Citation: Anandarajah v. Certas Home and Auto Insurance, 2023 ONLAT 21-002883/AABS

Licence Appeal Tribunal File Number: 21-002883/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:

Janitha Anandarajah

Applicant

And

Certas Home and Auto Insurance

Respondent

DECISION

ADJUDICATOR:

Anita Goela

APPEARANCES:

For the Applicant:

Linda To, Paralegal

For the Respondent:

Michael McChesney, Counsel

HEARD: In Writing

REASONS FOR DECISION

BACKGROUND

1The applicant was involved in an automobile accident on February 20, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016).The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

2The parties participated in a case conference on August 19, 2021 and agreed to the issues to be determined in this application. The issues are set out in Case Conference Report and Order.

ISSUES

3The issues to be decided are:

i. Are the applicant’s injuries predominantly minor injuries as defined in s.3 of the Schedule and therefore already consumed the $3,500.00 limit and in the Minor Injury Guideline?

ii. Is the applicant entitled to chiropractic services, proposed by Complete Rehab Centre as follows:

i. $1,803.73, from a treatment plan (OCF-18) submitted August 21, 2019 and denied August 27, 2019?

ii. $1,994.02, from a treatment plan (OCF-18) submitted March 2, 2020 and denied March 10, 2020?

iii. Is the applicant entitled to $2,460.00 for cost of exam for a psychological assessment, proposed by Dr. John Mills in a treatment plan (OCF-18) submitted July 2, 2019 and denied July 16, 2019?

iv. Is the applicant entitled to $2,680.00 for cost of exam for a chronic pain assessment, proposed by Dr. Grigory Karmy in a treatment plan (OCF-18) submitted February 19, 2020 and denied February 25, 2020?

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

RESULT

4The applicant is subject to the MIG.

5None of the disputed treatment plans are payable.

6Interest is not owing.

ANALYSIS

7While driving, the applicant was struck on the driver’s side when another vehicle attempted to make a left turn. The airbags deployed, police and an ambulance attended the accident. She had difficulty walking and was placed in a wheelchair. She had lacerations on both hands. She complained of back pain. She was transported to Brampton Civic Hospital for observation, x-ray of the hand, which revealed no fractures, and discharged the same day as the accident.

8After the accident, the applicant complained of back pain, sleeping difficulties and pain to her right hand.

9The applicant submits that she suffers from chronic pain and should not be subject to treatment under the MIG. The respondent’s position is that the applicant’s injuries are minor and if not minor that the goals of treatment have been reasonably achieved and that no further treatment is reasonable or necessary.

Minor Injury Guideline

10Section 3 of the Schedule defines “minor injury” 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.”

11Section 18 of the Schedule sets out the framework for the treatment of minor injuries. The applicant bears the onus of proving on a balance of probabilities that he should not be confined to the MIG because his injuries are not predominantly minor, or that he suffers from a pre-existing medical condition that prevents him from reaching maximal medical recovery if he is subject to the $3,500.00 monetary limit in the MIG.¹

12It is well-established in previous Tribunal case law that psychological injuries as a result of the accident and that are more than mere clinically-associated sequelae to minor injuries are outside the definition of “minor injury,” as is chronic pain that causes functional impairment. Chronic pain is a severe, debilitating condition distinct from ongoing and recurrent pain.

13The respondent submits that the applicant’s family doctor, Dr. Doss, only references the accident and back pain once in the applicant’s clinical notes and records (CNR) on March 2, 2019. The respondent further submits that all other entries for back pain identify a cause other than the accident. The respondent submits that on May 9, 2019, when the applicant met with Dr. Doss and made complaints of back pain that the applicant did not say her symptoms had been ongoing since the accident.

14I find this to be a factually inaccurate characterization of Dr. Doss’s CNR. The CNR from May 9, 2021 states that back pain started a few days ago but the patient is concerned that it might be related to the accident that happened a few days ago. Additionally, I do not find that Dr. Doss is required to explicitly mention the accident every encounter in her notes. A reasonable inference can be made that some complaints of pain are related to accident. For example, Dr. Doss does not explicitly reference the accident when noting the applicant’s complaints to her right hand.

15However, I do agree with the respondent that some of Dr. Doss’s CNR identify a cause other than the accident for the applicant’s back pain. The CNR of July 3, 2019 identifies coughing and sneezing as the reason for the pain.

16Overall, I find that the applicant has a history of reporting her back and hand pain to her family doctor. The CNR with her chiropractor, Dr. Jessa, also include references to back pain throughout the treatments. However, a history of reporting back pain does not necessarily indicate that the back pain is more than minor.

17The applicant has been taking baclofen, Vimovo, Tylenol and Advil for the pain. She returned to work a week after the accident and does not appear to have functional limitations.

18The applicant was referred to a dermatologist, Dr. Fayez, for the injuries to her right hand. The CNR states that the injury is a benign vascular lesion and the patient was provided reassurance and information about an elective excision.

19I interpret the dermatologist’s CNR with a finding that the injury to the right hand is consistent with the definition of a minor injury. The applicant is right-hand dominant. There is no evidence that it causes functional impairment and the applicant is right-hand dominant.

20The applicant’s medical evidence does not clearly demonstrate that the sleeping complaints are because of the pain from the accident. The referral to the sleep study does not mention her back pain or the accident. I agree with the respondent that the sleep study indicates that the sleep issues are related to apnea.

21I agree with the respondent that Dr. Doss’s CNR do not include any references to psychological symptoms and do not diagnose the applicant with chronic pain syndrome.

22In support of her chronic pain syndrome diagnosis, the applicant submitted a chronic pain assessment by Dr. Karmy The respondent submits that the conclusions in the report are not supported by evidence. The assessment was done by videoconference and did not include meaningful physical assessment. The respondent submits that Dr. Karmy’s conclusions seem to be based on the applicant’s self-reported symptoms that are not supported by the medical records or the demonstrated level of functionality.

23I have concerns with how much weight to give the chronic pain assessment. The applicant was not physically assessed. It does appear that Dr. Karmy placed little weight regarding the applicant’s ability to continue and maintain employment after the accident. For the first time, the applicant reports dominant hand impairment. Overall, I did not find sufficient evidence to corroborate functional impairment.

24The respondent did not conduct any s.44 insurer examination assessments. The respondent submits that in this case, the medical evidence did not warrant any assessments.

25On balance, I find that the applicant has demonstrated that she has ongoing and recurrent back pain related to the accident but that this pain does not rise to the level of chronic pain syndrome. The injury to her right hand is minor within the definition of the MIG. I do not find compelling evidence of psychological symptoms that is beyond mere clinically associated sequelae to minor injuries, nor of a pre-existing medical condition that would prevent the applicant from achieving maximal medical recovery if confined to the MIG.

26I find that the applicant’s injuries are subject to the $3,500.00 monetary limit in the MIG. Given that the respondent denied the four disputed treatment plans because of the MIG, I do not need to analyze whether the treatment plans are reasonable and necessary.

CONCLUSION AND ORDER

27The applicant is subject to the MIG.

28The disputed treatment plans are not payable.

29Interest is not owing.

Footnotes

1. 1Scarlett v. Belair, 2015 ONSC 3635 at para. 24 (Div. Ct.)