Saravanai v. Aviva Insurance Company, 2022 CanLII 120004

Citation: Saravanai v. Aviva Insurance Company, 2022 ONLAT 19-009733/AABS

Licence Appeal Tribunal File Number: 19-009733/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:

Paskaralingam Saravanai

Applicant

and

Aviva Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Erin Neal, Counsel

For the Respondent: Kristofer Angle, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on September 8, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”).¹ The applicant was denied certain benefits by the respondent, Aviva Insurance Company and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

PRELIMINARY ISSUE

2The applicant withdrew the income replacement benefit claim in the amount of $400.00 per week for the period of September 15, 2017, to date and ongoing. On March 19, 2021, the applicant filed a Notice of Motion with the Tribunal to convert the videoconference hearing to a written hearing. On March 29, 2021, the Tribunal held that the applicant’s request for an income replacement benefit was no longer in dispute and the matter was to proceed by written hearing.

ISSUES

3The following issues are to be decided:

a. Are the applicant’s injuries predominately minor as defined in s.3 of the Schedule and subject to treatment limit under the Minor Injury Guideline (“MIG”)?

b. Is the applicant entitled to $3,353.40 for medical treatments proposed by Gibson Wellness Centre in a treatment plan (“OCF-18”) dated March 27, 2018?

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

d. Is the applicant entitled to interest or any overdue payment of benefits?

RESULT

4I find that:

a. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

b. The treatment plan in dispute is not payable;

c. The applicant is not entitled to an award under Regulation 664; and

d. The applicant is not entitled to interest.

ANALYSIS

5The applicant submits that, he is entitled to payment for the disputed treatment plan because the respondent failed to provide adequate medical reasons for denying treatment, in contravention of s.38(8) of the Schedule. Furthermore, the applicant submits that he is entitled to treatment outside of the MIG because of chronic pain resulting from the accident. I will deal with each of the submissions in turn.

Section 38(8)

6The applicant submits that he is entitled to the treatment plan in dispute because the respondent’s denial states nothing about the applicant’s specific medical reasons as to why it did not consider the proposed treatment reasonable and necessary in accordance with s. 38(8) of the Schedule.

7Pursuant to s.38(11) of the Schedule, if an insurer fails to give notice in accordance with s.38(8) in connection with a treatment plan, the insurer is prohibited from taking the position that the MIG applies and is liable to pay for the expenses contained in the plan until providing such notice.

8The applicant relies on this Tribunal’s decision in 16-003316 v. Peel Mutual Insurance Company² for its position that the respondent’s denial failed to satisfy s. 38(8). In T.F. the Tribunal found that an insurer’s medical and any other reasons should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

9Furthermore, the applicant relies on G.A. v. Allstate Insurance³ that the denial states noting about the applicant’s specific medical condition and relying on the MIG is not clear and sufficient. In G.A., the Tribunal found that the insurer was not compliant with s.38(8) of the Schedule because it fails to provide the requisite medical reason for the denial.

10The respondent submits that this case can be distinguished from the cases cited by the applicant, as the applicant did not provide medical evidence to suggest that the MIG does not apply in this case.

11Upon review of the respondent’s denial of the OCF-18 in dispute, I conclude that the denial was accompanied by reasons satisfying the requirements of s. 38(8) of the Schedule.

12The respondent’s April 10, 2018 denial made specific reference to the applicant’s impairments appearing to be predominately minor in nature and cited the absence of compelling medical evidence to suggest otherwise as another reason for its denial. The respondent clearly communicated the denial and provided reasons capable of allowing the applicant to make an informed decision to either accept or dispute the decision.

The Minor Injury Guideline

13The Minor Injury Guideline (“MIG”) establishes a framework available to injured persons who sustain 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 strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

14Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

15An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a psychological impairment or chronic pain with a functional impairment.

16It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.⁴

17The parties agree that the applicant has exhausted the $3,500.00 MIG treatment limit.

Chronic Pain

18The applicant submits that the injuries he sustained from the accident are chronic, and that these are non-minor injuries that warrant removal from the MIG. He relies on clinical notes and records (“CNR”s) of his family physician, Dr. Rajanathan Rajasingham. The applicant was examined by Dr. Rajasingham on September 13, 2017, complaining of chest pain and left shoulder pain. The applicant was diagnosed with muscle strain and prescribed pain medication. To demonstrate ongoing chronic pain, the applicant provides that on November 15, 2017, his family physician referred him to Dr. Alireza Kachooie, physiatrist.⁵

19The applicant further relies on the Physiatry Report of Dr. Kachooie, dated January 22, 2018, in which he was diagnosed with mild whiplash, left rotator cuff tendonitis, and Dr. Kachooie recommended the applicant attend active rehab and to take gabapentin at night and mobicox and Tylenol-ES daily.⁶

20The applicant references the chronic pain criteria outlined in A.A. v. Technology Insurance Company Inc⁷ and applies them to his chronic pain. The applicant provides:

a. That he suffers constant pain as evidenced by the regular complaints to his Dr. Rajasingham and Dr. Kachooie;

b. He is taking medication to help control his chronic pain;

c. Despite the accident occurring over 4 years ago, he is still experiencing ongoing or recurrent pain; and

d. That the accident resulted in functional impairment and disability.

