Bindradat Bhawanidin v. Coseco Insurance Company, 2021 CanLII 13196

Citation: Bhawanidin vs. Coseco Insurance Company, 2021 ONLAT 19-009460/AABS

Released: January 19, 2021

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:

Bindradat Bhawanidin

Applicant

and

Coseco Insurance Company

Respondent

DECISION

ADJUDICATOR: Monica Chakravarti

APPEARANCES:

For the Applicant: Nicholas Mester, Counsel Zoe Meditskos, Paralegal

For the Respondent: Julianne Brimfield, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was involved in a motor vehicle accident on April 8, 2017. The applicant sought benefits from the respondent, for medical and rehabilitation benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”). The respondent denied the benefits because it concluded that the applicant’s injuries were predominately minor and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed with respondent and applied to the Tribunal for resolution of the dispute.

ISSUES TO BE DECIDED

2The parties agree that the following issues are to be decided:

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

ii. If the applicant did not sustain a predominantly minor injury,

a. Is the applicant entitled to the cost of an examination in the amount of $2,200.00 for a psychological assessment recommended by Medex Health Services in a treatment and assessment plan (OCF-18) submitted on August 8, 2017 and denied on August 23, 2017?

b. Is the applicant entitled to a medical benefit in the amount of $1,797.05 for chiropractic treatment recommended by Medex Health Services in a treatment plan (OCF-18) submitted on August 18, 2017 and denied on August 23, 2017?

c. Is the applicant entitled to a medical benefit in the amount of $2,670.80 for chiropractic treatment recommended by Medex Health Services in a treatment plan (OCF18) submitted on April 30, 2018 and denied on May 11, 2018?

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

iv. Is the applicant entitled to an award Ontario Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits?

RESULT

3The applicant has failed to discharge his evidentiary burden and is not entitled to the benefits in dispute. He has not established, on a balance of probabilities, that his accident-related injuries are not predominantly minor as defined under s. 3 of the Schedule. He has failed to provide compelling evidence that he suffers from a pre-existing medical condition documented by a health practitioner prior to the accident that prevents him from achieving maximal recovery from his minor injuries if he is subject to the MIG.

4As the funds available to the applicant under the MIG have already been exhausted², I need not consider whether those treatment plans are reasonable and necessary.

5As no benefits are owing, no interest is payable. There is no basis for an award under Regulation 664.

ANALYSIS

Should the Applicant remain within MIG?

6The onus is on the applicant to prove on a balance of probabilities that he did not sustain predominately minor injuries as a result of the accident.³

7Section 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. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. Psychological injuries fall outside of the definition of minor under the Schedule.

8The applicant submits that he should be removed from the MIG due to primarily his pre-existing mechanical low back pain. He submits that post-accident he was diagnosed with mild degenerative disc disease (DDD) and therefore this diagnosis combined with his pre-existing mechanical low back pain would preclude medical recovery if he is kept within the MIG. The applicant also submits that as result of the accident he sustained chronic pain and psychological injuries which warrant removal from the MIG.

9The respondent submits that the applicant did have pre-existing issues with his lower back but there is no evidence from the applicant to show that he is precluded from recovery if the applicant is subject to the MIG. Further the respondent submits that the applicant did not sustain chronic pain or psychological injuries as a result of the accident.

10Both parties agree that the MIG amounts have been exhausted.⁴ Both parties agree that prior to the accident the applicant did have issues with his lower back which were documented by Dr. Salib and Dr. Ebeid (“Treating Doctor’s”)⁵. The applicant provided evidence to show that following the accident he had injuries to his back and wrist and that on or about August 4, 2017 his Treating Doctor’s diagnosed him with mild DDD. The applicant does not take issue that the physical injuries sustained in the accident were “minor” as defined in the Schedule. The applicant does submit that the physical injuries resulted in chronic pain which would remove the applicant from the MIG.

11I agree with the respondent and find that although the applicant has a pre-existing condition, he has not established that the condition warrants removal from the MIG as the applicant did not provide any expert, treating, or any reports or opinions to establish that he would be prevented from achieving maximal medical recovery from the minor injuries to his back if he is kept in the MIG.

12Section 18(2) and the jurisprudence has established that a pre-existing condition alone is not enough to warrant removal from the MIG but that the applicant must show that he has a documented pre-existing condition and that he will be prevented from achieving maximal medical improvement if he is subjected to the MIG.

