Citation: Guda vs. The Personal Insurance Company, 2020 ONLAT 19-008543/AABS

Released Date: 11/03/2020

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:

Satish Guda

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce

APPEARANCES:

For the Applicant:

Arvin Gupta

For the Respondent:

Samuel Davies

HEARD:

By way of written submissions

OVERVIEW

1S.G. was injured in an accident on August 2, 2017, and sought benefits from the respondent, The Personal, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). The Personal denied the benefit in dispute on the basis that S.G.’s accident-related impairments were predominantly minor injuries subject to the Minor Injury Guideline (“MIG”). S.G. disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

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

ii. Is the applicant entitled to a medical benefit in the amount of $2,727.40 for chiropractic treatment recommended by Reddy’s Physio Rehab Inc. in a treatment plan (OCF-18) submitted on February 26, 2018, and denied on March 13, 2018?

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

result

3S.G. has not demonstrated that his accident-related impairments warrant treatment beyond the MIG or that the treatment is reasonable and necessary.

ANALYSIS

Applicability of the Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. 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.” An 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.

5S.G. submits that he suffered pain in his right knee, hip and leg as a result of the accident, as well as headaches, anxiety and difficulty sleeping. He directs the Tribunal to clinical notes from 2015 and 2016 documenting swelling and chronic pain in his leg, mild back pain with no clear source from 2015, as well as back cramps and a fractured finger in 2014. He relies on a CT scan of his cervical spine from May 19, 2018, the findings of which revealed slight bulging of his C4-5 central disc annulus. On this evidence, S.G. submits that “this condition was either pre-existing making him more susceptible to back injuries as a result of the impact of the motor vehicle accident, as documented through past back pain and cramps, for which physio was taken” or, in the alternative, “if he did not have this condition before the accident”, S.G. submits that “the accident caused his spinal abnormalities mentioned in the medical notes.” He further relies on an April 3, 2019 MRI of his right knee which indicated an interiorly surfacing flap tear in the posterior third of the medial meniscus to prove that “this condition was likely pre-existing making him more susceptible to knee injuries as a result of the impact of the motor vehicle accident.”

6Keeping in mind that the burden of proof lies with S.G., I agree with The Personal that S.G.’s submissions are not particularly assistive, as they do not really present a cogent theory of his case. As I understand it, S.G. is arguing that he has documented pre-existing conditions that may or may not have been exacerbated by the accident. While I am alive to S.G.’s previous complaints in the limited medical documentation provided and his current complaint of pain, the Tribunal was not directed to a medical opinion or compelling medical evidence that indicates his pre-existing conditions prevent his recovery if he is kept within the MIG or that these conditions were even exacerbated by the accident. It is not sufficient to state that a condition was “likely pre-existing” when the Schedule requires “compelling” medical evidence.

7With respect to his pre-existing back pain, S.G. relies on an entry from Dr. Wong in February 2015 indicating he had back pain and was seeking physiotherapy. However, I again agree with The Personal that a single entry from two years pre-accident that does not actually make a formal diagnosis is not the type of compelling medical evidence of a pre-existing back injury or condition that would justify removal from the MIG under s. 18(2). In a similar vein, with respect to his pre-existing knee pain, S.G. relies on various pre-accident entries at Golden Mile Walk-In Clinic concerning left knee pain and bilateral leg varicose veins. However, I agree with The Personal that the April 2, 2017 x-ray and ultrasound were unremarkable. Again, where S.G. does not rely on any medical opinion or other medical evidence that states he would be prevented from reaching maximal medical recovery within the MIG as result of these pre-existing impairments, I find it difficult to find that he has satisfied his burden under s. 18(2).

8Moving forward in time to his current impairments, S.G. alleges that he suffers ongoing pain as a result of the accident. To this end, he relies on an entry from his family physician from two months post-accident and a diagnostic report of his cervical spine and right knee, as detailed above. Here, I agree with The Personal that other than one post-accident record dated October 7, 2017, none of S.G.’s treating practitioners reported back, knee or other accident-related pain. There are no references or diagnoses of chronic pain or chronic pain syndrome from a medical professional and S.G. did not provide clinical notes from any of his providers. The diagnostic reports provided by S.G. do not definitively trace the alleged injuries to the accident or indicate that S.G.’s injuries are not minor. While the CT scan of S.G.’s spine reported mild disc bulge, it was “otherwise unremarkable” and states, “No significant finding.” Similarly, the knee MRI from 2019 reveals a flap tear and not a full tear, which is considered a minor injury.

9Put another way, I agree with The Personal that S.G. has not presented any evidence linking his back pain or knee pain to the accident or explained how these are not degenerative or wear and tear conditions, as it is his burden to do. Further, I find there is a lack of medical opinion or medical information to prove causation and there is limited evidence of continuous or contemporaneous complaints to a treating physician or practitioner post-accident. These facts, combined with S.G.’s own uncertain theory surrounding causation, lead me to find that he has not satisfied his burden to prove on a balance of probabilities that his accident-related impairments warrant removal from the MIG. On the evidence, I find no reason to depart from The Personal’s determination that S.G.’s accident-related impairments are properly within the MIG.

Is the treatment plan reasonable and necessary?

10S.G. seeks payment for chiropractic treatment. He submits that he has yet to make a full recovery and requires ongoing treatment to maintain his progress and make any improvements to his condition as he experiences ongoing pain in his knee, hip, and leg that would be worsened if treatment were to stop.

11Having determined that S.G. has not met his burden to prove that his impairments warrant treatment beyond the MIG, an analysis of whether the sole treatment plan in dispute is reasonable and necessary is not required. However, for completion, I do not find that S.G. has satisfied his burden to prove that the chiropractic treatment is reasonable and necessary under s. 15.

12Problematically, S.G.’s submissions do not address the specific treatment plan or provide analysis to explain why this specific chiropractic treatment plan is reasonable and necessary to treat his specific accident-related impairments. S.G. did not provide a medical opinion, from either the recommending clinic or his physician, recommending the treatment or supporting the treatment plan in dispute. S.G. did not provide attendance records or clinic notes from previous treatment that he argued was beneficial. S.G. did not provide the actual OCF-18 and did not state whether he incurred it. Accordingly, I have no basis to depart from The Personal’s determination that the OCF-18 is not reasonable and necessary. As no benefits are overdue, it follows that interest is not payable.

CONCLUSION

13S.G. has not demonstrated that his accident-related impairments warrant treatment beyond the MIG or that the treatment plan in dispute is reasonable and necessary.