Citation: Marwaha v. Intact Insurance Company, 2022 ONLAT 20-004988/AABS

Licence Appeal Tribunal File Number: 20-004988/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:

Rajan Marwaha

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Jeffrey Shapiro

APPEARANCES:

For the Applicant: Seema Passi, Paralegal

For the Respondent: Gauri Gogna, Counsel

HEARD: By way of written submissions

BACKGROUND

1Rajan Marwaha (‘R.M.”) was involved in an automobile accident on January 21, 2017. He sought benefits from Intact Insurance Company (“Intact”) pursuant to the Schedule,¹ which Intact approved within the Minor Injury Guideline (“MIG”). When R.M. sought further treatment, Intact denied those requests. R.M. then submitted an application to this Tribunal to dispute Intact’s denials.

ISSUES

2The issues I must decide are:

1. Are R.M.’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?

2. Is R.M. entitled to $2,040.80 for physiotherapy proposed by Charolais Physio and Rehab (“Charolais”), in a treatment plan/OCF-18 (“plan”), submitted on September 29, 2018?

3. Is R.M. entitled to the following plans recommended by Unison Medical Assessments:

(i) $2,197.92 for psychological services, submitted January 10, 2019;

(ii) $1,995.00 for an orthopedic assessment, submitted January 21, 2019;

(iii) $3,603.72 for psychological treatment, submitted May 22, 2020;

(iv) $2,001.01 for a physiatry assessment, submitted June 22, 2020; and/or

(v) $1,999.01 for a chronic pain assessment, submitted June 26, 2020?

4. Is R.M. entitled to interest on any overdue payment of benefits?

5. Is Intact liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to R.M.?

RESULT

3R.M. has not established that his accident-related impairments are not “minor” as defined by the Schedule, and thus, his injuries are governed by the MIG. Likewise, R.M has not established entitlement to any of the treatment plans, interest, an award or costs.

Analysis

Has R.M. established his injuries are not “minor injuries”?

4No. Section 18(1) of the Schedule provides that medical benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a “minor injury”. 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.” Thus, R.M. must establish his accident-related injuries are not defined as “minor injuries”.²

5In R.M.’s case, he submits that he suffered various soft-tissue injuries and, in particular, a shoulder injury, and has developed chronic pain and psychological injuries, which remove him from the MIG. Intact submits that his soft-tissue injuries have resolved without any intervention and there is no evidence of any significant chronic pain or psychological issues. It submits that his shoulder injury is not accident related, noting the 1.5-year gap in medical records. I agree.

6As a starting point, R.M.’s submissions provide a number of assertions and general perspective that are not supported by the medical records. For example, R.N. submits that “From the day of accident, [R.M’s] intentions were to actively participate in various treatments…[R.M.] received various treatments from physiotherapy clinics…” However, unsubstantiated intentions are not evidence, and the available records do not show active treatment or intention.

7In terms of medical records, in the 1.5 years following the accident, there appears to be only three accident-related medical visits, but no hospital attendance or documented formal treatment, and R.M. denies taking medication.

8On January 22, 2017, the day after the accident, R.M. attended a walk-in clinic complaining of lower back and right shoulder pain. His range of motion was noted as “full shoulder; neck, lumbar”. He was diagnosed with lumbar and neck strain and advised to get rest and use a heat pack, but not referred for physiotherapy. On February 11, 2017, a physiotherapist at Therapy Point proposed $2,200 in physiotherapy. Intact approved it, however, there is no evidence that R.M. ever received it, as treatment records have not been produced. An OCF-3 the same day mentions “sprain and strain of the cervical spine, thoracic spine, lumbar spine, shoulder joint, and headaches”, but indicates no inability to carry on a normal life. On April 17, 2017, Therapy Point issued a similar Disability Certificate.

9R.M.’s professional life also shows limited interruption from the accident. He continued his educational program uninterrupted and returned to pre-accident employment after 1.5 weeks. While he may have been on some modified duties, he continued for three months until he quit for unrelated personal reasons.³

10Likewise, there is no mention of the accident in the records of Dr. Gupta, his family doctor, within a year and half after accident - January 21, 2017 until August 2018 – despite that R.M. visited several times for unrelated issues. While R.M. submits the records note “shoulder pain”, my reading of Dr. Gupta’s handwritten notes is they refer to a completely different and unrelated anatomical pain, which reading is borne out by the corresponding ultrasound referral.

