Citation: Ragu v. Aviva General Insurance Company, 2023 ONLAT 21-006637/AABS

Licence Appeal Tribunal File Number: 21-006637/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:

Rajaratnam Ragu

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Alexei Antonov, Counsel

For the Respondent:

Andy Smith, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Mr. Rajaratnam Ragu (the “applicant”) was involved in an automobile accident on July 31, 2018, 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 Aviva General Insurance Company (the “respondent”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominately minor as defined by section 3 of the Schedule and therefore subject to the Minor Injury Guideline (the “MIG”) and its treatment limit of $3,500.00?

ii. Is the applicant entitled to receive a medical benefit in the amount $2,680.71 for medical services with respect to a treatment plan (the “OCF-18”) dated September 2, 2020, from Downsview Healthcare Inc.?

iii. Is the applicant entitled to receive a medical benefit in the amount $1,367.60 for medical services with respect to an OCF-18 dated October 27, 2020, from Downsview Healthcare Inc.?

iv. Is the applicant entitled to receive a medical benefit in the amount $12,918.49 for medical services with respect to an OCF-18 dated March 2, 2020, from Downsview Healthcare Inc.?

v. Is the applicant entitled to receive a medical benefit in the amount $3,335.98 for psychological services with respect to an OCF-18 dated March 22, 2021, from Downsview Healthcare Inc.?

vi. Is the applicant entitled to receive a medical benefit in the amount $2,000.00 for a chronic pain assessment with respect to an OCF-18 dated September 2, 2020, from Downsview Healthcare Inc.?

vii. Is the applicant entitled to receive a medical benefit in the amount $2,000.00 for a psychological assessment with respect to an OCF-18 dated September 11, 2020, from Downsview Healthcare Inc.?

viii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

[3] The applicant has not demonstrated he should be removed from the MIG and he is not entitled to the OCF-18s in dispute. It follows that neither interest nor an award are payable.

ANALYSIS

Applicability of the MIG

4I find the applicant has failed to demonstrate he should be removed from the MIG.

5Section 18(1) of the Schedule provides that medical and rehabilitation 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.” The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes maximal recovery of his accident-related minor injuries if he is kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

6In this case, the applicant seeks removal from the MIG because he says he sustained a psychological impairment as a result of the accident, as well as accident-related chronic pain with functional impairment. The applicant relies on the clinical notes and records of Dr. Domenic Minnella (chiropractor), Dr. Oleksandr Pivtoran (chiropractor), the Toronto Healthcare Clinic, Downsview Healthcare Inc., and a couple of diagnostic imaging tests of his right knee performed in October and November 2018.

7The applicant also points to two section 25 assessments. The first is from Dr. Jacqueline Brunshaw (psychologist), who diagnosed an accident-related adjustment disorder (unspecified), and specific phobia (driving, being a passenger and pedestrian). The second is a chronic pain consultation report by Dr. Dimitri Louvish (family physician) that offers diagnoses of: cervical whiplash myofascial injury with possible post-traumatic discogenic pathology causing right-sided C6-C7 brachial plexus radiculopathy; right shoulder post-traumatic impingement syndrome with possible adhesive capsulitis and/or rotator cuff tear with post-traumatic osteoarthritis; myofascial injuries to the left shoulder, right upper extremity, thoracic spine, and lumbar spine with possible post-traumatic discogenic pathology causing right-sided L5-S1 radiculopathy; right knee post-traumatic patellofemoral syndrome; possible meniscal tear and/or post-traumatic osteoarthritis; post-traumatic migraine-type headaches; psychological distress (anxiety, stress, fear and hypervigilance when he is a driver or a passenger in a vehicle, and depressed mood); post-traumatic sleep disturbance; difficulties with memory and concentration; and exacerbation of pre-existing diabetes.

8The respondent’s submissions argue that the applicant’s injuries fall within the MIG, and rely on surveillance evidence in addition to three section 44 reports (the “IEs”) to support its position. The first IE is by Dr. Jacqueline Auguste (orthopaedic surgeon) on February 17, 2021. The second IE is by Dr. Howard Platnick (general practitioner) on November 20, 2020. And the third IE is by Dr. Mohammad Nikkhou (neuropsychologist) on March 9, 2021.

