Citation: Sriskandarajah vs. Security National Insurance Company, 2020 ONLAT 19-011967/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:

Pratheeba Sriskandarajah

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Lisa Thach, Paralegal

For the Respondent:

Larrisa Ling, Counsel

HEARD:

By way of written submissions

1P.S. (the “applicant”) was involved in an automobile accident on February 9, 2017, and sought benefits from Security National Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).¹ 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) a medical benefit in the amount of $109.00 for physiotherapy recommended by York Wellness Centre in a treatment plan (OCF-18) dated October 31, 2017?

b) a medical benefit in the amount of $2,027.84 for physiotherapy recommended by York Wellness Centre in a treatment plan (OCF-18) dated December 16, 2017?

c) 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. Since I have determined that the applicant’s impairments are minor, I need not decide whether the treatment plans are reasonable and necessary as the MIG limit has been exhausted. Interest is not payable as I do not find that any payments are overdue.

PROCEDURAL ISSUE

5The applicant raised a procedural issue in her reply submissions, as the respondent served its submissions on the applicant on July 20, 2020, which was three-days after the deadline provided in the Tribunal’s case conference report and order. To confirm, the respondent filed its submissions with the Tribunal on July 16, 2020, which was, in compliance with the Tribunal’s order. Emails between the parties revealed that there was an administrative error in the email address for the applicant’s representative that the respondent had sent its submissions to. The applicant did not request that the Tribunal exclude the respondent’s submissions. Instead, she asked that the respondent file an amended certificate of service reflecting the proper date the respondent’s submissions were served. This will confirm that the respondent complied with the applicant’s request and filed an amended certificate of service.

BACKGROUND

6On February 9, 2017, the applicant was involved in an accident. The applicant was a passenger in a vehicle travelling in the right-hand lane which was side-swiped by a vehicle which entered from the left. The applicant did not seek immediate medical attention and went to a walk-in clinic two-weeks later in which she complained of pain in her neck, right shoulder and low back.

7Following the accident, the applicant commenced treatment at York Wellness Centre pursuant to the MIG. The applicant now seeks a finding that her injuries are not predominantly minor and the disputed treatment plans are reasonable and necessary.

8The respondent has paid $3,500.00 in medical benefits up to the MIG limit.

ANALYSIS

Do the applicant’s impairments fit within the MIG?

9I find the applicant’s impairments fall within the MIG.

10Section 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.”

11Pursuant 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 her impairments are not minor and not subject to the $3,500.00 cap.

12The applicant argues that her impairments do not fit within the definition of the MIG because she suffers from chronic pain or chronic pain syndrome as well as a psychological impairment as a result of the accident. Further, she submits that her accident-related impairments remain unresolved and she requires further treatment. She relies on one clinical note and record (“CNR”) of Dr. Gnanabaskaran (from a walk-in clinic) and the CNRs of York Wellness Centre. She also maintains that the insurer examinations (“IEs”) completed on behalf of the respondent support her position that she suffers from ongoing pain and a psychological impairment and that these impairments are not minor.

13The respondent submits that the applicant’s impairments fit within the MIG. It maintains that the CNR relied upon by the applicant does not support that she sustained a psychological impairment or suffers from chronic pain as a result of the accident. Further, a more recent CNR demonstrates that the applicant has fully recovered. The respondent relies on the IEs of Dr. Khaled, general practitioner, and Dr. McCutcheon, psychologist, both dated July 13, 2018, who determined that the applicant’s physical and psychological impairments are minor and can be treated in the MIG. For the following reasons, I agree with the respondent and find the applicant sustained a minor injury.

14The applicant submits that she did not have any pre-existing health issues that would prevent her from achieving maximum medical recovery within the MIG, so she is not removed from the MIG as a result of a pre-existing condition.

15I do not find that the CNRs of the walk-in clinic support the applicant’s position that she suffers from chronic pain as a result of the accident. The applicant refers to one CNR of Dr. Gnanabaskaran dated July 10, 2019, which the applicant maintains supports that she still suffers from accident-related back pain and that the doctor supported her ongoing need for physiotherapy. However, the CNR submitted states:

“Back pain for 6 days. When grabbed water from bucket and poured on son’s head felt sudden onset of back pain in lower back. Diagnosis: back pain due to muscular strain.”

16In my view, one visit to a walk-in clinic almost two and a half years post-accident where the applicant complains of back pain does not support the applicant’s position that she suffers from chronic pain as a result of the accident. Further, I agree with the respondent that the above CNR does not appear to be accident-related. In fact, it appears as though the applicant strained her back while washing her son’s hair.

17Significantly, other than one CNR which supports that the applicant attended a walk-in clinic about her accident-related complaints two weeks post-accident, no other CNRs reflect that the applicant made any other complaints about ongoing pain or her accident-related impairments. In fact, a CNR dated March 21, 2019 supports the opposite as it states the applicant is living an active, healthy lifestyle. In this note, the applicant does not report any ongoing accident-related pain in her neck, shoulder or back. Further the doctor checks off “no” to symptoms of depression and anxiety. I agree with the respondent that this CNR does not support that the applicant has any ongoing physical impairment that would remove her from the MIG. In addition, the applicant attends the walk-in clinic on several occasions, complaining of common cold and flu symptoms and the accident is not mentioned.

