Shahzina Kassam Karmali v. Aviva General Insurance, 2025 CanLII 108595

Karmali v. Aviva General Insurance, 2025 ONLAT 23-003700/AABS-R

RECONSIDERATION DECISION

Before: E. Louise Logan, Vice-Chair

Licence Appeal Tribunal File Number: 23-003700/AABS

Case Name: Shahzina Kassam Karmali v. Aviva General Insurance

Written Submissions by:

For the Applicant: Daniella Cohen, Paralegal

For the Respondent: Geoffrey Keating, Counsel

OVERVIEW

1On May 5, 2025, the respondent requested reconsideration of the Tribunal’s decision dated April 15, 2025 (“decision”).

2In the decision, the Tribunal found that the applicant was entitled to the three treatment plans in dispute and interest in accordance with section 51 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).

3The grounds for a request for reconsideration are found in Rule 18.2 of the Licence Appeal Tribunal Rules, 2023 (“Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a) The Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or

c) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

4The respondent seeks reconsideration pursuant to Rule 18.2(b). The respondent submits that the Tribunal misapprehended the nature of chronic pain when it found that only psychologists and psychiatrists can give expert opinion evidence on chronic pain.

5The respondent is seeking an order that the applicant is not entitled to the treatment plan for a chronic pain assessment dated January 25, 2022.

6Although invited to make submissions, the applicant indicated that they would not be making submissions in response to the respondent’s reconsideration request.

RESULT

7The respondent’s request for reconsideration pursuant to Rule 18.2(b) is granted.

8Pursuant to Rule 18.4, I have ordered a rehearing of the issue of entitlement to the treatment plan for a chronic pain assessment.

9Upon rehearing the issue, I have determined that the applicant is entitled to the treatment plan for a chronic pain assessment.

ANALYSIS

10The test for reconsideration under Rule 18.2 involves a high threshold. The reconsideration process is not an opportunity for a party to re-litigate its position where it disagrees with the Tribunal’s decision, or with the weight assigned to the evidence. The requestor must show how or why the decision falls into one of the categories in Rule 18.2.

Grounds for reconsideration - Rule 18.2(b)

11In this case, I find that the respondent has established grounds for reconsideration pursuant to Rule 18.2(b).

12The test in Rule 18.2(b), as set out above, has two parts. The first part is that the Tribunal made an error of law or fact. The second part is that the error is such that the Tribunal would likely have reached a different result had the error not been made.

13Turning to the first part of the Rule 18.2(b) test, I find that the Tribunal erred in its assessment of the expert evidence of Dr. Allan Kopyto, general practitioner, and Dr. Jacqueline Auguste, orthopaedic surgeon, in the context of determining whether the treatment plan for a chronic pain assessment was reasonable and necessary.

14In the decision, at paragraph 11, the Tribunal assigned less weight to the respondent’s evidence of Dr. Kopyto and Dr. Auguste for the following reasons:

i. I assign less weight to the opinion of Dr. Kopyto, as he is neither a psychologist, nor a psychiatrist, nor any other form of medical specialty uniquely qualified to offer an expert opinion in psychological disorders; only psychologists and psychiatrists can give expert opinion evidence on chronic pain. Similarly, the evidence of Dr. Auguste as an orthopedic surgeon, does not extend to expert opinion evidence on psychological or psychiatric matters.

15The respondent argues that the decision misstates the nature of chronic pain. It submits that chronic pain is not a psychological condition but rather a condition to be considered from a physical perspective. It cites Tribunal caselaw that confirms that, as a matter of course, chronic pain is classified as being of or related to physical impairments. It notes that in Alfaro v. Intact Insurance Company, 2023 CanLII 55968 (ON LAT), the Tribunal concluded that it was not within the expertise of a psychologist to diagnose chronic pain syndrome and in Zuhere v. Wawanesa Insurance, 2022 CanLII 78790 (ON LAT) the Tribunal concluded that while a chronic pain specialist may be able to treat patients with chronic pain, diagnosing a psychological condition was beyond their expertise. Further, in 16-004622 v. Aviva Insurance Canada, 2018 CanLII 29477 (ON LAT), the Tribunal concluded that an orthopaedic surgeon had relevant expertise to examine and assess for chronic pain syndrome.

16The respondent further notes that the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition (“AMA Guides”) defines chronic pain in a manner that is clearly suggestive of the issue being physical in nature. The respondent notes that the Tribunal routinely refers to the AMA Guides with respect to its chronic pain criteria, and deference should be shown to the following definition of chronic pain in the AMA Guides:

i. Pain that extends beyond the expected healing period of the injury or illness that initiated it, or is caused by a progressive incurable disease such as arthritis or cancer, and has outlived its usefulness as a warning. Chronic pain is sometimes defined as pain lasting more than 3 months for nociceptive pain, as most conditions affecting the musculoskeletal and other organ systems will heal by this time. However, the nervous system is an exception.

