Citation: T.A. v. TD Insurance Meloche Monnex, 2020 ONLAT 19-004279/AABS

Released Date: 09/22/2020

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:

T.A.

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Davide Cortinovis

Counsel

For the Respondent:

Al Alilovic

Counsel

HEARD By Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1[T.A] (the “applicant”) was involved in an automobile accident on February 20, 2018 (“accident”), and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ He was 38-years-old at the time of the accident.

2TD Insurance Meloche Monnex (“respondent”) determined that the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and therefore fall within the Minor Injury Guideline (“MIG”).² The respondent paid a $400.00 per week income replacement benefit (“IRB”) to the applicant from February 27, 2018 to November 26, 2018, when it then determined him ineligible.

3The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

ISSUES

4The issues to be decided are:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to receive an IRB in the amount of $400.00 per week from November 26, 2018 to February 20, 2020?

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

RESULT

5I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. I find that the applicant is not entitled to an IRB in the amount of $400.00 per week, or in any other amount, for the period in dispute. No interest is payable.

LAW

6The MIG establishes a treatment framework available to an injured person who sustains 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 sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. Under s. 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.

7To be eligible for treatment above the $3,500.00 funding limit, the applicant must establish that his or her impairments sustained in the accident are not predominantly minor, or produce compelling evidence, provided by a health practitioner and documented before the accident, that the applicant has a pre-existing condition that will prevent him from achieving maximal recovery from the minor injury if subject to the funding limit.

8The onus is on the applicant to establish, on a balance of probabilities, that his injuries fall outside of the MIG.³

9An employed person’s entitlement to an IRB falls under s. 5(1)(1)(i) of the Schedule: an IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. If the insured was working at the time of the accident, this inquiry is divided into two steps: 1) what are the essential tasks of employment; and 2) is the insured substantially unable to perform the essential tasks of that employment?

10The onus is on the applicant to establish his or her entitlement to an IRB on a balance of probabilities.

ANALYSIS

Did the Applicant Suffer Injuries That Are Predominantly Minor?

11The applicant submits he suffered accident-related physical injuries, including lower back and neck, which are not minor injuries within the MIG.

12I find that the applicant’s physical injuries from the accident are minor injuries because none of the applicant’s medical evidence indicates any physical injuries arising from the accident other than soft tissue injuries. After the accident, the applicant did not seek medical attention until February 22, 2018, when he saw Dr. Jegathesan at Bur Oak Medical Centre (“Bur Oak”) with complaints of neck, chest and back pain, and “right just some neck discomfrt (sic) and chest muscle discomfort”. Dr. Jegathesan noted “likely whiplash injury”, diagnosed “neck, low back, coccyx” issues and recommended physiotherapy, massage, “nsaid, msk relaxant” and heat compress.

13The applicant went to Bur Oak several more times in 2018 for various complaints, none of which appear to be accident-related as no accident-related injuries or complaints were recorded by the physician. In June 2018, the applicant complained to Bur Oak physician Dr. Jayashankar of “anxiety-panic – due to work pressure” and was diagnosed with allergic rhinitis, hay fever. In August 2018, Dr. Jayashankar diagnosed the applicant with anxiety neurosis, hysteria, neurasthenia, obsessive compulsive neurosis, reactive depression, chest pain, tacycardia, syncope, shock, edema, and masses. In October 2018, the applicant saw Dr. Jayashankar for chest discomfort, “especially in lt side of shoulder, while playing basket ball”.

14It was not until January 2019 when the applicant attended for a hypertension assessment that Dr. Jayashankar noted “concern re neck + upper back pain – since mvs (sic) – intermittent – no radiation of pain – no neuro sxs” and recorded his objective impression as “General app-good, tenderness+neck+upper back+stiffness+neck-upper back. ROM-Decreased, Shoulder rom-n”, assessed msk pain and recommended heating pad, local pain cream, massage and baclofen. There are no records of referral to any medical specialists for any accident-related injuries and no records before me of the applicant seeking any medical treatment at Bur Oak after January 2019.

15The applicant relies on the November 2018 report of the respondent’s physiatrist, Dr. Czok. However, Dr. Czok’s report does not support the applicant’s position as Dr. Czok diagnoses minor injuries, specifically right shoulder and lumbar spine sprain and strain, both of which have resolved.

16There is nothing in the medical evidence before me that establishes the applicant had anything other than sprain and strain type physical injuries from the accident. These fall within the definition of “minor injury”. However, the applicant argues that he suffers from chronic pain that removes him from the MIG.

Does the applicant have chronic pain as a result of the accident?

17I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from chronic pain justifying treatment beyond the MIG.

