Licence Appeal Tribunal File Number: 20-008652/AABS
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:
Ushananthini Aravinthan
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Stephanie Kepman
APPEARANCES:
For the Applicant:
Shohreh Rakhshan, Counsel
For the Respondent:
Joseph Hogan, Counsel
HEARD:
By way of written submissions
BACKGROUND
1The applicant was involved in an automobile accident on August 14, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 20101. The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a Case Conference on December 9, 2020 but were unable to resolve the issues in dispute.
3The parties made written submissions, with the applicant choosing to forgo replying to the respondent’s submissions.
ISSUES
4The parties agreed that the following issues were in dispute:
a. Is the applicant entitled to an income replacement benefit of $325.78 per week from April 10, 2019 to November 17, 2019?
b. 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 Minor Injury Guideline?
c. Is the applicant entitled to $1,160.00 for transportation costs submitted in on a claim form (OCF-6) that was denied on October 4, 2018?
d. Is the applicant entitled to $1,342.20 (less amounts approved) for physiotherapy, recommended by Ajax Rehabilitation Centre in a treatment plan (OCF-18) denied on December 14, 2018?
e. Is the applicant entitled to $2,630.90 for physiotherapy, recommended by Ajax Rehabilitation Centre in a treatment plan (OCF-18) denied on February 20, 2019?
f. Is the applicant entitled to $2,198.79 for a psychological assessment, recommended by Ajax Rehabilitation in a treatment plan denied on September 13, 2019?
g. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
h. Is the applicant entitled to interest on any overdue payment of benefits?
LAW
5Section 3(1) of the Schedule states that a minor injury consists of one or more a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration, or subluxation and includes any clinically associated sequelae to such an injury. Section 3(1) of the Schedule also establishes the treatment framework regarding minor injuries.
6Section 5(1)(i) of the Schedule provides the eligibility criteria for qualifying for an income replacement benefit, stating that an insured person shall pay an income replacement benefit to an insured person who sustains an impairment due to the accident, so long as the insured person was employed at the time of the accident, and within 104 weeks after said accident, suffers a substantial inability to perform the essential tasks of that employment.
7Section 33(1) of the Schedule states that an applicant shall, within 10 business days after receiving a request from the insurer, provide it with any information reasonably required to help the insurer determine if the applicant’s entitled to a benefit. The insurer can also request a statutory declaration as to the circumstances that gave rise to the application for said benefit, the number, street, and municipality where the applicant resides and proof of the applicant’s identity.
8Section 33(2) of the Schedule states that if requested by an insurer, the applicant shall submit to an examination under oath, but isn’t required to submit to more than one examination under oath relating to the same accident, or to submit for an examination under oath during a period when the applicant can’t be examined due to his/her/their physical, mental, or psychological condition.
9Section 36(4)(a) of the Schedule states that when an insurer receives an application and completed disability certificate, within ten business days, it shall either pay the specified benefit or rely on sections 36(4)(b) and/or (c) of the Schedule
10Section 36(4)(b) of the Schedule states that the insurer can, if not paying the benefit in accordance with section 36(4)(a), instead give the applicant notice explaining the medical and any other reasons why the insurer believes the applicant is not entitled to the specified benefit and if an examination under section 44 is required.
11Section 36(4)(c) of the Schedule states that an insurer can make a request to the applicant under section 33(1) or (2) of the Schedule.
12Section 36(6) of the Schedule states that if the insurer fails to comply with section 36(4) within the applicable time, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate, and ending when the insurer gave notice described in section 36(4) of the Schedule.
13Section 44(1) of the Schedule states that in order to help an insurer determine if an insured person is, or continues to be, entitled to a benefit that the insured person applied for under the Schedule, but not more than is reasonably necessary, the insurer may require the insured person to be examined by one or more people, chosen by the insurer, who are regulated health professionals or who have expertise in vocational rehabilitation.
14Section 51(2) of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.
ANALYSIS
Income Replacement Benefit of $325.78 per week from April 10, 2019 to November 17, 2019
15The applicant submitted that she is entitled to an income replacement benefit (‘IRB’) because of the injuries and impairments sustained as a result of the accident. She relied on the Disability Certificate2 (the ‘OCF-3’) of Chiropractor Dr. Krishna Patel. The OCF-3 stated that as a result of the accident, the applicant had the following injuries: whiplash associated disorder (‘WAD II’) with neck pain, strain and sprain of the lumbar and thoracic spine and shoulder girdle, headache, other chest pain, radiculopathy, other sleep disorders and problems related to lifestyle. The OCF-3 also indicated that the applicant was unable to perform the essential tasks of her employment as a result of the accident, with an estimated duration of the disability from nine to twelve weeks.
