Licence Appeal Tribunal File Number: 21-013465/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:
Nickshan Ganeshalingam
Applicant
and
Intact Insurance
Respondent
DECISION
ADJUDICATOR: Harry Adamidis
APPEARANCES:
For the Applicant: Nickshan Ganeshalingam, Applicant Agal Lankeswaran, Paralegal
For the Respondent: Shawna Bernetti, Adjuster Christine Ellis, Counsel
Heard by Videoconference: March 7 and 8, 2023
OVERVIEW
1Nickshan Ganeshalingam, the applicant, was involved in an automobile accident on July 25, 2020, 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 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 Minor Injury Guideline (MIG) limit?
ii. Is the applicant entitled to a non-earner benefit (NEB) of $185.00 per week from August 25, 2020 to July 26, 2022?
iii. Is the applicant entitled to $2,910.30 for physiotherapy services, proposed by Whitby Wellness Centre in a treatment plan/OCF-18 (“plan”) submitted December 2, 2020?
iv. Is the applicant entitled to $2,180.00 for a psychological assessment, proposed by Whitby Wellness Centre in a treatment plan/OCF-18 (“plan”) submitted May 13, 2021?
v. Is the applicant entitled to $2,361.67 for physiotherapy services, proposed by Whitby Wellness Centre in a treatment plan/OCF-18 (“plan”) submitted May 18, 2021?
vi. Is the applicant entitled to $2,881.03 for physiotherapy services, proposed by Whitby Wellness Centre in a treatment plan/OCF-18 (“plan”) submitted March 31, 2022?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule, and he is subject to treatment within the MIG limit.
4The applicant is not entitled to an NEB, the treatment plans in dispute, or interest.
ANALYSIS
Minor Injury Guideline (MIG)
5The Schedule limits the applicant to $3,500.00 in medical and rehabilitation benefits if he sustains an impairment that is predominantly a minor injury.
6A minor injury is defined in section 3(1) of the Schedule 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.
7An 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. The onus is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG.
8The applicant submits that his accident related injuries are not minor because he has chronic pain and an adjustment disorder. In my view, however, the applicant’s evidence is not sufficient enough to establish that he has chronic pain or an adjustment disorder.
9In regard to chronic pain, the applicant relies on the reports of Dr. Ernest Hew, a physician practicing at the Centre for Pain, and Dr. Julian Chen, a physician practicing at the Scarborough Pain Clinic. He submits that these reports establish that he has been diagnosed with chronic pain. The doctors who issued these reports are chronic pain specialists, and as such, their opinions justify a finding that the applicant has chronic pain.
10I disagree. There is no clearly discernable chronic pain diagnosis in the reports. Moreover, these reports are quite brief. They provide no analysis or explanation that supports a chronic pain finding.
11Dr. Hew issued a one page report arising from a telephone consultation with the applicant that took place on April 22, 2021. He confirms that the applicant reports upper and middle back pain. He also diagnoses the applicant with degenerative disc disease, but the reasoning for this diagnosis in not provided. Dr. Hew does not refer to any imaging. He recommends Tylenol Extra Strength and that the applicant follow up in one week.
12Dr. Hew issued a second one page report arising from another telephone consultation that took place on August 20, 2021. He mentions the motor vehicle accident (MVA) and the date of the accident and then writes “Chronic Pain and low back pain.” This appears to be the reason for the referral and not a diagnosis. There is a line near the bottom of the page which states “Diagnosis: Degenerative Disc Disease (x-ray: normal).” Dr. Hew provides no comments or opinions on causation for the listed symptoms or the diagnosed degenerative disc disease.
13Dr. Chen’s handwritten, one page note appears to have 10 words spread out over six lines. All of the words are illegible, except for the acronym “MVA.”
14There is no clear indication from either doctor that the applicant has chronic pain. Dr. Hew does little more than document the applicant’s self reporting of back pain. Dr. Chen’s report is incomprehensible. In my view, these reports have little evidentiary value and do not establish that the applicant has chronic pain.
15The clinical notes and records of Dr. William Chan, the applicant’s family doctor, are in evidence. Dr. Chan also testified at the hearing. He believes that the applicant has chronic pain and a post traumatic stress disorder. However, as the applicant acknowledges, Dr. Chan is not qualified to make these two diagnoses.
16The applicant testified that pain limits his ability to do routine things like carry groceries or a toolbox. He feels pain when he bends over, and sometimes has difficulty getting out of bed. The applicant also testified on his limited use of prescription pain medication. He tried prescription pain medication but dislikes the side effects. He is also concerned with becoming dependant on pain medication. Instead, he prefers to cope with the pain. The applicant testified that he took some time off work to focus on rehabilitation. However, he continued to work full-time from home as an insurance advisor for the majority of the time since the accident.
