Annamalai v. TD Insurance Meloche Monnex, 2021 CanLII 30771

Citation: Annamalai. v. TD Insurance Meloche Monnex, 2021 ONLAT 20-000559/AABS

Release date: 04/14/2021

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:

Vijayakumar Annamalai

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam

APPEARANCES:

For the Applicant:

Hufriz Turel, Paralegal

For the Respondent:

Varshni Skantharajah, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Vijayakumar Annamalai (“applicant”), was involved in an automobile accident on November 23, 2013 (“accident”) and suffered injuries. The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by TD Insurance Meloche Monnex (“respondent”) and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”).

2The respondent determined that the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (“MIG”).² The respondent also disputes the reasonableness and necessity of the treatment plans even if the MIG is found not applicable.

3The applicant’s position is that his pre-existing bilateral shoulder, back and headache issues, chronic pain and psychological issues take him out of the MIG.

ISSUES

4The issues to be decided in this hearing are:

i. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

If the applicant’s injuries are not considered to be predominantly minor,

ii. Is the applicant entitled to a medical benefit in the amount of $698.75 for physiotherapy services recommended by Movement Physio Inc. as set out in a treatment plan and assessment plan (OCF-18) dated December 21, 2017 and denied by the respondent on January 4, 2018?

iii. Is the applicant entitled to a medical benefit in the amount of $1,666.00 for physiotherapy services recommended by Movement Physio Inc. as set out in a treatment plan and assessment plan (OCF-18) dated March 14, 2018 and denied by the respondent on March 23, 2018?

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

RESULT

5The applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit, which has already been provided by the respondent. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans. No interest is payable.

LAW

6The MIG establishes a treatment framework available to an injured person who sustains a “minor injury” as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule 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”. Under s. 18(1) of the Schedule, injuries that are defined as a “minor injury” are subject to a $3,500.00 funding limit on treatment.

7To request treatment above the $3,500.00 funding limit, the applicant must prove that his or her injuries do not fall within the definition of “minor injury”. The applicant can establish that by:

a. Producing compelling evidence, provided by a health practitioner, that a pre-existing condition documented before the accident will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit; or

b. Establishing that an impairment sustained in the accident is not a predominantly minor injury.

8The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.³

9Sections 14, 15 and 16 of the Schedule provide that an insurer is only liable to pay for medical and rehabilitation expenses that are reasonable and necessary as a result of the accident. The applicant has the onus of proving on a balance of probabilities that the benefits he or she seeks are reasonable and necessary.

ANALYSIS

Are the applicant’s injuries in the MIG?

10I find that the applicant’s physical injuries are minor injuries because the weight of the medical evidence indicates that the applicant did not suffer any physical injuries other than soft tissue injuries resulting from the accident.

11Although the applicant relies on the records of his family physician Dr. Bose who he saw several days after the accident, these records do not record any physical injuries resulting from the accident other than soft tissue injuries. Dr. Bose notes the applicant complains of pain in his chest, neck, shoulders, back and right knee. A chest x-ray taken on the date of the accident was normal.

12Consistent with the records of Dr. Bose, both of the respondent’s general practitioners, Dr. Tepperman in 2016 and Dr. Boucher in 2019 opined that the applicant’s only injury was myofascial strain of the lumbar spine which is within the MIG.

13I find that the applicant’s physical injuries from the accident are within the definition of “minor injury”. However, the applicant argues that his pre-existing bilateral shoulder, back and headache issues as well as his psychological injury and chronic pain remove him from the MIG.

Does the applicant have a pre-existing bilateral shoulder, back and headache issues that would remove him from the MIG?

14I find that the applicant has brought forward no compelling evidence provided by a health practitioner that was documented before the accident of a pre-existing bilateral shoulder, back and headache issues that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the MIG limit.

15The applicant argues these medical issues remove him from the MIG. The respondent submits the opposite.

16Although there is some mention in Dr. Bose’s records of bilateral shoulder and headache issues, there is no opinion from any of the applicant’s physicians that these issues constitute pre-existing injuries that would prevent the applicant from achieving maximal recovery from the minor injury if subject to the MIG funding limit.

17Although the applicant submits that he had “some pre-existing complaints prior to this accident”, the applicant cites the records of Dr. Bose from 2010 to 2020 without pointing to specific evidence. Having reviewed Dr. Bose’s records together with the applicant’s other medical records submitted, I am of the view that the medical evidence of the applicant’s back issues pre-accident shows sporadic visits to his physician for treatment and when treatment is sought, it is related to backache and muscle pain which is intermittent. Post-accident, there is little medical evidence of the back issues and pain being attributed to the accident as discussed more fully below. As a result, the applicant’s medical evidence falls short of establishing a pre-existing condition documented before the accident that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the MIG funding limit.

18Further, I find the reports from the respondent’s assessor more persuasive given that Drs. Boucher and Tepperman provided their opinions after considering the applicant’s clinical history and records, as well as examining the applicant. Dr. Boucher opined in his June 2019 report that although there is a documented history of chronic lower back pain and although it is “possible” that the accident aggravated this pre-existing condition, he did not identify any significant objective evidence of ongoing accident-related injury or impairment and does not believe that the accident contributed to or exacerbated this pre-existing condition in any significant way. Dr. Boucher opined that there is no compelling evidence of a pre-existing medical condition that would prevent the applicant from achieving maximal recovery of his minor injury within the MIG limit of $3,500.00. Dr. Tepperman’s August 2016 opinion is to the same effect.

