Released Date: 01/21/2021
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:
Kandasamy Velupillai
Applicant
and
The Co-operators
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Kandasamy Velupillai, Applicant
Firaz Mohamed, Counsel
For the Respondent:
The Co-operators, Representative
Amanda Lennox, Counsel
HEARD:
Via written submissions
OVERVIEW
1K.V. was injured in an accident on May 25, 2018 and sought benefits from the respondent, Co-operators, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (“Schedule”). K.V. applied for medical and rehabilitation benefits that were denied by Co-operators because it determined his injuries were predominately minor and subject to the Minor Injury Guideline (“MIG”). K.V. disagreed and applied to the Tribunal for resolution of the dispute.
2If Co-operators is correct, K.V. is then subject to the $3,500.00 limit on benefits prescribed by s. 18(1) of the Schedule and, in turn, a determination of whether the claimed benefits are reasonable and necessary will not be required as K.V. has exhausted the $3,500.00 maximum benefit for minor injuries.
3Thus, the question of entitlement to benefits beyond the MIG limit turns on whether K.V.’s injuries are predominantly minor, as defined by the Schedule. If they are not, then I must determine whether the claimed medical benefits are reasonable and necessary.
ISSUES TO BE DECIDED
4In accordance with the Case Conference Order, the following issues are in dispute:
a. Did K.V. sustain predominantly minor injuries as defined under the Schedule?
b. Is the medical and rehabilitation benefit in the amount of $1,300.00 for chiropractic treatment recommended by EZ Physio Inc., in a treatment plan (OCF-18) submitted on September 29, 2017 and denied on March 20, 2018, reasonable and necessary?
c. Is the medical and rehabilitation benefit in the amount of $3,701.88 for psychological treatment recommended by Perfect Choice Psychological Serviced Inc., in an OCF-18 submitted on November 1, 2017 and denied on April 23, 2018, reasonable and necessary?
d. Is the cost of an examination, in the amount of $2,000.00 for psychological assessment recommended by Perfect Choice Psychological Services Inc., in an OCF-18 submitted on June 23, 2017 and denied on December 6, 2017, reasonable and necessary?
e. Is K.V. entitled to interest on any overdue payment of benefits?
RESULT
5I find K.V. sustained predominantly minor injuries that are treatable within the MIG. As the MIG limits have been exhausted, the treatment and assessment plans in dispute are not reasonable and necessary.
ANALYSIS
Applicability of the Minor Injury Guideline
6The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500. Applying Scarlett v. Belair Insurance, he must establish entitlement to coverage beyond the $3,500 cap on a balance of probabilities. I find the medical evidence indicates that K.V. sustained minor injuries and has not demonstrated that removal from the MIG is warranted.
7K.V. submits that the impairments he sustained as a result of the accident—described as physical injuries to his neck, shoulder, lower back and psychological impairments described as anxiety and insomnia warrant treatment beyond the MIG. K.V. relies on various clinical notes and treating records and post-accident diagnostic x-rays as evidence that his impairments are not “minor injuries”. K.V. submits that he has not returned to his pre-accident state and continues to experience the impact of the accident, through chronic pain which impairs his ability to complete household tasks and carry out aspects of daily living. K.V. submits that further treatment, in the form of physical rehabilitation, is needed to address his accident-related impairments.
8In response, Co-operators submits that the injuries alleged by K.V. are all soft tissue in nature and fall within the definition of minor injuries under the Schedule. Co-operators argues that K.V. has only seen his family physician Dr. Kirubaharan on a few occasions. Co-operators relies on the s. 44 report of Dr. Dessouki, physiatrist, who determined that K.V. sustained minor injuries and that he did not suffer a complete inability to carry on a normal life and recommended a self-directed home-based exercise program.
Physical Injuries and Chronic Pain
9On the evidence, I find the documented post-accident physical injuries fall squarely within the definition of “minor injury” under the Schedule, as they are listed as sprain and strain-type injuries. On the medical records, I find little to suggest that K.V.’s physical injuries and resulting pain are severe enough to require treatment beyond the MIG. The diagnostic imaging reports were indicative of pain or muscle spasms but were otherwise normal. Further, there is no argument that K.V.’s pre-existing medical history would prevent recovery under the MIG limit. Even if I accept that K.V. has lingering physical pain that can be definitively traced to the accident, I find that he has not demonstrated that recovery from his pain is practically prevented if he is kept within the MIG. Notably, K.V.’s treatment records from Divine Life Phyiso & Rehab Clinic notes over three dozen recorded treatment sessions that K.V. was feeling better or there was a reduction in pain and tenderness to his neck, lower and upper back.
10I agree with Co-operators that there is limited evidence of functionally disabling chronic pain in the medical documentation to justify removal from the MIG on that basis, as K.V. alleges. Despite K.V.’s reliance on the report from Newmarket Pain Clinic, the same report noted that K.V.’s gait was normal and unassisted and that he appeared to be in no apparent distress at the time of the assessment. In addition, the report indicated an active full range of motion of the neck, shoulders and lower back, albeit with pain. Further, K.V. reported to the s. 44 assessor a 40% improvement of his accident-related symptoms, and a similar range of motion as noted at Newmarket Pain Clinic. I note that the family physician clinical notes and records did not contain any reports of accident-related symptoms for the period of July 2018 to May 2019. This is in addition to the disability certificate that indicated that K.V. did not suffer a complete inability to carry on a normal life. On the evidence, I find no evidence of “debilitating and ongoing chronic pain” causing functional impairment, as alleged.
Psychological Impairments
11Although K.V. claims entitlement to psychological treatment and a psychological assessment, there are no submissions addressing either OCF-18. There is no evidence from the family physician of any post-accident psychological issues nor is there a referral for same or treatment recommendations. To successfully be removed from the MIG, there must be a psychological diagnosis noting the development of ongoing, substantive post-accident symptomology or clinically significant psychological impairment. On a balance of probabilities, K.V. has not met his burden of proof in this regard.
12For the reasons set out above, I find that K.V. has not established that his accident-related injuries, psychological impairments or chronic pain warrant removal from the MIG.
Are the treatment plans reasonable and necessary?
13The parties have confirmed that the MIG have been exhausted. Having determined that K.V.’s accident-related impairments are properly within the MIG, it is not necessary for me to determine whether the various treatment plans in dispute are reasonable and necessary under s.15. As no benefits are payable, it follows that no interest is payable under s. 51.
AWARD
14Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. K.V.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Co-operators) has “unreasonably” withheld or delayed payments.
15K.V. did not raise the issue of award in the Tribunal Application. Further, there was no formal request to add the issue. Instead, K.V.’s counsel requested an award in submissions. K.V. provided no evidence in support of his claim for an award pursuant to s. 10 of Regulation 664 of the Insurance Act.
16As I have found that K.V. is not entitled to any benefits, it stands that Co-operators cannot be found to have unreasonably withheld payment. K.V. is therefore not entitled to an award.
CONCLUSION
17K.V. sustained injuries that are treatable within the MIG. As the MIG limits have been exhausted, the treatment and assessment plans are not reasonable and necessary.
Released: January 21, 2021
Derek Grant
Adjudicator