Mathyaparanam v. TD General Insurance Company, 2023 CanLII 19836

Licence Appeal Tribunal

Citation: Mathyaparanam v. TD General Insurance Company, 2023 ONLAT 20-013520/AABS

Licence Appeal Tribunal File Number: 20-013520/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:

Thanursanth Mathyaparanam

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Alexei Antonov, Counsel Francesco Vumbaca, Student-at-Law

For the Respondent: Patricia Hill, Counsel

HEARD: BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Thanursanth Mathyaparanam, the applicant, was involved in an automobile accident on November 6, 2018, 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, TD General Insurance Company, 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 of the Minor Injury Guideline ("MIG")?

ii. Is the applicant entitled to $2,988.64 for chiropractic services, recommended by Prime Health Care Inc. in a treatment plan ("OCF-18") dated November 12, 2018?

iii. Is the applicant entitled to $3,470.57 for psychological services, recommended by Prime Health Care Inc. in an OCF-18 dated March 20, 2019?

iv. Is the applicant entitled to $1,249.15 for chiropractic services, recommended by Prime Health Care Inc. in an OCF-18 dated July 5, 2018?

v. Is the applicant entitled to $1,405.59 for chiropractic services, recommended by Prime Health Care Inc. in an OCF-18 dated January 9, 2020?

vi. Is the applicant entitled to $2,000.00 for a chronic pain assessment, recommended by Prime Health Care Inc. in an OCF-18 dated July 8, 2019?

vii. Is the applicant entitled to $1,230.92 for an assessment of attendant care needs, recommended by Prime Health Care Inc. in an OCF-18 dated November 19, 2018?

viii. Is the applicant entitled to $9,024.34 for chronic pain treatment, recommended by Prime Health Care Inc. in an OCF-18 dated March 27, 2021?

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

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

3The Case Conference Report and Order dated June 25, 2021, listed entitlement to income replacement benefits as an additional issue in dispute. In his submissions for this written hearing, the applicant withdrew this issue, and as such, it will not be considered as part of these proceedings. The applicant further submitted that the issue of the applicability of the MIG was mistakenly omitted from the Case Conference Report and Order and requested that this issue be included as part of these written proceedings. As the respondent did not contest the inclusion of this issue, and both parties provided submissions on the applicability of the MIG, I included this issue as listed in paragraph 2(i) above.

RESULT

4I find that:

i. The applicant's impairments are predominantly minor and therefore subject to the treatment limits of the MIG.

ii. As the full MIG limit on medical benefits has been exhausted, an analysis of whether the disputed treatment and assessment plans are reasonable and necessary is unwarranted.

iii. As no benefits are owing, no interest is payable.

ANALYSIS

Minor Injury Guideline

5Section 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."

6An insured person 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 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.

7The applicant submits that he should be removed from the MIG on the basis of chronic pain and psychological impairment.

The applicant has not established chronic pain warranting removal from the MIG

8The applicant submits that he has developed chronic pain as a result of the accident. To establish his claim, the applicant relies on a Chronic Pain Assessment Report prepared by Dr. Grigory Karmy, a chronic pain specialist. Dr. Karmy diagnosed the applicant with a number of impairments, including, chronic pain syndrome, chronic left shoulder pain and chronic lower back pain. The applicant further submits that the various Disability Certificates ("OCF-3s"), with corresponding Non-Earner Benefit Charts of Daily Activities, record his accident-related injuries, ongoing pain and functional limitations.

9I find that the applicant has not led sufficient evidence to demonstrate that he has developed chronic pain as a result of the accident.

10The applicant has provided limited objective medical evidence establishing any non-minor accident-related physical impairments or chronic pain. Although the applicant reported to various assessors that he went to a walk-in clinic and to his family physician a few days post-accident, no clinical notes and records ("CNRs") were provided from any primary care physician. I note the respondent's submissions that the applicant's OHIP summary revealed that the applicant only saw a doctor once post-accident, in June 2019, but without any CNRs from a family physician, the purpose of the visit is unknown. No diagnostic imaging was submitted to indicate a non-minor physical injury.

11If the applicant had developed accident-related chronic pain, I would have expected to see a consistent record of visits to his family physician with complaints of ongoing pain, attempts at specialized pain management treatment, referrals to pain clinics and prescriptions for pain medication. The applicant reported to Dr. Karmy that he took only Tylenol "as needed" for pain control. Although the applicant submits that his extended health benefits file establishes that he took cyclobenzaprine and naproxen for pain, I note that there is only a single notation for each of these medications more than two years post-accident, in January 2021. Further, without any CNRs from the physician prescribing the medication, I cannot assess why this medication was prescribed.

12The applicant relies in large part on the Chronic Pain Assessment Report of Dr. Karmy and submits that this diagnosis should be taken as sufficient evidence of chronic pain. However, when comparing the assessment report of Dr. Karmy, to that of the respondent's s.44 assessor, Dr. Oshidari, I prefer the report of Dr. Oshidari.