The applicant did not sustain psychological impairment as a result of the accident

9I find there is insufficient evidence of psychological impairment that would warrant removal from the MIG.

10Psychological injuries, if established, may fall outside of the MIG, because the MIG only governs “minor injuries”, and the prescribed definition does not include psychological impairments. To be removed from the MIG, the applicant must show he sustained a psychological impairment because of the accident.

11The applicant submits that the disability certificates (the “OCF-3”) in evidence—one completed by Dr. Minnella on August 4, 2018, and the other completed by Dr. Pivtoran on August 25, 2020—list symptoms and signs involving his emotional state. The applicant also relies on the psychological diagnoses offered in Dr. Brunshaw’s report of December 22, 2020.

12I do not agree these reports show the applicant sustained a psychological impairment as a result of the accident. As demonstrated in the respondent’s submissions, psychological conditions are outside the scope of practice for chiropractors, and the applicant’s submissions do not indicate what medical evidence Drs. Minnella and Pivtoran relied on to document psychological symptoms on the OCF-3. So, I gave this little weight.

13I am not convinced that Dr. Brunshaw’s report provides compelling evidence of an accident-related psychological impairment. Rather, I am persuaded by the respondent’s argument that the diagnoses offered by Dr. Brunshaw do not logically follow the psychometric testing results, which indicate limited to no depressive symptoms. The tests show the applicant produced minimal symptoms of depression on one test, did not endorse any items on a second test designed to measure anxiety levels, and endorsed only two of 90 questions as “a little bit distressing” on the third test to assess a wide range of psychological and physical symptoms, including emotional distress from pain. Dr. Brunshaw acknowledges this testing appears to indicate low levels of emotional distress, but goes on to say that the applicant’s presentation during his clinical interview suggests his current psychological and emotional distress is more significant than what his tests represent.

14I agree that Dr. Brunshaw’s diagnoses were not informed by objective testing, but rather by the applicant’s subjective clinical presentation. In my view, this diminishes the weight of Dr. Brunshaw’s report when considered in concert with the lack of corroborating medical evidence put forward in the applicant’s submissions to substantiate his symptomology. The applicant presented insufficient clinical notes and records from mental health professionals or his family physician to show psychological complaints and symptomology in the 26-month period that elapsed from the time of the accident to his pre-screening interview with Dr. Brunshaw on September 1, 2020. I find the lack of corroborating evidence and contemporaneous complaints about the applicant’s psychological difficulties—when considered along with the testing results of the section 25 psychological assessment—undermines Dr. Brunshaw’s determination and diagnoses.

15In conclusion, when I analyze the medical evidence on a balance of probabilities, I find the applicant has failed to persuade me that he suffers from psychological impairment as a result of the accident. I therefore decline to remove him from the MIG on the basis of psychological impairment.

The applicant does not suffer impairment owing to chronic pain because of the accident

16I find the applicant has not demonstrated that his accident-related pain is causing impairments that warrant removal from the MIG.

17The Tribunal has consistently held that for chronic pain to be more than sequelae from soft-tissue injuries, it must be chronic pain syndrome, or it is continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability. The applicant says Dr. Louvish diagnosed him with post-accident chronic pain with functional impairment. But the diagnoses provided by Dr. Louvish in his Chronic Pain Consultation Report, which are all noted earlier in this decision, do not include chronic pain, and the applicant’s submissions do not otherwise point to where Dr. Louvish may have diagnosed this in his report. It does not automatically follow that chronic pain is diagnosed because the applicant undergoes a chronic pain consultation or produces a chronic pain report, and I find there is no clear diagnoses of chronic pain offered by Dr. Louvish.

18The applicant submits that all other records indicate he has lingering pain post-accident, requires ongoing treatment, requires further investigation, and is functionally impaired as a result of his accident-related pain symptomology. I disagree.