13The Treating Doctor’s clinical notes and records established that the applicant has a history of lower back pain, wrist pain, knee pain and pain in his feet. On April 24, 2017 the applicant attended at Dr. Imre who noted an “MVA April 8 Rear ended” and “low back strain”. The 2017 post -accident notes of the Treating Doctors note lower back pain without any radiation or neurological symptoms. Following an x-ray, on August 4, 2017 Dr. Ebeid (one of the two Treating Doctors) diagnosed mild DDD. There were no further notes provided past April 5, 2018.

14Based on the above the injuries sustained by the applicant were minor injuries as defined. However, based on the medical evidence the applicant has not shown that he warrants further treatment outside of the MIG in order to achieve maximal medical recovery from the minor injuries to his back. The applicant has not established that the DDD is an accident related impairment as there are no x-rays prior to the Accident, no expert or medical report to link the mild DDD to any accident related injuries or that DDD could have occurred within four months of an accident as opposed to a degeneration of the discs that pre-dates the accident. The applicant as well has not provided any reports or medical opinions that show the need for treatment outside of the MIG due to his pre-existing condition or conditions.

15Therefore, the applicant is not removed from the MIG due to his pre-existing injury or condition because he has not proven on a balance of probabilities that his pre-existing condition precludes recovery if he is kept within the confines of the MIG.

16The applicant further submits that he sustained chronic pain as a result of the accident and therefore this is not a minor injury and as such, he should be removed from the MIG. Based on the below the applicant has failed to show that he has chronic pain as a result of the accident.

17The applicant has ongoing pain from before the accident. Following the accident, the applicant continued to have low back pain and some wrist pain. There is no mention in the Treating Doctor’s notes of chronic pain or a diagnosis of chronic pain syndrome, however I acknowledge that the applicant has pain that is ongoing and that a diagnosis of chronic pain syndrome is not required.

18The applicant however has not established he has functional impairments as a result of the accident related injuries that are causing the pain.

19The applicant attended at his Treating Doctor’s six times between the date of the Accident of April 8, 2017 to April 16, 2019. On May 4, 2017 the Treating Doctors clinical notes and records states that he has a “history of MVA 1 month ago... not stopping daily activity”. Thereafter, there is no evidence of functional impairments noted in his medical or other records.

20The applicant submits that he has been accommodated at work due to his injuries, however he offers no evidence of this and no evidence that this accommodation is as a result of Accident related impairments or as a result of the pre-existing impairments.

21The applicant reported at the insurer examination (I.E) with the physiatrist, Dr. Zabieliauskas on October 14, 2017 that as a result of the accident he has pain in his neck, right wrist and lower back. He does not report any pre-accident issues with his back or wrist. At the second I.E. with Dr. Zabieliauskas of August 4, 2018 the applicant again failed to report any pre-accident issues with his back or wrist. He reported to Dr. Zabieliauskas that he does not use any medications and he was not attending physiotherapy, but he was attending at a gym since 2017 and working out on his own.

22Dr. Zabieliauskas concluded based on his physical examinations during both I.E.s that the applicant did not have any objective clinical findings or impairments as a result of the Accident.

23Based on the above and the lack of evidence to support post-accident functional impairments the applicant has not shown on a balance of probabilities that he suffers from chronic pain as a result of accident related injuries or impairments.

24The applicant further submits that he sustained psychological injuries as a result of the Accident. He relies upon the pre-screening report of Dr. Pilowsky dated August 8, 2017. The applicant also submits that the I.E. report of Dr. Hines, psychiatrist, should not be relied upon because Dr. Hines does not provide insight, tests or reasons as to how he arrived at the conclusion that the applicant did not sustain any psychological injuries as a result of the Accident.

25Psychological injuries do not fall within the definition of minor injuries under the Schedule. The onus is on the applicant to prove that he sustained psychological injuries as a result of the accident. The applicant has not met this onus for the reasons noted below.

26As stated above, the applicant relies on the pre-screen report of Dr. Pilowsky which consists of the applicant’s self-reporting of symptoms. There is no testing done nor any comments on the applicant’s demeanor or affect. Dr. Pilowsky diagnosed the applicant with depression as well as post-traumatic anxiety.

