Citation: Kang v. Wawanesa Insurance, 2023 ONLAT 20-013926/AABS

Licence Appeal Tribunal File Number: 20-013926/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:

Baldev Singh Kang

Applicant

and

Wawanesa Insurance

Respondent

DECISION AND ORDER

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Seema Passi, Paralegal

For the Respondent: James Schmidt, Counsel

HEARD: By Way of Written Hearing

1The applicant was involved in an automobile accident on September 10, 2013 and sought benefits from Wawanesa Insurance ("respondent") pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the "Schedule").¹ The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("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 costs of examination in the amount of $4,239.44 for a psychological assessment, proposed by Alliance Diagnostics and Treatments in a treatment plan ("OCF-18") dated April 2, 2019?

c. Is the applicant entitled to costs of examination in the amount of $2,032.00 for an orthopedic assessment, proposed by Alliance Diagnostics and Treatments in an OCF-18 dated September 18, 2020?

d. Is the applicant entitled to costs of examination in the amount of $2,022.00 for a physiatry assessment, proposed by Alliance Diagnostics and Treatments in an OCF-18 dated August 21, 2020?

e. Is the applicant entitled to costs for examination in the amount of $1,999.00 for a neurology assessment, proposed by Alliance Diagnostics and Treatments in an OCF-18 dated October 9, 2020?

f. Is the applicant entitled to costs of examination in the amount of $2,179.84 for a psychology assessment, proposed by Alliance Diagnostics and Treatments in a treatment plan dated February 20, 2019?

g. Is the applicant entitled to a medical benefit in the amount of $2,087.40 for physiotherapy treatment, proposed by Charolais Physiotherapy and Rehab in an OCF-18 dated November 5, 2016?

h. Is the applicant entitled to an award under s. 10 of O. Reg. 664 because the respondent unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The application is dismissed, and I find that:

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

b. The treatment plans in dispute are not payable;

c. The applicant is not entitled to interest; and

d. The applicant is not entitled to an award under O. Reg 664.

ANALYSIS

Application of the Minor Injury Guideline ("MIG")

4The Minor Injury Guideline ("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."

5S. 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.

6An 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. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

7It is the applicant's onus to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.³

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

8The applicant's submissions provide that at the time of the accident he "briefly lost consciousness", however, there is no evidence before me that reports a loss of consciousness. Rather, the clinical notes and records ("CNRs") from the Brampton Civic Hospital, dated the day of the accident, September 10, 2013, report that the applicant did not loose consciousness.

9In support of his position that his physical injuries are not minor, the applicant relies on the CNRs of Dr. Shabana Sikander, family physician, CNRs of Mr. Rhuel Maano, chiropractor, a physiotherapy assessment form, CNRs of Mr. Kaur Deep, physiotherapist, and the Disability Certificate ("OCF-3") of Mr. Gerald Gayah, chiropractor.

10In Dr. Sikander's CNRs dated September 19, 2013, the applicant reports having pain in his right forearm. In the subsequent CNRs dated January 2, 2014, the applicant reports pain in his neck and back. Similar complaints of neck and back pain are referenced in the CNRs on February 24, 2014, October 26, 2014, and November 13, 2014. The CNRs reveal that the applicant only complained of soft tissue impairments and Dr. Sikander prescribed pain medication and recommended physiotherapy.

11The OCF-3 of Mr. Gayah dated January 6, 2014, notes that the applicant suffered from sprain and strain injuries only as a result of the accident.

12The applicant relies on the OCF-18 preparation and authorization form of Mr. Maano dated October 7, 2016, and on a physiotherapy assessment form⁴ dated July 16, 2016 from Therapy Point Physiotherapy. In both assessments, the applicant reports pain in his neck, upper limb, shoulder, upper back, lower back, lower limb, and knee. Lastly, the applicant relies on the CNRs of Mr. Deep dated September 14, 2019 to July 17, 2020.

13The respondent disagrees with the applicant's position. It relies on the insurer's examination ("IE") performed by its assessor Dr. Irina Safir, general practitioner, dated March 3, 2014. Dr. Safir found that the applicant's injuries fell within the definition of a predominately minor injury. During the physical examination, Dr. Safir opined that the applicant suffered from a mildly decreased range of motion in his cervical spine, lumbar spine, and both shoulders. Dr. Safir concluded that the applicant was correctly classified under the MIG, and that no facilities-based treatment or passive treatment would be reasonable and necessary.⁵

14The respondent also relies on the IE performed by its assessor Dr. Cameron Paitich, orthopedic surgeon, dated November 22, 2016. Dr. Paitich opined that the applicant's ongoing pain issues are not the result of the accident, as the applicant's soft tissue injuries have had sufficient time to heal.⁶ Dr. Paitich also conducted a further material review on August 23, 2017, and his opinion remained unchanged.

