Licence Appeal Tribunal File Number: 20-006161/AABS
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:
Balakarnan Rasaratnam
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR:
Theresa McGee, Vice-Chair
APPEARANCES:
For the Applicant:
Davide Cortinovis, Counsel
For the Respondent:
Evan Argentino, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant, Balakarnan Rasaratnam, was involved in an automobile accident on November 24, 2018, and sought benefits from the respondent, Allstate Insurance, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the “Schedule”).
2The respondent determined that the applicant’s injuries fell within the Minor Injury Guideline. It denied the applicant medical benefits outside the $3,500.00 limit for the treatment of minor injuries. The applicant then applied to the Licence Appeal Tribunal (“Tribunal”) for resolution of the dispute.
ISSUES
3The issues to be decided in the hearing are:
a. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?
b. Is the applicant entitled to $1,761.01 for physiotherapy recommended by Trillium Rehab Physiotherapy Clinic in a treatment plan (OCF-18) denied on May 29, 2019?
c. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant has failed to prove entitlement to benefits outside the Minor Injury Guideline. It is unnecessary to consider whether the proposed physiotherapy is reasonable and necessary as a result of the accident. The benefit is not payable, and no interest is owing. The application is dismissed.
ANALYSIS
5To be eligible for the medical benefit he seeks in this application, the applicant has the onus of proving, on a balance of probabilities, that his accident-related injuries are not predominantly “minor” as defined in the Schedule. The term “minor injury” is defined in s. 3(1) 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.”
6If the applicant’s injuries are predominantly minor, the Minor Injury Guideline will apply. As s. 18(1) of the Schedule provides, funding for treatment under the Minor Injury Guideline is capped at $3,500.00. Where the Minor Injury Guideline applies and the funding limit has been exhausted, it is generally not necessary to examine whether individual treatment and assessment plans are reasonable and necessary as a result of the accident.
7Section 18(2) of the Schedule provides that the $3,500.00 limit “does not apply to an insured person if his or her health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a health practitioner before the accident and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the limit or is limited to the goods and services authorized under the Minor Injury Guideline.”
8The applicant submits that he has a pre-existing condition that justifies removal from the Minor Injury Guideline. He also submits that he suffers from chronic pain, an impairment that falls outside the definition of a minor injury.
9For the reasons set out below, I find on a balance of probabilities that the applicant sustained only minor, soft tissue injuries in the accident. He is therefore subject to the Minor Injury Guideline, and the benefit in dispute is not payable. In addition, the applicant has failed to demonstrate that he should be removed from the Minor Injury Guideline on account of his pre-existing conditions.
The applicant sustained minor, soft tissue injuries in the accident
10The medical evidence tendered by the applicant establishes that he suffered only minor, soft tissue injuries in the accident. To determine the injuries the applicant sustained in the accident, I have reviewed:
a. the records from the emergency department at Scarborough General Hospital from the date of the accident;
b. the clinical notes and records of the applicant’s family physician, Dr. Anuradha Srinivasan, from two days after the accident; and
c. the Disability Certificate (OCF-3) prepared by the applicant’s treating chiropractor, Dr. Angelika Alechina, on November 29, 2020.
11All of these records document soft tissue sprains and strains, whiplash (a soft tissue condition), and headaches resulting from the accident. All of these injuries fall within the Schedule’s definition of a minor injury.
The applicant has not proven chronic pain
12The applicant submits that as a result of the accident, he developed chronic pain, and that he should be considered for removal from the Minor Injury Guideline on this basis. He relies on the chronic pain assessment of Dr. Dima Rozen, dated November 4, 2020. I do not find this report compelling. The assessment was conducted virtually, in the absence of a physical examination. While I can only infer from the timing of the assessment that the COVI-19 pandemic may have placed constraints on the assessment format, the quality of the assessment is compromised when an assessor is unable to conduct a clinical assessment in person. Second, the assessment relies heavily on the applicant’s self reported symptoms, reports that are merely “presumed to be truthful” rather than assessed for validity or consistency with objective medical evidence. Dr. Rozen reports that she reviewed the available medical evidence, but the records she reviewed are largely the same as those in evidence before me, and again, they establish a series of only minor, soft tissues injuries caused by the accident. The records do not support the assessor’s conclusions of severe chronic impairment. I find Dr. Rozen’s conclusion that “it is unlikely [the applicant] will ever return to his pre-accident level of function” and that without continued therapy, the applicant “may progress toward serious medical distress” to be unsupported by her own clinical interview and by the objective medical evidence. I am unable to rely on the report and its conclusions. On a balance of probabilities, I find the pain experienced by the applicant after the accident to be the clinically associated sequelae of his minor, soft tissue injuries. The Minor Injury Guideline applies.
Pre-existing conditions not shown to prevent recovery from minor injuries
13The applicant submits that diagnostic imaging taken before the accident revealed:
a. osteophytes on his thoracic spine (x-ray dated March 12, 2018);
b. degenerative disc disease of the cervical spine, mild osteoarthritis, and scoliosis suggesting a muscle spasm (x-ray dated March 24, 2018);
c. mild degenerative changes to the cervical spine (MRI dated January 27, 2018).
14The applicant makes no submissions and tenders no medical evidence to show how, if at all, these pre-existing findings might hamper his ability to recover from his minor, accident-related injuries if he is confined to the Minor Injury Guideline. This is a critical omission, as the Schedule explicitly requires compelling evidence demonstrating a link between the pre-existing condition and an inability to recover within the Minor Injury Guideline. Because the applicant has failed to demonstrate this link, he has not satisfied the test in s. 18(2). As it is his onus to do so, I can only conclude that the Minor Injury Guideline applies in spite of the applicant’s documented mild degenerative conditions of the spine.
CONCLUSION
15Because I have found that the applicant is subject to the Minor Injury Guideline, it is unnecessary to engage in an analysis of whether the proposed physiotherapy is reasonable and necessary. As the applicant has failed to discharge his evidentiary onus, there is no need to engage with the Section 44 Insurer’s Examination evidence tendered by the respondent. No benefits are payable, and no interest is owing.
16The application is dismissed.
Released: October 29, 2021
Theresa McGee, Vice-Chair