Citation: Singarajah v. Security National Insurance Co., 2021 ONLAT 19-014551/AABS

Released Date: 04/19/2021

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:

Theepana Singarajah

Applicant

and

Security National Insurance Co.

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Applicant:

Meleni David and Hufriz Turel, Counsels

For the Respondent:

Annemarie White, Counsel

HEARD:

By Way of Written Submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1Theepana Singarajah (“applicant”) was involved in an automobile accident on February 12, 2017 (“accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹

2Security National Insurance Co. (“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 approved benefits to the $3,500.00 funding limit and denied other benefits, including income replacement benefit (“IRB”).

3The applicant disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (Tribunal).

ISSUES

4The issues to be decided are:

i. 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 MIG?

ii. Is the applicant entitled to an IRB of $303.00 per week from February 13, 2019 to date and ongoing?

iii. Is the applicant entitled to treatment recommended Chiro-Med Rehab Centre Inc. as follows: a) $1,243.64 for chiropractic treatment as set out in a treatment plan (OCF-18) submitted December 6, 2017 and denied December 18, 2017, and b) $1,043.36 for physiotherapy, as set out in an OCF-18 submitted September 27, 2018 and denied February 25, 2019 (together the “disputed treatment plans”)?

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

RESULT

5I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. As the MIG limit has been exhausted, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans. I find that the applicant is not entitled to an IRB in the amount of $303.00 per week, or in any other amount, for the period in dispute. 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 be eligible for treatment above the $3,500.00 funding limit, the applicant must establish that his or her impairments sustained in the accident are not predominantly minor, or produce compelling evidence, provided by a health practitioner, that was documented before the accident, that the applicant has a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit.

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

9An employed person’s entitlement to an IRB falls under s. 5(1)(1)(i) of the Schedule: an IRB is payable if the insured was working at the time of the accident and, within 104 weeks of the accident, suffers a substantial inability to perform the essential tasks of that employment. If the insured was working at the time of the accident, this inquiry is divided into two steps: 1) what are the essential tasks of employment; and, 2) is the insured substantially unable to perform the essential tasks of that employment?

10In order to prove entitlement to IRBs post-104 weeks, s. 6(2) of the Schedule provides that the applicant must suffer a complete inability to engage in any employment for which the applicant is reasonably suited by education, training or experience.

11The onus is on the applicant to establish entitlement to IRB on a balance of probabilities.

ANALYSIS

Did the Applicant Suffer Injuries That Are Predominantly Minor?

12The applicant submits that her injuries are not minor and that she suffers from chronic pain as a result of the accident and requires further treatment outside the MIG. The applicant concedes that she had no significant pre-existing health issues except left knee pain which had resolved prior to the accident.⁴ However, the applicant also submits that her family physician Dr. Jeyapragasan, diagnosed her post-accident with cervical muscle spasm, back and left shoulder pain, left arm weakness, multiple trigger points in upper trapezius, upper limbs pain, frequent tension headaches, lateral flexion painful, limited range of motion in the cervical and lumbar areas, aggravation of pre-existing left knee pain, disturbed sleep, chronic left upper trapezius strain and chronic pain.

13The respondent submits that the applicant’s injuries fall within the MIG, she is not entitled to IRB and the disputed treatment plans are not reasonable and necessary.

14I find that the applicant’s physical injuries from the accident are minor injuries within the MIG because, taken in totality, the applicant’s medical records indicate the applicant suffered predominantly minor soft tissue physical injuries arising from the accident.

15Dr. Jeyapragasan’s records show the applicant was diagnosed February 13, 2017 with cervical, trapezius and neck muscle strain. In January 2018, some 11 months post-accident that the applicant complained to Dr. Jeyapragasan of neck pain and headaches for which Dr. Jeyapragasan recommended physical therapy and neck exercises. In December 2018, Dr. Jeyapragasan diagnosed chronic left upper trapezius strain and recommended self-massage. Dr. Jeyapragasan did not record any accident-related complaints from the applicant in 2019. In June 12, 2020 Dr. Jeyapragasan diagnosed the applicant with chronic cervical strain.

16Having reviewed the applicant’s medical records, I find there is no significant medical evidence that any physician diagnosed the applicant with anything other than sprain and strain type physical injuries from the accident. These fall within the definition of “minor injury”.

17I also find that the applicant has not adduced any compelling evidence which establishes she has a pre-existing physical injury such that she should be removed from the MIG.

18However, the applicant also submits that she suffers from chronic pain that removes her from the MIG.

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

19I find that the applicant has not provided sufficient evidence to meet her burden of proof that she suffers from chronic pain justifying treatment beyond the MIG.

