Citation: Annalingam v. Western Assurance Company, 2021 ONLAT 19-011592/AABS

Release Date: 01/06/2021

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:

Nishankar Annalingam

Applicant

and

Western Assurance Company

Respondent

DECISION

ADJUDICATOR: Lindsay Lake

APPEARANCES:

For the Applicant: Mariana Slomyanski, Counsel

For the Respondent: Paul Omeziri, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant, Nishankar Annalingam (“Mr. Annalingam”), was injured in an automobile accident on December 7, 2014 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ from Western Assurance Company (“Western Assurance”), the respondent.

2Western Assurance determined that all of Mr. Annalingam’s injuries fit the definition of “minor injury” as prescribed by s. 3(1) of the Schedule and, therefore, fall within the Minor Injury Guideline (the “MIG”).² Western Assurance also denied Mr. Annalingam’s claims for an orthopaedic assessment, a chronic pain assessment and a psychological assessment. As a result, Mr. Annalingam submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

3A case conference was held on February 27, 2020 and a written hearing was scheduled.

4The written hearing was adjourned on consent of Western Assurance to September 8, 2020 following a motion by Mr. Annalingam to extend the originally scheduled submission deadlines.

ISSUES IN DISPUTE

5The following issues are to be decided:

(i) Are Mr. Annalingam’s injuries as a result of the accident predominantly minor as defined in s. 3 of the Schedule and, therefore, subject to treatment within the $3,500.00 limit in the MIG?

(ii) Is Mr. Annalingam entitled to the following assessments recommended by Synergy Diagnostic and Assessment Centre:

(a) $2,200.00 for an orthopaedic assessment in a treatment plan (“OCF-18”) dated December 15, 2018?

(b) $2,200.00 in an OCF-18 for a chronic pain assessment dated December 21, 2018?

(c) $2,200.00 for a psychological assessment in an OCF-18 dated January 3, 2019?

(iii) Is Western Assurance liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to Mr. Annalingam?

(iv) Is Mr. Annalingam entitled to interest on any overdue payment of benefits?

RESULT

6I find that Mr. Annalingam has not satisfied his burden of proving that his impairments require treatment beyond the MIG. I also find that Mr. Annalingam is not entitled to the proposed orthopaedic, chronic pain or psychological assessments. As a result, Mr. Annalingam is not entitled to an award and no interest is payable.

ANALYSIS

The Minor Injury Guideline (“MIG”)

7The MIG establishes a framework available to injured persons who sustain 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 strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

8I find that Mr. Annalingam has failed to meet his onus of proving on a balance of probabilities³ that he suffers from chronic pain or that he sustained any psychological conditions or impairments as a result of the accident such that his injuries would fall outside of the MIG.

9To support his position regarding the MIG, Mr. Annalingam relied upon the three disputed OCF-18s that were dated over four-years post-accident.

10The December 15, 2018 OCF-18 that sought funding for an orthopaedic assessment was completed by Dr. Farhan Khandwalla, chiropractor, which included an intake assessment report by Dr. Khandwalla. In this intake report, Dr. Khandwalla noted that Mr. Annalingam reported several “persisting and ongoing psychologically-related sequelae” including decreased mood, sleep disturbances, increased fear and avoidance behaviours, elevated stress and anxiety. Dr. Khandwalla also noted that Mr. Annalingam reported “the persistence of musculoskeletal injuries and symptoms” as a result of the accident.

11The December 21, 2018 OCF-18 that sought funding for a chronic pain assessment also referred to Dr. Khandwalla’s initial assessment of Mr. Annalingam and included the same list of psychological complaints as set out in the December 15, 2018 OCF-18. Dr. Khandwalla also noted that Mr. Annalingam reported ongoing and persistent pain symptoms and pain with extending, bending, lifting and carrying, sustained walking and other prolonged activities. Dr. Khandwalla also reported:

Mr. Annalingam began experiencing lower back and left knee pain along with headaches shortly after the accident. Since the accident, Mr. Annalingam is still experiencing chronic pain in all aforementioned areas. Since the MVA, his mood has been impaired - depressed and anxious and he is having difficulty sleeping with consequence daytime fatigue.

12The January 3, 2019 OCF-18 that sought funding for a psychological assessment again referred to Dr. Khandwalla’s initial assessment of Mr. Annalingam and included the same list of psychological complaints as set out in the December 15 and 21, 2018 OCF-18s.

