Kanagasingam v. Intact Insurance Company, 2022 CanLII 8671

Citation: Kanagasingam v. Intact Insurance Company, 2022 ONLAT 20-002032/AABS

Licence Appeal Tribunal File Number: 20-002032/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:

Pirakajan Kanagasingam

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lyndra Griffith

APPEARANCES:

For the Applicant:

Alexei Antonov, Counsel

Francesco Vumbaca, Student-at-law

For the Respondent:

Nick Voight, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Pirakajan Kanagasingam, was involved in an automobile accident on October 6, 2018. The applicant was stopped at a red light when his car was rear-ended by a vehicle. The police and ambulance did not attend the scene.

2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').¹ The applicant was denied certain benefits by the respondent, Intact Insurance Company (“Intact”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

3The respondent denied the applicant’s claims because it took the position that his injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule and, therefore, fell within the Minor Injury Guideline² (the “MIG”).

4The MIG sets a monetary limit of $3,500.00 on medical and rehabilitation benefits for predominantly minor injuries. The applicant argues that his injuries take him out of the limit set by the MIG. It is the Tribunal's understanding that the applicant’s MIG limit has been exhausted.

ISSUES

5The issues I am asked to determine are:

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

6If the applicant did not sustain predominantly minor injuries, then I must determine:

a. Is the applicant entitled to $375.12 for medical services, recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) dated February 4, 2019?

b. Is the applicant entitled to $120.00 (total submitted $1,242.56, partially approved in the amount of $1,122.56) for medical services, recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) submitted February 2, 2019 and partially approved by the respondent July 9, 2019?

c. Is the applicant entitled to $1,830.08 for medical services, recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) submitted June 13, 2019 and denied by the respondent June 26, 2019?

d. Is the applicant entitled to $1,866.28 for medical services, recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) submitted October 2, 2019 and denied by the respondent October 18, 2019?

e. Is the applicant entitled to $3,335.98 for psychological services, recommended by Downsview Healthcare Inc. in a treatment plan (OCF18) submitted October 7, 2019 and denied by the respondent October 21, 2019?

f. Is the applicant entitled to $627.92 for assistive devices, recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) submitted January 16, 2019 and denied by the respondent January 21, 2019?

g. Is the applicant entitled to $1,563.72 for medical services, recommended by Downsview Healthcare Inc. in a treatment plan (OCF-18) submitted January 14, 2019 and denied by the respondent January 16, 2019?

h. Is the applicant entitled to $2,000.00 for a Psychological Assessment, recommended by Downsview Healthcare Inc. in a treatment plan submitted January 11, 2019 and denied by the respondent January 24, 2019?

i. Is the applicant entitled to $2,000.00 for a Chronic Pain Assessment, recommended by Downsview Healthcare Inc. in a treatment plan submitted October 18, 2019 and denied by the respondent November 4, 2019?

j. Is the applicant entitled to $2,034.00 for Interpreter Services submitted on a claim form (OCF-6) June 19, 2020 and denied by the respondent June 30, 2020?

k. Is the applicant entitled to $12,918.49 for a chronic pain program submitted to the respondent in a treatment plan dated June 23, 2020 and denied by the respondent July 2, 2020?

l. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

m. Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?

Result

7Based on the evidence before me, I find that the applicant’s accident related injuries meet the definition of “minor injury” under the Schedule. He is therefore subject to treatment within the MIG limit and is subject to the $3,500.00 funding limit. It is the Tribunal's understanding that the applicant’s MIG limits have been exhausted, so no benefits are payable.

8As a result, the applicant is not entitled to interest or an award under Regulation 664.

LAW and ANALYSIS

Applicability of the Minor Injury Guideline

9The MIG establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in s. 3(1) of the Schedule 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.” The terms “sprain”, “strain”, “subluxation”, and “whiplash associated disorder” are also defined in s. 3(1).

10Furthermore, s. 18(1) of the Schedule states that the sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3,500 in accordance with the MIG.