20Although Dr. Jeyapragasan diagnosed chronic cervical strain in June 12, 2020 and ultimately referred the applicant to Dr. Mehrabian, chronic pain specialist, there are few records of the applicant’s complaints of pain to Dr. Jeyapragasan post-accident. After her initial visit to Dr. Jeyapragasan post-accident, the applicant’s complaints of accident-related pain are intermittent. It was some 11 months after her initial visit that the applicant complained to Dr. Jeyapragasan of neck pain and headaches. Between December 2018 and June 12, 2020, there are few records of accident-related complaints of pain to Dr. Jeyapragasan by the applicant. The scarcity of documented pain complaints for some 18 months post-accident is not consistent with the type of continuous and severe chronic pain sufficient to remove the applicant from the MIG. When Dr. Jeyapragasan refers the applicant to Dr. Mehrabian in October 2019, the referral is stated to be for “chronic cervical strain following an MVA in 2017” and “non-urgent”.

21Dr. Mehrabian’s report is insufficient to establish a chronic pain condition arising from the accident as he expressly declines to causally connect his diagnosis with the accident and in fact suggests other causes. Dr. Mehrabian diagnoses the applicant with “chronic neck and shoulder pain s/p MVA due to subacromial bursitis, subscapularis calcific tendinitis and cervical ligamentous injury”. Dr. Mehrabian also qualifies his opinion by stating that “I also gathered Ms. Singarajah was in a MOTOR VEHICLE ACCIDENT in 2017. I did not explore details of this and explained to patient that the sole purpose of this visit is to explore options for pain management, and due to its limitations, my assessment today is not planned to identify a correction between the pain and the accident…further evaluation for this purpose can be done through an Independent Medical Evaluation. This report does not constitute nor is it intended to be used as a functional/residual capacity evaluation, disability index tool, or other legal instrument.”

22The OCF-3, disability certificate of Ms. Loria dated April 28, 2017 is also insufficient to establish chronic pain sufficient to remove the applicant from the MIG. Ms. Loria is a physiotherapist and cannot medically diagnose. Further, the disputed treatment plans, without supporting medical evidence, are insufficient to establish chronic pain resulting from the accident sufficient to remove the applicant from the MIG.

23The applicant relies on several cases, none of which cases are binding on me. Furthermore, in this case, there has been no chronic pain condition caused by the accident established.

24Considering the totality of the evidence, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain as a result of the accident that justifies treatment beyond the limits of the MIG. The burden of bringing forward persuasive medical evidence of her alleged condition is on the applicant and she has not done so.

Is the Applicant Entitled to IRB from February 13, 2019 and ongoing?

25At the time of the accident the applicant worked as a nurse at Sunnybrook Hospital and at Mackenzie Health. The applicant submits she is able to do only a light job at Sunnybrook Hospital and she had to leave Mackenzie Health because it was a heavy lifting job.

26The applicant does not meet the first 104 week test or the post-104 week test for IRB regarding her employment at Sunnybrook Hospital as this employment continues, albeit with some modification.

27The applicant’s claim for IRB is from February 13, 2019 and ongoing which is more than 104 weeks after the February 12, 2017 accident. However, the applicant also submits that she did not return to her pre-accident employment at Mackenzie Health due to her accident-related injuries.

28I find the applicant has not met her burden of proof to establish that within 104 weeks of the accident, she suffered a substantial inability to perform the essential tasks of that employment.

29There was no change in the applicant’s employment at Mackenzie Health as a result of the accident. The applicant’s earnings from this employer in 2017 and 2019 were substantially the same amount.

30The applicant continued to work at Mackenzie Health up to October 2019 following which she was required by her employer to provide her availability for shifts prior to March 18, 2020 or be removed from the part-time casual list of employees. March 25, 2020 the applicant’s employment was terminated because she had failed to work any shifts since October 2019.

31The applicant was able to continue in her employment. There is insufficient medical evidence put forward by the applicant to establish that she suffers a substantial inability to complete the essential tasks of her pre-accident employment. This is consistent with the 2019 opinion of respondent’s assessor Dr. Oshidari. Taken as a whole, the weight of the medical evidence fails to establish that the applicant meets the eligibility test for IRB. Even if there may be some tasks of her employment that the applicant might not be able to return to, I find that the applicant does not suffer from a substantial inability to perform the essential tasks of her pre-accident employment. The onus of proof is on the applicant and I find that she has failed to meet it.

32As the applicant has not satisfied her burden of substantiating entitlement to pre-104 week income replacement benefit, the post-104 week income replacement benefit test of complete inability to engage in any employment cannot be met.

Is the Applicant Entitled to the Disputed Treatment Plans?

33Having found that the applicant’s injuries fall within the MIG and given that the limits of the MIG have been exhausted, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans.

Interest

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

ORDER

35For the above reasons, I find that the applicant sustained minor injuries as defined under the Schedule and is subject to the $3,500.00 funding limit. As the MIG limit has been exhausted, it is not necessary to determine the reasonableness and necessity of the disputed treatment plans. I find that the applicant is not entitled to an IRB in the amount of $303.00 per week, or in any other amount, for the period in dispute. 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.
4. 4Applicant’s submissions dated November 20, 2020, para 9.