Prakas Mahendranathan v. TD Insurance Meloche Monnex, 2020 CanLII 94787

Citation: Prakas Mahendranathan vs. TD Insurance Meloche Monnex, 2020 ONLAT 19-007772/AABS

Released Date: 11/13/2020

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:

Prakas Mahendranathan

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Kiro Soliman, Paralegal

For the Respondent: Karen Klaiman, Counsel

HEARD: By way of written submissions

OVERVIEW

1Prakas Mahendranathan (the “applicant”) was involved in an automobile accident on July 7, 2016, and sought benefits from TD Insurance Meloche Monnex (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to this written hearing.

ISSUES IN DISPUTE

3I have been asked to decide the following issues:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline (“MIG”)?

ii. If the answer to the first question is no, is the applicant entitled to the following benefits:

a. Is the applicant entitled to receive a medical benefit in the amount of $13,667.32 for a chronic pain program, recommended by Health Max Physiotherapy Thorn Hill (“Health Max”) in a treatment plan dated May 24, 2019, and denied by the respondent on June 5, 2019?

iii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

4The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit. The applicant is not entitled to the disputed treatment plan, an award or interest.

BACKGROUND

5On July 7, 2016, the applicant was a passenger in a vehicle involved in a rear-end collision. He did not seek immediate medical attention and attended his family doctor’s office the next day complaining of back pain. He was prescribed pain medication and referred to a clinic for chiropractic treatment and massage. Following the accident, the applicant took eight months off work in his position as a small business specialist at a bank.

6The applicant commenced treatment within the MIG. He seeks a finding that his injuries are not predominantly minor and that the disputed treatment plan is reasonable and necessary.

ANALYSIS

Do the applicant’s impairments fit within the MIG?

7I find the applicant’s impairments fall within the MIG.

8Section 3 of the Schedule provides the following definition of a minor injury:

“a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”

9Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. In addition, certain accident related medical impairments can remove an individual from the MIG. For example, a diagnosis of chronic pain or a psychological impairment. The onus is on the applicant to prove that his impairments are not minor and not subject to the $3,500.00 cap.

10The applicant argues that his impairments do not fit within the definition of the MIG because he suffers from chronic pain syndrome and a psychological impairment as a result of the accident. Further, he submits that his accident related impairments remain unresolved and he requires further treatment. He relies on the clinical notes and records (“CNRs”) of Dr. Loganathan, his family doctor and the chronic pain assessment prepared by Dr. Rod, pain specialist dated November 15, 2018 in support of his position that his impairments are not minor. The applicant also maintains that he is entitled to the disputed treatment plan for the chronic pain program because the respondent’s notice was deficient and was in non-compliance with s.38(8) of the Schedule.

11The respondent submits that the applicant’s impairments fit within the MIG. It maintains that the CNRs relied upon by the applicant do not support that he suffers from chronic pain or chronic pain syndrome as a result of the accident. Further, the report of Dr. Rod should be given little weight as it was based on the applicant’s self-reported complaints. The respondent relies on the multi-disciplinary insurer examinations (“IEs”) of Dr. Oshidari, physiatrist and Dr. McCutcheon, psychologist, dated March 27, 2019 and paper reviews dated June 14, 2019, which determined that the applicant’s accident related impairments fit within the MIG. For the following reasons, I agree with the respondent and find the applicant sustained a minor injury.

12The applicant submits that he did not have any pre-existing health issues that would prevent him from achieving maximum medical recovery within the MIG, so he is not removed from the MIG as a result of a pre-existing condition.

13To date, the respondent has approved medical benefits in the amount of $3,487.10.

Does the applicant suffer from chronic pain, chronic pain syndrome or a psychological impairment that would remove him from treatment in the MIG?

14When a decision rests on competing medical opinions secondary sources of information are important. I do not find the CNRs of Dr. Loganathan support the applicant’s position that he suffers from chronic pain syndrome or chronic pain as a result of the accident. Between July 7, 2016 and March 2, 2017, the applicant attended his family doctor’s office a total of six times. However, the CNRs are not legible so it is not clear whether these visits were accident related. While Dr. Loganathan filled out the referral for a chronic pain assessment there is no explanation on the form noting the reason for why the applicant was being referred. Dr. Loganathan checked off “a) referred for pain management” where the doctor could have selected option b) for post-mva rehabilitation. For these reasons, I have given these CNRs little weight.