16Dr. Patel completed a second OCF-33, which stated that the applicant had the same injuries as listed in her previous OCF-3, and as a result of the accident, confirmed that the applicant was unable to perform the substantial tasks of her employment . Dr. Patel submitted that the applicant’s disability had an anticipated duration of nine to twelve weeks.
17The applicant relied on the clinical notes and records of her family doctor, Dr. Dilipkumar Mather. Dr. Mather diagnosed4 the applicant with muscular pain as a result of the accident.
18The applicant also relied on the clinical notes and records of her treating Psychologist, Dr. Grace Gronkowska. Dr. Gronkowska commented in a Treatment and Assessment Plan (an ‘OCF-18’) under “Part 8 Activity Limitations” that the applicant’s impairments from the injuries affected her ability to carry out the essential tasks of her employment due to the accident.
19The applicant also argued that since she complied with all of the respondent’s requests for additional documents, section 36(6) of the Schedule would apply, since the respondent failed to pay the benefit in accordance with section 36(4) of the Schedule. She submitted that her employer provided the Employer’s Confirmation Form (the ‘OCF-2’) on August 28, 2018. The applicant relied on an OCF-2 from Canada Post related to her temporary work5. Based the medical evidence described above, the applicant submitted that the respondent ought to have provided her with the IRB.
20The respondent submitted that the applicant only visited her family doctor twice during the period in dispute6, and that these visits did not pertain to the accident. The respondent also noted that the applicant did not suffer a substantial inability to perform the essential tasks of her job, as she continued to work after the accident, noting she was employed by Canada Post on November 18, 2019 as a temporary worker for the holiday period.
21In terms of the essential tasks of this employment, Rod Pritchett, Occupational Therapist, concluded they consisted of lifting, carrying, pushing, pulling, standing, walking, retrieving items, forward bending, and twisting. Mr. Pritchett found that the applicant was able to perform all of the essential tasks of her employment.
22The respondent also argued that since the applicant was involved in a subsequent motor vehicle accident on December 14, 2019, and that the issues of pain related to her right shoulder only began after this, the accident in question did not cause the applicant’s injuries.
23The respondent relied on a section 44 assessment conducted by Dr. Michael Ko, Physician, issued on March 19, 2019 as part of a Multidisciplinary Assessment Report. Dr. Ko found no on-going, organic pathology or impairment related to the applicant and diagnosed her with strain/sprain injury of the neck, upper, mid, and lower back and left trapezius. Dr. Ko found that the applicant did not suffer a substantial inability to perform the essential tasks of her job.
24After considering the evidence and submissions of the parties, based on a balance of probabilities, I find that the applicant has not demonstrated that she suffered a substantial inability to perform the essential tasks of her job as a result of the accident. I was more persuaded by the evidence of the respondent, who provided supporting evidence via Dr. Ko that the applicant did not suffer a substantial inability to perform the essential tasks of her job.
25Though the applicant relied on the above mentioned OCF-3s, the OCF-3s failed to address the applicant’s on-going alleged impairment, despite Dr. Patel indicating on both OCF-3’s that the applicant’s injuries were expected to have a duration of nine to twelve weeks.
26Furthermore, beyond the OCF-3s in question, which do not provide an explanation or basis for making determinations of the applicant’s impairments, the applicant has not provided medical evidence supporting her position.
27Her family doctor, Dr. Mather, did note that the applicant visited him after her accident. However, Dr. Mather did not state that the applicant was unable to work as a result of her accident.
28Dr. Gronkowska commented in her OCF-18 that the applicant’s injuries were interfering with her ability to work but did not formally comment on the applicant suffering a substantial inability as a result of the accident, while Dr. Ko did.
Minor Injury Guideline – Chronic Pain
29The applicant submitted that her injuries fall outside of the Minor Injury Guideline (the ‘MIG’), as she suffers from chronic pain as a result of the accident.
30In Scarlett v. Belair Insurance (“Scarlett”), the Divisional Court reviewed the minor injury provisions in the Schedule, finding that they were a limit on an insurer’s liability, not an exclusion from coverage, and that the onus of establishing entitlement beyond the cap rests with the claimant. Applying Scarlett, the applicant must establish her entitlement to coverage beyond the $3,500 cap for minor injuries.
31The onus is on the applicant to show that her injuries fall outside of the MIG7.
Does the applicant suffer from chronic pain?
32The applicant submits that she suffers from chronic pain, which removes her from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.
33The applicant submitted that her assessors noted that she was living with extensive accident-related pain, causing complaints and physical limitations beyond the expected three to nine months post accident, and instead has had pain for over two years. Based on this, she characterized her pain as chronic pain and deemed it out of the MIG.
34She relied on Y.X.Y v. the Personal Insurance Company8, which stated that it’s not the presence of on-going pain alone that removes a person from the MIG, it’s chronic pain syndrome, where an applicant’s pain affected his/her/their abilities to engage in employment, housekeeping or caregiving activities; there must be a functional impairment.
