Thambirajah v. Allstate Insurance Company of Canada, 2021 CanLII 76604

Thambirajah v. Allstate Insurance Company of Canada

Citation: Thambirajah v. Allstate Insurance Company of Canada, 2021 ONLAT 19-010275/AABS Release date: 08/16/2021

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:

Gobithan Thambirajah Applicant

and

Allstate Insurance Company of Canada Respondent

DECISION

ADJUDICATOR: Jesse A. Boyce, Vice Chair

APPEARANCES:

For the Applicant: Tania Lanteigne

For the Respondent: Evan A. Argentino

HEARD: By way of written submissions

OVERVIEW

1The applicant was injured in an accident on August 24, 2016, and sought benefits from the respondent, Allstate, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Allstate denied the benefit in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

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

b. Is the applicant entitled to $3,045.16 for physiotherapy treatment, recommended by Alexmuir Wellness Centre in a treatment plan (OCF-18) dated January 16, 2018?

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

RESULT

3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The treatment plan in dispute is not reasonable and necessary and no interest is payable.

ANALYSIS

Applicability of the MIG

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a “minor injury” 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

5The applicant submits that his accident-related injuries—identified in an August 24, 2016 Disability Certificate as foot pain, ankle pain, knee pain, headaches, anxiety and depression—and recurring pain from same justify removal from the MIG. He was purportedly involved in a second accident on July 16, 2017 and submits that he now suffers from chronic pain. To this end, he relies on various clinical and treatment notes from his family physician and Alexmuir Wellness and a psychological report by Dr. Steiner diagnosing adjustment disorder with mixed anxiety, depressed mood, and specific phobia (driving related).

6In response, Allstate submits that the applicant did not produce any pre-accident clinical notes and records, an OHIP summary or any hospital records despite its request for same, but that the applicant self-reported to assessors that he has an unremarkable medical history. It submits that the applicant returned to work the day following the accident and continued to work until November 24, 2016 when he was laid off. Post-accident, he visited his family physician and complained of right knee pain and right foot and ankle pain, however, the clinical notes indicate that the applicant did not strike his leg during the accident and was able to walk fine with normal range of motion and was diagnosed with a sprain/strain to his right ankle/foot. A November 2016 x-ray only revealed mild degenerative changes in his right knee.

7Allstate further submits that the applicant did not begin to complain about his headaches until six months post-accident where an eye exam was recommended. Finally, it asserts that the applicant’s injuries were caused by the 2017 accident for which it is not the insurer of record. It relies on the s. 44 reports of Dr. Czok, who determined he sustained a cervical sprain/strain, right foot sprain/strain and possible right knee patella-femoral osteoarthritis, which likely pre-existed the accident, and the report of Dr. Chan, who concluded that the applicant did not present with a psychological condition as a result of the accident.

8I agree with Allstate and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The actual physical injuries identified in the OCF-3 and clinical records all fall squarely within the definition of a minor injury. I find there is limited indication in the file that the physical accident-related impairments from 2016 should be considered outside of the definition of minor injury under s. 3(1) because the applicant has consistently been diagnosed with sprain and strain injuries and has not provided any diagnostic imaging reports to suggest that he sustained a tear or fracture as a result of the 2016 accident that would remove him from the MIG. On the medical evidence, I find no reason to depart from the initial opinion and updated opinion dated June 8, 2017 of Dr. Czok that the applicant’s cervical spine sprain/strain and right ankle/foot sprain/strain had resolved. Further, where the applicant has purportedly not provided updated medical documentation to prove otherwise, I cannot find that his degenerative and age-related conditions were as a result of the accident or that they require treatment beyond the MIG.

9With regard to s. 18(2), an applicant may be removed from the MIG if they have evidence of a pre-existing condition, documented by a medical practitioner prior to the accident, that will preclude maximal medical recovery if they are kept within the confines of the MIG. While the applicant offers submissions that his pre-accident impairments warrant removal from the MIG, there is no indication which impairments he is referring to or, more importantly, an opinion from a medical professional that these impairments would prevent maximal medical recovery if he is kept within the MIG, which is the requirement for removal from the MIG under s. 18(2). While I suspect he is referring to his previous ankle fracture and/or possible his headaches, there is no opinion from a medical professional that these impairments would prevent his recovery if he is kept within the MIG. Further, on review of the s. 44 reports, the applicant self-reported that he had no pre-existing physical or psychological impairments. Accordingly, the applicant has fallen well short of meeting his burden of proof on this ground.

10The Tribunal has determined that applicants may escape the MIG if they can demonstrate that they have been diagnosed with chronic pain or chronic pain syndrome or that they have recurring pain that is of a severity that causes functional impairment. Here, however, the applicant did not direct the Tribunal to a diagnosis of chronic pain or chronic pain syndrome and his submissions do not speak to his function, the severity of his pain or any of the six criteria under the AMA Guides that the Tribunal has used as an assistive tool to evaluate chronic pain claims. Where there is no objective injury from the 2016 accident and where the applicant has not demonstrated how his pain is affecting his function, the applicant has again fallen well short of meeting his burden of proof on this ground.

11Finally, an applicant may also escape the MIG if they sustained a psychological impairment as a result of the accident, as psychological impairments are not contained within the definition of minor injury under s. 3(1). While the applicant directed the Tribunal to Dr. Steiner’s report and diagnosis, he did not offer specific submissions for removal from the MIG on this ground. I note that there are limited psychological and emotional complaints in the family physician records and in the treatment notes, just an August 2019 notation for stress. Where the applicant did not offer specific submissions and where there are no objective complaints to support Dr. Steiner’s diagnosis, I prefer the s. 44 report of Dr. Chan, who found that the applicant presented in the normal range for depression, anxiety and stress and did not present with a psychological condition warranting a DSM diagnosis, as this opinion is more in line with the bulk of the evidence.

12For completeness, I agree with Allstate that the applicant has not met his burden to demonstrate that it was the 2016 accident that caused his impairments and not the subsequent 2017 accident that resulted in neck pain, headaches, back and right shoulder pain. Even so, there is limited evidence that the 2017 accident would have exacerbated his minor 2016 impairments that have been consistently identified as sprains and strains and which were also seemingly resolved by June 2017 when he was assessed by Dr. Czok. I find the medical evidence clearly suggests that the applicant sustained predominantly minor injuries as a result of the subject accident that do not warrant removal from the MIG.

Is the treatment plan reasonable and necessary?

13Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the treatment plan in dispute is reasonable and necessary under s. 16 is not required. As no benefits are overdue, it follows that no interest is payable under s. 51.

CONCLUSION

14The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The treatment plan in dispute is not reasonable and necessary and no interest is payable.

Footnotes

1. 1O. Reg. 34/10, as amended.