27The respondent submits that the applicant did not sustain any psychological injuries as a result of the accident. The respondent relies on the I.E of Dr. Hines, psychiatrist. The I.E of Dr. Hines consisted of an in-person interview and an evaluation based on his observations of the applicant. There was no formal testing done. Dr. Hines concluded that the applicant functioned quite well throughout the assessment and there was no objective evidence of the subjectively reported emotional issues. Therefore Dr. Hines concluded that the applicant has no accident related psychiatric illness or diagnosis.

28I find that the conclusion of Dr. Hines is more consistent with the evidence. The applicant at no time reports any emotional or psychiatric issues following the Accident to his Treating Doctors.

29I also find that the applicant’s self-reporting of his physical symptoms to be problematic because the applicant’s clinical notes and records are not in keeping with his reporting to the I.E doctors. For example the applicant reports to the I.E. psychiatrist, Dr. Hines, that following the accident he had an issue with his eye and saw on optometrist and an ophthalmologist, however those records were not provided and the Treating Doctor’s notes do not show these referrals. The Treating Doctor’s notes of June 8, 2017 confirm the applicant had conjunctivitis of his eye which by its nature is not accident related.

30Further the applicant reported to the I.E. physiatrist Dr. Zabieliauskas, on October 8, 2017, that he had tingling to his right lower extremity associated to the lower back pain. In the second I.E. with Dr. Zabieliauskas of August 4, 2018, he reports tingling and twitching in his fingers and his lower extremities. However, the clinical notes and records of the Treating Doctors specifically note on May 4, 2017, June 8, 2017, August 4, 2017, December 20, 2017 and April 5, 2018 that the pain from his back and/or wrist is not radiating and that there are no neurological symptoms.

31The applicant has not met his burden of proof to show that he sustained psychological injuries as result of the accident. The applicant did not report any psychological or emotional issues to his family/treating doctors. Further the applicant’s self-reporting of his psychological symptoms is not reliable as there is no evidence to corroborate his self-reporting. His self-reporting of his physical symptoms is inconsistent with the evidence that is provided and therefore when his self-reporting of his psychological/emotional issues are weighed against all the evidence his reporting is not credible.

32Based on the above the applicant is not removed from the MIG and therefore there are no further medical, and rehabilitation benefits available to him. As such I need not consider the treatment plans in dispute.

Interest and an Award

33The applicant is not entitled to interest as there are no benefits that are overdue and owing.

34The applicant also claims an award under s. 10 of O. Reg. 664 due to the respondent’s unreasonable position that he remains in the MIG and that the respondent’s position that treatment plans are not reasonable and necessary. He submits that the respondent should have taken into consideration the medical evidence that was provided after the I.Es were conducted and by not doing so it acted unreasonably.

35Under s. 10, the Tribunal may award a lump sum of up to 50% of the total benefits and interest to which an insured person was entitled under the Schedule if it determines that an insurer unreasonable withheld or delayed the payments.

36I find an award is not appropriate. The evidence offered by the applicant of his pre-existing impairments requiring treatment outside of the MIG, the evidence regarding chronic pain as a result of the accident and the evidence of a psychological impairment was not compelling. Other than disagreeing with respondent’s position on the applicability of the MIG, the applicant has not provided the Tribunal with sufficient evidence to substantiate an award under s. 10. Further, having determined that the respondent’s position regarding the MIG is reasonable based on the evidence and that no benefits are overdue, it follows that the Tribunal cannot award up to 50% of zero. Accordingly, I decline to order an award.

CONCLUSION

37The applicant has failed to discharge his onus of establishing, on a balance of probabilities, that he is entitled to treatment beyond the MIG. The funds available to him for treatment in accordance with the MIG have been exhausted, and he is not entitled to the benefits in dispute.

38As no benefits are owing, no interest is payable. There is no award.

39The application is dismissed.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Applicant’s Submissions para. 8
3. 3Scarlett v Belair Insurance 2015 ONSC 3635
4. 4Applicant’s submissions para. 8 and Respondent’s Submissions para. 17.
5. 5Dr. Salib and Dr. Ebeid’s clinical notes and records at Tab B of the Applicant’s submissions are the only treating doctor’s records submitted by the applicant. Therefore, these records will be referred to as the “Treating Doctor’s Records”.