17For the following reasons, I conclude that the Tribunal erred in its treatment of the expert evidence of Dr. Kopyto and Dr. Auguste. First, I find that the Tribunal’s statement that “only psychologists and psychiatrists can give expert opinion evidence on chronic pain” is a conclusion without reasons. While it was open to the Tribunal to give little weight to this evidence, I find that the Tribunal erred in assigning the opinions of Dr. Kopyto and Dr. Auguste less weight based solely on the fact that neither doctor was a psychologist or psychiatrist (and therefore not qualified to provide an opinion on chronic pain), without explaining its reasoning for this finding.

18Second, having reviewed the applicant’s submissions for the initial hearing, I note that she did not argue that only psychologists and psychiatrists can provide expert opinion on chronic pain, and no evidence was before the Tribunal in this regard. I also note that the cases cited by the respondent indicate that the Tribunal does not confine its consideration of expert evidence on chronic pain to that of psychologists and psychiatrists.

19Third, while also not referenced by the parties at the initial hearing, I agree with the respondent that it is well established that the Tribunal has found that the criteria from the AMA Guides are a useful analytical tool when making a determination on chronic pain. The AMA Guides include both physical and psychological criteria with, for example, the third criterion referencing “secondary physical deconditioning” and the sixth criterion referencing the “development of psychosocial sequelae”. Thus, depending on the criterion being considered, it follows that expert evidence related to an insured person’s physical and/or psychological condition may be relevant to the determination of chronic pain. In this case, I note that the applicant referenced both physical and psychological symptoms in her submissions for the initial hearing.

20In sum, for the reasons set out above, I find that the Tribunal erred in its treatment of the evidence of Dr. Kopyto and Dr. Auguste in relation to the treatment plan for a chronic pain assessment.

21I also find that the second part of the test in Rule 18.2(b) is met. The error is one that would likely have changed the outcome of the decision. As set out above, the Tribunal’s error resulted in less weight being placed on the evidence of the respondent’s experts. By discounting the respondent’s evidence, I find that the error is such that it would likely have changed the outcome of the decision.

22Accordingly, the respondent’s request for reconsideration pursuant to Rule 18.2(b) is granted.

Outcome of Reconsideration – Rule 18.4

23I now turn to the outcome of the reconsideration pursuant to Rule 18.4. Rule 18.4 provides that upon reconsidering a decision, the Tribunal may dismiss the request, or after providing responding parties an opportunity to make submissions, confirm, vary or cancel the decision; or order a rehearing on all or part of the matter.

24I find the respondent has established grounds for reconsideration pursuant to Rule 18.2(b). As such, I am ordering a rehearing of the issue whether the applicant is entitled to the treatment plan for a chronic pain assessment in dispute pursuant to Rule 18.4.

Rehearing of the issue

25I have conducted the rehearing of entitlement to the treatment plan for a chronic pain assessment as part of this reconsideration decision. In doing so, I have considered the parties’ evidence and submissions for the initial hearing as follows.

26When determining whether a treatment plan is reasonable and necessary pursuant to section 15(1) of the Schedule, the Tribunal considers that the purpose of an assessment is to determine whether a condition exists. The insured bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

27In this case, the evidence indicates that there were grounds to believe the applicant had a condition that warranted further investigation by way of a chronic pain assessment.

28The applicant submits that her ongoing reporting of pain symptoms aligns with the diagnosis of chronic pain, and that it is recognized that her injuries are chronic. The applicant submits that more than four years post-collision, she continues to complain about unresolved right-side body pain, neck pain, back pain, and shoulder pain.

29The applicant points to the reporting of pain symptoms to her family doctor, Dr. Ghazi-Mirsaeed, following the accident, to the reporting of pain symptoms to Dr. Auguste in January 2021, and to Dr. Finalyson, neurologist, in August 2021. The applicant submits that Dr. Finlayson noted in her report that the barriers to the applicant’s recovery included the chronic nature of her symptoms. The applicant further submits that on September 30 and October 2, 2020, she underwent a psychological assessment evaluation with Dr. Lital Grinberg, psychologist, who provided a DSM-5 diagnosis for chronic adjustment disorder with mixed anxiety and depressed mood; somatic symptom disorder with predominant pain: severe; specific phobia: situational: vehicular.

30The applicant cites Loorkhoor v. Aviva Insurance Canada, 2023 CanLII 8740 (ON LAT) (“Loorkhoor”) in support of her submission that given the ongoing reporting of symptoms, which are well documented, the treatment plan for a chronic pain assessment is reasonable and necessary.