11The onus is on the applicant to show on a balance of probabilities that his accident-related impairments justify removal from the MIG.³

12The applicant argues that the evidence suggests that he sustained the following accident related injuries: a concussion, chronic post-traumatic headaches, post-concussion syndrome, acute stress reaction, symptoms and signs involving emotional state, dizziness, emotional disturbances, anxiety, adjustment disorder with mixed anxiety and depressed mood, specific phobia (travelling in and around a vehicle), chronic mechanical neck pain, chronic mechanical bilateral shoulder and arm pain, chronic mechanical upper and mid back pain, chronic mechanical lower back pain, chronic mechanical bilateral lower limb pain, myofascial pain syndrome, chronic pain syndrome, and sleep disorder, all of which were sustained as a direct result of the subject accident. The applicant submits that these accident-related symptoms and diagnoses are not captured by the Schedule’s definition of a “minor injury,” and thus should not be subject to the MIG.

13The applicant submits that he was diagnosed with chronic pain syndrome as a direct result of the accident by Dr. Grigory Karmy, a Certified Chronic Pain Physician. The applicant further submits that this diagnosis is corroborated by the Disability Certificate (OCF-3) completed by chiropractor, Dr. Oleksandr Pivtoran on May 11, 2019, where it was noted that his injuries and impairments secondary to the accident had developed into chronic pain.

Did the applicant sustain physical injuries that remove him from the MIG?

14I am not persuaded by the applicant’s evidence that his injuries fall outside the MIG. I am more persuaded by the evidence submitted by the respondent which confirms that the physical injuries fall within the MIG.

15My finding that the applicant’s physical injuries fall within the MIG is supported by the following evidence:

(i) The applicant began seeing a new family doctor on May 10, 2019 and he underwent a complete physical examination with Dr. Sivakumar Kanagasbi. The examination noted no abnormalities, no hearing problems, no tinnitus, no vision problems, no headaches and no weakness or sensory impairments in the body. Upon completion of the physical, Dr. Sivakumar Kanagasbi diagnosed him with obesity.

(ii) An Insurer Examination (IE) Report was completed by physician, Dr. Mohamed Khaled, on September 24, 2020. Dr. Khaled found that as a result of the accident, the applicant has developed mechanical low back pain as well as grade 2 whiplash of the neck with associated shoulder sprain/strain. He found these to be uncomplicated soft tissue injuries only without evidence of significant orthopedic or neurological sequela. Dr. Khaled also noted that the applicant complains of pains in both ankles and knees but he does not recall a particular injury to these in the accident. Dr. Kahled did not identify any valid indicators to support residual or ongoing or permanent musculoskeletal, neurological, or orthopaedic accident-related injury or impairment. He could not identify any objective evidence of ongoing permanent accident related impairment. He concluded that the applicant’s injuries are sprains and strains only and are to be considered minor injuries as per the Guidelines.

(iii) Dr. Kanagasbi’s clinical notes and records (CNRs) dated November 17, 2020, indicated that he called the applicant and “discussed about his lawyer request regarding his MVA happened 2018. He never talked about his MVA. He says he forgot to mention about his accident and back pain.”

(iv) On November 21, 2020, the applicant saw Dr. Kanagasbi and his CNRs indicate the following:

He is a 31 yr old who has lower back pain since after car accident happened on 06 Oct, 2018. He has never mentioned this issue before to me and this is the 1st time I saw him in the office for his back pain since after his accident. He gets pain in the morning daily and he gets pain after sitting for 30 minutes. He says he has been going for physiotherapy every week since after MVA. He has both ankle pain it came 3 months after the accident.

(v) The IE Report of psychologist Dr. Deborah Cowman, dated September 21, 2020, noted that “he felt okay at the scene of the accident, and went to the doctor the next day. Mr. Kamagasingam said that he did not lose consciousness during the accident”.

16Based on the totality of the evidence, I am not persuaded by the applicant’s evidence. The applicant submitted the following evidence in support of physical injuries do not fall within the MIG:

(i) There were two OCF-3s completed by Dr. Pivtoran, dated October 13, 2018 and May 11, 2019. On May 11, 2019, Dr. Pivtoran noted that the applicant’s accident-related injuries and sequelae include the following: chronic sprain and strain of the cervical spine; chronic sprain and strain of the lumbar spine; chronic post-traumatic headache; sprain and strain of the joints and ligaments of the right shoulder; chronic sprain and strain of the thoracic spine; post-concussion syndrome; chronic pain; pain in multiple sites; and symptoms and signs involving emotional state. Dr. Pivtoran opined that the applicant’s post-accident condition “has a clear tendency towards chronicity” and that his accident-related disabilities are likely to persist beyond 12 weeks.