15The applicant heavily relied on the chronic pain assessment of Dr. Rod who diagnosed the applicant with chronic pain syndrome, chronic cervicogenic headaches, chronic cervical zygapophyseal joints pain, chronic cervical pain/sprain, chronic cervicothoracic spine sprain/strain, chronic thoracic spine sprain/strain, chronic lumbar spine sprain/strain, chronic lumbar polyradiculopathy, chronic sleep disturbances and chronic mood disturbances.

16I do not find Dr. Rod’s report persuasive as I find the doctor relied entirely on the applicant’s self-reports. For example, included in the body of the report was a Pain Disability Questionnaire with 15 questions where the applicant’s symptoms were rated on a scale of 1 to 10. In my view, Dr. Rod’s diagnosis is not supported by any objective medical documents. In conducting the assessment, the only records Dr. Rod reviewed was an IE completed by Dr. Lipson, physiatrist and a functional capacity evaluation completed by Dawn Rynberk, kinesiologist. The findings of these assessors contradict Dr. Rod’s findings and determined the applicant’s impairments were minor. In addition, Dr. Rod completed a physical examination of the applicant as well as several tests and he failed to interpret the results within the report. I also find Dr. Rod’s report inconsistent as he indicates that the applicant returned to work full-time in November 2017. However, he then states that the applicant is moderately limited and moderately disabled with his pre-accident activities and the essential tasks of his employment. In my view, the fact that the applicant returned to work full-time does not support Dr. Rod’s opinion. For these reasons, I have given Dr. Rod’s report little weight.

17By contrast, the respondent relied on the IEs of Dr. Oshidari and Dr. McCutcheon who determined that the applicant’s impairments could be treated in the MIG. Dr. Oshidari conducted a physical examination of the applicant which for the most part was normal. However, Dr. Oshidari’s examination did reveal that the applicant’s range of motion of the lumbosacral spine in relation to flexion and rotation were 70% of normal, and extension and lateral bending were 60% of normal. The applicant also complained of pain across his back with all movements. Despite this fact, Dr. Oshidari diagnosed the applicant with a sprain/strain of the lumbar spine which in his opinion could be treated within the limits of MIG.

18While I question the fact that Dr. Oshidari’s physical examination revealed that the applicant reported pain and his range of motion was limited the onus is on the applicant to prove that he should be removed from the MIG. Based upon the report of Dr. Rod and CNRs of his family doctor the applicant has not met his onus. I also accept Dr. Oshidari’s opinion that the applicant’s physical impairments are minor as it is more consistent with the evidence before me. For example, Dr. Lipson’s physiatry IE dated July 10, 2017, determined that the applicant sustained uncomplicated sprain/strain injuries of his cervical and thoracolumbar spine, which could be treated within the MIG. In addition, significantly, the impairments listed by the applicant’s service providers on disability certificates (OCF-3s) and treatment plans (OCF-18s) all describe whiplash sprain and strain impairments that are covered within the definition of the MIG.

19Dr. McCutcheon conducted a psychological IE where the applicant reported that he felt "very tired, drained, exhausted and in pain". Further, he expressed feeling frustrated with his slow rate of recovery and being worried about his pain, his physical health, his career and future ability to handle parental responsibilities. In addition, the applicant stated that he is irritable when in pain which sometimes results in conflicts with his wife and family. However, he reported that he still socializes and attends temple.

20Dr. McCutcheon administered psychometric tests which were valid and revealed that the applicant was experiencing some mild symptoms of anxiety and depression.¹ However, Dr. McCutcheon determined that the psychological symptoms expressed by the applicant were subclinical and that there was no evidence to support a diagnosable psychological condition as a result of the accident. Consequently, Dr. McCutcheon determined that the applicant’s accident-related psychological symptoms fall within the limits of the MIG.

21I accept the opinion of Dr. McCutcheon over the opinion of Dr. Rod as she is a psychologist and is more qualified to render a psychological diagnosis. In addition, I find her opinion is more consistent with the evidence before me as other than Dr. Rod’s report the applicant did not submit any other evidence to support that he suffers from any ongoing accident related psychological impairment. Further, no evidence was submitted to support that the applicant’s psychological symptoms have resulted in any functional limitations. Moreover, other than the findings of Dr. Rod, which for the reasons already provided I do not accept, the applicant did not submit a competing psychological assessment to refute Dr. McCutcheon’s findings.

