Citation: Janarthanan v. Economical Insurance Company, 2023 ONLAT 21-015758/AABS

Licence Appeal Tribunal File Number: 21-015758/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:

Sridhar Babu Janarthanan

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Harry Adamidis

APPEARANCES:

For the Applicant:

Linda To, Paralegal

For the Respondent:

Keisha De Coteau-Nedd, Counsel

HEARD:

By written submissions

OVERVIEW

1Sridhar Babu Janarthanan, the applicant, was involved in an automobile accident on June 2, 2020, 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, Insurer, 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 s. 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 $1,803.73 for chiropractic services, proposed by Complete Rehab Centre in a treatment plan/OCF-18 (“plan”) dated May 19, 2021?

iii. Is the applicant entitled to the following assessments:

i. $2,460.00 for a psychological assessment, proposed by Dr. Naisi Sadigheh in a plan dated May 19, 2021; and

ii. 2,460.00 for an orthopaedic assessment, proposed by Dr. Michael West in a plan dated May 19, 2021?

iv. 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?

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

RESULT

3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.

4He is not entitled to the treatment and assessment plans in dispute, nor interest.

5The respondent is not liable to pay an award.

ANALYSIS

Minor Injury Guideline (MIG)

6I find that he applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.

7Section 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.”

8An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if they are 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.

9The applicant submits that he should be removed from the MIG because he has chronic pain with functional impairments caused by the accident. His chronic pain is established by the fact that his accident-related pain lasted for longer than six months. His chronic pain is further established by him meeting three of the six factors in the American Medical Association’s Guides (“Guides”) for establishing chronic pain and the chronic pain diagnosis in the Orthopaedic Report of Dr. Michael West, orthopaedic surgeon, dated July 10, 2021. The applicant also points to Dr. West’s opinion that he should be removed from the MIG because he developed psychological and emotional problems since the accident.

10The respondent submits that the applicant’s accident-related injuries have healed and there is no objective evidence of a psychological impairment; therefore, the applicant should not be removed from the MIG.

11The applicant relies on the report of Dr. West to establish that he has functional limitations.

12The report shows that in some areas the applicant has no impairment. He works at a desk job as a software engineer. This work requires him to focus and concentrate for long periods of time. Dr. West notes that the accident did not affect the applicant’s ability to perform the essential tasks of his position. The applicant is also independent with personal hygiene and self-care.

13Dr. West identifies two areas of impairment: family, social, and recreational activities; and housekeeping and home maintenance activities.

14In the area of family, social and recreational activities, Dr. West notes that the applicant has been unable to finish the basement renovations of his home and is not capable of doing small home repairs due to his injuries. He is unable to participate in sports due to his right shoulder pain and that this has caused the applicant to become socially withdrawn and isolated since the accident.

15The account given by the applicant of his limitations to Dr. West differs from the account in the clinical notes and records of Dr. Madhu Gupta, the applicant’s family doctor. Dr. Gupta’s clinical note of March 24, 2021 shows that the applicant continued to be involved with his home renovations:

having back pain started again about 4d ago

was doing clean up after a renovation

had pain with movement and was sharp pain

was mostly lower back

same area as post accident

16The clinical notes also show that the applicant continues to engage in sports. The clinical note from June 23, 2021 states that the applicant had been cycling over the weekend while the note from July 15, 2021 states:

rash on arms and forehead

has been playing tennis on weekends

started beginning of summer

17These clinical notes describe sports activities that pre-date his assessment with Dr. West. I find that these examples constitute unexplained inconsistencies that diminish the weight to be given to the information provided by the applicant to Dr. West regarding his limitations.

18Moreover, the clinical note of Dr. Gupta dated May 18, 2022 states that the applicant resumed playing badminton. No accident-related pain is mentioned in this note. This is an indication that the applicant’s pain experience improved over the course of time.

19In regard to housekeeping and home maintenance activities, the applicant reports that he was unable to shovel the snow over the past winter. He was also unable to help with lawn maintenance or gardening through the spring and summer, nor was he able to carry heavy bags of groceries.

20Being unable to shovel snow, complete yard work, or carry heavy grocery bags are limitations. However, he is functional in terms of his ability to work, self care, and engaging in sports. I further note that the reliability of the information he provided to Dr. West regarding his limitations is undermined by some unexplained inconsistencies. Under these circumstances, I find that the applicant has not established, on a balance of probabilities, that he has a functional impairment that justifies removal from the MIG.

21Turning to the psychological claims, the applicant relies on Dr. West. He notes that the applicant reports feelings of nervousness and anxiety when driving, fear of being a passenger in a vehicle, and feelings of stress, irritability, anxiety and depression. In his view, the applicant has post-traumatic anxiety and stress with depressive episodes caused by the accident.

22I give little weight to Dr. West’s diagnosis of a psychological condition for a number of reasons. While Dr. West is an orthopedic surgeon, there is no evidence that he also has expertise in the area of mental health disorders. He does not explain how he determined that the applicant’s symptoms were caused by the accident. As well, he does not explain how the symptoms amount to a diagnosable condition of “post-traumatic anxiety.”

23For these reasons, I find that his diagnosis of a psychological condition is not persuasive because of the lack of evidence of his expertise in mental health disorders and because his analysis is incomplete.

24Having found the applicant does not have a functional impairment that justifies removal from the MIG, nor a psychological condition caused by the accident, I further find that his injuries are predominantly minor as defined in s. 3 of the Schedule.

25As I have found the applicant’s injuries fall within the MIG, it is unnecessary for me to determine whether the claimed treatment plans are reasonable and necessary. The applicant is not entitled to treatment beyond the $3,500 MIG limit.

26Interest is not payable pursuant to section 52 of the Schedule as there are no overdue amounts owing.

Award

27As no benefits are payable, the respondent cannot be liable to pay an award under s. 10 of Reg. 664.

ORDER

28The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule.

29The applicant is not entitled to the treatment and assessment plans in dispute, nor interest.

30The respondent is not liable to pay an award.