Vardamyam v. The Personal Insurance Company, 2023 CanLII 13075

Citation: Vardamyam v. The Personal Insurance Company, 2023 ONLAT 21-002107/AABS

Licence Appeal Tribunal File Number: 21-002107/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:

Mesrop Vardamyam

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR:

Derek Grant

APPEARANCES:

For the Applicant:

Shamim Fattahi, Counsel

For the Respondent:

Amanda Magda, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant, Mesrop Vardamyam (“M.V.”), was involved in an automobile accident on June 26, 2018, and sought benefits and an income replacement benefit (“IRB”) from the respondent, Personal, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016). Personal denied the benefit in dispute because it determined that M.V. suffered predominantly minor injuries as a result of the accident and was subject to treatment within the Minor Injury Guideline (the “MIG”). M.V. disagreed and submitted an application to the Tribunal for resolution of the dispute.

BACKGROUND

Preliminary Issues

2At the July 22, 2021 case conference, Personal raised two preliminary issues regarding M.V.’s IRB claim. The first, pursuant to s. 55 of the Schedule, was whether M.V. was statute barred from proceeding with his IRB claim as he failed to notify Personal of the circumstances giving rise to the claim, or he had not submitted an application for IRBs within the time prescribed. The second, pursuant to s. 56 of the Schedule, was whether M.V. was statute barred from proceeding with his IRB claim as he failed to commence his application within two years after Personal’s refusal to pay the amount claimed.

3In a letter dated January 27, 2022, M.V. advised Personal and the Tribunal that he was withdrawing his claim for ongoing IRBs. Accordingly, M.V. requested confirmation that the preliminary issues raised by Personal would be withdrawn and not form part of the issues to be addressed in this proceeding.

4Personal accepted M.V.s position regarding the withdrawal of the IRB claim, as its reply submissions noted that the IRB issue had been withdrawn.

5Accordingly, my decision will focus on the remaining substantive issues in dispute.

ISSUES IN DISPUTE

6The issues to be determined in this hearing are as follows:

a. Are M.V.s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the $3,500.00 limit and in the MIG? I note the $3,500.00 limit has been exhausted.

b. Is the medical benefit in the amount of $3,447.63 for chiropractic services, proposed by Scarborough Health and Wellness Centre in a treatment plan/OCF-18 dated March 13, 2019, reasonable and necessary?

c. Is M.V. entitled to interest on any overdue payment of benefits?

RESULT

7I find that M.V. has not satisfied his burden of establishing that his impairments require treatment beyond the MIG. Further, M.V. is not entitled to the disputed OCF-18 for chiropractic treatment, therefore, no interest is payable.

ANALYSIS

Did M.V. suffer predominantly minor injuries?

8I find that M.V. has failed to meet his onus of proving on a balance of probabilities that he suffered injuries or impairments that are not predominantly minor.

9The 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.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule. The Tribunal has also determined that chronic pain with functional impairment or a psychological impairment may warrant removal from the MIG. In all cases the burden of proof remains on the applicant.

10M.V. submits he should be removed from the MIG based on his pre-existing condition of right elbow pain… As evidence, he relies on the clinical notes and records (“CNRs”) of his family physician, Dr. Boyrazian. In a note dated April 11, 2017 the applicant complained of right elbow pain for 2-3 weeks as a result of repetitive strain due to the type of work chores performed. I note that this is the only entry regarding any pre-existing impairment. He also relies on diagnostic imaging reports and the records of Scarborough Health and Wellness Centre.

11In response, Personal submits that M.V. sustained predominantly minor injuries as a result of the accident, that he has not been diagnosed with chronic pain syndrome and his pre-existing condition is not a barrier to his recovery. Further, it submits that there were significant gaps in his treatment history with few accident-related complaints noted. Lastly, it points to the OCF-23, which indicated that he sustained a minor injury and returned to work on modified duties.

12I agree with Personal. I find that M.V. has not demonstrated that his accident-related impairments require treatment beyond the MIG limits. I find that the medical evidence supports that he sustained minor injuries, as confirmed in the OCF-23, and the diagnostic imaging records that note only a partial tear in the right elbow, which is still a minor injury under s. 3. On July 17, 2018, Dr. Boyrazian diagnosed M.V. with a right elbow strain as a result of the accident, further confirming that he suffered minor injuries. After the July 2018 visit, he next saw Dr. Boyrazian on April 9, 2019, with no accident-related pain complaints. The next visit, on August 6, 2020, again, did not reference any accident-related complaints. A subsequent visit on July 27, 2021, also contained no accident-related complaints.

13Regarding his complaints of chronic pain, M.V. has not been referred for a chronic pain assessment or undergone treatment to address chronic pain. I have not been pointed to any diagnosis of chronic pain syndrome. While his submissions speak to chronic pain, submissions are not evidence, and I am not directed to any evidence of functional impairment, as it relates to his daily activities, personal care or employment (noting that he is currently employed) that are impacted by his alleged chronic pain. Further, his submissions largely focus on post-accident psychological symptoms, which were erroneously attributed to M.V. (which Personal acknowledged), when it was actually his wife, who was driving at the time of the accident, who was determined by Personal to have suffered psychological impairments as a result of the accident.

14Although I am not provided with a Disability Certificate, I note that the chiropractor, Dr. Nalli, in the disputed OCF-18 diagnosed M.V. with a WADII injury, sprains and strains of the wrist, other unspecified parts of lumbar spine and pelvis, other specified injuries of forearm, headache, insomnia, nightmares, other anxiety disorders, dizziness and giddiness. While Dr. Nalli indicated that his impairments impact carrying, prolonged driving, talking on the phone and playing ping pong, I do not consider these areas of impact to be on the same level as engaging in personal care tasks or returning to his pre-accident employment, or that there was any impact on driving or other useful areas of function that were impacted as a result of the accident. I further note that M.V.’s submissions do not engage with any of the six chronic pain criteria under the AMA Guides that the Tribunal has used as a tool to analyze chronic pain claims in the absence of a diagnosis. In addition, any visits to his family physician after July 23, 2018 were not as a result of accident-related pain complaints.

15On the evidence, M.V.’s accident-related impairments are captured within the confines of the MIG. Accordingly, I see no reason to interfere with Personal’s determination that M.V.’s injuries are predominantly minor. Further, I am not persuaded that M.V. will not achieve maximum medical recovery if he is kept within the confines of the MIG. M.V. has not established that pain is his predominant injury and that it is causing functional impairment. The evidence and submissions he relies on do not meet the burden of establishing that he requires removal from and treatment beyond the MIG.

16Accordingly, I find that M.V. has not demonstrated on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

Is the OCF-18 reasonable and necessary?

17It is my understanding that the MIG limits have been exhausted. Having determined that M.V. suffered predominantly minor injuries, and removal from the MIG is not require, an analysis of whether the OCF-18 is reasonable and necessary is not required. Finding that no benefits are overdue, no interest is payable under s. 51.

CONCLUSION

18M.V. has not demonstrated that his accident-related impairments require treatment beyond the MIG. The MIG limits have been exhausted, therefore the disputed OCF-18 is not reasonable and necessary. No interest is payable.