Sargsyan v. Aviva Insurance Company, 2025 CanLII 61172

Licence Appeal Tribunal

Citation: Sargsyan v. Aviva Insurance Company, 2025 ONLAT 23-011268/AABS-A

Licence Appeal Tribunal File Number: 23-011268/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:

Artur Sargsyan

Applicant

and

Aviva Insurance Company

Respondent

AMENDED DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Lucas Lisitsky Sara Nooraei, Counsel

For the Respondent: Natalie Spinelli, Paralegal

HEARD: By way of written submissions

OVERVIEW

1Artur Sargsyan, the applicant, was involved in an automobile accident on October 24, 2021, 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, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. 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 (MIG) limit?
2. Is the applicant entitled to $3,487.03 for physiotherapy services, proposed by HM Medical Network Ltd. in a treatment plan/OCF-18 ("plan") dated December 8, 2021?
3. Is the applicant entitled to $199.50 ($1,266.77 less $1,027.27 approved) for physiotherapy services, proposed by HM Medical Network Ltd. in a plan dated March 2, 2022?
4. Is the applicant entitled to $2,471.20 for a psychological assessment, proposed by HM Medical Network Ltd. in a plan dated April 28, 2022?
5. Is the applicant entitled to $7,581.19 for psychological services, proposed by HM Medical Network Ltd. in a plan dated October 26, 2023?
6. Is the applicant entitled to $2,290.40 for a driver's reintegration assessment, proposed by HM Medical Network Ltd. in a plan dated October 26, 2023?
7. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
8. Is the applicant entitled to interest on any overdue payment of benefits?

3The respondent withdrew the preliminary issue set out in the Case Conference Report and Order (CCRO).

RESULT

4I find that:

1. The applicant's injuries are predominantly minor and thus subject to treatment within the $3,500.00 MIG limit.
2. As the applicant remains within the MIG, it is not necessary to determine whether the treatment plans in dispute are reasonable and necessary.
3. The applicant is not entitled to an award.
4. As no payments are owing, no interest is due.
5. The application is dismissed.

ANALYSIS

Applicability of the MIG

5I find that the applicant has not met his onus to prove on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

6Section 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."

7An 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.

8The applicant submits that he should be removed from the MIG because he has a psychological impairment and chronic pain as a result of the accident. The applicant relies on the Disability Certificate (OCF-3) prepared by Marichu Guzman, physiotherapist, of HM Medical Network, Ltd., and dated November 8, 2021. The applicant also relies on the independent psychological assessment report ("s.25 report") of Viktoria Tolmatoshov, social worker, supervised by Dr. Julie Gosselin, psychologist, and dated October 21, 2023.

9The respondent argues that the applicant has not met his onus to prove that his accident-related injuries warrant removal from the MIG. The respondent relies on the clinical notes and records ("CNRs") of the applicant's family doctor, Dr. Armen Boyrazian, and the insurer's psychological assessment report ("s. 44 report") of Dr. Fabio Salerno, psychologist, dated August 16, 2024.

Psychological Impairment

10I find that the applicant has not established that he sustained a psychological impairment as a result of the accident that warrants his removal from the MIG.

11The applicant submits that he should be removed from the MIG because he experiences anxiety, low mood, and sleeping problems, in addition to driving-related anxiety as a result of the accident. The applicant further submits that he was diagnosed with anxiety, sleep disorder, and post-traumatic stress by Mr. Guzman, in the OCF-3 dated November 8, 2021, and later with Major Depressive Disorder Moderate single episode and Specific Phobia, automobile fear, by Ms. Tolmatoshov and Dr. Gosselin, on October 21, 2023.

12The respondent counters that the psychological conditions listed in the OCF-3 should be assigned no weight because Mr. Guzman is a physiotherapist, and is not qualified to make psychological diagnoses.

13I agree that psychological diagnoses are outside Mr. Guzman's scope of practice, and assign his opinion no weight.

14The respondent further argues that the s. 25 report should be assigned little weight, in part, because the assessment relied on the self-reports of the applicant, which were not consistent with the CNRs of his family doctor, and the assessors did not appear to have reviewed the applicant's medical records. The respondent also argues that the assessment was conducted by Ms. Tolmatoshov, who is a social worker, and Dr. Gosselin's role appears to be limited to "reviewing and endorsing" the assessment.

15I agree with the respondent. The s. 25 assessment was conducted by videoconference by Ms. Tolmatoshov on October 10, 2023, and consisted of a clinical interview, a feedback interview, psychometric testing and the review the November 8, 2021 OCF-3. Ms. Tolmatoshov and Dr. Gosselin opine that the applicant's symptoms are consistent with a diagnosis of Major Depressive Disorder- Mild single episode, that "there is additional evidence for "Specific Phobia, automobile fear." They recommend psychotherapy, a driving reintegration assessment, and pain management counselling.

