Citation and File Number

Citation: Sundararajan v. Jevco, 2023 ONLAT 20-011804/AABS

Licence Appeal Tribunal File Number: 20-011804/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:

Tharsika Sundararajan

Applicant

and

Jevco

Respondent

DECISION AND ORDER

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Michael Ferrante, Paralegal.

For the Respondent: Samuel Gnanasegaram, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on March 8, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”).¹ The applicant was denied certain benefits by the Jevco Insurance Company, (the “respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

ISSUES

2The following issues are to be decided:

a. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?²

b. Is the applicant entitled to $2,626.43 for chiropractic services proposed by Spine Solutions Rehab in a treatment plan (“OCF-18”) denied December 9, 2019?

c. Is the applicant entitled to $286.13 ($1,300.00 less approved $1,013.87) for physiotherapy proposed by Spine Solutions Rehab denied June 27, 2019?

d. Is the applicant entitled to $1,999.85 for an MD assessment proposed by Spine Solutions Rehab denied October 3, 2019?

e. Is the applicant entitled to $2,712.30 for physiotherapy proposed by Spine Solutions Rehab denied July 25, 2019?

f. Is the applicant entitled to $2,400.00 for psychological assessment proposed by Spine Solutions Rehab denied November 2, 2019?

g. Is the applicant entitled to $2,626.43 for chiropractic services proposed by Spine Solutions Rehab denied January 14, 2020?

h. Is the applicant entitled to $2,426.93 for physiotherapy proposed by Spine Solutions Rehab denied October 3, 2019?

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

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

RESULT

3I find that:

a. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG.

b. The treatment plans in dispute are not payable; and

c. The applicant is not entitled to an award or interest.

ANALYSIS

4On March 8, 2019, the applicant was a front seat passenger when she was involved in a motor vehicle accident. The applicant attended the Lakeridge Health Hospital on March 15, 2019 where she was diagnosed with a whiplash injury and was discharged home.³

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 [WAD], 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 under the MIG or, if they provide evidence of an injury 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.

8The applicant has received approximately $3,025.02 within the MIG amount from the respondent, it is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.⁴

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

9I find that the evidence establishes that the applicant’s physical injuries fall within the definition of a minor injury for the reasons that follow.

10The applicant submits that her accident-related pain requires treatment beyond the MIG limit. In support of her position that her physical injuries are not minor, the applicant relies on the Disability Certificate (“OCF-3”) dated March 20, 2019, completed by Dustin Yen, chiropractor, where he diagnosed the applicant with sprain and strains.⁵

11The applicant also relies on the clinical notes and records (“CNRs”) of Dr. Albert Wong, family physician dated March 12, 2019, and May 28, 2019, where the applicant complained of physical pain and headaches. Dr. Wong referred the applicant to physiotherapy. The applicant returned to see Dr. Wong on October 15, 2019, with complaints of dreams of the motor vehicle accident, and daily headaches. On October 29, 2019, the applicant was referred to a CT scan at Michael Garron Hospital for her ongoing headaches, an appointment she failed to attend.

12The respondent submits that there is no evidence supporting the fact that the applicant has injuries beyond those that would be considered to be minor sprains and strains. The respondent submits that the applicant did not attend the hospital after the accident. The CNRs of Dr. Wong are absent of any diagnoses, medication and or treatment recommendations. When Dr. Wong did seek a CT scan, the applicant failed to attend, and no subsequent records provided to the Tribunal confirm any findings.⁶

13The respondent highlights that Dustin Yen is a chiropractor, not a medical doctor or physician and submits that all physical injuries listed in the OCF-3 within his field of expertise, are sprain and strain injuries covered by the definition of minor injury.

14Furthermore, the respondent relies on the section 44 physician assessment of Dr. Neetan Alikhan, CFPC Specialist physician, dated July 14, 2020. The in-person physical examination further confirms the soft tissue nature of the applicant’s impairments, which improve by stretching and warm compress application. Dr. Alikhan diagnoses the impairments as uncomplicated WAD II soft-tissue impairments. Dr. Alikhan opined that the applicant’s accident-related injuries are consistent with predominately minor soft tissue injuries in the Schedule.