11Thus, it appears to me that R.M. was diagnosed with soft-tissue injuries which resolved, with no treatment, and only three doctor’s office visits. R.M. submits other arguments for why his injuries are not minor, which I will address below.

Has R.M. established his shoulder issues are accident-related?

12No. R.M. submits that dispute the above history, his August 17, 2018 attendance with Dr. Gupta about right shoulder pain is accident related.⁴ Dr. Gupta noted “pain R shoulder… x 1 year now getting worse…” and ordered diagnostic imaging. A September 19, 2018 ultrasound, in turn, suggested there is a partial thickness right supraspinatus tear in the right shoulder. On September 28, 2018, Dr. Gupta noted, “Fell lot of times on R shoulder in past, also had MVA, some pain…” and recommended physiotherapy. On September 29, 2018, R.M. began physiotherapy at Charolais and continued until the end of December 2018.

13Intact submits the shoulder injury is not accident related. I agree for several reasons. First, there's a 19-month gap between the accident and his August 18, 2018 complaints to Dr. Gupta, and it’s not a complaint recorded the day after the accident. While a shoulder issue is mentioned in both disability certificates, that stills leaves a 16-month gap with no doctor visits, treatment or evidence of any disability. Second, in connection with the shoulder issue, Dr. Gupta records that R.M. had a lot of falls. As well, I don’t give much weigh to Dr. Gupta’s note about pain for a year, because it’s subjective reporting that is not corroborated by other records and the 1-year time frame does not match up to the accident that occurred more than a year and half earlier. Third, Intact’s IE assessor, Dr. Stewart, opines that the mechanism of the accident and injury appear unrelated. To be clear, there is some evidence to conclude the shoulder injury is related. However, the preponderance of the evidence leads me to find it is not.⁵

Has R.M. established he suffered psychological impairments?

14No. R.M. submits that he suffered psychological impairments, and such issues are not “minor injuries.” He relies on a May 5, 2020 report of his psychological assessor, Dr. Peric-Todorovic, who diagnosed him with (1) Chronic Intractable Pain and (2) Mixed Anxiety and Depressive Disorder. Intact disputes those diagnoses. It relies on its IE reports by Dr. McDowall on February 20, 2020 and Dr. Koepfler on May 8, 2021, that both find R.M. has mild residual vehicular anxiety that does not meet the criteria for a formal diagnosis. I agree with Intact.

15First, R.M.’s lack of treatment, medication, or psychological complaints to Dr. Gutpa, the walk-in clinic, or Therapy Point, all point to a lack of any significant psychological component to the accident. Second, R.M. reported to assessors that he is not having psychological issues beyond some limited driving anxiety and his life is going well and he denied that any functional limitations are mood related. Third, Dr. Peric-Todorovic’s assessment was over 3-years post-accident, the key psychometric testing showed mild depression and anxiety, and there are a number of inaccuracies or assumptions that are inconsistent with R.M.’s medical history submitted into evidence for this hearing. For example, the report notes no other medical issues when there were falls and that he participated in physiotherapy for two years, when the only documented physiotherapy occurred for three months, starting 19 months after the accident.

16Fourth, the two IE psychological assessments that find R.M. does not have psychological issues – from the accident or otherwise – fit with the evidence. For instance, Dr. McDowall notes his return to schooling and work, self-reporting of feeling good, and her analysis is supported by the test scores.

Has R.M. established he suffers from accident-related chronic pain?

17No. In 16-000438 v The Personal,⁶ Adjudicator Neilson held that ongoing pain alone does not take an applicant out of the MIG. Rather, the ongoing pain must be continuous or of such severity that it causes distress and it must be accompanied by functional impairment or disability. I agree with that principle.

18In this case, there is a relative absence of any evidence that points to chronic pain as a result of the accident. Likewise, there is a lack of a psychological component as I mentioned above, aside from some limited residual anxiety related to driving. R.M. appears to have full or near complete function as he's returned to work, the gym, and pre-accident housekeeping duties of shovelling snow and mowing the lawn. At most, it appears R.M. has some pain from his shoulder with particular overhead movements. However, as indicated above, it's not clear that injury is accident related. Even if it were, its not clear that the pain is sufficient in continuity, severeness, or effecting a loss of function to remove R.M. from the MIG. As noted above, R.M. has only attended minimally at physiotherapy and advised that he has not taken medication since the accident.

