Vishnu Veerakumar v. Travelers Canada, 2021 CanLII 90415

Citation: Veerakumar v. Travelers Canada, 2021 ONLAT 20-003838/AABS

Release date: 09/20/2021

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:

Vishnu Veerakumar

Applicant

and

Travelers Canada

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Linda To, Paralegal

For the Respondent:

Stanislav Bodrov, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an accident on February 6, 2018, and sought benefits from the respondent, Travelers, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Travelers denied the benefits in dispute based on 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:

i. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

ii. Is the applicant entitled to payments for the cost of examinations in the amount of $2,460.00 for an Orthopaedic Assessment, recommended by Dr. P. Alexander in a treatment plan dated August 5, 2018, and denied by the respondent on August 13, 2018?

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

iv. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG or that the treatment plan in dispute is reasonable and necessary. As no benefits are payable, the applicant is not entitled to interest or an award under O. Reg. 664.

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 may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

5The applicant submits that he suffers from chronic pain as a result of the accident that warrants removal from the MIG. He relies on a Disability Certificate (“OCF-3”) identifying his impairments as whiplash associated with neck pain, strain and strain of the thoracic and lumbar spine and shoulder girdle. Additionally, he directs the Tribunal to the clinical notes of his family physician, Dr. Chen, the treatment notes from Med Rehab Group and an orthopedic assessment report by Dr. Alexander, dated October 18, 2018.

6In response, Travelers asserts that the applicant has failed to meet his burden of proof as there is no indication he has been diagnosed with an impairment that is beyond the definition of a minor injury, that he has never been prescribed medication for his impairments, has never been referred to a specialist, that his own assessor diagnosed him with soft-tissue injuries, that there is no evidence of functional limitations where he returned to his pre-accident employment duties and that he has never been diagnosed with chronic pain.

7I agree with Travelers and find that the applicant has not demonstrated that their accident-related impairments warrant removal from the MIG. I agree that the actual physical injuries identified in the OCF-3 are all soft-tissue injuries that clearly fall within the definition of a minor injury under s. 3(1) above. In a similar vein, the x-ray report revealed normal results with no fractures or tears.

8With 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 would preclude maximal medical recovery if they are kept within the confines of the MIG. The applicant provided no indication that there were any pre-existing impairments that a practitioner identified as preventing maximal medical recovery if kept within the MIG, which is the requirement for removal under this ground.

9The applicant is correct that the Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment. While not strictly required for removal from the MIG, I was not directed to an actual diagnosis of chronic pain or chronic pain syndrome in any of the documentation and even Dr. Alexander’s report states that “if his pain continues […] he may benefit from a referral to a chronic pain program.” Notably, Dr. Alexander also opined that the applicant sustained “soft tissue injuries to his neck, lower back, and lateral epicondyles of both elbows.” Where the applicant’s own assessor diagnosed soft-tissue injuries, did not refer the applicant to a chronic pain program and did not address the causation issue stemming from the applicant’s involvement in a second accident on June 6, 2018, it is difficult to afford the opinion much weight.

10Still, the applicant asserts that his pain has become chronic and has resulted in functional limitations and has impacted his “physical, emotional and cognitive spheres.” Yet, there are no referrals or recommendations for treatment for a chronic pain condition in the six pages of family physician records provided. The applicant has seemingly never been prescribed any medication to deal with his pain, only taking “plain Tylenol” as needed. It is uncontested that the applicant returned to full-time pre-accident employment in a sedentary position with no evidence of functional impairment. As of April 9, 2018, the treatment notes reveal that the applicant reported a 90% improvement in his condition and rated his neck and lower back pain as 2/10 on the pain scale. There are no notes beyond October 2018, which undermines the claim that it is a chronic condition. The applicant’s submissions also did not engage with any of the six criteria from the AMA Guides that the Tribunal has adopted as an interpretive tool for assessing chronic pain claims in the absence of a diagnosis.

11Accordingly, for these reasons, I find the applicant has fallen well short of proving on balance of probabilities that their accident-related impairments warrant removal from the MIG.

Is the treatment plan reasonable and necessary?

12Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, an analysis of whether the assessment plan in dispute is reasonable and necessary under s. 16 is not required. In any case, I find the applicant did not satisfy their burden of proof, as the medical evidence before the Tribunal does not support the reasonableness or necessity of a chronic pain assessment. This is confirmed by the fact that Dr. Alexander did not diagnose the applicant with chronic pain or make a referral for treatment for same. As no benefits are overdue, it follows that no interest is payable under s. 51.

Section 10 Award

13The applicant also sought an award under s. 10 of O. Reg. 664, submitting that Travelers improperly adjusted the claim and failed to review the medical documentation. Under s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. Given my findings above and the fact that no benefits are owing, I find an award is not appropriate. It cannot be said that Travelers unreasonably withheld or delayed payments.

CONCLUSION

14The applicant has not demonstrated that their accident-related impairments warrant removal from the MIG or that the assessment plan in dispute is reasonable and necessary. No interest is payable, and a s. 10 award is not appropriate. The application is dismissed.

Footnotes

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