Haridarshan Sureshkumar v. Economical Insurance Company, 2023 CanLII 122935

Citation: Sureshkumar v. Economical Insurance Company, 2023 ONLAT 21-009127/AABS

Licence Appeal Tribunal File Number: 21-009127/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:

Haridarshan Sureshkumar

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Terrence E Munn, Counsel

For the Respondent: Ainsley Shannon, Counsel

HEARD: By way of written submissions

OVERVIEW

1Haridarshan Sureshkumar, the applicant, was involved in an automobile accident on May 22, 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, Economical Insurance Company, 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 predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?

ii. Is the applicant entitled to $3,472.82 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated June 21, 2019?

iii. Is the applicant entitled to $1,949.22 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated August 12, 2019?

iv. Is the applicant entitled to $1,550.79 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated September 17, 2019?

v. Is the applicant entitled to $150.00 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated August 12, 2019?

vi. Is the applicant entitled to $1,892.15 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated September 18, 2019?

vii. Is the applicant entitled to $1,779.34 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated December 2, 2019?

viii. Is the applicant entitled to $1,440.91 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated February 5, 2020?

ix. Is the applicant entitled to $1,497.98 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated June 24, 2020?

x. Is the applicant entitled to $1,192.48 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated August 18, 2020?

xi. Is the applicant entitled to $1,049.67 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated September 15, 2020?

xii. Is the applicant entitled to $986.74 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated October 13, 2020?

xiii. Is the applicant entitled to $1,272.36 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated December 23, 2020?

xiv. Is the applicant entitled to $1,189.55 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated February 17, 2021?

xv. Is the applicant entitled to $996.86 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated March 31, 2021?

xvi. Is the applicant entitled to $884.05 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated June 22, 2021?

xvii. Is the applicant entitled to $771.24 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated August 17, 2021?

xviii. Is the applicant entitled to $963.93 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated October 12, 2021?

xix. Is the applicant entitled to $983.81 for chiropractic services, proposed by Dr. Ian Kai in a treatment plan dated March 1, 2022?

xx. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that the applicant has not demonstrated that his accident-related impairments warrant treatment beyond the MIG. None of the treatment plans, nor interest nor an award is payable.

ANALYSIS

4The applicant was involved in a rear-end motor vehicle accident on May 22, 2019. The airbags did not deploy, the applicant denied losing consciousness, police and emergency services did not attend the scene, and the applicant did not attend a hospital.

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.

9I find that the applicant has not met his evidentiary burden of proving that he should be removed from the MIG. The applicant’s submissions did not clarify the applicant’s theory of the case.

Did the applicant suffer physical injuries that warrant removal from the MIG?

10I find that the applicant does not suffer physical injuries as a result of accident that warrant removal from the MIG.

11The applicant submits that on the day of the accident he visited Dr. Dilipkumar William Alagaratnam Mather, family physician with aches and pains all over his body, while specifically noting neck, back, and shoulder pain. Dr. Mather diagnosed the applicant with muscular pain, and recommended the applicant apply heat, and referred him to physiotherapy. According to the clinical notes and records (“CNRs”) of Dr. Mather, the applicant returned for another three appointments, on June 8, 2019, and June 24, 2019 the applicant complained of neck and back pain, and was again assessed with muscular pain. The applicant’s last appointment was on October 8, 2019, the applicant expressed that his neck pain resolved, but was now experiencing left shoulder pain.

12The respondent relies on the CNRs of Dr. Mather that diagnose the applicant with soft tissue injuries. Furthermore, the respondent relies on the Section 44 Insurer’s Examination of Dr. Seung-Jun Lee, family physician, dated August 27, 2019. During the in-person assessment, the applicant complained of intermittent pain in his neck and left shoulder. Dr. Lee concluded that the applicant sustained minor soft tissue injuries including cervical myofascial sprain and strain and left shoulder sprain and strain. Dr. Lee found that there were no valid indicators to support ongoing accident-related musculoskeletal injury or impairment, and the applicant has achieved maximum medical recovery.

13After considering the submissions and evidence of the parties, I am not persuaded that the applicant has accident-related physical impairments. This is due to the lack of corroborating evidence to support his claim, like the CNRs of Dr. Mather, which is supported by Dr. Lee’s opinion in the section 44 examination, and the evidence that the applicant has not returned to see Dr. Mather in approximately four years. Accordingly, the applicant has not met his burden.

The applicant does not have chronic pain as a result of the accident

14I find that the applicant does not suffer from functional impairment as a result of accident-related chronic pain.

15In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects his day-to-day or work function. The pain must be continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae from his soft tissue injuries.

16Both parties make submissions based on the American Medical Association Guides (AMA Guides), which state that at least three of the following criteria must be met for a diagnosis:

i. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

ii. Excessive dependence on health care providers, spouse, or family;

iii. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

iv. Withdrawal from social milieu, including work, recreation, or other social contacts;

v. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and

vi. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

17The AMA Guides’ six criteria for chronic pain were not incorporated into the Schedule; however, this Tribunal has consistently considered them a useful interpretive tool in claims of chronic pain in accident benefits disputes.

18It is the applicant’s submission that he is in significant and constant pain over the last four years since the accident, which is documented in the section 25 chronic pain assessment dated November 4, 2020, of Dr. S.W. Joseph Wong, physiatrist. Dr. Wong conducted an in-person assessment and a review of the applicant’s medical documentation. Dr. Wong diagnosed the applicant with chronic myofascial injury involving the cervical spine paraspinal muscles and chronic myofascial injury involving the thoracic spine muscles. The applicant also submits that he is on prescription medication, withdrawn from social and recreational activities and is excessively dependent on health care providers, North Toronto Physiotherapy.

19I agree with the respondent that there is no evidence of chronic pain that could be considered more than mere sequelae of the soft tissue injuries and there is no evidence that such pain is accompanied by functional impairment, which is the requirement for removal under this ground.

20The respondent submits and I agree that the applicant has not provided prescription records substantiating the use of any prescription medication after the accident, nor do the CNRs of Dr. Mather prescribe any medication. Further, I find that the applicant is not reliant on any health care providers having not had an appointment with Dr. Mather in approximately four years. The CNRs of Dr. Mather do not refer the applicant to any medical specialist, nor did the applicant attend the hospital. The North Toronto Physiotherapy CNRs do not go beyond January 2021, and thereby I am not persuaded that the applicant is reliant on any health care providers. I am not persuaded that the applicant is withdrawn from social or recreational activities, finding that in Dr. Wong’s report and the North Toronto Physiotherapy CNRs the applicant reported running twice a week, and playing volleyball as well as returning to full time regular duties within two months of the accident. Lastly, I find that the applicant did not report psychological symptoms to Dr. Mather, he was not referred for a psychological treatment, nor prescribed any psychological medication.

21I put little weight on the diagnosis of Dr. Wong as it is inconsistent with the limited available medical evidence provided by the applicant in the CNRs of Dr. Mather and North Toronto Physiotherapy. The CNRs of Mr. Mather do not mention chronic pain, an offer of a referral to a chronic pain specialist or a suggestion of any negative impact on his activities of daily living. Furthermore, Dr. Wong’s report provides no discussion as to how the applicant’s pain affects his function, and no discussion of the applicant’s function post-accident.

22I find that a chronic pain diagnosis by itself does not remove the applicant from the MIG. Removal from the MIG requires the applicant to prove that their chronic pain is not merely sequelae of soft tissue injuries, but rather that it is the applicant’s predominate injury that causes functional impairment. As such, I am not convinced on a balance of probabilities that the applicant suffers from chronic pain because of the accident.

Interest and Award

23Given 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

24The 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.