(ii) A Psychological Report was completed by psychologist, Dr. Shaul, and registered psychotherapist, Helen Ilios, and dated August 23, 2019 (assessment on June 24, 2019). The report noted that the applicant “reported that he hit his head upon impact and lost consciousness. He was unsure for how long he lost consciousness.”

(iii) The applicant underwent a chronic pain assessment with Dr. Karmy on March 16, 2020 (report dated April 5, 2020). Dr. Karmy noted that “he could not recall all the details of the subject accident. He believes that he did not lose consciousness.” Dr. Karmy’s conclusions are as follows:

In my medical opinion, the subject accident is directly responsible for the development of the claimant’s chronic neck, back, bilateral shoulder, upper and lower limb pain. In addition, his emotional and cognitive difficulties, as well as sleep disturbances, are also a result of the subject accident. Prior to the subject accident, the claimant did not suffer from chronic musculoskeletal pain or psychological problems. The timing of the onset of all these symptoms leaves no doubt that all the above issues were stemming from the subject accident. It is evident that he never experienced mood disturbances associated with chronic pain, sleep disturbances, MVA-related intrusive thoughts/memories, MVA-related nightmares, or symptoms of Driving Anxiety, until the subject accident occurred.

17I am not convinced by the applicant’s evidence. The applicant was inconsistent with regard to the accident details. He told Dr. Shaul and Helen Ilios that he lost consciousness during the impact of the accident. He later told Dr. Karmy and Dr. Cowman that he did not lose consciousness during the accident. When the applicant began seeing a family doctor in May 2019, he failed to tell his doctor that he was in a motor vehicle accident and he failed to mention any accident related complaints. It is hard to reconcile how the applicant does not mention anything to his family doctor, yet the very next day, he obtains an OCF-3 from Dr. Pivtoran stating that his post-accident condition “has a clear tendency towards chronicity.”

18Similarly, the applicant underwent a chronic pain assessment in March of 2020 yet did not mention any of these complaints to his family doctor. It was not until his family doctor received correspondence from the applicant’s counsel, in connection with this accident, that he was made aware that the applicant was involved in an accident. The evidence shows that the applicant said that he simply forgot to mention his accident and back pain to his family doctor.

19The applicant submits that in his view, his family physician was someone he visited with respect to his other, non-accident-related medical issues, such as his ongoing issue with diabetes and obesity. He submits that he did not mention his involvement in the subject accident because, to the best of his knowledge, information, and belief, the injuries and impairments he sustained were being addressed by his other medical professionals at Downsview Healthcare Inc. The applicant further submits that, upon becoming aware that his family physician may be able to assist in his post-accident recovery, he began visiting his family physician in relation to his chronic accident-related pain and discomfort.

20The applicant’s explanations for why he did not mention his injuries to his family physician are not evidence, they are submissions. The applicant has failed to provide any affidavit evidence on this issue.

21In the applicant’s reply submissions, he claims that Dr. Khaled’s report contains fabricated and erroneous information. Mainly that Dr. Khaled noted that the applicant “visited the Emergency Room one week later,” and that “[h]e was diagnosed with soft tissue injuries, and X-ray testing was normal,” “followed up with his family physician 1-2 weeks later,” and “was not prescribed medication by his family doctor.” All of which the applicant submits are not true. The applicant submits that, the IE reports are uncompelling and fraught with inconsistencies, inaccuracies, and lack of pertinent detail.

22In his reply, the applicant also raised concerns about inconsistencies contained in the IE reports. These concerns should have been raised in his initial submissions in order to give the respondent an opportunity to respond. Despite the concerns raised by the applicant concerning the IE Reports, I find that the applicant failed to persuade me that the physical injuries he sustained in the accident require treatment beyond that provided in the MIG.

Did the applicant sustain psychological injuries that remove him from the MIG?

23For the reasons that follow, I find that the evidence does not support the conclusion that the applicant’s psychological impairments remove him from the MIG.

