Licence Appeal Tribunal File Number: 23-010075/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:
Jennifer Canning
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR: Greg Witt
APPEARANCES:
For the Applicant: Karl Girdhari, Counsel Michael Yermus, Counsel
For the Respondent: Sean Cheskes, Counsel
HEARD: By way of written submissions
OVERVIEW
1Jennifer Canning, the applicant, was involved in an automobile accident on December 3, 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 Security National insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
2The issues to be decided are:
i. Is the applicant entitled to $2,094.54 ($5,379.08 less $3,284.54 approved) for psychological services, proposed by Oshawa Physiotherapy and Rehabilitation Centre in an OCF-18/treatment plan ("plan") submitted January 4, 2022?
ii. Is the applicant entitled to $2,195.00 for an MRI, proposed by Med Centra Inc. in a plan submitted September 28, 2022?
iii. Is the applicant entitled to $11,105.80 for chronic pain treatment, proposed by Oshawa Physiotherapy and Rehabilitation Centre, in a plan submitted May 25, 2023?
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?
v. Is the applicant entitled to interest on any overdue payment of benefits?
3The respondent confirmed that the applicant is out of the Minor Injury Guideline ("MIG").
RESULT
4The applicant is entitled to a treatment plan for $2,094.54 for psychological services.
5The applicant is not entitled to treatment plans for $2,195.00 for an MRI and $11,105.80 for a chronic pain treatment.
6The respondent is not liable to pay an award.
7The applicant is entitled to interest in accordance with s. 51 of the Schedule.
ANALYSIS
8To 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.
9I find that the treatment plan for psychological services completed by Fahimeh Aghamohseni, psychologist, is reasonable and necessary.
10The treatment plan was submitted in the amount of $5,379.08. The treatment plan was partially approved in the amount of $3,284.54, leaving an outstanding balance of $2,094.54.
11The goal of the proposed treatment plan is pain reduction, and to return to pre-accident level of driving and being a passenger.
12The applicant relies on the psychological report dated September 3, 2019, of Dr. Judith Pilowsky, psychologist. Dr. Pilowsky opined that the applicant had a history of psychological problems, but before the subject accident, she had a breakthrough in her treatment and was coping well, and after the accident she lost her ability to cope. The applicant was diagnosed with a major depressive disorder, severe, exacerbated, and maintained by the accident, post traumatic stress disorder with panic attacks. The applicant also relied on the report of Dr. Fahimeh Aghamohseni, psychologist, dated August 24, 2022. Dr. Aghamohseni, opined that the applicant's driving anxiety and avoidance issues have contributed to several impediments of her daily functioning following the accident.
13The respondent submits that the applicant has not discharged her onus of proving the psychological treatment plan in dispute is reasonable and necessary. The respondent relies on the report dated June 8, 2022, of Dr. Randy Silverman, psychologist. Dr. Silverman acknowledged the applicant's need for further driving instruction. Lastly, the respondent notes that the applicant has indicated that she is uninterested in psychological treatment which she found to be "not helpful."
14I find on a balance of probabilities that the applicant has met her onus that psychological treatment is reasonable and necessary. In reviewing the evidence, I am satisfied that the applicant has been diagnosed with major depressive disorder, and post traumatic stress disorder and had received psychological treatment previously. I find the evidence of Dr. Pilowsky, Dr. Aghamohseni and Dr. Silverman persuasive in that additional psychological treatment as proposed in the treatment plan may assist the applicant and is therefore reasonable and necessary.
15I find that the treatment plan completed by Zeshan Shaikh, physician, for an MRI in the amount of $2,195.00 is not reasonable or necessary.
16The goal of the proposed treatment plan is pain reduction, increased strength, increased motion, and the return to activities of normal living.
17The applicant submits that her family physician, Dr. Nigel Jagan, failed to submit an MRI request for knees, and therefore she requires medical imaging to be paid by the respondent. The applicant further provides that while medical imaging may be available through OHIP, it is not readily available and there would be a significant wait even if a request was made.
18The respondent submits that the no referral has been provided by the applicant's family physician, or any other medical professional, and therefore the applicant's submissions of wait time is not persuasive. The respondent also submits that the treatment plan for an MRI was submitted on September 28, 2022, and it is possible that the applicant may have already obtained her MRI and had it covered by OHIP.
19I find that the applicant has not met her onus. I find that where an MRI is accessible through OHIP with a doctor's referral, the applicant must demonstrate why it was not available through OHIP in order to prove it is reasonable and necessary at the expense of the respondent. The applicant did not provide persuasive to suggest why a physician's referral for an MRI was never requested.
20I find that the treatment plan completed by Altaf Khimji, physiotherapist, for a chronic pain treatment in the amount of $11,105.80 is not reasonable or necessary.
21The goal of the proposed treatment plan is pain reduction, increased strength, increased motion, and the return to activities of normal living.
22The applicant relies on the Independent Chronic Pain Assessment Report, dated October 7, 2022, of Dr. Atiemo Kessie, chronic pain specialist. Dr. Kessie diagnosed the applicant with sprain and strain injuries, and chronic pain syndrome. The applicant also relies on the report of Dr. Ahmed Jwely, psychiatrist, who opined that the applicant had a history of chronic pain since the accident.
23The respondent submits that the applicant has not met her onus of proving that but for the accident, she meets at least three of the six American Medical Associates Guides ("AMA Guides") for chronic pain. The respondent submits that Dr. Kessie is on the only physician that determined the applicant suffers from chronic pain syndrome and opined that the applicant met three of the six criteria for chronic pain. The respondent takes issue with Dr. Kessie's report, finding that it is based on self-reporting by the applicant, and highlights the extensive pre-accident history of the applicant that is not captured in Dr. Kessie's report.
24In reviewing the evidence, I am not persuaded that the applicant had chronic pain since the accident, nor that the disputed treatment is reasonable and necessary to treat an accident-related impairment. In reviewing the report of Dr. Jwely, I find that this is based on the applicant's self-reporting, not objective testing. In reviewing the CNRs of Dr. Jagan, they reveal sporadic visits and are not supportive of chronic pain. I find that the applicant had been on LTD and CPP since 2013, and as of March 2018 indicated that she was barely leaving the home, doing social activities, working and receiving assistance from her partner for daily activities. I find that the applicant's ability to pursue work, family or recreational needs was significant impaired prior to the accident.
Interest
25Interest applies on the payment of overdue benefits pursuant to Section 51 of the Schedule. The applicant is entitled to interest on the overdue payment for the treatment plan for psychological services.
Award
26The applicant seeks an award under section 10 of Regulation 664. The applicant has not provided persuasive arguments to be granted an award.
ORDER
27For the reasons outlined above, I find that:
i. The applicant is entitled to a treatment plan for $2,094.54 for psychological services.
ii. The applicant is not entitled to treatment plans for $2,195.00 for an MRI and $11,105.80 for a chronic pain treatment.
iii. The respondent is not liable to pay an award.
iv. The applicant is entitled to interest in accordance with s. 51 of the Schedule.
Released: May 28, 2025
Greg Witt
Adjudicator