17On September 21, 2022, Dr. Mohamed Khaled, a family physician and medical examiner, assessed the applicant for an insurer’s examination. Dr. Khaled interviewed and physically examined the applicant. He observed the applicant walking, performed range of motion testing, and tested reflexes. He later reviewed medical reports, records, and imaging before writing his report.
18Dr. Khaled found that the applicant continues to experience tenderness but does not have musculoskeletal, neurological, or orthopaedic accident-related injuries or impairments. He also found that the applicant has a functional range of motion of the cervical spine, shoulders, and lumbar spine. At the hearing, Dr. Khaled testified that the applicant suffered soft tissue injuries and contusions in the MVA and that these injuries fall within the MIG.
19Dr. Khaled’s findings are consistent with the findings of Dr. Lesley Corrin, a medical assessor. She assessed the applicant on June 19, 2021 for an insurer’s examination and determined that the applicant has a functional range of motion and that the accident caused soft tissue injuries.
20There is no chronic pain diagnosis before the Tribunal. Two medical assessors examined the applicant and concluded that he has a functional range of motion and that his injuries fall within the MIG. This accords with the applicant’s testimony on preferring to cope with ongoing pain rather than using prescription pain medication, and with his return to full-time work. For these reasons, I find that the applicant has not established that he has chronic pain.
21With regard to having a psychological disorder, the applicant relies on a medical report dated December 1, 2021 from Dr. Mostafa Showraki, a psychiatrist. This report consists of one written page and a signature page. Again, this assessment was done over the phone. Dr. Showraki opines that “it seems that this patient suffers from an adjustment disorder” but provides no further analysis.
22Dr. Amena Syed, a neuropsychologist, performed an in-person assessment of the applicant on June 23, 2021 for an insurer’s examination. Prior to the examination, Dr. Syed reviewed the medical documentation that had been provided to her. Upon arrival, the applicant completed a background form and psychometric testing. This was followed by a clinical interview with Dr. Syed.
23In her report, Dr. Syed opines that testing did not reveal maladaptive beliefs surrounding the applicant’s pain. She further opines that the applicant has no clinically significant elevations of anxiety or depression. She also concludes that the applicant’s distress is below a diagnosable threshold and he is not suffering from any psychological impairment.
24The report of Dr. Syed is detailed and provides a thorough psychological analysis of the applicant. As well, Dr. Syed explains how she reached her conclusions. In contrast, Dr. Showraki’s report is brief and provides no analysis on how he concluded that the applicant “seems” to have an adjustment disorder. For these reasons, I prefer the report of Dr. Syed and consequently find that the applicant does not have a psychological impairment.
25Having determined that the applicant does not have chronic pain or a psychological impairment, I further find that his injuries are predominantly minor and subject to treatment within the MIG limit.
Non-Earner Benefit (NEB)
26Under s. 12 of the Schedule, an insurer shall pay an NEB of $185 per week 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, and does not qualify for an IRB. To qualify for an IRB, an insured person must be employed at the time of the accident and suffer a substantial inability to perform the essential tasks of their pre-accident employment.
27The applicant was employed at the time of the accident. He testified that he was absent from work for two weeks because of injuries he sustained in the accident. He qualifies for an IRB, and therefore, is not entitled to an NEB.
28In the alternative, s. 12, paragraph 3(7)(a) of the Schedule states that an insured person suffers a complete inability to carry on a normal life when, as a result of the accident, the person sustains an impairment that continuously prevents them from engaging in substantially all of the activities they ordinarily engaged in before the accident.
29The guiding principles for assessing a “complete inability to carry on a normal life” are set out in Heath v. Economical, 2009 ONCA 391. A pre- and post-accident functionality comparison is made with the following factors in mind:
a) The applicant’s activities and life circumstances are assessed over a case specific period of time before the accident.
b) “Substantially all” means all the pre-accident activities the applicant ordinarily engaged in. Greater weight may be given to activities the applicant identifies as being important to their pre-accident life.
c) “Continuously prevent" from engaging in pre-accident activities means the accident-related incapacity remains uninterrupted.
d) “Engaging in" is interpreted from a qualitative perspective and requires more than isolated attempts or going through the motions to perform activities.
e) Where pain is a primary factor, the focus is not on whether applicant can physically do these activities, but whether pain “practically prevents” the applicant from engaging in these activities.
30The applicant testified that it is important for him to work. He returned to work shortly after the accident. As such, he was not continuously prevented from engaging in pre-accident activities. He did not suffer a complete inability to carry on a normal life, and therefore, is not entitled to an NEB.
31I have found that the applicant’s injuries are predominately minor. As such, he is subject to the MIG limits for treatment.
32The parties agree that the applicant has exhausted the MIG limits. As such, he is not entitled to the treatment plans in dispute.
Interest
33No interest is payable as there are no overdue payments of benefits.
ORDER
34The applicant’s injuries are minor.
35He is not entitled to an NEB.
36He is not entitled to the treatment plans in dispute or interest.
37This application is dismissed.
Released: April 27, 2023
Harry Adamidis
Adjudicator