19I therefore find there is insufficient medical evidence before me that establishes the applicant should not be subject to the MIG because of any pre-existing back injury. Further, I find that even if there was a pre-existing back injury, which I have found is not the case here, the applicant has not established that any pre-existing medical condition would prevent him from achieving maximal recovery of his minor injury within the MIG limit of $3,500.00.

Does the applicant have psychological impairment caused by the accident that would remove him from the MIG?

20I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from psychological impairment caused by the accident justifying treatment beyond the MIG.

21The applicant submits that he is suffering psychological issues and emotional accident sequelae from the accident which would take him out of the MIG.

22The respondent submits that the applicant must prove that his psychological complaints are not merely psychological sequelae but must prove that he sustained an actual psychological impairment as a direct result of the accident.

23The applicant’s family physician Dr. Bose did not note any psychological complaints made by the applicant in the seven years post-accident, did not make any referral to a mental health specialist and prescribed no medication for psychological injury resulting from the accident. Although the OCF-3, disability certificate by Dr. King, applicant’s chiropractor, dated December 10, 2013 suggests headache and nonorganic sleep disorders as a result of the accident, Dr. King is not qualified to diagnose psychological issues. For the same reason, the records of the applicant’s physiotherapist are not persuasive evidence of psychological injury to the applicant as a result of the accident.

24Consistent with the records of Dr. Bose, the respondent’s psychologists, Drs. Ilacqua and Derry in 2016 found no basis for a psychological diagnosis.

25There has been no persuasive medical evidence put forward by the applicant to support his submission that suffers he suffers from psychological impairment caused or exacerbated by the accident justifying treatment beyond the MIG.

Does the applicant have chronic pain as a result of the accident?

26I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from chronic pain justifying treatment beyond the MIG.

27The applicant submits that he has been diagnosed with chronic pain and has impairments as a result of this condition such that his injuries are not predominantly minor and not subject to treatment within the MIG.

28However, this submission is not supported by the weight of the evidence from the applicant’s physicians. Dr. Bose noted in November 2014 that the applicant has chronic back and feet pain, notes that the applicant is a transit bus driver and recommends back support and orthopedic shoes. Dr. Bose does not attribute this chronic pain to the accident. Subsequent to November 2014, Dr. Bose attributes the applicant’s pain to various non-accident causes including his employment as a commercial driver, gout attacks in his right foot, sprain, possible sciatica and planter fasciitis. Dr. Bose refers the applicant to Dr. Tymianski, a neurosurgeon, at the applicant’s request in September 2015.

29Dr. Tymianski’s report dated December 2015 describes the applicant’s low back pain as “waxing and waning but essentially chronic in nature” and occasionally radiating on his right side into his upper thigh. Dr. Tymianski opines this is not radiculopathy but comes from the various joints in the spine. Dr. Tymianski does not attribute the pain to the accident.

30Throughout 2016, Dr. Bose assesses the applicant as clinically stable, notes “still has pain in lower back” and diagnoses sciatica in April 2016 and chronic backache in September 2016. In 2017, Dr. Bose notes lower back pain and notes in March 2017 that the applicant has been off work since March 19, 2017. Dr. Bose does not attribute these issues to the accident.

31In March 2017, Dr. Bose refers the applicant to Dr. Cheskes, sports medicine specialist, for recurrent low back pain with radiation in legs. Dr. Cheskes reports in April 2017 that the applicant has had low back pain over the last 3 or 4 years but denies any history of any significant trauma over that time “although he does remember a motor vehicle accident occurring approximately 3 years ago”. Dr. Cheskes diagnoses mild reactive increased lumbar lordosis in the lower lumbar spine mainly related to mechanical lumbar osteoarthritic low back pain but find no significant radiculopathy”. Dr. Cheskes does not attribute this to the accident.

32In October 2017, Dr. Bose notes that the applicant’s lower back pain is “off and on”, the applicant is off medication and diagnoses chronic lower back pain and sciatica. Again, Dr. Bose does not attribute this to the accident. In December 2017, Dr. Bose notes the applicant is looking for a job but unable to get for lower back pain. In January 2018, Dr. Bose diagnoses sciatica and discussed a change of profession with the applicant. Dr. Bose completed a medical certificate for Service Canada in January 2018, in which he states that the applicant became unable to work on December 21, 2017, some three years post-accident and opines that applicant will be incapable of working until April 30, 2018. In November 2018, Dr. Bose diagnoses sciatica again. Throughout 2018, 2019 and 2020, Dr. Bose does not attribute any of the applicant’s pain or other medical issues to the accident. An MRI of the applicant’s lumbar spine in March 2019 reveals primarily degenerative changes.

33There is no diagnosis of chronic pain syndrome as distinct from chronic pain. Further, the applicant returned to work after the accident and continued in his employment for some fours years post-accident which is inconsistent with functionally debilitating pain. Dr. Bose completed a medical report for the Ministry of Transportation in January 2014, in which he confirmed the applicant did not suffer from any medical issues that would impair his ability to operate a bus. No limitations are were noted.

34The burden of bringing forward persuasive medical evidence of his alleged condition is on the applicant and he has not done so.

Are the treatment plans for $698.75 and $1,666.00 for physiotherapy reasonable and necessary?

35Having found that the applicant has not proven on a balance of probabilities that he has a condition that would remove him from the MIG, I do not need to consider whether the medical treatment plan and cost of examination in dispute are reasonable and necessary.

Interest

36Interest is not payable as no benefits are payable.

ORDER

37For the reasons outlined above, the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit, which has already been provided by the respondent. It is therefore unnecessary to consider the reasonableness or necessity of the disputed treatment plans. No interest is payable.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued under s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 (Div. Ct.) para 24.```