Surendran v. Primmum Insurance Company, 2020 CanLII 80321

Citation: Surendran vs. Primmum Insurance Company, 2020 ONLAT 19-008060/AABS

Released Date: October 1, 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:

Mylvaganam Surendran

Applicant

and

Primmum Insurance Company

Respondent

REASONS FOR DECISION AND ORDER

PANEL:

Sandeep Johal, Adjudicator

APPEARANCES:

For the Applicant:

Clifford Singh

For the Respondent:

Patrick M. Baker

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an automobile accident on June 4, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

2The applicant was the driver of a vehicle that was rear-ended by a truck. As a result of the accident the applicant sustained an injury to his neck, back and shoulders as well as ongoing and severe headaches as well as emotional trauma.

3The applicant applied for a psychological assessment that was denied by the respondent as it determined that his injuries were subject to the Minor Injury Guideline (the “MIG”). The applicant disagreed with this decision and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.

ISSUES TO BE DECIDED

4The following are the issues to be decided:

i. Did the applicant sustain predominantly minor injuries as defined under the s. 3 of the Schedule and which are subject to treatment within the $3,500 limit of the MIG?

If the answer to issue (i) is no, then:

ii. Is the applicant entitled to receive a medical and rehabilitation benefit in the amount of $1,995.33 for a psychological assessment, recommended by Novo Medical Services, in a treatment plan submitted on November 27, 2018 and denied by the respondent on December 6, 2018?

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

RESULT

5Based on the totality of the evidence before me, I find:

i. The applicant sustained predominately minor injuries as defined in the Schedule and, thus, he is subject to treatment within the monetary limits of the MIG;

ii. As a result of the monetary limit of the MIG being exhausted there is no need to discuss whether the psychological assessment is reasonable and necessary; and

iii. As there are no outstanding benefits, the applicant is not entitled to interest.

ANALYSIS

Preliminary Issue

6Despite the issue of the MIG being listed as an issue in dispute in the Tribunal Order and raised by the respondent in its submissions, the applicant has not addressed this issue of the MIG at all in his initial submissions and has chosen not to provide reply submissions.

7The respondent submits that the issue of the MIG was previously determined by the Tribunal with respect to this applicant in 16-000546 v Primmum Insurance Company,² and the applicant’s claim was dismissed which should represent a final determination of the MIG issue. Furthermore, issue estoppel should apply and the MIG issue is res judicata, because it was been adjudicated and therefore it cannot now be pursued again.

8As mentioned, the applicant was afforded the opportunity to provide reply submissions to the respondent’s submissions but chose not to.

9In 16-000546 v Primmum Insurance Company it would appear as though the applicant did not provide his evidence for the written hearing and was contacted by the Tribunal to make further submissions on why his evidence should be allowed after the production deadline and after the hearing date. In that case, the applicant chose not to provide any additional submissions. As a result, the applicant’s claim was dismissed. There was no actual determination made on the merits of the MIG.

10The onus is on the applicant to prove that his injuries fall outside of the MIG.³ In the present case, the applicant has provided his evidentiary record and as a matter of fairness, it would be appropriate to review the record, even though applicant’s counsel has not provided any submissions and has not directed me to any evidence that the applicant may have an injury that is outside the definition of the MIG.

11As a result of the above, I find that the matter is not res judicata as there was no hearing on the merits of the MIG in 16-000546 v Primmum Insurance Company and it will be dealt with as part of this hearing.

Applicability of the Minor Injury Guideline

12The MIG establishes a framework for the treatment of minor injuries. The term “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.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in s. 3(1). Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.

13According to the applicant’s submissions he had the following injuries:

i. On June 23, 2014 the Initial Report from Progressive Rehabilitation reported that the applicant had complaints of lower back pain, bilateral shoulder pain, cervical spine pain and pain in his shoulder blades.⁴

ii. On November 18, 2014 in the Progress Re-Evaluation Report from Progressive Rehabilitation, the applicant’s complaints are of pain in his lumbar spine, cervical spine and bilateral shoulders.⁵

iii. In a report dated August 31, 2015 the applicant reports to Dr. Loritz, General Practitioner who conducted an insurer examination (“IE”) on behalf of the respondent, that he has painful symptoms in his neck, shoulders and lower back, as well as ongoing headaches and sleep disruption.⁶

iv. Dr. Loritz diagnoses the applicant with a myofascial strain/sprain injuries of his cervical spine, shoulder girdles, axial spine and whiplash associated disorder I and II (WAD I/II).⁷

14The respondent submits that the applicant sustained minimal soft tissue injuries as a result of this accident and that he did not report the accident to his family doctor until August 30, 2016, more than two years after the accident. Furthermore, the only diagnosis provided in terms of his physical injuries are provided by Dr. Loritz in his IE report of August 31, 2015 which identifies whiplash injury as well myofascial sprain/strain injuries to the shoulder and axial spine.

15I agree with the respondent. The medical evidence indicates that the applicant’s injuries are sprain and strain type injuries which would fall within the definition of the MIG.⁸

16However, the applicant’s submissions refer to the applicant potentially having a psychological impairment or chronic pain, which are both not within the definition of the MIG. As a result, I will proceed to discuss the applicant’s psychological impairment and then chronic pain and whether they are sufficient to remove the applicant from the MIG.

Does the applicant have a psychological injury?

17For the following reasons I find that the applicant does not have psychological injury that would remove him from the MIG.

18The applicant submits he is suffering from psychological and emotional symptoms and stressors as his mental health has been negatively impacted from the accident.

