Citation: Sockalingam v. Coseco Insurance, 2023 ONLAT 21-008870/AABS

Licence Appeal Tribunal File Number: 21-008870/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:

Luxman Sockalingam

Applicant

and

Coseco Insurance

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Alexei Antonov, Counsel

For the Respondent: Kathleen O’Hara, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Luxman Sockalingam, the applicant, was involved in an automobile accident on February 7, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Coseco Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The following issues are to be decided:

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

ii. Is the applicant entitled to the treatment proposed by Toronto Healthcare Clinic Inc. as follows:

(i.) $2,000.00 for the cost of a chronic pain assessment, in a treatment plan, submitted August 9, 2019?

(ii.) $1,800.00 for shock wave therapy, in a treatment plan, submitted August 9, 2019?

(iii.) $3,335.98 for psychological services, in a treatment plan, submitted August 30, 2019?

(iv.) $627.92 for psycho-educational CD’s, in a treatment plan, submitted September 13, 2019?

(v.) $1,981.70 for the cost a driving rehabilitation assessment, in a treatment plan, submitted December 18, 2019?

(vi.) $2,000.00 for the cost of a chronic pain assessments, in a treatment plan, submitted November 2, 2020?

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

iv. Is the respondent liable to pay an award under section 10 of Ontario Regulation 664?

RESULT

3I find that:

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

ii. The treatment plans in dispute are not payable; and

iii. The applicant is not entitled to interest or an award.

ANALYSIS

4The accident involves two separate events. The applicant asserts that he first lost control while driving a UPS tractor trailer that struck a guardrail, and further assets that he was struck by a police cruiser while on the scene. The ambulance call report indicates that the applicant was not injured in the first event and suggested that he was not struck by a police cruiser but jumped to avoid it. The applicant went to the Lennox Addington County General Hospital for x-rays of his lumbar spine, chest, left shoulder, and left ankle all of which were unremarkable. The clinical notes and records (“CNRs”) from the Addington County General Hospital indicate that applicant was discharged with soft tissue injuries to the shoulder and ankle.

Applicability of the Minor Injury Guideline (“MIG”)

5The 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.”

6Section 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.

7An 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 of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

8It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.

9The applicant submits that he should be removed from the MIG on the basis that he has suffers from chronic pain and a psychological impairment preventing him from maximum recovery if he were to be kept within the MIG.

Does the applicant suffer psychological injuries that warrant removal from the MIG?

10An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

11In order to be removed from the MIG due to psychological impairments, the applicant must show that he has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

12I find that the applicant has not provided me with persuasive evidence to demonstrate that his alleged psychological impairments justify removal from the MIG.

13The applicant relies on the June 26, 2019, section 25 psychological assessment report prepared by Dr. Andrew Shaul, psychologist. Dr. Shaul diagnosed the applicant with various psychological impairments as a result of the subject accident, including adjustment disorder with anxiety, major depressive disorder and specific phobia when travelling in and around a vehicle. Dr. Shaul opined that the applicant’s psychological injuries fall outside the MIG.

14Without directing to specific evidence, the applicant inaccurately submits that this diagnosis is corroborated with the CNRs of his family physician, the Lennox and Addington County General Hospital and the Disability Certificates (OCF-3s).

15The respondent relies on the August 26, 2020, section 44 psychological assessment of Dr. Rhonda Nemeth, psychologist. During the assessment the applicant reported that he did not need psychological treatment. Dr. Nemeth found no evidence of a psychological impairment and opined that the applicant’s injuries fell within the MIG.

16The family physician’s CNRs reveal that the applicant did not report any psychological symptoms despite regular visits to both his former family physician, Dr. Paramanathan Thalayasingam and new family physician Dr. Kanagasabai Sivakumar. On July 8, 2019, Dr. Thalayasingam completed a short-term disability form on behalf of the applicant listing only sprain and strains. There was no mention of any psychological difficulties or impairments, or issues with driving. I note that the applicant was employed as a UPS driver and returned to work fulltime in August 2019. On February 4, 2020, Dr. Sivakumar completed a MTO Medical Report form on behalf of the applicant and opined that the applicant did not have any psychiatric or emotional disorders but rather had good mental competence.

