Sathiabamini Thuraisingam v. Intact Insurance Company, 2023 CanLII 23595

20-014454/AABS

Licence Appeal Tribunal File Number: 20-014454/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:

Sathiabamini Thuraisingam

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Camille Narine-Ramrattan, Paralegal

For the Respondent: Sivan Bune, Counsel

HEARD: BY WAY OF WRITTEN SUBMISIONS

OVERVIEW

1Sathiabamini Thuraisingam, the applicant, was involved in an automobile accident on October 6, 2016, 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, Intact 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 and in the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $2,269.34 for physiotherapy services recommended by Midland Wellness Centre in a treatment plan (“OCF-18”) submitted on February 13, 2019?

iii. Is the applicant entitled to $1,823.60 for physiotherapy services recommended by Midland Wellness Centre in an OCF-18 submitted on June 21, 2019?

iv. Is the applicant entitled to $2,591.75 for physiotherapy services recommended by Midland Wellness Centre in an OCF-18 submitted on December 10, 2019?

v. Is the applicant entitled to $2,148.32 for physiotherapy services recommended by Midland Wellness Centre in an OCF-18 submitted on March 18, 2019?

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

RESULT

3I 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.

Minor Injury Guideline

4Section 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.”

5An insured 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.

6The applicant submits that she should be removed from the MIG on the basis of her pre-existing impairments, her accident-related physical impairments, chronic pain and psychological impairments.

The applicant’s pre-existing impairments do not warrant removal from the MIG

7The applicant submits that her pre-accident diagnoses of lupus and chronic kidney disease secondary to lupus warrant removal from the MIG. She contends that her numerous lupus related symptoms, including, fatigue, fever, joint pain, stiffness and swelling, headaches, depression and anxiety will delay her recovery from the accident.

8I find that although the applicant has led sufficient evidence that she suffered from the medical conditions of lupus and chronic kidney disease prior to the subject accident, she has not met the other requirement under s. 18(2). Namely, the applicant has not provided any medical evidence from a treating medical practitioner that acknowledges that these pre-existing conditions have precluded her ability to achieve maximum medical recovery under the MIG.

9The applicant has provided extensive medical evidence by way of clinical notes and records (“CNRs”) of her family physician and rheumatologist. While these records indicate that she regularly attended at medical visits for management of her lupus-related symptoms, the applicant does not direct me to any evidence that her treating physicians opined that her lupus or chronic kidney disease prevented full recovery from the subject accident. The respondent’s Insurer’s Examination (“IE”) assessor, Dr. Mula, expressly stated that there was no evidence that the applicant’s pre-existing diagnoses were factors in her rehabilitation. The applicant has not led any medical evidence to refute Dr. Mula’s conclusion.

The applicant has not established that her accident-related physical impairments warrant removal from the MIG

10The applicant submits that as a result of the accident, she has sustained serious injuries to her back, knees, right shoulder and head trauma, relying on the CNRs of her treating physicians and diagnostic imaging, to support her claim. The applicant contends that these physical impairments clearly warrant her removal from the MIG.

11In response, the respondent raises a causation defence, arguing that a number of the applicant’s physical impairments are due to the applicant’s underlying pre-existing medical conditions. The respondent further points out that the applicant was involved in a subsequent bus accident on November 29, 2018, which it argues is also the cause of a number of the applicant’s present impairments. It submits that the applicant had only sustained minor soft tissue injuries from the subject accident that were treatable within the MIG, and that the applicant had not submitted any treatment plans in the 10 months leading up to the bus accident. Rather, the respondent notes that all of the treatment plans in dispute were submitted after the subsequent November 2018 accident.

12I agree with the respondent. While the applicant may have sustained minor soft tissue injuries as a result of the subject accident, she has not established that the accident in question caused impairments that fall outside of the MIG. The test to determine causation is the “but for” test, one that provides that causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. The applicant must show that she would not have suffered the injuries “but for” the subject accident. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause. Based on the evidence, I find that, on a balance of probabilities, the October 6, 2016 accident was not a necessary cause of the physical impairments from which the applicant is suffering.

13The applicant does not dispute that she was involved in a serious bus accident on November 29, 2018, while in Sri Lanka. She was an unrestrained passenger on a bus which had rolled over and fell into a river. The applicant was ejected from the bus and was initially hospitalized in Sri Lanka and then flown home by her family. She was treated first at Scarborough General Hospital and then at St. Michael’s Hospital for injuries including a sternal fracture, a head injury (subdural and epidural hematoma) and small pericardial effusion.

14Although the applicant lists a head injury and headaches as some of her present physical impairments, she has not directed me to any evidence that these were caused by the subject accident. Rather, the 2019 medical records from St. Michael’s hospital indicate that she sustained a head injury, described as a traumatic brain injury, post-concussive symptoms, headaches and neck pain after the November 2018 bus accident. Post-2019, the applicant continued to report headaches and some cognitive difficulties and was prescribed Gabapentin. However, there is no evidence that similar symptoms were present prior to 2019.

15The applicant also raises physical symptoms of numbness in her feet, toes and on the left side of her head. However, the medical record also does not establish that these symptoms arose as a result of the subject accident. Rather, in May 2019, the CNR records of St. Michael’s hospital indicate that the applicant was experiencing numbness on the left side of her head, as a result of the November 2018 bus accident. Further the CNRs of her family physician and rheumatologist indicate that while the applicant was complaining of numbness, tingling and generalized sensory neuropathy in her feet throughout 2020, these were attributed to her underlying lupus.