19In support of his submissions the applicant relies upon a questionnaire he completed with the treating facility at Spinetec wherein he notes that the pain has restricted his social life and that he has a fear of being in a car either as a driver or a passenger.⁹

20The applicant further relies upon his self-report to IE assessor, Dr. Bacciochi, psychologist, where he reported that he had nervousness related to driving and that he was worried about getting into another accident.¹⁰ Furthermore, the applicant relies on the evidence of Dr. Loritz, General Practitioner, who noted in his IE report dated August 31, 2015 that the applicant has a mild degree of apprehension while driving.¹¹

21Other than the applicant’s self-reports I am not directed to any evidence of a psychological impairment or concerns from any treating medical practitioner. There are no concerns from the applicant’s family doctor and there are no recommendations for treatment or referrals to any psychologist from any treating practitioner that applicant has seen.

22Although the applicant self-reports that he is nervous driving, the report that the applicant relies upon is not provided in its entirety and I am unable to determine who the author of the report is. Moreover, in the portion of the report that was submitted, it states that the applicant did not report any significant psychological symptoms of depression or anxiety.¹² Furthermore, the author of the report opines that the applicant’s physical injuries meet the criteria for a minor injury as described in the MIG and states that an opinion with respect to the psychological assessment, the author of the report defers to a psychological assessor.¹³

23The respondent submits that the applicant has not sustained any psychological impairment as his family doctor records do not contain even a single relevant complaint. Where there is a complaint, it was made in respect of the applicant’s concern for his mother’s health and not the accident.

24Furthermore, the respondent relies upon the psychological IE assessment from Dr. Bacchiochi, who determined that the applicant had not sustained any diagnosable psychological impairment as a result of this accident. The applicant reported to Dr. Bacchiochi that he had no interest in, or the need for psychological treatment.¹⁴

25The respondent further submits that the request for a psychological assessment was submitted after the applicant’s subsequent accident on November 13, 2018 and the treatment plan does not explain why a psychological assessment would be required for an accident that occurred more than four years prior.

26The onus is on the applicant to prove his case and not for the respondent to disprove and I find that the applicant has not persuaded me on a balance of probabilities that he suffers from a psychological injury.

27Other than the applicant’s self-reported questionnaire and his self-reports to the IE assessor the applicant has not presented any medical opinion or clinical notes and records that he has a psychological impairment that would remove him from the MIG. Compelling evidence is required and self-reports alone are not compelling evidence that the applicant suffers from a psychological impairment.

28I will now turn to discuss whether the applicant has chronic pain and whether that is sufficient to remove him from the MIG.

Does the applicant have chronic pain?

29For the following reasons I find that the applicant does not have chronic pain that would remove him from the MIG.

30The applicant does not provide submissions on chronic pain, however he submits the following notations regarding chronic pain:

i. On February 23, 2016 in the clinical notes and records from the treating facility, Spinetec, it is determined that the applicant has chronic grade II neck pain, chronic mechanical thoracic spine pain, chronic mechanical lumbar spine pain and chronic rotator cuff dysfunction.

ii. On July 11, 2016 in an Initial Examination Report from HealthMax Physiotherapy, Dr. Hassan listed the following diagnosis: chronic sprain and strain of thoracic spine; chronic sprain and strain of the lumbar spine.¹⁵

31The respondent submits that applicant has not submitted any evidence to suggest that he meets any of criteria as set out in the American Medical Association Guides (“AMA Guides”) as endorsed by the Tribunal in 17-007825 v Aviva Insurance Canada,¹⁶ that at least three of the six criteria set out below must be met to establish 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 non-organic illness behaviours.

32With all due respect to the Adjudicator in 17-007825 v Aviva Insurance Canada, I pause to note that I am not bound by another member’s decision and nor am I bound by the AMA Guides or these criteria as they are not incorporated into the Schedule with the exception of a catastrophic impairment.¹⁷ The applicant having a catastrophic impairment is not the situation in the present case.

33The onus is on the applicant to adduce evidence of chronic pain or chronic pain syndrome. On a balance of probabilities, I find that the applicant has not done so. Other than the notations of the applicant’s pain being chronic in the clinical notes and records from the treating facilities, there is no discussion on what basis they find the applicant’s pain to be chronic. A mere mention alone that the applicant’s pain may be chronic is not sufficient on its own to establish a chronic pain condition that may remove the applicant from the MIG.

34As a result of the above, I find that the applicant has not persuaded me on a balance of probabilities that he suffers from an injury that is outside the definition of the MIG. As a result of the MIG limit having been exhausted, there is no need to discuss the reasonableness and the necessity of the psychological assessment.

ORDER

35As a result of the above and on a balance or probabilities, I find that:

i. The applicant sustained predominately minor injuries as defined in the Schedule and, as the MIG limit having been exhausted, there is no need to discuss the reasonableness and the necessity of the psychological assessment.

ii. As there are no outstanding benefits, the applicant is not entitled to interest.

Released: October 1, 2020

___________________________

Sandeep Johal

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 22016 CanLII 73691 (ON LAT)
3. 3Scarlett v. Belair Insurance. Company., 2015 ONSC 3635.
4. 4Written Submissions of the Applicant at Tab 1, page 1.
5. 5Ibid at page 2.
6. 6Ibid at Tab 3.
7. 7Ibid at page 3.
8. 8Written Submissions of the Applicant at Tabs 1 and 3.
9. 9Written Submissions of the Applicant at Tab 4, pages 3-4.
10. 10Ibid at Tab 3, pg. 4.
11. 11Ibid at pg. 3.
12. 12Ibid.
13. 13Ibid at pg. 3.
14. 14Written Submissions of the Respondent at Tab 5, pg. 13.
15. 15Written Submissions of the Applicant at Tab 7, pg. 1.
16. 162018 CanLII 98282 (ON LAT) at para. 6.
17. 17Section 3.1 of the Schedule.```