15After considering the evidence and submissions of the parties, I find that the applicant has not met her evidentiary onus. I place more weight upon the conclusions rendered by the two medical physicians, Dr. Wong and Dr. Alikhan, who determined that the applicant suffered a minor strain type injury. This is also supported by the observations of Dustin Yen.

16Lastly, I note that at no point, did Dr. Wong refer the applicant to any specialists for further investigation or treatment for physical injuries nor did he diagnose the applicant with non-minor physical injuries as a result of her accident.

17I find that the applicant’s injuries fall squarely within the definition of a minor injury as defined by section 3(1) of the Schedule and therefore, I find that the applicant’s physical injuries do not warrant a removal from the MIG.

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

18An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

19In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

20I find that the applicant has not provided me with persuasive evidence to demonstrate that her alleged psychological impairments justify removal from the MIG.

21The applicant relies on the OCF-3 of Dustin Yen, dated March 20, 2019. Dustin Yen submits in the OCF-3 that the applicant has anxiety disorder, stress, post-concussion syndrome, nervousness, senility, non-organic insomnia, difficulty initiating and maintain sleep, malaise and fatigue, anxiety disorder, stress and disorders of a vestibular function.⁷ The applicant also relies on the CNR of Dr. Wong dated October 15, 2019 in which the applicant complains of dreams about the accident, and breaks down crying.

22The respondent cites PR v. Aviva Insurance Company⁸ which provides that compelling evidence must be provided in support of an OCF-3 to show that the applicant suffers from a psychological impairment that would remove her from the MIG. The respondent takes the position that reference to “crying” and “low moods” in Dr. Wong’s CNRs do not suggest that she has suffered from any psychological impairment as a result of the accident.

23The respondent also provides that the psychological impairments listed by Dustin Yen, in the OCF-3 are beyond his scope of chiropractic practice.

24The respondent also relies on the section 44, psychological assessment of Dr. Alfonso Marino, psychologist, dated November 26, 2019, to further support the absence of an assessable or credible psychological impairment. During the in-person interview and examination, Dr. Marino notes validity concerns via negative impression management and considerable distortion leading to an invalid response. Furthermore, during the assessment the applicant states that she was unaware of any proposed psychological treatment plan. Dr. Marino opined that the applicant’s injuries are predominately minor and subject to the MIG.

25After reviewing the evidence, I agree with the respondent. I am persuaded by PR v. Aviva Insurance Company⁹ that there must be compelling evidence in support of an OCF-3 to show that the applicant suffers from a psychological impairment that would remove her from the MIG. In the present case, I am not pointed to any evidence in support, and in fact there is a notable absence of compelling medical evidence to corroborate psychological impairments. Lastly, I place little weight on the OCF-3 completed by Dustin Yen, as I find psychological injuries beyond the scope of practice of a chiropractor.

26As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a psychological impairment that would warrant her removal from the MIT.

THE DISPUTED TREATMENT PLANS

27The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG’s limits. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.

AWARD AND INTEREST

28Given that there is no unreasonable delay in payments to the applicant or overdue payments of benefits, the applicant is not entitled to an award or interest.

ORDER

29The application is dismissed, and I find that:

a. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG.

b. The treatment plans in dispute are not payable; and

c. The applicant is not entitled to an award or interest.

Footnotes

1. 1O. Reg. 34/10 as amended.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Lakeridge Health, Ajax Pickering Hospital Emergency Record, dated March 15, 2019.
4. 4Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
5. 5Sprain and strain of cervical spine; sprain and strain of thoracic spine, sprain and strain of lumbar spine; sprain and strain of shoulder joint; rotator cuff capsule; sprain and strain of sacroiliac joint; headache; sprain and strain of elbow; sprain and strain of other and unspecified parts of the knee.
6. 6Missed Appointment Notification, for CT Head, dated December 16, 2019.
7. 7OCF-3, Dustin Yen, dated March 20, 2019.
8. 82021 CanLII 90554 (ON LAT) at para. 24.
9. 9Ibid.