16I find that the findings of the s. 25 report are not corroborated by contemporaneous medical evidence. Dr. Boyrazian's CNRs reveal no reports of psychological symptoms in the two years after the accident, and Dr. Boyrazian did not refer the applicant for psychological assessment or treatment.

17Further, the assessors rely on the applicant's ongoing pain as a significant contributor to his emotional state, however the applicant's self-reports are not corroborated by Dr. Boyrazian's CNRs, which reveal that the applicant last reported accident-related pain to his family doctor when he complained of back pain on December 4, 2021. The sole document listed as reviewed by the s. 25 assessors is the November 8, 2021 OCF-3, which listed soft tissue injuries to the applicant's neck and back. I find the OCF-3 sheds little light on the applicant's physical condition on the date of the assessment, almost two years later.

18For these reasons, I assign the s.25 assessment report little weight.

19I assign more weight to the s. 44 report of Dr. Salerno, who is a psychologist, and who conducted an in-person interview of the applicant on August 13, 2024. Dr. Salerno had access to the applicant's medical records, including the CNRs of Dr. Boyrazian, and Mr. Guzman's initial examination of the applicant. Dr. Salerno conducted an in-person clinical interview, psychometric testing, and a review of the applicant's medical records.

20The applicant told Dr. Salerno that he was experiencing some sleep interruption, but that he did not know the cause, and that he returned to work part-time as an Uber driver two days after the accident, and continued to drive personally. Dr. Salerno opined that the applicant experienced "mild and expectable psychological symptoms" as a result of the accident, and that he has reached maximum recovery from a psychological perspective, does not have a psychological impairment, and does not require psychological treatment. Based on the evidence before me, I find no reason to disagree with Dr. Salerno's report.

21As a result, I find that the applicant has not met his onus to prove on a balance of probabilities that he has a psychological impairment that warrants removal from the MIG.

Chronic Pain

22I find that the applicant has not established that he has chronic pain with functional impairment that warrants his removal from the MIG.

23The applicant submits that he should be removed from the MIG, because he was diagnosed with chronic pain syndrome by Ms. Tolmatoshov and Dr. Gosselin in their s. 25 report. I find that the evidence does not support the applicant's submission. While the s. 25 report refers to the applicant's pain as chronic, it does not contain a diagnosis of chronic pain syndrome.

24The applicant further submits that he meets three of the six criteria for a diagnosis of chronic pain in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment ("AMA Guides"), because he is excessively dependent on his family (criterion #2), is unable to pursue personal, family and recreational needs (criterion #5) and is experiencing insomnia and "feeling stressed." (criterion #6).

25The respondent argues that the applicant does not meet any of the criteria of the AMA Guides and has not met his onus to prove that he suffers from chronic pain with functional impairment.

26While the AMA Guides are not referenced in the Schedule and I am not bound by them, the Tribunal has determined that they provide a helpful tool in evaluating chronic pain. The AMA Guides state that a person must meet at least three of six criteria to support a diagnosis of chronic pain. These criteria are:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
2. Excessive dependence on health care providers, spouse, or family.
3. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
4. Withdrawal from social milieu, including work, recreation, or other social contracts.
5. 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.
6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

27I find that the evidence does not support the applicant's contention that he is excessively dependent on his family, because the applicant reported to Dr. Salerno that he is independent in his personal care and has resumed all of his pre-accident household chores and maintenance activities.

28With respect to the applicant's work, family and recreational needs, the applicant reported that he experiences pain while driving which has caused him to reduce his hours, however, he continues to work two to three days a week as an Uber driver. The applicant told Dr. Salerno that his relationships with family and friends were "good." Therefore, I find that the applicant has not established that he meets criterion number 5.

29Finally, I found above that the applicant does not suffer from an accident-related psychological impairment, therefore the applicant does not meet criterion number six of the AMA Guides.

30The applicant did make submissions or direct me to any evidence that he meets any of the other three criteria of the AMA Guides. Therefore, I find that the applicant does not meet three of the six criteria of the AMA Guides.

31I further find that the applicant has not directed me to sufficient medical or other evidence of functional impairment to support a finding of chronic pain with functional impairment.

32For the reasons above, I find the applicant has not met his onus to prove on a balance of probabilities that he suffers from chronic pain with functional impairment that warrants removal from the MIG.

33The applicant remains within the MIG.

34As the applicant remains within the MIG, it is not necessary to determine whether the treatment plans in dispute are reasonable and necessary.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

Award

36The 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. As no payments have been withheld or delayed, I find that the applicant is not entitled to an award.

ORDER

37For the reasons set out above, I find that:

1. The applicant's injuries are predominantly minor and thus subject to treatment within the $3,500.00 MIG limit.
2. As the applicant remains within the MIG, it is not necessary to determine whether the treatment plans in dispute are reasonable and necessary.
3. The applicant is not entitled to an award.
4. As no payments are owing, no interest is due.
5. The application is dismissed.