31The respondent submits that the treatment plan was denied in light of Dr. Auguste’s Insurer Examination (“IE”) report dated January 13, 2021, which indicated that the applicant had sustained a WAD I cervical sprain/strain, a right shoulder strain/sprain, and a lumbar sprain/strain. The respondent also submits that in Dr. Kopyto’s IE report dated November 4, 2022, he opined that the applicant sustained strain injuries of the neck, right shoulder, and back, as well as post-traumatic headaches. Dr. Kopyto opined that there was no evidence of chronic pain syndrome and no impairment was identified for which a chronic pain assessment was required. Further, the IE report by Dr. Rubenstein, psychologist, dated January 4, 2021, concluded the applicant does not meet the criteria for any diagnosis according to DSM-IV. Dr. Rubenstein drew this conclusion based a review of available documentation, direct observation, and objective psychological testing. The respondent submits that, in light of these IEs from musculoskeletal, psychological, and orthopaedic perspectives, there is no evidence of the applicant sustaining an impairment that would necessitate a chronic pain assessment.

32I find that the preponderance of the evidence indicates that the applicant consistently reported accident-related pain to her family physician, and to assessors including Dr. Auguste, Dr. Rubenstein, Dr. Finlayson, and Dr. Grinberg. Dr. Grinberg diagnosed the applicant with somatic symptom disorder with predominant pain: severe. Dr. Grinberg opined that the applicant’s account of her symptoms and limitations can be considered credible. She noted a good congruence between her observations and the applicant’s subjective account of symptoms and problems. Dr. Grinberg conducted her assessment in September and October 2020 before the submission of the treatment plan at issue and did not comment on the need for a chronic pain assessment.

33I have also considered that Dr. Rubenstein conducted an IE in December 22, 2020 to provide an opinion on whether the applicant had a minor injury, and whether a treatment plan for psychological services was reasonable and necessary. He was not asked to comment on the need for chronic pain assessment, and did not do so. He determined that the applicant’s scores on the P3, BDI and BAI tests indicate severe levels of depressive and anxiety symptoms. He also concluded the validity index negated these indicators, and reported the applicant was over-exaggerating symptoms. I assign little weight to Dr. Rubenstein’s report in the context of the chronic pain assessment, as it took place more than a year before the treatment plan for a chronic pain assessment was submitted, his report is focused on the applicant’s psychological condition rather than her pain, and he does not comment on the need for a chronic pain assessment.

34I have also considered Dr. Auguste’s January 2021 assessment, which took place a year before the January 2022 treatment plan in dispute. Although Dr. Auguste indicated that the applicant sustained a WAD I cervical sprain/strain, a right shoulder strain/sprain and a lumbar sprain/strain, she was not asked to comment on the need for a chronic pain assessment and rendered no opinion on this question. I find that Dr. Auguste’s report provides little in the way of insight into the necessity and reasonableness of the treatment plan for a chronic pain assessment.

35In October 2022, nine months after the treatment plan was submitted, Dr. Kopyto opined that the treatment plan was not necessary. In his assessment, he noted that, from a musculoskeletal perspective, the applicant had strain injuries of the neck, right shoulder and back, as well as post-traumatic headaches. He indicated that the applicant “might benefit from diagnostic testing as it relates to her right upper extremity complaint”, and, therefore, he could not conclude she has reached maximum medical improvement. He opined that, from a musculoskeletal perspective, there was no evidence of chronic pain syndrome, and no impairment was identified for which a chronic pain assessment is indicated. While I acknowledge the opinion of Dr. Kopyto, I put more weight on the preponderance of evidence which indicates that the applicant reported accident-related pain to her family physician and to the assessors. I also note that the medical reporting indicates that she developed secondary, chronic-type tension headaches, and she was diagnosed with somatic symptom disorder with predominant pain: severe.

36Taken together, I find, on a balance of probabilities, that the evidence provides grounds to believe that the applicant had a condition that warranted further investigation by way of a chronic pain assessment in January 2022. Although there are differing opinions of the credibility of the applicant’s symptom reporting and condition, this does not lead me to conclude that a chronic pain assessment is not reasonable and necessary. In fact, given the differing opinions, and in light of the applicant’s ongoing complaints of pain, diagnosis of somatic symptom disorder with predominant pain, and the observation that the applicant’s symptoms have become chronic, I find that the treatment plan for a chronic pain assessment is reasonable and necessary.

37While not binding on me, I also agree with the reasoning in Loorkhoor that, given the ongoing reporting of the applicant’s pain symptoms, which are well-documented in the medical evidence, an assessment to investigate chronic pain is a reasonable and necessary step in the treatment of her accident-related injuries.

38On a balance of probabilities, I find that, at the time of the January 2022 treatment plan, there were grounds on which to believe that a condition exists that would warrant further investigation by way of a chronic pain assessment.

39The applicant is entitled to the treatment plan for a chronic pain assessment.

CONCLUSION & ORDER

40The respondent’s request for reconsideration pursuant to Rule 18.2(b) is granted.

41Pursuant to Rule 18.4, I ordered a rehearing of the issue of entitlement to the treatment plan for a chronic pain assessment.

42Upon rehearing the issue, I have determined that the applicant is entitled to the treatment plan for a chronic pain assessment.

E. Louise Logan

Vice-Chair