so. She worked full time, and was also able to work a second job on the weekends. She reported to Dr. Seon that she continued to remain engaged in her social activities, and that she was busy with "work and life". The applicant has developed a psychological injury as a result of the accident, but this is not determinative of the issue.

46The applicant advised Dr. Safir on December 9, 2020 that her post-accident pain symptoms had only improved by about 50 percent. Even still, the only limitation she mentioned to Dr. Safir was that she no longer did the laundry, as she could not walk three sets of stairs. In any event, Dr. Safir indicated that her prognosis was favourable. In light of the rest of the evidence before me, the applicant's pain complaints to Dr. Safir alone are not indicative of a reasonable possibility of chronic pain syndrome.

47After the second accident, the applicant visited Dr. Ingber on March 3, 2021. She reported that "since then" she was having pain in her neck, shoulders, right leg, upper back, lower back, and headaches. Her energy was low and she was "not feeling like herself". It appears that the second accident caused her to experience symptoms that she was not experiencing before it occurred.

48The treatment plan for the chronic pain assessment does not mention the second accident at all. The box for "unknown" was checked when asked whether the applicant had any other injuries not related to the accident. The treatment plan was also vague when describing any functional difficulties (e.g. it mentions an impacted ability to perform her ADLs, housework, recreational activities, and work duties), and does not go into any detail regarding their extent. This is despite the fact that the applicant was able to complete almost all of her activities of daily life and work full time before the second accident. I accordingly do not find that the treatment plan itself is persuasive evidence.

49I do not find that there is sufficient evidence to support a reasonable possibility that the applicant suffers from chronic pain syndrome as a result of the first accident. Even if I accepted the applicant's proposition that I give Dr. Berbrayer's report little weight, for the reasons above, I find that she has not met her onus to show that the proposed treatment plan is reasonable and necessary.

Interest

50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

Award

51Under s. 10 of O. Reg. 664, the applicant may be entitled to an award of an amount up to 50% of the benefits and interest owed to her if I find that the respondent unreasonably withheld or delayed payments. I find that the applicant has failed to show that this is the case.

52The applicant argues that the respondent unreasonably withheld or delayed payment of medical benefits, failed to provide its assessors with medical documents, and minimized the applicant's psychological symptoms and diagnoses. The applicant also argues that the respondent failed to record in its log notes relevant dates such as when treatment plans and clinical notes were submitted to the insurer. She states that the respondent did not comply with the Tribunal's order with respect to log notes, by failing to provide the dates and grounds on which entries were redacted, and that the respondent failed to record in its notes relevant dates, such as when treatment plans and clinical notes were received.

53The threshold for an award is high. The respondent relied on its s. 44 assessors, who opined that the applicant should remain within the MIG. The applicant states that Dr. Seon did not review any pre- or post-accident clinical notes and records, however I am left in the dark as to whether the applicant even provided those records to the respondent by the time of her assessment. Although I did not agree with the conclusions in Dr. Seon's report, I do not find that the respondent erred in relying on it. My decision to entitle the applicant to a psychological assessment was a close call. The applicant has not persuaded me that the respondent was inflexible, immoderate or stubborn in withholding the benefit.

54I do not accept the applicant's argument that the log notes provided were deficient such that an award should be granted. The respondent provided the basis for which the notes were redacted, which is in keeping with the wording of the Tribunal order. The applicant has failed to explain why, if the respondent did not log incoming documents, that should attract an award in this case.

55The applicant is therefore not entitled to an award.

ORDER

56The applicant's accident-related injuries are outside of the MIG as she suffers a psychological impairment.

57The applicant is entitled to $2,200.00 for a psychological assessment, submitted by Dr. Leon Steiner on September 6, 2019 and denied September 9, 2019.

58The applicant is entitled to $3,641.09 for psychological treatments, submitted by Dr. Leon Steiner on January 16, 2020 and denied February 3, 2020.

59The applicant is not entitled to $1,553.72 for chiropractic treatments, submitted by Dr. Afshin Maskan on February 7, 2020 and denied March 11, 2020.

60The applicant is not entitled to $1,102.48 for chiropractic treatments, submitted by Dr. Afshin Maskan on July 26, 2019 and denied August 7, 2019.

61The applicant is not entitled to $2,200.00 for a chronic pain assessment, submitted by Dr. Tajedin Getahun on June 15, 2022 and denied June 17, 2022.

62The applicant is entitled to interest in accordance with s. 51 of the Schedule.

63The applicant is not entitled to an award pursuant to Reg. 664.