22The applicant has not met his onus in proving on a balance of probabilities that he suffers from chronic pain, chronic pain syndrome or a psychological impairment as a result of the accident that would remove him from the MIG.

Is the applicant entitled to payment of the treatment plan in the amount of $13,667.32 for a chronic pain program, recommended by Health Max dated May 24, 2019, because the respondent’s notice of denial was deficient?

23The applicant is not entitled to payment of the treatment plan as I find the respondent’s notice of its denial was compliant with s.38(8) of the Schedule.

24Section 38(8) of the Schedule provides that the insurer shall give the insured person notice when it denies benefits that provide the medical reasons and other reasons why the insurer considers the benefits not to be reasonable and necessary. Section 38(9) provides that if the insurer believes that the MIG applies to the insured person's impairment, the notice under subsection (8) must so advise the insured person. Finally, s. 38(11) provides that if the insurer fails to give proper notice, the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies and is liable to pay for the disputed benefits.

25The applicant submitted the treatment plan for the chronic pain program to the respondent on May 24, 2019. On June 5, 2019, the respondent sent the applicant an Explanation of Benefits stating that it does not agree to pay for the treatment plan. It provided the following medical and other reasons:

We have completed our review of your file including the documentation received to date from your health practitioner. Based on the information provided to date, we have determined that the documentation received is insufficient to support that you have sustained an injury or impairment which is not minor in nature as a direct result of this subject motor vehicle accident. Furthermore, there has been no supporting or compelling medical documentation provided to indicate that you suffer from a pre-existing condition which would preclude you from reaching maximum medical recovery within the policy limits as afforded under your Medical & Rehabilitation Benefits of $3,500.00. It is our position that the limited information provided does not reveal a severe pathology or significant abnormal findings.

We have also received a completed Section 44 report and it was determined that your physical injuries sprain/ strain of lumbar spine and that there is no psychological impairment that would prevent your recovery within the Minor Injury limit.

In order to determine if the above goods and services recommended are reasonable and or necessary as a result of the impairments sustained in the above motor vehicle accident, we have arranged for (an) assessment (s).

Outlined below are the details of the assessment(s) and whether your attendance is required.

26The letter then states that the assessment details will follow under a separate cover letter and requested that the applicant submit any other relevant medical records for consideration.

27I agree with the applicant that the above notice contained a few mistakes. For example, it did not specifically identify that it was a chronic pain program that was being denied and it did not name the s. 44 assessment it was relying on. Further, the notice likely caused some confusion when it stated “outlined below are details of the assessment(s) and whether your attendance is required,” as the letter then states that “the details of the assessment will follow under a separate cover.” Despite the fact that the notice contains errors, I do not find these mistakes serious enough to find that the respondent’s notice was not sufficient as it attached a copy of the treatment plan being denied and sent a follow up letter shortly afterwards setting out the dates and details of the IEs. I find that even if the respondent failed to attach a copy of the treatment plan an unsophisticated person would be able understand what was being denied and the reason why. Further, I find the respondent does provide a medical reason for its denial in that it indicates that MIG applies and the reasons why it believes that to be the case.

28The applicant relied on the Tribunal’s decision in 18-000396 v. TD Insurance² in support of his position that the respondent’s notice was deficient. I do not find that this decision supports the applicant’s position as in that case the adjudicator determined that the respondent’s notice did not comply with s.38 (8) because it did not consider the following: i) the criteria in the MIG; ii) determine that there is insufficient compelling evidence of pre-existing injuries or conditions to persuade it that the injuries fall outside the MIG; and iii) determine that the MIG applies to the applicant. This decision is distinguishable from the present case because I find the respondent addressed all three of these components in its notice dated June 5, 2019.

29On July 10, 2019, the respondent sent the applicant an EOB denying the treatment plan for the chronic pain program recommended by Health Max based on the IE paper reviews of Dr. Oshidari and Dr. McCutcheon dated June 14, 2019. The letter explained that based on the IEs, the treatment plan was not reasonable and necessary as the assessors determined that the applicant’s impairments were minor along with the medical reason to support its position. The letter also provided a brief summary of each assessor’s findings and indicated that the IEs of Dr. McCutcheon and Dr. Oshidari were attached.

