Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 21-000925/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:
Pathmanathan Varatharajah
Applicant
and
The Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Julian DiBattista
APPEARANCES:
For the Applicant:
Anna Korolkova, Paralegal
For the Respondent:
Julianne Brimfield, Counsel
Arijana Schrauwen, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Pathmanathan Varatharajah, the applicant, was involved in an automobile accident on January 6, 2019, 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, The Co-Operators 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 and in the Minor Injury Guideline (MIG)?
ii. Is the applicant entitled to a non-earner benefit (NEB) of $185.00 per week from February 3, 2019 to January 6, 2021?
iii. Is the applicant entitled to $2,581.08 for physical therapy, proposed by Toronto Healthcare Inc. in an OCF-18 denied on January 30, 2019?
iv. Is the applicant entitled to $1,297.92 (less amounts approved) for physical therapy, proposed by Toronto Healthcare Inc. in an OCF-18 denied on April 2, 2019?
v. Is the applicant entitled to $1,406.80 for physical therapy, proposed by Toronto Healthcare Inc. in an OCF-18 denied on April 12, 2019?
vi. Is the applicant entitled to $1,649.75 for physical therapy, proposed by Toronto Healthcare Inc. in an OCF-18 denied on December 27, 2019?
vii. Is the applicant entitled to $1,509.00 for physical therapy, proposed by Toronto Healthcare Inc. in an OCF-18 denied on June 24, 2020?
viii. Is the applicant entitled to $9,543.48 for a chronic pain management program, proposed by Toronto Healthcare Inc. in an OCF-18 denied on September 21, 2020?
ix. Is the applicant entitled to $2,000.00 for a chronic pain assessment, proposed by Toronto Healthcare Inc. in an OCF-18 denied on January 6, 2020?
x. Is the applicant entitled to $2,000.00 for a psychological assessment, proposed by Toronto Health Care Inc. in an OCF-18 denied on September 21, 2020?
xi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant does not suffer from chronic pain that warrants removal from the MIG. As the applicant has exhausted the $3,500.00 limit, he is not entitled to an NEB or any of the treatment plans in dispute.
ANALYSIS
The applicant does not suffer from chronic pain that warrants removal from the MIG
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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 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.
6The applicant submits that he should be removed from the MIG due to chronic pain. The applicant relies on a s. 25 Chronic Pain Consultation Report provided by Dr. D. Louvish, [insert specialty], on August 8, 2020. I give the report of Dr. Louvish limited weight for the following reasons.
7Dr. Louvish was not provided any of the clinical notes, records or imaging contained in the applicant’s medical history. He was only provided with a prescription summary, an OCF-3 and a handful of OCF-18s.
8The respondent notes the contrast between Dr. Louvish’s report and highlights another report from a chronic pain specialist, Dr. J Chen of the Scarborough Pain Clinic. I agree with the respondent that Dr. Chen’s report should be given considerable weight.
9The referral to Dr. Chen was made by the applicant’s family physician on request of the applicant. This report was not prepared for the purposes of litigation, and it documents the beginning of an ongoing clinical relationship between Dr. Chen and the applicant.
10Dr. Chen, a pain management physician, saw the applicant on December 6, 2021. While Dr. Louvish provided a diagnosis of Chronic Pain Syndrome, Dr. Chen was not able to provide a diagnosis and noted that he would require copies of imaging before a diagnosis could be provided.
11Dr. Louvish noted that an MRI of the spine was required to clarify his diagnosis, however no updates were submitted after the MRI was received. Yet, he still made the diagnosis after only a single visit with the applicant. Whereas Dr. Chen was more cautious in his report indicating that he would require further information before making a diagnosis.
12The tone of the two reports is markedly different. Dr. Louvish paints a very grim picture of the applicant’s condition, whereas Dr. Chen has a much more positive prognosis. Dr. Chen devised a plan that includes assessing diet, rehabilitation, exercise, sleep and nutrition support.
13Dr. Chen’s assessment took place almost a year and a half after the applicant was seen by Dr. Louvish. The applicant’s condition appears to have significantly improved since Dr. Louvish’s diagnosis. Dr. Chen’s assessment is more indicative of the applicant’s current situation with regards to pain.
14As Dr. Chen, a physician that practices pain management medicine, did not diagnose the applicant with Chronic Pain Syndrome, I conclude that the applicant does not suffer from Chronic Pain Syndrome that would justify his removal from the MIG.
15The applicant has failed to meet his onus in proving he should be removed from the MIG.
The applicant is not entitled to an NEB
16Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
17While the applicant made a claim for an NEB, it was not addressed in the applicant’s submissions. Passing references were made to activities of daily living (ADL), but no submissions were made in the context of entitlement to an NEB or the Heath test.
18For the sake of completeness, I will briefly address the issue. In his report, Dr. Chen documented his assessment on how the applicant’s pain impacted his ability to perform his ADL.
19Dr. Chen states: “A review of his Brief Pain Inventory (BPI) revealed negative impact on his ADL and IADL. He scored 6/10 for general activities, 2/10 for mood, 5/10 for walking activities, 5/10 for normal work, 0/10 for relationship, 4/10 for sleep and 0/10 for enjoyment of life.”
20I find that the scores for general activities, walking activities and normal work are not evidence of a complete inability to carry on a normal life, as required by s. 12. The evidence suggests that the applicant is able to perform general activities, walking activities and normal working activities.
21While Dr. Louvish noted that the applicant “has abandoned his recreational activities and is not able to be physically active as he was before the subject accident. He has difficulties doing housekeeping tasks around the house in a timely fashion.” This passage does not support suffering a complete inability to carry on a normal life.
22While I do prefer Dr. Chen’s report, the comments made by Dr. Louvish also support Dr. Chen’s assessment. Neither Dr. Louvish, Dr. Chen nor the applicant’s family physician documented any inability to carry on a normal life.
23The applicant has failed to meet his onus in proving he suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.
The applicant is not entitled to any of the disputed treatment plans for medical rehabilitation, assessments or interest
24As 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 dispute treatment plans because the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG have been exhausted.
25As there are no overdue benefits, there is no entitlement to interest.
ORDER
26I find:
i. The applicant sustained predominantly minor injuries as defined under the Schedule.
ii. The applicant is not entitled to an NEB or any of the treatment plans; and
iii. No interest is payable.
27The application is dismissed.
Released: April 12, 2023
Julian DiBattista
Vice-Chair