19In conclusion, the evidence establishes that R.M. sustained mild soft-tissue injuries and slight driving anxiety, from which he has recovered. Regarding his shoulder impairments and discomfort with some movements, the preponderance of the evidence established the unlikelihood, although possibility, that it is accident related. Mere possibility is not enough to meet R.M.’s onus of proof.

Is N.M. entitled to the requested treatment or assessments?

20No. Based on my findings above, R.M. would potentially be entitled to treatment amounts left remaining in the $3,500 treatment limit of the MIG. The parties, however, have not identified what amounts if any are left. Thus, based on my findings above, supplemented with a few comments below, I will briefly address the plans. In brief, I do not find any of the treatment plans are reasonable and necessary as a result of the accident, under s. 15 and 16 of the Schedule.

21As for the psychological assessment and psychological treatment (Issues 3 (i) & (iii), R.M. does not have psychological issues requiring treatment, and given the lack of any mention of psychological issues for two years post accident and his overall function, it does not appear that it was necessary to assess possible psychological issues. Psychological issues were not sufficiently indicated.

22As for the orthopaedic, physiatry and chronic pain assessments (Issues 3 (ii, iv-v) requested from January 10, 2019 to June 26, 2020, it appears that R.M.’s physical issues from the accident had long healed and were never at the level of needing such formal assessments. Simply, such issues were not sufficiently indicated. A possible exception would be his shoulder pain, but as discussed above, I am not persuaded that it is accident related.

23Finally, as for the $2,040.80 for physiotherapy recommended by Charolais, while this plan does appear on its face to be reasonable and necessary to treat R.M.’s shoulder issue, however, as I found above, it is “not as a result of the accident.”

Is R.M. entitled to an Award under S. 10 of O. Reg. 664, Interest or Costs?

24R.M. seeks an “award” under s. 10 of O. Reg. 664. That section permits me to “award” a lump sum of up to 50% of the amount that a person is entitled (plus interest on all amounts then owing) if I find the insurer “has unreasonably withheld or delayed payments.” Intact objects because R.M. did not raise this issue at the case conference. As I have not found any of the plans are payable, no benefits have been withheld or delayed, and thus an award is not appropriate.

25R.M. has not established entitlement to any of the treatment plans, and thus is not entitled to interest.

26Finally, R.M. requests his costs in this matter under Rule 19 of this Tribunal’s Common Rules of Practice and Procedure. That Rule allows me to award costs where a party has acted “unreasonably, frivolously, vexatiously, or in bad faith”. R.M., however, has not explained how Intact acted in such a manner, nor do I find reasons in the record. I decline to order costs.

ORDER

27R.M. has not established that his accident-related impairments are not “minor” as defined by the Schedule, and thus, R.M.’s injuries are governed by the MIG. Likewise, R.M has not established his entitlement to any of the treatment plans, interest, an award, or costs. The application is dismissed.

Footnotes

1. 1Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10.
2. 2The Tribunal has also held that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG, discussed below. In all cases, the onus of proof lies with the applicant.
3. 3See Intact, Tab 16, Psychological Assessment of Dr. Sharleen McDowall, dated February 20, 2020.
4. 4Causation is a factual determination. An applicant must show on a balance of probabilities that the impairments and loss would not have occurred “but for” the accident. I must take a “robust and pragmatic approach” to determine if the accident caused the loss and “scientific proof of causation is not required.” A cause meeting the “but for” test need not be the only cause, or even major cause, but only a necessary cause. Sabadash v. State Farm et al., 2019 ONSC 1121 at para. 31 to 40; A.C. v Aviva Ins. CA, 2020 CanLII 103675 (ON LAT), at para 38 (Dec. 17, 2020)
5. 5Neither party addressed prior Tribunal decisions finding that a partial shoulder tear is defined as a soft-tissue injury. A possible reason the parties did not address those decisions is that even if such injury itself does not remove R.M. from the MIG, its physical and psychological impact on R.M. are still relevant to his claims of chronic pain and psychological impairment.
6. 616-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT), at para 27.```