30In his reply submissions, the applicant maintains that he never received the respondent’s letter dated July 10, 2019 attaching the IE paper reviews until he received the respondent’s submissions for this written hearing. The respondent did not submit any proof i.e. fax confirmation sheet confirming that the EOB and IE paper reviews were sent to the applicant. However, the applicant did not request that these IEs be excluded on the basis of non-compliance with the Tribunal’s orders and procedural fairness. The applicant contends that the respondent’s denial was deficient as its reasons outlined in this letter do not discuss the findings of Dr. Rod’s chronic pain assessment, nor did it address the CNRs of Dr. Loganathan. The respondent submits that the CNRs of Dr. Loganathan do little to support the applicant’s position that he suffers from chronic pain as a result of the accident and as already highlighted I agree. In my view, I do not find the paper reviews of Dr. Oshidari and Dr. McCutcheon were necessary or added any value as these assessors had already determined that applicant’s impairments were within the MIG a few months prior.

31Section 38(13) provides that within 10 business days after receiving the report of a s.44 examination for the purpose of a treatment plan, the insurer shall give a copy of the report to the insured person and to the regulated health professional who prepared the treatment plan. Section 38(14)(b) provides that it shall also give notice if it determines that the MIG applies to the insured person’s impairment and provide medical and any other reasons for the insurer’s determination. However, there is no remedy outlined in the Schedule for an insurer’s non-compliance with this section. Therefore, I cannot make a finding that the insurer’s notice was deficient for non-compliance with this section.

32For all of the above-noted reasons, I find the medical and other reasons provided by the respondent for its denial of the treatment plan for the chronic pain program complied with s.38(8) of the Schedule.

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

33The applicant is not entitled to interest.

34Section 51(1) of the Schedule provides that an amount payable in respect of a benefit is overdue if the insurer fails to pay the benefit within the time required under this regulation.

35Since I do not find that any payments are overdue the applicant is not entitled to interest.

Is the respondent liable to pay an award for unreasonably withholding and delaying payment of benefits?

36The applicant is not entitled to an award.

37Section 10 of Regulation 664 speaks to an award. Specifically, if the Licence Appeal Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Licence Appeal Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled under the Statutory Accident Benefits Schedule, may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured (including unpaid interest) at the rate of 2 per cent per month, compounded monthly, from the time the benefits first became payable under the Schedule.

38The applicant argues that he is entitled to an award because the respondent unreasonably withheld and delayed payment of his accident benefits.

39The applicant submits that the respondent unreasonably withheld payment for benefits given the information it possessed at the time of the denial. The respondent’s conduct has harmed the applicant as he suffered physical pain while his condition deteriorated without the necessary treatment.

40In light of my decision in this matter I do not find that an award is warranted as I do not find that the respondent unreasonably withheld and delayed payment of benefits.

Is the applicant entitled to costs pursuant to Rule 19.1 of the Tribunal’s Common Rules of Practice and Procedure?

41In his submissions the applicant also requested costs in accordance with Rule 19.1 of the Tribunal’s Common Rules of Practice and Procedure. Rule 19.1 allows a party to request costs where the other party has acted in bad faith and in a vexatious manner.

42The applicant maintains that he is entitled to costs because the respondent opposed the applicant’s request to adjourn the date when the applicant’s medical reports were due which were delayed because of COVID-19. Further, when the applicant advised the respondent that the World Health Organization had declared COVID-19 to be a global health pandemic on January 30, 2020 it ceased corresponding with the applicant which was unreasonable conduct. In my view, the grounds for the applicant’s claim for costs is unclear. The applicant did not articulate how the above conduct of the respondent meets the high threshold of being unreasonable, vexatious or acting in bad faith for an award of costs. As such, I do not find the applicant is entitled to costs.

ORDER:

43For all of the above reasons, I find:

i. The applicant sustained a minor injury as defined under the Schedule and is subject to the $3,500.00 funding limit;

ii. The applicant is not entitled to the disputed treatment plan, interest or an award.

Footnotes

1. 1Dr. McCutcheon administered the Pain Patient Profile (P-3); Beck Anxiety Inventory (BAI); Beck Depression Inventory-II (BDl-11) and Rey Fifteen-Item Visual Memory Test (VMT).
2. 218-000396 v. TD Insurance Meloche Monnex, 2019 CanLII 22208 (ON LAT)