21The respondent argues that the applicant failed to adduce any evidence that would suggest he suffers from any injuries that would prevent full recovery within the MIG if subject to the $3,500 limit.

22The respondent took issue with the applicant’s evidence from the onset of the accident. On the date of the accident, the applicant was taken to the Scarborough Hospital, complaining of pain in his left shoulder, and left knee. The applicant underwent imaging to his abdomen, chest, left ribs and left scapula which all showed “no evidence of trauma.”⁸

23Dr. Rajasingham CNRs reveal that the applicant made sporadic complaints of accident-related pain⁹, which were diagnosed as muscle strain. Furthermore, the applicant’s medical records show that he had not consulted with Dr. Rajasingham or any other physician about the accident since May 31, 2019.

24The respondent submits that the applicant did not receive a diagnosis of chronic pain from any medical physician. Further, the word “chronic” does not appear in any medical evidence submitted by the applicant.

25The respondent relies on Y.X.Y. v. The Personal Insurance Company¹⁰ , which provides that a diagnosis of chronic pain on its own is insufficient to be removed from the MIG, and that ongoing pain must be accompanied by some functional impairment. The respondent’s submits that not only does the applicant fail to demonstrate he has chronic pain, but also fails to produce evidence that speaks to his functional impairment.

26After reviewing the submissions and evidence of the parties, I find that the applicant’s injuries are minor. My findings are based on the CNRs of Dr. Rajasingham, who diagnosed the applicants’ injuries as muscle strain, and the Physiatry Report of Dr. Kachooie, who diagnosed the applicant with mild whiplash and left rotator cuff tendonitis. These diagnoses fall within the definition of “minor injury” or are mere sequelae of those minor injuries. None of the applicant’s medical evidence indicates that his physical injuries are more than soft tissue injuries.

27Although Dr. Rajasingham referred the applicant to Dr. Kachooie, neither physician diagnosed the applicant with chronic pain. The applicant relies on several Tribunal decisions in support of the proposition that chronic pain is outside the definition of minor injury.¹¹ These decisions are not binding on me and are specific in their facts. The finding that chronic pain is outside the definition of minor injury is well understood and is not in dispute here. Instead, the applicant’s evidence fails to establish that he suffers from chronic pain as a result of the accident. While I acknowledge that he may be experiencing intermittent pain lasting beyond the accident, there is no evidence that such pain caused a functional impairment and or disability which adversely affects his pre-accident activities of daily living.

28Overall, I am not persuaded that the applicant provided sufficient evidence to demonstrate that he should be removed from the MIG based on chronic pain.

29Since I have found that the applicant’s injuries fall within the MIG, and the parties agree that the applicant has exhausted the MIG’s limits, I do not need to consider if the disputed treatment plans are reasonable and necessary.

Special Award

30Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments. As I find that no benefits are outstanding, I find that there was no payment unreasonably withheld or delayed. Therefore, there is no award.

Interest

31As no benefits are payable, no interest is payable.

ORDER

32I find that:

a. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

b. The treatment plan in dispute is not payable;

c. The applicant is not entitled to an award under Regulation 664; and

d. The applicant is not entitled to interest.

e. The application is dismissed.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 22018 CanLII 39373 (ON LAT).
3. 32020 CanLII 47718 (ON LAT).
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635 at para.24.
5. 5September 30, 2017, November 15, 2017.
6. 6Report of Dr. A. Kachooie dated January 22, 2018.
7. 72020 CanLII 12719 (ON LAT) at para 16.
8. 8Emergency Room Records, September 8, 2017.
9. 9CNRs of Dr. Rajasingham February 2, 2018; February 20, 2018; May 28,2018; September 25, 2018; November 3, 2018; November 10, 2018; May 21, 2019, and May 31, 2019.
10. 102017 CanLII 59515 (ON LAT).
11. 11A.A. v. Technology Insurance Company Inc 2020 CanLII 12719 (ON LAT) and 17-007835 and Aviva, 2018 CanLII 83520 (ON LAT)(Reconsideration).