35The applicant relied on Dr. Gronkowska’s OCF-18 dated September 4, 2019. This OCF-18 noted that the applicant suffered “problems related to lifestyle, pain, not elsewhere classified, malaise and fatigue, other problems related to primary support group, including family circumstances, state of emotional shock and stress, unspecified, unhappiness and problems related to life-management difficulty”.
36Dr. Gronkowska’s OCF-18 opined that the applicant’s injuries did not qualify as a MIG injury, and the goal of this treatment would be to reduce the applicant’s pain and return her to pre-accident level of psychological functioning.
37Dr. Mather, the applicant’s family doctor, noted the applicant’s muscular pain following the accident and was encouraged to try physiotherapy and Voltaren gel9. Dr. Mather noted on May 15, 2020, that the applicant complained of left shoulder pain for several weeks, saw an Orthopaedic Surgeon and had Depo-Medrol injections, which has improved the applicant’s pain. Dr. Mather advised to apply heat to her shoulder and to try the Voltaren gel previously mentioned.
38The respondent submitted that the applicant has not met her burden of proof regarding her position of having chronic pain; they submitted that the applicant’s medical records make no reference to a diagnosis of chronic pain other than the treatment plan in dispute for a psychological assessment.
39Since the applicant has no diagnosis of chronic pain, the respondent submitted that the applicant has also failed to demonstrate that her chronic pain was not merely sequelae of soft tissues injuries10.
40Instead, the respondent submitted that the applicant had failed to demonstrate that her pain was11: 1. Chronic pain syndrome or continuous and 2. Must be of a severity that it causes suffering and distress accompanied by functional impairment or disability, and therefore, has failed to meet her burden.
41Paragraph 28 of 16-000438 v. the Personal Insurance Company provides the Tribunal with some guidance when evaluating chronic pain. It states:
For chronic pain to be more than sequelae from the soft tissues injuries enumerated in s. 3 of the Schedule, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae.”
42The respondent also noted that during the period in question, the applicant was not prescribed any medication to assist manage her pain or psychological issues.12
43Furthermore, beyond the applicant’s family doctor, Dr. Mather, noting on the day after the accident that the applicant was stressed out, there’s no reference to the applicant having psychological issues, a component of demonstrating chronic pain.
44The respondent also reminded the Tribunal that causation is still an issue, due to the subsequent accident13.
45After considering the submissions of the parties, based on a balance of probabilities, I find that the applicant has not established that she suffers from chronic pain or that her pain falls outside the MIG and can be defined as “chronic pain” which would remove her from the MIG.
46I was more persuaded by the respondent’s submissions related to the applicant failing to demonstrate that her chronic pain was not merely sequelae of soft tissues injuries as well as the case law it relied on, specifically 16-000438 v. the Personal Insurance Company.
47Chronic pain removing an insured person from the MIG must be demonstrated by the party claiming it, which would be the applicant. In this case, the applicant has not demonstrated that she experienced pain that was beyond the definition of sequelae as listed in the Schedule. Since the applicant carries this burden and has not fulfilled it, her pain cannot be qualified as chronic pain which removes an insured from the MIG.
48Though I sympathize with the applicant’s position and do believe she is experiencing pain, she has not demonstrated her diagnosis of chronic pain or continuous pain and the impact said pain has had on her life. Without this evidence, the applicant’s injuries cannot be qualified as chronic pain warranting removal from the MIG.
49Since the applicant has not demonstrated that she suffers from an injury or impairment that would remove her from the MIG, I do not need to consider if the treatment plans in dispute are reasonable and necessary.
Interest and Award
50Since no benefits in dispute are overdue, no interest or award is owing.
CONCLUSION
51I find that the applicant is not entitled to the income replacement benefit of $325.78 per week from April 10, 2019 to November 17, 2019.
52I find that the applicant’s injuries are predominately minor injuries as defined by the Schedule.
53I find no benefits are overdue and the applicant is not entitled to interest or award. Therefore, the application is dismissed
Released: January 14, 2022
__________________________
Stephanie Kepman, Adjudicator
Footnotes
- O. Reg. 34/10 as amended.
- Dated August 22, 2018
- Dated September 4, 2019.
- Clinical notes and records of Dr. Mather dated August 15, 2018.
- Dated January 24, 2020.
- April 10, 2019 to November 17, 2019.
- Scarlett v. Belair, 2015 ONSC 3635 at para.24.
- 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT)
- Based on the clinical records of Dr. Mather dated August 15, 2018.
- Based on 17-000640/AABS v TD Insurance Meloche Monnex, 2018 CanLII 13142 (ON LAT) at paragraph 39.
- 16-000438 v. The Personal Insurance Company, 2017, CanLII 59515 (ON LAT) at para. 28.
- Based on the Prescription summary from Costco from September 17, 2017 to December 31, 2020.
- Of December 14, 2019.