Citation: Thambiayah v. Aviva General Insurance, 2023 ONLAT 20-015312/AABS

Licence Appeal Tribunal File Number: 20-015312/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:

Santhakumary Thambiayah

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Alexei Antonov, Counsel

For the Respondent:

Joanne Witt, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Santhakumary Thambiayah (the “applicant”) was involved in an automobile accident on December 7, 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 (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 predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline?

ii. Is the applicant entitled to $2,061.08 for chiropractic and massage services, recommended by Toronto Healthcare Clinic in a treatment plan (the “OCF-18”) dated January 24, 2019?

iii. Is the applicant entitled to $176.67 for chiropractic and massage services and assistive devices, recommended by Toronto Healthcare Clinic in an OCF-18 dated January 23, 2019?

iv. Is the applicant entitled to $1,185.95 for chiropractic and massage services, recommended by Toronto Healthcare Clinic in an OCF-18 dated March 16, 2019?

v. Is the applicant entitled to $1,093.10 for chiropractic and massage services and an x-ray, recommended by Toronto Healthcare Clinic in an OCF-18 dated May 1, 2019?

vi. Is the applicant entitled to $1,239.68 for chiropractic and massage services, recommended by Toronto Healthcare Clinic in an (OCF-18) dated June 5, 2019?

vii. Is the applicant entitled to $3,335.98 for psychological services, recommended by Toronto Healthcare Clinic in an OCF-18 dated June 29, 2019?

viii. Is the applicant entitled to $12,986.56 for a chronic pain program, recommended by Toronto Healthcare Clinic in an OCF-18 dated September 18, 2019?

ix. Is the applicant entitled to $2,000.00 for psychological services, recommended by Toronto Healthcare Clinic in an OCF-18 dated February 25, 2019?

x. Is the applicant entitled to $2,000.00 for a chronic pain assessment, recommended by Toronto Healthcare Clinic in an OCF-18 dated June 21, 2019?

xi. Is the applicant entitled to $2,000.00 for an MRI of the cervical spine recommended by Toronto Healthcare Clinic in an OCF-18 dated October 17, 2019?

xii. Is the applicant entitled to $2,000.00 for an MRI of the lumbar spine recommended by Toronto Healthcare Clinic in an OCF-18 dated October 17, 2019?

xiii. Is the applicant entitled to $2,000.00 for a neurology assessment, recommended by Toronto Healthcare Clinic in an OCF-18 dated October 17, 2019?

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

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

RESULT

3The applicant remains in the MIG and is not entitled to any of the OCF-18s in dispute. Since there are no benefits payable, it follows that there is no entitlement to interest or liability for an award.

ANALYSIS

Applicability of the MIG

4I find the applicant has failed to demonstrate she 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 she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if she 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 submits she should be removed from the MIG because she suffers accident-related chronic pain and sustained a psychological injury as a result of the accident.

The applicant does not suffer chronic pain with functional impairment as a result of the accident

7I find the applicant has not established functional impairment arising from accident-related chronic pain that would warrant removal from the MIG.

8The applicant submits that removal from the MIG is warranted because she sustained chronic pain with impairment resulting from the accident. She relies on the medical report by Dr. Howard Jacobs (physician), who the applicant says diagnosed her with chronic pain on August 8, 2019. The applicant also relies on the disability certificate (the “OCF-3”) completed by Dr. Domenic Minnella (chiropractor) on December 29, 2018, which indicates the applicant suffers a substantial inability to perform the housekeeping and home maintenance services she normally performed before the accident.

9Further, the applicant produced a report dated May 18, 2019, by Dr. Andrew Shaul (psychologist) that spoke to the applicant’s complaints of accident-related pain that have limited her ability to lift, bend, sit, carry, stand, squat, grip, balance, climb, descend stairs, and walk for extended periods of time. The applicant’s submissions also mention the treatment records of Toronto Healthcare from December 27, 2018, to August 17, 2019. As well, the applicant directs me to the clinical notes and records of Dr. Rajaratnam Kirubaharan (family physician) on December 30, 2018, and May 2, 2019, to show she suffered accident-related pain and was prescribed physiotherapy.

10The respondent submits the applicant saw Dr. Kirubaharan only three times pertaining to the accident—once in 2018 and twice in 2019—and that all other entries in Dr. Kirubaharan’s clinical records pertain to unrelated matters. The respondent says the records of the Toronto Healthcare Clinic are devoid of entries that suggest functional limitations, show limited objective examination, and contain predominantly subjective complaints made by the applicant. The respondent adds there are no further treatment records produced by the applicant. The respondent relies on the section 44 insurer’s examinations (the “IEs”) performed by Dr. Sabrina Ming-Wai Tu (family physician).

11I am not convinced the applicant has met her onus here. While I accept the applicant has shown she persistently complained of pain and functional difficulties after the accident and up to August 2019, I find there is insufficient medical evidence that corroborates those complaints.