24Dr. Cowman completed an IE Report dated March 7, 2019. Dr. Cowman noted that the applicant does not take any medication and did not think he needed medication for his mood. She noted that he continues to work full time as a truck driver driving a tractor trailer. He spends the day working full time and managing his self care. He does his household chores. He continues to socialize normally. The applicant told Dr. Cowman that there were no activities that he was engaged in before the accident but has not been able to engage in as a result of the accident. Dr. Cowman opined that the applicant does not meet the full DSM-5 diagnostic criteria of any of the diagnostic categories typically associated with a poor emotional recovery from accident-related impairments. Dr. Cowman further opined that the applicant is not reporting a level of accident related emotional distress that would require treatment outside of the MIG and its provision of services.

25Dr. Cowman completed a second IE Report dated September 21, 2020. Dr. Cowman noted that the applicant has not been in a chronic pain program, and he did not feel he needed this type of intervention. The applicant said that he had not had any type of mental health counselling since the time of the accident and he did not feel he needed this. He continues to work full time as a truck driver driving a tractor trailer. When asked about his mood, the applicant said that he is not depressed, nervous or worried and he is not sad about anything. He denied any sleep difficulties or headaches and denied having a problem with anger and irritability. Dr. Cowman’s opinion was unchanged. She opined that the applicant does not meet the full DSM-5 diagnostic criteria of any of the diagnostic categories typically associated with a poor emotional recovery from accident-related impairments. Dr. Cowman concluded that the applicant is not reporting a level of accident related emotional distress that would require treatment outside of the MIG and its provision of services.

26The applicant’s evidence presents a completely different picture. Dr. Shaul and Helen Ilios completed a Psychological Pre-Screen Interview Report, dated December 6, 2018, for a psychological assessment treatment plan. Dr. Shaul noted that the applicant has been experiencing headaches as well as feelings of irritability, frustration, depression, and anxiety, largely due to his constant accident-related pain and inability to perform many of the activities of daily living which he performed prior to the subject accident. He noted sleep difficulties, reduced energy, physical discomfort and difficulty coping with pain, social isolation and decline in his cognitive functioning. It was further noted that the applicant feels nervous, anxious, is hypervigilant while driving a vehicle, and avoids entering a vehicle as much as possible.

27The Psychological Report was completed on August 23, 2019 by Dr. Shaul and Helen Ilios. The assessment was conducted on June 24, 2019. The assessors opined that the applicant’s complaints were consistent with the DSM-5 criteria for adjustment disorder with mixed anxiety and depressed mood and specific phobia (travelling in and around a vehicle). The report noted multiple pain locations scoring and an average of 8 out of 10 on severity. It also noted that the applicant struggled with dressing himself and combing his hair and appeared to be “in a great deal of distress throughout the interview”.

28In the applicant’s reply submissions, he argues that Dr. Cowman’s reports contain a number of inconsistencies and a lack of relevant detail and comprehensive analysis to definitively conclude that the applicant did not sustain an accident-related psychological impairment or that his injuries are minor in nature.

29I am not persuaded by the applicant’s evidence that he suffers from accident related psychological impairments. As noted above, the applicant failed to mention his accident related complaints to his family doctor until his doctor brought it up with him on November 17, 2020. He attended his family doctor’s office five days prior to undergoing the psychological assessment with Helen Ilois, yet he failed to mention any of the accident related symptoms described in the report. His family doctor also did not note that the applicant was in any distress during his appointment. Furthermore, the applicant told Dr. Cowman that he did not feel the need for mental health counselling. I am persuaded by Dr. Cowman’s reports, especially in light of the lack of corroborating evidence from the applicant’s family doctor.

30Based on the evidence, the applicant has not met his onus to establish that he suffered a psychological impairment that would remove him from the MIG limit. Despite the concerns raised by the applicant concerning Dr. Cowman’s reports, I find that the applicant failed to persuade me that he sustained a psychological injury in the accident that requires treatment beyond that provided in the MIG.

CONCLUSION

31For the reasons outlined above, I find that the applicant has not demonstrated that his accident-related impairments warrant treatment beyond the MIG funding limit of $3,500.00. It is the Tribunal's understanding that the limit under the MIG has been exhausted. Therefore, the applicant is not entitled to the disputed treatment plans.

32As no benefits are payable, no benefits were unreasonably withheld or delayed and subject to an award pursuant to section 10 of Reg. 664. Similarly, as no benefits are overdue, no interest is payable.

Footnotes

1. 1O. Reg. 34/10, as amended.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3(1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para. 24.