13In his report, Dr. Karmy provides minimal analysis for his conclusion that the applicant suffers from chronic pain. When conducting the physical examination and range of motion testing of the shoulders, Dr. Karmy does not note any reports of pain, and yet diagnoses the applicant with chronic mechanical left-shoulder pain. Aside from the range of motion testing, no description was provided of the diagnostic criteria or testing used in the assessment. I find that Dr. Oshidari's findings of minor injuries, are more consistent with the lack of a medical record of ongoing pain reports and medical treatment.

14I further find that the applicant has not established that he has suffered a functional impairment as a result of chronic pain. The applicant admits that he returned to work soon after the accident but asserts that he did so on modified hours and that he did not return to his additional part-time employment. However, the applicant has not led any evidence from his employer to establish a reduced workload due to pain post-accident. The applicant also relies on his self-reports of functional limitations in his OCF-3s and the Non-Earner Benefit Charts of Daily Activities. In these forms, the applicant reported that his chronic pain restricts his housekeeping activities, home maintenance activities, recreational and social activities. I agree with the respondent's submissions that such self-reports are not sufficient evidence of functional limitations, particularly when not corroborated by an objective medical record of ongoing pain complaints and medical treatment.

15As such, I find that the applicant has not met his onus of establishing pain of the duration, severity and functionally disabling extent necessary to remove him from the MIG.

The applicant has not demonstrated a psychological impairment warranting removal from the MIG

16To establish a psychological impairment, the applicant relies on a psychological pre-screening interview and psychological assessment, both conducted by Dr. Andrew Shaul, psychologist. In his February 25, 2019 Psychological Assessment Report, Dr. Shaul diagnosed the applicant with Specific Phobia (vehicular) as well as Features of an Adjustment Disorder. The respondent conducted its own psychological assessment and in a s.44 report dated May 30, 2019, Dr. Peter Cobrin, psychologist, did not find that the applicant was suffering from a diagnosable psychological condition.

17When comparing the two psychological assessments, I prefer the report of Dr. Cobrin. Dr. Shaul's pre-screening interview and psychological assessment were both conducted soon after the accident - three weeks and approximately two months, respectively. During this initial post-accident period, it would not be unexpected that the applicant would be experiencing some psychological distress, particularly around the issue of vehicular travel. In terms of additional diagnoses, I note that Dr. Shaul did not diagnose the applicant with an Adjustment Disorder, but with Features of an Adjustment Disorder.

18To escape the MIG, a psychological diagnosis requires the development of ongoing, substantive and residual symptoms or clinically-significant psychological distress. A measure of psychological impact is expected to accompany minor injuries and is specifically contemplated in the MIG's "functional restoration approach."

19Dr. Cobrin conducted his psychological assessment on April 2, 2019, almost two months after Dr. Shaul's assessment and noted that the applicant did not report any difficulties, from a psychological, emotional or mental health perspective. As such, while the applicant appears to have suffered from some adjustment difficulties and vehicular anxiety immediately after the accident, in the subsequent months, Dr. Cobrin found that they had resolved.

20The applicant does not point me to any evidence that he reported ongoing psychological symptoms to a primary care physician or mental health practitioner after this initial period, or that he sought any form of mental health treatment. The applicant's extended health benefits summary indicates numerous entries for physical treatment over the years post-accident, but none for psychological support. In the Chronic Pain Assessment Report, Dr. Karmy references a "possible" mood disorder, sleep disorder and symptoms of driving and passenger anxiety. However, I note that this report was almost two years after Dr. Shaul's assessment. There is no indication the applicant sought treatment for psychological symptoms in the intervening two years. As such, I find that Dr. Cobrin's findings that the applicant did not suffer from psychological difficulties is consistent with this lack of reporting and medical treatment post-accident.

21For these reasons, I find that the applicant has failed to establish that he sustained a psychological impairment warranting removal from the MIG.

22As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted.

Interest

23Section 51 of the Schedule states that interest is due on a benefit that is overdue if the insurer does not pay the benefit within the time stated by the Schedule.

24As no benefits are overdue, no interest is payable under s.51.

Award

25Section 10 of Regulation 664 provides that an award may be granted if the respondent unreasonably withheld or delayed payments.

26In the matter at hand, the respondent took the position that the applicant's injuries were subject to treatment under the MIG. I have considered the medical evidence and have come to the same conclusion. As such, there is nothing in the evidence before me to suggest that the respondent behaved in an unreasonable manner. Accordingly, the applicant's request for an award is denied.

ORDER

27For the reasons set out above, I find that:

(i) The applicant's injuries fall within the MIG;

(ii) The applicant is not entitled the disputed treatment plans; and;

(iii) The applicant is not entitled to interest or an award.