16With respect to the physical injuries to the applicant’s back, knees and right shoulder, the medical evidence similarly does not causally link these impairments to the accident in question. To establish her back impairments, the applicant relies on diagnostic imaging conducted in in the years post accident, which found a mild narrowing of C5-6 disc spacing (2016), mild degenerative changes, signs of osteopenia with early fragility fracture of the 4th thoracic vertebra (2017), and small to moderate C2-3 disc protrusion and degenerative changes (2018). Although the applicant lists the results of the imaging, she does not direct me to any opinion from her treating physicians attributing these impairments to the subject accident, rather than ongoing degenerative changes. I further note the respondent’s submissions that when the October 7, 2016 imaging, conducted a day after the accident, was compared to a prior August 31, 2016 X-ray, the report indicates that “there has been no change”.

17Similarly, with respect to the applicant’s knee injury, the medical evidence indicates this impairment also preceded the subject accident. May 16, 2016 imaging of the applicant’s knee indicated mild degenerative changes, and her rheumatologist opined that her left knee had mild osteoarthritis. When this imaging was compared to a January 16, 2017 X-ray, conducted after the subject accident, the report noted “compared with May 2016 there has been no change”. As such, the applicant has not led sufficient evidence to establish that the knee impairments were caused by the subject accident, as opposed to pre-existing and ongoing degenerative changes.

18Finally, the applicant points to her complaints of right shoulder pain post-accident, along with an October 18, 2019 ultrasound which revealed supraspinatus tendinitis with probable partial thickness tearing and suspected full thickness tear to establish her shoulder injury. However, while the applicant references a CNR entry in March 2017 where she complained of right shoulder pain, she does not direct me to any evidence that this was a persistent complaint, that she had been prescribed pain medication for the injury or that diagnostic imaging was ordered, prior to the November 29, 2018 bus accident. Rather, it was after the subsequent bus accident that the ultrasound found the suspected full thickness tear (October 2019) and that the applicant received pain injections in her shoulder (on October 1, 2020).

19The respondent conducted a musculoskeletal paper review on March 29, 2017 and an in-person IE assessment on August 21, 2017. Dr. Mula found in both assessments that the applicant had sustained only soft tissue injuries as a result of the subject accident. I accept the findings of Dr. Mula, particularly as the contemporaneous medical evidence similarly does not establish that the applicant sustained anything other than non-minor physical injuries as a result of the subject accident.

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

20Although the applicant submits that she has developed chronic pain warranting removal from the MIG, I find that the medical record does not establish that the subject accident was a necessary cause of her ongoing pain complaints.

21The applicant had reported persistent pain complaints in the years pre-accident, relating to her underlying lupus condition. The CNRs of her rheumatologist indicate that in July 2015 the applicant reported diffuse musculoskeletal pain, in February 2016 she complained of constant pain in her neck and knees and in May 2016 of severe joint pain. After the October 2016 subject accident, the applicant did report pain relating to her accident-related soft-tissue injuries to her treating physicians. However, she reported to the respondent’s IE assessor in August 2017, that her pain had improved by 60% since the accident and that her lower back pain had resolved.

22However, after the November 29, 2018 bus accident, the applicant’s pain complaints increased greatly. Hospital records from March 21, 2019 note that the applicant “has been in significant pain” since the 2018 bus accident. No reference is made to the 2016 subject accident. Subsequent entries reporting the applicant’s pain complaints also reference the November 2018 accident.

23The applicant’s rheumatologist also continued to attribute the applicant’s ongoing pain complaints in 2020 and 2021 to her underlying lupus diagnosis. In an October 1, 2020 CNR entry describing the applicant’s various musculoskeletal aches and pains, leg pains and neuropathy, the rheumatologist notes that this is likely due to lupus. Similarly, on February 4 2021, the applicant’s rheumatologist continued to discuss her joint, body and back pain, in the context of her ongoing lupus management.

24The applicant does not direct me to any opinion from her treating practitioners concluding that her present pain complaints stem from the subject accident and not from the November 2018 bus accident or her chronic lupus condition. As such, the applicant has not met her onus to prove that she developed chronic pain as a result of the subject accident, warranting removal from the MIG.

The applicant has not established accident-related psychological impairments warranting removal from the MIG

25The applicant claims that she sustained accident-related psychological impairments, including depression, chronic insomnia, fatigue and low mood, that would place her claim outside of the MIG. However, I agree with the respondent that the medical record does not establish that the subject accident was a necessary cause of the applicant’s psychological impairments.

26The applicant has not provided an opinion from any treating physician that she developed a psychological impairment as a result of the October 2016 accident. In the period after the subject accident, but prior to the November 2018 bus accident, there are minimal reports of the applicant complaining of psychological symptoms. The applicant points to a CNR entry dated August 7, 2018 where she references being too scared to drive post-accident, feelings of depression and poor sleep habits. However, there is an equal number of reports (on November 29, 2016 and March 7, 2017) where the applicant discussed with her rheumatologist feeling very stressed over non-accident-related issues, such concern over her daughter’s medical condition. The applicant also concedes in her reply submissions that some of the symptoms of lupus include fatigue, depression and anxiety.

27The vast majority of the applicant’s psychological complaints arose after the November 29, 2018 bus accident. Throughout 2019-2021 the applicant reported low mood, low energy and depression. The applicant began to seek treatment with a psychiatrist and was put on Mirtazapine. In a March 21, 2019 report from the North Toronto Sleep Centre, she was diagnosed with chronic insomnia which was noted to be secondary to her brain injury and psychiatric symptoms stemming from the November 2018 bus accident. There is no mention of the 2016 subject accident in the report.

28As such, I find that the applicant has failed to adduce sufficient evidence that she sustained psychological impairments from the subject accident, warranting removal from the MIG.

29In its submissions, the respondent has confirmed that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been approved. As I have found that the applicant has failed to prove that her 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.

Interest

30Section 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.

31As no benefits are overdue, no interest is payable under s.51.

ORDER

32For 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.

33The application is dismissed.