12I find Dr. Shaul’s psychological report does not objectively address the applicant’s impairment claims from a physical perspective. It articulates the applicant’s own reports of her pain and disability without corroborating medical evidence and is therefore less persuasive. The applicant’s submissions do not point to medical evidence that Dr. Minnella relied on to inform her findings, and I find the OCF-3 provides me with a limited basis to determine if the applicant’s inability to do household activities arises from her chronic pain. The applicant’s submissions do not direct me to evidence of functional impairment in the treatment records of Toronto Healthcare to consider. The handwritten records of Dr. Kirubaharan were not convincing evidence of pain and functional impairment because the entries I was pointed to were illegible.

13This leaves the report of Dr. Jacobs to consider, and I find it does not offer sufficient evidence of impairment arising from the applicant’s pain. Dr. Jacobs assessed probable zygapophyseal and discogenic pain in the applicant’s neck and lower back. Dr. Jacobs also assessed chronic pain lasting longer than normal healing times. However, I find Dr. Jacobs does not assess pain-related impairment despite noting moderately reduced range of motion in her neck and low back. Nor does Dr. Jacobs comment on whether the applicant’s own reports of functional difficulties are consistent with his examination observations.

14I find Dr. Tu’s evidence—as referenced in the respondent’s submissions—to be more persuasive that Dr. Jacobs’ report because it addresses chronic pain in the context of impairment more directly. And unlike Dr. Jacobs who saw the applicant once, Dr. Tu performed three physical examinations on the applicant over a 28-month period between March 2019 and July 2021. Dr. Tu’s July report concludes the applicant does not suffer from a chronic pain syndrome as a result of accident-related injuries, and that although the applicant complains of pain, the physical examination produced no objective musculoskeletal impairments. Dr. Tu’s two earlier reports similarly conclude the applicant did not sustain physical impairments from the accident, and that she should be able to perform all her regular activities. In fact, in all three of Dr. Tu’s assessments, the applicant reported she can independently help with all the household chores she performed before the accident. I find this compelling because there is consistency between the applicant’s self-reports and the objective findings of the assessor.

15In conclusion, while I accept the applicant continues to experience pain, I find there is insufficient medical evidence of impairment arising from this pain. In fact, neither Dr. Jacobs nor Dr. Tu say, in their reports, that the applicant suffers impairments owing to her accident-related pain. I put weight here because Dr. Jacobs and Dr. Tu performed the only physical examinations of the applicant I was pointed to in evidence. I therefore do not agree the applicant should be removed from the MIG because of chronic pain.

The applicant did not suffer psychological injuries from the accident

16I find there is insufficient evidence of a psychological impairment that would warrant removal from the MIG.

17Psychological 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 she sustained a psychological impairment because of the accident.

18The applicant submits that the OCF-3 completed by Dr. Minnella lists symptoms and signs involving her emotional state, including emotional and sleep disturbances. The applicant also relies on Dr. Shaul’s May 2019 report, which notes the applicant is experiencing significant accident-related psychological symptoms that warrant diagnoses of adjustment disorder with mixed anxiety and depressed mood, and specific phobia (travelling in and around a vehicle).

19The respondent argues that an insurer’s examination completed on March 13, 2019, by Dr. Robert Woods (psychologist) finds the applicant did not demonstrate any significant psychological impairment and did not meet the threshold for any psychological disorder. The respondent adds that the applicant advised Dr. Woods she did not need psychological treatment, and that Dr. Woods concluded on examination that the applicant did not require any psychological assessment or treatment that would exceed MIG limits. The respondent says Dr. Woods arrived at the same findings in his second assessment of the applicant’s psychological condition on November 12, 2019, and shared that the applicant denied experiencing any issues related to her mood or disposition, other than nervousness when a passenger in a vehicle.

20I am not convinced that the applicant suffers a psychological impairment resulting from the accident. The applicant’s submissions do not point to contemporaneous evidence of psychological difficulties that support the findings in Dr. Shaul’s report. I do not place weight on the OCF-3 as evidence of psychological impairment because it is outside the scope of Dr. Minnella’s chiropractic practice to assess psychological symptoms and injuries, and the applicant’s submissions do not point to the medical evidence that Dr. Minnella relied upon to inform her findings of emotional and sleeping disturbances as a result of the accident.

21The respondent has produced findings contradictory to those of Dr. Shaul—in that Dr. Woods twice performed examinations that did not find evidence of psychological impairment arising from the accident. I am persuaded by Dr. Woods’ determination because it is consistent with the lack of corroborating evidence of psychological difficulties put before me in this case.

22In conclusion, I find the applicant has failed to show, on a balance of probabilities, that she sustained psychological injuries as a result of the accident, and I therefore do not agree she should be removed from the MIG due to psychological impairments.

The disputed OCF-18s

23Having determined the applicant has not demonstrated that she should be removed from the MIG, an analysis of whether the OCF-18s in dispute are reasonable and necessary is not required.

Interest

24Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. There are no benefits payable, therefore no interest is owing.

Award

25The applicant seeks an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant remains in the MIG, and no benefits are payable. Therefore, the respondent cannot be liable to pay an award.

ORDER

26The application is dismissed.