13A psychological pre-screen report by Sathis Kumar Srinivasan, registered psychotherapist, which followed a December 31, 2018 interview with Mr. Annalingam, was also included in the additional comments portion of the January 3, 2019 OCF-18. Mr. Srinivasan reported that Mr. Annalingam’s physical complaints as a result of the accident, included pain in his left knee and in his lower back. Mr. Srinivasan noted that Mr. Annalingam reported the following psychological symptoms as a result of the accident: a fear of driving a car as well as travelling as a passenger in a vehicle; intrusive thoughts of the accident; avoidance of travelling in a vehicle; decreased appetite; decreased short-term memory and concentration; feeling sad, depressed, stressed and overwhelmed; worrying about his health and future; decreased socialization; irritability; and being easily annoyed.

14The information in the clinical notes and records (“CNRs”) of Dr. Komanthy Jayashankar, Mr. Annalingam’s family physician, however, are in complete contrast to the information provided in the three disputed OCF-18s regarding Mr. Annalingam’s accident-related complaints.

15After the accident, Mr. Annalingam first saw Dr. Jayashankar on December 8, 2014. At this visit, Mr. Annalingam reported that he hit his left knee and left shoulder in the accident as well as his left side cheek and nose had hit the airbag. Mr. Annalingam reported pain in these areas along with feeling anxious but denied headaches and any vision changes. No diagnosis or recommendations were included in Dr. Jayashankar’s CNRs from this visit.

16Mr. Annalingam’s next and last accident-related visit to Dr. Jayashankar was on December 22, 2014 when he reported lower back pain that started one-week prior. At this visit, Dr. Jayashankar recommended the use of a heating pad, massage, physiotherapy and a trial of Robaxacet.

17Dr. Jayashankar’s CNRs contain only the December 8, 2014 notation of Mr. Annalingam “feeling anxious” and no other reports of any psychological complaints at any time post-accident to the final CNR entry date of February 29, 2020. Also absent in Dr. Jayashankar’s CNRs, are any complaints regarding poor sleep or any other sleep issues as alleged in the disputed OCF-18s.

18Dr. Jayashankar’s CNRs do include physical complaints by Mr. Annalingam beyond December 22, 2014, however, Dr. Jayashankar did not attribute any of these complaints to the accident. For example, Mr. Annalingam reported a headache along with mouth pain and swelling to Dr. Jayashankar on December 16, 2016 but there was no mention of the accident at this visit.

19On February 25, 2019, Mr. Annalingam complained of lower back pain and stiffness “for months” to Dr. Jayashankar. Dr. Jayashankar referenced this pain in relation to Mr. Annalingam completing “hard work” and did not mention the accident. Therefore, I find that Mr. Annalingam’s reported back pain had only been in existence “for months” and not since the accident, as suggested by Mr. Annalingam in his submissions.

20Finally, the only other complaint of a headache was made to Dr. Jayashankar by Mr. Annalingam on December 21, 2019. Mr. Annalingam had reported that his headache had been present for only two days prior and Dr. Jayashankar did not attribute this headache to the accident.

21I place little weight on the information provided in the disputed OCF-18s regarding Mr. Annalingam’s accident-related complaints and, instead, place greater weight on Dr. Jayashankar’s CNRs which show no ongoing complaints of accident-related pain or any psychological complaints beyond December 22, 2014. Neither Dr. Khandwalla nor Mr. Srinivasan reconciled their comments of Mr. Annalingam’s “ongoing and persistent” pain, headaches, sleep disturbances and psychological complaints since the accident with the absence of such reports in Dr. Jayashankar’s CNRs. It is also not clear if Dr. Khandwalla or Mr. Srinivasan even reviewed Dr. Jayashankar’s CNRs as part of their initial or pre-screen reports and no information was provided on the length of time that Dr. Khandwalla or Mr. Srinivasan had spent with Mr. Annalingam.

22Mr. Annalingam also submitted the CNRs from Scarborough Rehabilitation Clinic as evidence for the hearing. In March and April 2015, the CNRs reported that Mr. Annalingam complained of neck, upper and lower back and bilateral shoulder pain. There is no discussion in these CNRs, however, on how these pain complaints adversely affected Mr. Annalingam’s well being beyond a general statement that “the pains are aggravated with physical activities” in the April 7, 2015 CNR entry. Such information is required for an analysis of whether or not Mr. Annalingam suffered from chronic pain which would remove him from the MIG, as noted in the reconsideration decision relied upon by Mr. Annalingam of 17-00835 v. Aviva General Insurance Canada.⁴

23Furthermore, in the Insurer Examination (“IE”) Independent Psychology Evaluation report by Dr. Godwin Lau, psychologist, dated March 16, 2016, Dr. Lau opined that there was no formal psychological diagnosis and that Mr. Annalingam’s psychological presentation was not significant and compelling enough to require psychological treatment. Dr. Lau’s opinion is also consistent with the absence of any psychological complaints in Dr. Jayashankar’s CNRs after December 8, 2014.