18The applicant also relied on the CNRs of York Wellness Centre, which note that the applicant attended treatment for a period of time. I did not find the CNRs of this clinic support that the applicant suffers from chronic pain or chronic pain syndrome as the notes are not legible and contained no progress reports. In addition, the treatment plans prepared by this clinic describe her accident-related impairment as “strain and sprain of both the cervical and lumbar spine, low back pain, and stiffness in joint.” I find these impairments fit within the definition of the MIG.

19The applicant maintains that the IE of Dr. Khaled supports her position that she suffers from chronic pain as she reported ongoing pain in her shoulder, neck and low back to the doctor. I disagree, as Dr. Khaled diagnosed the applicant with mechanical low back pain, grade 2 whiplash of the neck with left shoulder sprain and strain as a result of the accident. These impairments all fit within the MIG. Further, he opined that the applicant had no ongoing musculoskeletal, neurological or orthopaedic accident-related injury and that the applicant’s physical impairments could be treated within the MIG. What I found lacking from the applicant’s evidence was a medical report from any medical professional diagnosing the applicant with chronic pain or chronic pain syndrome. Further, there was a lack of objective evidence to back up such a diagnosis.

20The applicant relied on the Tribunal’s Reconsideration Decision in T.S. v. Aviva² in support of her position that because she suffers from ongoing pain six months post-accident, she suffers from chronic pain and should be removed from the MIG. In that decision, the Executive Chair accepted the definition of chronic pain to be “an ongoing recurrent pain, lasting beyond the usual course of acute illness or injury or more than three to six months which adversely affects the individual's well-being.”³

21I agree with the applicant that if I were to determine that she suffers from chronic pain or chronic pain syndrome, she would be removed from the MIG. However, I have not made such as determination. Moreover, I find T.S. v. Aviva distinguishable from this case as the insured was diagnosed with chronic pain syndrome by a medical expert, which the adjudicator accepted. Despite the fact that the adjudicator accepted this diagnosis, it was determined that chronic pain syndrome fell within the MIG and the insured was successful on reconsideration. In the applicant’s case, no medical professional has diagnosed her with chronic pain or chronic pain syndrome.

22While I accept that the applicant may have experienced some ongoing symptoms of pain at the time of the IE, I find that this was sequalae from her soft tissue injuries as these symptoms did not impact her functional ability to carry out her daily activities. In addition, the CNR in March 2019 establishes that any symptoms of pain the applicant may have had had resolved. As highlighted by the Executive Chair above, “chronic pain” is a condition which adversely affects an individual’s well-being. The applicant has failed to establish this. To the contrary, the evidence supports that post-accident the applicant resumed her employment without any modifications, she has continued to care for her young child, her social activities have not been impacted and she is independent with housekeeping (with the exception of heavier tasks) as well as her personal care.

23The applicant has not met her onus on proving on a balance of probabilities that she suffers from chronic pain or chronic pain syndrome as a result of the accident that would remove her from the MIG.

Did the applicant sustain a psychological impairment that would remove her from the MIG?

24I do not find the applicant suffers from a psychological impairment that would remove her from the MIG for the following reasons.

25The applicant relied on the IE of Dr. McCutcheon to support that she has a psychological impairment as a result of the accident which would remove her from the MIG.

26Dr. McCutcheon conducted a psychological IE where the applicant reported that she felt irritable, tired and angry because she is unable to complete tasks as quickly as she did pre-accident. The applicant also indicated that she has had interpersonal conflicts, has passenger anxiety and difficulty sleeping, which results in her feeling fatigued. Despite the applicant reporting that she has had conflicts with friends, this has not impacted her friendships and she is social.

27Dr. McCutcheon administered psychometric tests, which were valid and revealed that the applicant was experiencing some mild symptoms of anxiety and depression.⁴ 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 MIG.

28I accept the opinion of Dr. McCutcheon as the applicant did not submit a psychological assessment to refute it. The applicant did not submit any other evidence to support that she suffers from any accident-related psychological impairment. Further, there was no evidence to support that the applicant’s psychological symptoms have resulted in any functional limitations. As highlighted above, this evidence was lacking.

29The applicant has not met her onus on proving on a balance of probabilities that she suffers from chronic pain, chronic pain syndrome or a psychological impairment as a result of the accident that would remove her from the MIG.

30Since the MIG limit has been exhausted, I need not determine whether the applicant is entitled to the disputed treatment plans. Since I do not find that any benefits are overdue, interest is not payable.

ORDER

31For 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 either of the disputed treatment plans as the MIG limit has been exhausted. The applicant is not entitled to interest as I do not find any benefits are overdue.

Released: November 3, 2020

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