18The applicant submits that he has “been consistently complaining of lower back and neck pain for over a year now” and, as a result, his pain cannot be classified as minor. While the case law referred to by the applicant does establish that chronic pain can take one out of the MIG, the evidence in this case falls short of establishing that the applicant suffers from chronic pain from the accident.

19Although there is some reference in the records of Dr. Jegathesan two days after the accident of complaints of neck, chest and back pain, there is no record of pain complaints again until some 11 months later, when in January 2019 Dr. Jayashankar noted “concern re neck + upper back pain – since mvs (sic) – intermittent – no radiation of pain – no neuro sxs” and recorded his objective impression as “General app-good, tenderness+neck+upper back+stiffness+neck-upper back. ROM-Decreased, Shoulder rom-n”, assessed msk pain and recommended heating pad, local pain cream, massage and baclofen. This record establishes not that the applicant has made consistent complaints of pain for over a year as he submits, but the opposite – that the applicant’s pain complaints were intermittent, and I so find.

20There are no records of referral by Bur Oak physicians for further investigation of pain for any accident-related injuries, and no records before me of the applicant seeking any medical treatment at all at Bur Oak or elsewhere for pain after January 2019.

21Although the applicant self-reported to Dr. Czok that he also suffered headaches as a result of the accident, this is not supported by any medical evidence. The weight of the medical evidence is the opposite. Dr. Jegathesan’s February 22, 2018 record is “no loc…no headache…no nausea, no vomiting…appears well”.

22The applicant was able to play basketball by October 2018 according to the records of Dr. Jayashankar, which is not supportive of the applicant’s submission about consistent lower back and neck pain for over a year post-accident.

23Considering the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain as a result of the accident that justifies treatment beyond the limits of the MIG. The burden of bringing forward persuasive medical evidence of his alleged condition is on the applicant and he has not done so.

Is the Applicant Entitled to IRB in the amount of $400.00 per week as claimed?

24At the time of the accident, the applicant was employed full-time as a sales associate at Modcom, a computer store, earning $775.00 per week and worked 40 hours per week. The applicant says he stopped working after the accident because of the injuries he sustained.

What were the essential tasks of the applicant’s employment?

25No records were filed from the applicant’s employer about the essential tasks of his pre-accident employment. However, the applicant told Dr. Czok that he is unable to return to his full-time employment as a store manager because he is unable to meet the physical demands of his occupation due to his accident-related injuries. The applicant self-reported that his employment entailed stocking items, ordering items, cleaning and tidying up the store, customer care and resolving customer issues and that he did not return to work due to pain.

Does the applicant suffer a substantial inability to complete the essential employment tasks?

26I find that the applicant does not suffer a substantial inability to complete the essential employment tasks based on a lack of medical evidence.

27There is no opinion from either of the applicant’s physicians indicating that he is unable to complete the essential tasks of his pre-accident employment. The records of his physicians show only intermittent complaints of pain post-accident. There are no imaging reports filed supporting the applicant’s inability to complete the essential tasks of his employment.

28The applicant relies on his self-reported inability to perform activities of daily living and household tasks to the respondent’s assessors. This self-reporting is not supported by any medical evidence and, even if it was, is not relevant to an analysis of whether the applicant can perform the essential tasks of his employment.

29Dr. Czok examined the applicant and found his posture normal. Dr. Czok also found the applicant had full active range of motion of the cervical spine and shoulders, elbow, wrist and hand range of movement within normal limits bilaterally. He also found the applicant had full flexion of the lumbar spine, extension of the lumbar spine full and pain free, lateral flexion of the lumbar spine full, rotation of the lumbar spine full, full and pain free range of motion of hips bilaterally, full and pain free range of motion of the knees. Upon neurological examination, Dr. Czok found the upper extremities normal and symmetrical muscle reflexes, grade 5/5 strength bilaterally in all muscle groups, muscle tone normal, normal gait. Dr. Czok opined that the applicant’s injuries from the accident has resolved. I accept this opinion.

30The applicant submitted his income tax records which do show a decline in his employment income post-accident. However, this is not the test for eligibility for IRB under s. 5 of the Schedule.

31Considering the totality of the medical evidence, I find that the weight of the evidence is that the applicant has no substantial ongoing injury as a result of the accident. Even if there may be some tasks of his employment that the applicant might not be able to return to, which the applicant has not established, I find that the applicant does not suffer from a substantial inability to perform the essential tasks of his pre-accident employment. The onus of proof is on the applicant and I find that he has failed to meet it.

Interest

32As no benefits are payable, no interest is payable.

ORDER

33For the above reasons, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. I also find that the applicant is not entitled to an IRB as claimed. The applicant’s claim is dismissed. No interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.