Licence Appeal Tribunal File Number: 22-006479/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:
Imran Mahdi
Applicant
and
Aviva Insurance Canada
Respondent
DECISION
ADJUDICATOR: Alla Kadysh
APPEARANCES:
For the Applicant: Elvis Viskovic, Paralegal
For the Respondent: Jeffrey F. Pasternak, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Imran Mahdi, the applicant, was involved in an automobile accident on October 24, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was denied the treatments in dispute on the basis that he sustained predominantly minor injuries that are treatable within the Minor Injury Guideline (MIG).
ISSUES
3The 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 Minor Injury Guideline limit? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Advanced Healthcare Management in a treatment plan/OCF-18 (“plan”) dated November 24, 2021?
iii. Is the applicant entitled to $4,140.28 for psychological services, proposed by Advanced Healthcare Management in a plan dated March 11, 2022?
iv. 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?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant has demonstrated that removal from the MIG is warranted.
5The OCF-18 for the incurred psychological assessment is reasonable and necessary and therefore payable.
6The OCF-18 for psychological treatment is reasonable and necessary and payable once incurred.
7Interest applies on any overdue benefits.
8The applicant is not entitled to an award.
ANALYSIS
The Minor Injury Guideline (MIG)
9I find that the applicant has demonstrated that removal from the MIG is warranted, based on the report by Dr. Erin Langis, dated March 11, 2022.
10The 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.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.
11Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can establish that their accident-related injuries fall outside of the MIG, if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG, or if they provide evidence of a psychological impairment or chronic pain with a functional impairment.
12It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
13The applicant submits that prior to the accident he did not suffer from any physical or psychological impairments.
14The applicant argues that he should be removed from the MIG on the basis of chronic pain and psychological impairment.
Chronic Pain
15I find that the applicant has failed to prove on a balance of probabilities that his accident-related injuries fall outside of the MIG as a result of chronic pain.
16I find that for chronic pain to take someone out of the MIG, there must be an effect on their functionality. Chronic pain by itself does not take the applicant out of the MIG. More is required to establish that chronic pain is not merely sequelae of the soft tissue injuries. There must be medical evidence supporting the opinion that the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.
17The applicant relies on his family physician’s records and on the prescription summary from Pharmalinx to document his chronic pain. I do not find those documents persuasive in establishing a chronic pain diagnosis. Although Dr. Manazir Walajahni’s records from December 2019 indicate that the applicant was referred to a pain specialist and ordered an MRI due to the pain in his neck, the same records indicate that the applicant was diagnosed with the neck sprain and had not followed up with a pain intervention clinic. The prescription summary also indicates that Baclofen, Acetaminophen, Naproxen and Esomeprazole were prescribed to the applicant, however, Dr. Erin Langis’s report, dated March 11, 2022 indicates that the applicant does not take the prescribed medication due to health concerns.
18The respondent submits that the applicant does not meet criteria for chronic pain diagnosis as per the 6th Edition of the American Medical Association’s Guides, which state that at least three of the following criteria must be met for a diagnosis 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 contracts;
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.
19Although the Guides are not binding on the LAT, they have long been adopted as an interpretative tool for evaluating chronic pain claims in the absence of a diagnosis. I find that according to both Dr. Langis’s and Dr. Godwin Lau’s reports the applicant does not meet three criteria necessary to establish a chronic pain diagnosis. For example, he does not abuse prescription drugs, shows no dependence on health care providers, his physical capacity is sufficient to pursue work and although he reported slightly reduced social activities post-MVA, I find that at least some of it was associated with social restrictions due to COVID-19.
20As the applicant submits no compelling evidence of chronic pain and no medical evidence supporting the opinion that his functionality is impaired due to chronic pain, I find that he failed to prove on a balance of probabilities that his accident-related injuries are outside of the MIG as a result of chronic pain.
Psychological Impairment
21I find that the applicant was able to prove on a balance of probabilities that he should be removed from the MIG as a result of a psychological impairment. I am persuaded by the report of Dr. Erin Langis, psychologist, dated March 11, 2022. Dr. Langis opined that the applicant’s “psychological impairments due to the accident are significant enough to conclude that he does not fall under the Minor Injury Guidelines”.
22For the applicant to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just symptomatology. A psychological diagnosis requires the development of ongoing, significant psychological distress, as a result of the motor vehicle accident.
23Dr. Langis diagnosed the applicant with:
i. Trauma-and Stressor-Related Disorder (Adjustment-like disorder with prolonged duration of more than six months); and
ii. Somatic Symptom Disorder.
Dr. Langis opined that the applicant’s condition is consistent with a Class 3 – Moderate Impairment.
24The respondent submits that little to no weight should be placed on the report by Dr. Langis, as the assessment was conducted by Ivan Staroversky, who is a psychotherapist and is not qualified to diagnose mental health conditions.