17After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that he suffers from a psychological impairment as a result of the accident that would remove him from the MIG. I find that the psychological assessment prepared by Dr. Nemeth is a more credible and accurate assessment of the applicant’s psychological condition compared to the opinion of Dr. Shaul. The evidence suggests that Dr. Shaul did not review any of the applicant’s medical records prior to rendering his opinion, and his conclusion of the applicant suffering from a specific phobia when travelling in and around a vehicle is at odds with the evidence that the applicant returned to full-time employment as a UPS driver. Dr. Nemeth’s opinion is corroborated by the evidence that the applicant did not report any psychological symptoms to any healthcare providers, despite regular visits to his family doctors. Furthermore, I was not presented with any medical evidence that the applicant has been referred for a psychological assessment, therapy or medication. Lastly, I put little weight on the OCF-3s, as I find the diagnosis of psychological impairments beyond the scope of practice of a chiropractor.

18For the above reasons, the applicant has not met his onus to prove on a balance of probabilities that his psychological impairments warrant treatment beyond the MIG.

Does the applicant have chronic pain that warrants removal from the MIG?

19For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide evidence that his accident-related injuries and/or pain have had a detrimental impact on his functionality.

20The applicant submits that he sustained accident-related chronic pain with functional impairment sufficient to remove him from the MIG. The applicant relies on the December 30, 2020 chronic pain consultation report of Dr. Dimitri Louvish, physician. Dr. Louvish diagnosed the applicant with chronic pain syndrome, cervical whiplash, among other strains and sprains. Dr. Louvish opined that the applicant’s injuries fell outside of the MIG.

21The respondent submits that the evidence reveals that the applicant only sustained soft tissue injuries as a result of the accident, which are impairments that fall within the MIG. The respondent relies on the CNRs of Dr. Thalaysingam, Dr. Sunu Liao, physiatrist, and Dr. Sivakumar that diagnosed the applicant with strains and sprains and no musculoskeletal injuries and recommended physical therapy and pain medication; the February 12, 2019 CNRs of Dr. James Leung, walk-in clinic family physician that diagnosed the applicant with mild soft tissue injuries of the lumbar spine and left trapezius; the August 26, 2020 section 44 general practitioners examination by Dr. Shafik Dharamshi that diagnosed the applicant with strains and sprains, and referenced that the applicant was back to full-time duties at work, managing housekeeping and home maintenance duties, albeit with some difficulty, but no difficulty with driving or self-care. Dr. Dharamshi opined that the applicant’s injuries fell within the MIG and he had achieved maximum medical recovery.

22After reviewing the evidence, I am persuaded by the respondent’s submissions. While I accept the opinion of Dr. Louvish that the applicant may be in pain, I am not persuaded by his diagnosis which is at odds with the remainder of the medical evidence. Furthermore, I find that pain alone does not constitute a non-minor injury. For chronic pain to be more than a mere sequela, it must be chronic, and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. I am not persuaded that there is medical evidence before me that the applicant has sustained a level of functional impairment or disability. I note that the applicant has returned to work full-time as a UPS driver, and is undertaking housekeeping and self-care duties. I am persuaded by the substantial and consistent medical evidence presented by the respondent from the applicant’s family physician, Lennox Addington County General Hospital, Dr. Liao and Dr. Dharmshi that indicate the applicant’s injuries fell within the MIG.

23For the above reasons, the applicant has not met his onus to prove on a balance of probabilities that his accident-related impairments require treatment beyond the MIG.

Disputed Treatment Plans

24The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG limit. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.

Interest and Award

25Given that there is no unreasonable delay in payments to the applicant or overdue payments of benefits, the applicant is not entitled to interest or an award.

ORDER

26The application is dismissed, and I find that:

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

ii. The treatment plans in dispute are not payable; and

iii. The applicant is not entitled to interest or an award.