19The physical injuries listed in Part 5 of the OCF-3 completed by Dr. Minnella on August 4, 2018, are all contusion and sprain and strain-type injuries, including acute pain arising from sprains and strains of the applicant’s chest, thorax, shoulder girdle, lumbar spine, and cervical spine. I find all these injuries fall squarely within the definition of a minor injury under the Schedule. Same for Part 5 of the OCF-3 completed by Dr. Pivtoran on August 25, 2020, save a diagnosis of chronic pain. I did not place weight on this diagnosis because it is not within the scope of chiropractic practice to diagnose chronic pain. Further, the applicant’s submissions did not point me to the medical evidence that Dr. Pivtoran relied on to inform the diagnosis.

20Dr. Minnella indicates in Part 6 that the applicant suffers a substantial inability to perform the housekeeping and home maintenance activities he normally performed before the accident. Dr. Pivtoran’s Part 6 says the applicant suffers a substantial inability to perform the essential tasks of his employment, although he attributes this to issues associated with a heart attack on July 2020, and not the accident. Dr. Pivtoran also reports the applicant suffers a complete inability to carry on a normal life as a result of the accident, and, like Dr. Minnella, a substantial inability to perform his housekeeping and home maintenance tasks. However, I note these findings largely relate to the eligibility criteria for an income replacement benefit and non-earner benefit, and not removal form the MIG. As well, I was not pointed to sufficient medical evidence that substantiates the impairments implied by these findings; nor was I directed to assessments conducted by Drs. Minnella and Pivtoran, or otherwise, that validate their findings. These factors collectively cause me to place less weight on this evidence.

21I do not accept the x-ray and ultrasound of the applicant’s right knee as compelling evidence of chronic pain because the applicant does not explain how the diagnostic findings contribute to functional impairment arising from accident-related pain. I find the applicant’s submissions do not point to medical opinions that support impairment or limitations owing to the impressions documented by the medical professionals who analyzed the images. I also considered that the applicant did not specify or point to the impairments he claims were treated at the Toronto Healthcare Clinic or Downsview Healthcare Inc. Further, I find these handwritten treatment records were illegible and heavily coded, so I cannot conclude these records produce evidence of functional impairment.

22This leaves the chronic pain consultation report of Dr. Louvish, dated November 10, 2020. I find that Dr. Louvish’s report—completed 28 months post-accident—provides insufficient evidence to convince me that the applicant sustained accident-related chronic pain with functional impairment. I make this finding based on several factors. First, I was directed to little contemporaneous medical evidence of impairment by the applicant. The applicant did not point me to records from his family physician, and I find the remaining records are largely self-reported complaints of pain and impairment that are not substantiated by medical evidence.

23This lack of evidence is consistent with the findings of the IEs pointed to by the respondent: Dr. Auguste’s report, which finds no evidence of musculoligamentous, osseous, or neurologic impairments that could be causally linked to the subject accident; and Dr. Platnick’s report, which found no valid indicators to support residual or ongoing musculoskeletal, neurological, or orthopaedic accident-related injury or impairment. I find these factors, when taken together with the June 2022 surveillance report (completed by Mr. Anthony Chung) that shows the applicant performing groundskeeping tasks he told Dr. Louvish he was unable to perform, are persuasive evidence that demonstrates the applicant’s pain is not at a level of severity that causes functional impairment or disability.

24In conclusion, I accept the applicant has complained about persistent pain since his accident. But I find the applicant has not, on a balance of probabilities, substantiated he is diagnosed with chronic pain, and has not produced sufficient medical evidence of functional impairment owing to his accident-related pain. I therefore do not agree the applicant should be removed from the MIG because of chronic pain.

The disputed OCF-18s

25Sections 14 and 15 of the Schedule provide that the insurer shall pay medical benefits to, or on behalf of, an applicant so long as the applicant sustains an impairment as a result of an accident and the medical benefit is a reasonable and necessary expense incurred by the applicant as a result of the accident. The applicant bears the onus of proving entitlement to the proposed treatment by showing the OCF-18s at issue are reasonable and necessary on a balance of probabilities.

26I have determined the applicant remains in the MIG, so it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted.

Award

27Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled. To be liable for an award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

28There are no benefits payable, so the applicant is not entitled to an award.

Interest

29There are no benefits payable, therefore no interest is owing.

ORDER

30The application is dismissed.