24For all of the reasons set out above, I find that Mr. Annalingam has failed to prove on a balance of probabilities that his injuries are outside of the MIG as a result of chronic pain or due to any psychological condition sustained as a result of the accident. As such, Mr. Annalingam is not removed from the MIG.

25As Mr. Annalingam had not exhausted the $3,500.00 medical and rehabilitation benefit limit available under the MIG prior to the deadline for the written hearing submissions,⁵ I must now determine if Mr. Annalingam is entitled to the proposed assessments.

26Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident.

27In determining whether an assessment is reasonable and necessary, it must also be noted that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, Mr. Annalingam still bears the onus of establishing on a balance of probabilities that an assessment is reasonable and necessary.⁶ To do so, Mr. Annalingam must point to objective evidence that there are grounds to suspect he has the condition for which he seeks the assessment. On the evidence, I find that Mr. Annalingam has failed to satisfy that onus and, therefore, he is not entitled to the proposed orthopaedic, chronic pain and psychological assessments as they are not reasonable or necessary.

28As discussed above in paragraph [21], I afford little weight to the information provided in the disputed OCF-18s and, instead, place greater weight on Dr. Jayashankar’s CNRs regarding Mr. Annalingam’s accident-related complaints. Mr. Annalingam’s last reported accident-related complaint to Dr. Jayashankar was on December 22, 2014, some four years prior to the submission of the OCF-18 to Western Assurance seeking a chronic pain assessment. While Mr. Annalingam made pain complaints to Dr. Jayashankar beyond December 22, 2014, these complaints were not constant since the accident and were not attributed to the accident by Dr. Jayashankar. As a result, I find that there is no objective evidence before me that I place weight on to suggest that Mr. Annalingam may suffer from chronic pain as a result of the accident which would warrant a chronic pain assessment.

29Similarly, I find that there is no objective evidence before me that I place weight on to suggest that Mr. Annalingam may suffer from an injury as a result of the accident that would warrant an orthopaedic assessment. The December 15, 2018 OCF-18 seeking the orthopaedic assessment stated that an evaluation by an orthopaedic surgeon is recommended to properly assess, provide a prognosis and make recommendations to facilitate recovery of Mr. Annalingam’s persistent soft tissue and musculoskeletal injuries and symptoms as a result of the accident. Again, the last accident-related complaint that Mr. Annalingam made to Dr. Jayashankar was on December 22, 2014. There is no evidence before me which I place weight on that supports a finding that Mr. Annalingam continued to suffer from any musculoskeletal injuries and symptoms as a result of the accident at the time this treatment plan was submitted to Western Assurance for consideration in December 2018.

30Finally, I also find that there is no objective evidence before me that I place weight on to suggest that Mr. Annalingam may suffer from a psychological condition as a result of the accident that would warrant a psychological assessment. As stated above in paragraph [17], the only report of a psychological complaint made to Dr. Jayashankar by Mr. Annalingam was that he felt anxious on December 8, 2014. No psychological diagnoses were made at that time and no further recommendations were made in regard to this lone report of Mr. Annalingam’s anxious feelings. There are no other reports of any psychological complaints at any time post-accident in Dr. Jayashankar’s CNRs.

31For all of the reasons set out above, I find that Mr. Annalingam is not entitled to the proposed orthopaedic, chronic pain and psychological assessments.

Award

32Section 10 of O. Reg. 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

33As I have found in that there are no payment of benefits or costs owing, there is no basis upon which to consider an award in this matter.

Interest

34As there are no benefits owing, no interest is payable.

CONCLUSION

35For the reasons outlined above, I find that Mr. Annalingam:

(i) has failed to prove on a balance of probabilities that his injuries are outside of the MIG;

(ii) is not entitled to the OCF-18s for the orthopaedic, chronic pain or psychological assessments;

(iii) is not entitled to an award under O. Reg. 664;

(iv) no interest is payable; and

(v) this application is dismissed.

Footnotes

1. 1O. Reg. 34/10 (the “Schedule”).
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24.
4. 42018 CanLII 83520 (ON LAT) at para. 23.
5. 5Standard Benefit Statement dated May 2, 2016, Respondent Written Submissions, tab 6.
6. 6Supra note 3.```