15The respondent relies on the IE performed by its assessor Dr. Robert Yufe, neurologist dated April 4, 2017. Dr. Yufe opined the applicant did not exhibit any neurological abnormalities and did not suffer any neurological injuries as a result of the accident.⁷

16After considering the evidence and submissions of the parties, I find that the applicant has not met his evidentiary burden. I place more weight upon the conclusions rendered by the medical physicians, Dr. Safir, Dr. Paitich, and Dr. Sikander who determined that the applicant suffered soft tissue, minor injuries. This is also supported by the observations of Mr. Gayah who notes that the applicant suffered from sprain and strain injuries only as a result of the accident.

17Lastly, I note that at no point, did Dr. Sikander refer the applicant to any specialists for further investigation or treatment for physical injuries.

18I find that the applicant's injuries fall squarely within the definition of a minor injury as defined by s. 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 impairments that justify the removal form the MIG?

19In order to be removed from the MIG due to psychological impairments, the applicant must show that he 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. I find that the applicant has not provided me with persuasive evidence to demonstrate that his alleged psychological impairments justify removal from the MIG.

20The applicant relies on the OCF-18 preparation and authorization form of Mr. Maano dated October 7, 2016. Under the psychological screening section the applicant reports symptoms including nightmares, feelings of sadness, anxiety, stress, irritability, depression, loss of memory and fear of driving.

21Though the applicant does not reference it in his submissions, he underwent a s. 25 assessment, by Dr. Valda Lopo, psychologist, dated October 8, 2018, to assess his current psychological status. Dr Lopo did not review any of the applicant's medical evidence in preparation of the assessment. Dr. Lopo opined that the applicant is having an extreme difficultly coping with the accident aftermath, which is consistent with major depressive disorder with anxious distress.⁸

22The respondent submits that the psychological report of Dr. Lopo should be given little weight, highlighting that the symptoms were self-reported by the applicant resulting in Dr. Lopo's conclusions to be entirely based on subjective findings. Furthermore, the assessment does not provide any meaningful analysis as to why the applicant made no meaningful reports of psychological distress until four years after the accident.

23The respondent relies on the IE performed by its assessor Dr. Tony Hunt, psychologist, dated May 15, 2017. The applicant reported feelings of stress, anxiety, fear and sleeping difficulties, as well as headaches and joint/muscle pain. Dr. Hunt reviewed the applicant's previous medical records and completed the psychometric testing. Dr. Hunt opined that the applicant was feigning pain symptoms and cognitive dysfunction.⁹ Dr. Hunt concluded that the applicant remains consciously motivated to present himself as being more impaired than would seem likely to have been the case given the reported relatively mild soft tissue nature of his accident-related injuries. This is especially the case since it has been reported that most likely he would have recovered within a relatively short time-frame.¹⁰ Dr. Hunt conducted three further material reviews on April 4, 2018, March 25, 2019, and June 24, 2019 and his opinion remained unchanged.

24During the June 24, 2019, assessment with Dr. Hunt the applicant was working 11 hour shifts, three or four days per week. Dr. Hunt noted that at every opportunity the applicant provided that the accident ruined his life, leaving Dr. Hunt to believe that the applicant was feigning cognitive impairment.¹¹ Dr. Hunt concluded that the applicant does require psychological intervention, but not as a result of the accident.

25After considering the evidence and submissions of the parties, I find that the applicant has not met his onus. I place little weight on Mr. Maano's evidence, as I find that diagnosing psychological symptoms is beyond the scope of practice of a chiropractor.

26I am persuaded by the opinion of Dr. Hunt as he had the opportunity to review the applicants CNRs in preparing his report. This would have allowed him to have a well-rounded understanding of the applicant and to complete a thorough the assessment on three separate occasions.

27On a balance of probabilities, I cannot conclude that the applicant suffered an accident-related psychological impairment that would warrant the removal from the MIG.

Did the applicant suffer from chronic pain to justify the removal form the MIG?

28For chronic pain to remove the applicant from the MIG, the applicant must provide medical evidence that his accident-related injuries had a detrimental impact on his functionality.

29The applicant was referred to Dr. Michael Belcon on March 9, 2020, for an OHIP chronic pain assessment. Under "present illness" the report references that the applicant suffered a work-related injury while pulling on heavy skids causing him to keep immediate pain in his low back."¹² There is no reference to the motor vehicle accident in the report. It was Dr. Belcon's opinion that the applicant has a chronic pain disorder which "is likely post traumatic and seems to be related temporally to lifting heavy skids at work."¹³

30The CNRs of Dr. Sikander, dated December 23, 2020, provide that the "patient [applicant] has a chronic history of lower back pain which started last year as a result of pulling an object at work."¹⁴

31Based on a balance of probabilities, I find that the applicant has not shown that he suffers from chronic pain as a result of the accident requiring his removal from the MIG.

32Given that the applicant has already exhausted the $3,500.00 limit, it is not necessary for me to consider the treatment plans outlined in parts b-g above at para. 2.

Interest and Award

33There are no overdue payments of benefits and so the applicant is not entitled to interest under s. 51 of the Schedule.

34As the applicant is not owed any outstanding benefits, the respondent cannot be said to have unreasonably withheld or delayed the payment of such benefits. Accordingly, the applicant is not entitled to an award under O. Reg. 664.

ORDER

35The application is dismissed, and I find that: