Sebamalai v. Pembridge Insurance, 2021 CanLII 45653

Citation: Sebamalai v. Pembridge Insurance, 2021 ONLAT 19-013774/AABS

Released Date: 05/28/2021

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:

Jesuthasan Sebamalai

Applicant

and

Pembridge Insurance

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Tania Lanteigne, Paralegal

For the Respondent: Laura C. Meschino, Counsel

Heard by way of written submissions

OVERVIEW

1Jesuthasan Sebamalai (“the Applicant”) was injured in an automobile accident on September 7, 2017 and sought benefits from the respondent pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”).

2Pembridge Insurance (“the Respondent”) determined the Applicant’s injuries fell within the Minor Injury Guideline (the “MIG”) and refused to pay for certain medical benefits. As a result, the Applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

3The disputed claims in this hearing are:

(i) Are the Applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the MIG and the $3,500.00 funding limit on treatment?

(ii) Is the Applicant entitled to medical benefits recommended by Midland Wellness Centre as follows:

(a) $1,995.33 for a physiotherapy treatment plan dated June 18, 2018;

(b) $1,844.55 for a physiotherapy treatment plan dated March 13, 2018;

(c) $1,618.95 for a physiotherapy treatment plan date September 13, 2018;

(d) $2,034.00 for a chronic pain assessment plan dated April 28, 2018; and

(e) $2,705.14 for a physiotherapy treatment plan dated January 31, 2018?

(iii) Is the Applicant entitled to interest on the overdue payment of benefits?

RESULT

4The Applicant sustained a minor injury as a result of the accident.

5The Applicant is not entitled to the disputed treatment and assessment plans because they propose treatment outside of the MIG and the funding limit.

6No interest is payable as no payments went overdue.

BACKGROUND

7The Applicant was the driver of a sedan which was struck from behind while driving on the highway. He was transported from the scene of the accident to the hospital. The hospital records are not before me, but spine and knee x-rays from that date found only degenerative changes and no acute injury.

8The Applicant commenced treatment with Midland Wellness Centre about a week following the accident. His treatment was provided pursuant to the MIG.

9The Applicant disputes that he sustained a minor injury as defined by the Schedule and claims entitlement to medical benefits beyond the $3,500.00 funding limit provided by the MIG, including the disputed treatment plans.

10The respondent submits that there is no evidence to support a diagnosis outside the minor injury definition. I agree.

THE MINOR INJURY GUIDELINE

11The Minor Injury Guideline (the “MIG”) establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG and, under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

12If an insurer deems an Applicant’s injuries to be minor in nature, the responsibility is on the Applicant to establish that the MIG, and the related funding limit, should not apply.

13The Applicant suggests that he suffered from several emotional and psychological challenges post-accident and, as a result, should not be subject to the MIG and the $3,500.00 funding limit on treatment.

Psychological Injuries

14I find no compelling evidence to show that the Applicant sustained a psychological injury which would preclude his recovery within the MIG.

15The clinical notes and records (“CNRs”) of Midland Wellness Centre show only soft-tissue injuries and no psychological symptoms or injury. The Applicant makes no direct reference to the any psychological symptomology documented in the records. A review of the CNRs shows that the Applicant sought treatment for lingering back pain and occasional knee pain. There are no psychological complaints recorded in the SOAP notes and no qualified healthcare professional identified or diagnosed any psychological injuries. The only mention of a psychological symptom is in the injuries list on a disability certificate completed by Dr. A. Ashrat, chiropractor, dated September 12, 2017. The psychological symptoms referred to in the disability certificate are nonorganic sleep disorders and fatigue.

16The CNRs of Dr. H. Li, family physician, show minor psychological symptoms which, at most, are sequalae of the Applicant’s soft-tissue injuries. The Applicant first met with Dr. Li on September 20, 2018, more than a year following the accident. He complained of ongoing back and knee pain, insomnia, headaches, nightmares, and PTSD. It is recorded that Dr. Li was to refer the Applicant to Dr. N. Yu to explore his psychological symptoms. However, there is no evidence showing the Applicant followed through on the referral and no explanation for not doing so. A few weeks later, the Applicant reported insomnia to Dr. Li during a visit on October 4, 2017, but no referral was made as a result of this complaint. There are no other instances of psychological symptomology in Dr. Li’s records. The two complaints, which were made a year following the accident, and without any other evidence of symptoms of psychological impairment, are insufficient evidence of an accident-related psychological injury that would remove the Applicant from the MIG.

Ongoing Pain and Other Injuries

17The Applicant refers to ongoing headaches, implying that he has not recovered from his accident-related injuries. However, Dr. Li attributed the ongoing headaches to hypertension and there is no evidence to show that the Applicant sustained a head injury in the accident.

18Likewise, the Applicant infers that his lingering back and knee pain indicates that he requires treatment outside the MIG. However, I find that the Applicant’s lingering back and knee pain are sequalae of his soft-tissue injuries and fail to remove him from the MIG. Further, while the Applicant reports lingering back and knee pain, these symptoms are not evidence of a chronic pain condition which would warrant removal from the MIG. Following the accident, the Applicant returned to work as a cook and has continued to work in that capacity since. Such functionality contradicts the Applicant’s claims of a chronic pain condition. Likewise, there is no evidence to show that the lingering pain causes the Applicant to experience any functional impairment which would warrant removal from the MIG.

19The insurer’s examination report dated April 10, 2018, by Dr. A. Marchie, physiatrist, determined that the Applicant sustained soft-tissue injuries which are considered minor. The Applicant’s range of motion was full, albeit with some pain, for his entire body but for hip flexion, which was reduced for 70 degrees bilaterally. Ultimately, Dr. Marchie found no physical pathology above and beyond soft-tissue injuries and concluded that the Applicant’s injuries fell within the minor injury definition.

THE DISPUTED TREATMENT AND ASSESSMENT PLANS

20The Applicant sustained a minor injury as defined in the Schedule and is subject to the MIG and the $3,500.00 funding limit on treatment. He is not entitled to the disputed treatment and assessment plans because they propose treatment beyond the MIG funding limit.

INTEREST

21Pursuant to section 51, interest is only payable on overdue payments. No amounts are payable and thus, no interest is payable as a result.

CONCLUSION

22The Applicant sustained a minor injury as defined by the Schedule as a result of the accident. He is therefore subject to the $3,500.00 funding limit on treatment.

23The Applicant is not entitled to the disputed treatment and assessment plans because they propose treatment outside of the MIG.

24No interest is payable as no payments went overdue.