25I do not find this argument persuasive. I agree with the applicant’s reply submission: although Mr. Staroversky conducted the assessment, there is no evidence indicating that the psychological diagnosis in the report was also provided by Mr. Staroversky. Dr. Erin Langis is listed in the report as a supervising psychologist, she signed off on the report and she is qualified to diagnose mental health conditions.
26The respondent relies on the report by Dr. Godwin Lau, dated March 17, 2020 to prove that the applicant does not suffer from any psychological impairment. Dr. Lau, in his psychological assessment report, concluded that the applicant’s condition falls within the Minor Injury Guideline and that he has no psychological impairment as a result of the accident.
27Therefore, I have two conflicting psychological assessment reports on the applicant’s condition. The report by Dr. Langis determines that the applicant suffers from psychological conditions related to the accident. The report by Dr. Lau states that he does not. As I cannot determine which report is more accurate based on the evidence available to me, and neither party submits any compelling arguments why either one of those reports should be disqualified, I find both reports to be credible.
28However, I also took under consideration the following facts:
Both reports are consistent in the description of the accident: both indicate that the applicant was assaulted in the course of the accident and sustained injury to his ear in the altercation with the other driver, which required two ER visits to address. I find that although the applicant’s physical injury had resolved, the follow up on his psychological condition due to the assault was warranted and the psychological assessment by Dr. Langis provided that follow-up.
Clinical notes and records of the applicant’s family physician Dr. Walajahi, dated December 24, 2021, indicate that he recommended cognitive behavioral therapy (“CBT”) for anxiety and worrying, after assessing the applicant’s mood as “anxious”. Dr. Walajahi does not directly link his recommendation to the accident, but it is clear from the notes that the applicant’s intentions on that day was to discuss his condition in relation to the accident.
Dr. Walajahi’s CBT recommendation is consistent with Dr. Langis’s recommendations.
29For the reasons stated above, I find that the applicant was able to prove on a balance of probabilities that he should be removed from the MIG as a result of a psychological impairment.
OCF-18 for psychological assessment
30I find the incurred psychological assessment in the amount of $2,486.00 to be reasonable, necessary and payable.
31To receive payment for a treatment plan under 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. 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 same are reasonable.
32It must be noted here that assessments, by their nature, are speculative. The goal of an assessment is to determine if a condition exists. As the psychological report by Dr. Langis determined that the applicant suffers from psychological conditions related to the accident and I have already relied on its finding in the MIG determination, I find that the goal of this treatment plan was reasonable and was achieved. As I stated above, I have also considered the fact that the applicant was assaulted in the course of the accident and concluded that the follow-up on his psychological condition due to the assault was reasonable. I also considered that the psychological assessment was incurred and that the overall cost of the treatment plan was reasonable.
OCF-18 for psychological treatment
33I find the treatment plan for psychological services in the amount of $4,140.28, proposed by Advanced Healthcare Management, to be reasonable and necessary and therefore payable once incurred.
34Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant as long as the applicant sustains an impairment as a result of the accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.
35As I already found Dr. Langis’s report credible, I find that the treatment plan for 12 individual CBT sessions, proposed in the report also reasonable, necessary and consistent with the recommendation by the applicant’s family physician.
36I find the goals of the treatment plan to reduce the applicant’s level of psychological distress and enhance his coping strategies via cognitive-behavioral techniques as outlined in Dr. Langis’s report to be reasonable.
37I also find the overall cost of the treatment plan as proposed by Advanced Healthcare Management, which includes 12 individual 1.5 hour psychotherapy sessions; testing/scoring/interpretation; treatment planning, progress report; and treatment manual, to be reasonable.
38Therefore, I find the treatment plan reasonable and necessary, and payable once incurred.
Interest
39I find that the interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
Award
40The 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.
41The applicant submitted that the respondent did not provide log notes to the applicant, as per the Tribunal’s order, dated February 28, 2023.
42The respondent submitted that the notes were not provided due to an advertence and were provided to the applicant once realized.
43As I find no evidence that supports a finding that the respondent’s actions rose to the level of excessive, imprudent, stubborn, inflexible or immoderate, I find that the applicant is not entitled to an award under Regulation 664.
ORDER
44Based on the analysis above, I find that:
i. The applicant has demonstrated that removal from the MIG is warranted.
ii. The OCF-18 for the incurred psychological assessment in the amount of $2,486.00 is reasonable and necessary and therefore payable.
iii. The OCF-18 for psychological treatment in the amount of $4,140.28 is reasonable and necessary and payable once incurred.
iv. Interest applies on any overdue benefits.
v. The applicant is not entitled to an award.
Released: September 6, 2024
Alla Kadysh
Adjudicator