Gnanasountharanayakam v. Intact Insurance Company, 2023 CanLII 44316

Citation: Gnanasountharanayakam v. Intact Insurance Company, 2023 ONLAT 20-011170/AABS

Licence Appeal Tribunal File Number: 20-011170/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:

Ragu Gnanasountharanayakam

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Ardi Deti, Paralegal

For the Respondent: David Koots, Counsel

HEARD: By way of written submissions

OVERVIEW

1Ragu Gnanasountharanayakam, the applicant, was involved in an automobile accident on November 13, 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, 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 of the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $3,500.00 for chiropractic services, recommended by Ajax Rehabilitation Centre in a treatment plan submitted March 11, 2020?

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

3The applicant has withdrawn his claim for income replacement benefits and an award under s. 10 of O. Reg. 664.

RESULT

4The applicant has not met his onus in demonstrating that his injuries entitle him to treatment outside the MIG.

5Pursuant to s. 38(11) of the Schedule, the applicant is entitled to $3,500.00 for chiropractic services described in a treatment plan submitted by Ajax Rehabilitation Centre on March 11, 2020.

6Interest is payable pursuant to s. 51 of the Schedule.

ANALYSIS

Application of the Minor Injury Guideline

7Section 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.”

8An 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.

9The applicant submits that his injuries fall outside of the MIG based on their severity, the development of psychological symptoms, exacerbation of pre-existing knee pain, and interference of his injuries with important day-to-day activities. The respondent submits that the applicant only suffered soft tissue injuries, does not have a documented pre-existing condition which would prevent recovery within the MIG limits, and has not provided evidence that he suffers from a chronic pain condition.

10For the following reasons, I find that the applicant has not proven on a balance of probabilities that his injuries fall outside the MIG.

Pre-Existing Knee Pain

11The applicant submits that prior to the accident, he had pre-existing knee pain, and therefore the MIG should not apply. The only evidence of knee issues from before the accident is a letter from an Ayuverdic clinic confirming that the applicant “received treatment for knee pain” five times between April 4, 2018 and June 2, 2018. There are no treatment notes from those sessions. There is no evidence as to which knee the clinic was treating. There are no notes in the records of the family physician, Dr. Manivannan Selvananthan, indicating that the applicant had difficulties with his knees prior to the accident.

12In February 2020, the applicant was sent by Dr. Selvananthan for x-rays and ultrasounds of his knees. He was diagnosed with bilateral osteoarthritis, more prominent on the right knee, and bilateral joint effusions. The applicant’s knees are never mentioned by Dr. Selvananthan in his notes, and were never investigated again. Dr. Selvananthan does not provide any indication as to whether these conditions existed before the accident, were caused or exacerbated by the accident, or would make it difficult for the applicant to recover from his accident-related injuries.

13In an OCF-18 completed by Dr. Kirshna Patel, chiropractor, on March 11, 2020, she indicated that the applicant reported that he had a pre-existing right knee condition. She did not state at any point whether she believed this would have an impact on the applicant’s recovery. She does not provide an opinion as to whether this issue existed prior to the accident. Under the section entitled “barriers to recovery”, the applicant’s pre-accident knee condition is not mentioned.

14I do not find the letter from the Ayurvedic clinic to be helpful as it does not provide any information, or even distinguish which knee the applicant was receiving treatment for. It is not enough to simply point to one indication of unspecified knee pain in order to prove that a pre-accident condition persisted leading up to the accident. Records from a chiropractor from approximately 1.5 years after the accident are also not particularly helpful in proving that pre-existing conditions existed. Whether the conditions existed or not, the applicant must prove that his pre-existing condition will prevent him from achieving maximal recovery under the MIG. I find that the applicant has not met his burden of proof in that regard.

Non-MIG Injuries and Chronic Pain

15The evidentiary record pertaining to the applicant’s injuries is sparse. Although the accident occurred on November 13, 2018, he did not seek any kind of medical attention or treatment until February 2020. This makes it difficult to determine a causal relationship between the accident and the injuries reported. Further, the applicant has only provided post-accident records from February, March, August, and September 2020.

16There is only one record from Dr. Selvananthan that mentions the accident. On February 19, 2020, Dr. Selvananthan noted that the applicant had lower back pain for three months, and that he had an accident on November 13, 2019. No radiation, numbness, or parasthesia was noted. The severity was mild to moderate, was exacerbated with activity, standing, and weight lifting, and was alleviated with rest. His diagnosis was lower back pain. Dr. Selvananthan recommended rest and physiotherapy, and he gave the applicant pain medication. There are no further records from Dr. Selvananthan.

17The only other indication of the applicant’s injuries is from the OCF-3, OCF-18, OCF-23, and intake form completed by Dr. Patel. These documents list the following injuries: other chronic pain, adhesive capsulitis of shoulder, sprain and strain of shoulder joint, lumbar and other intervertebral disc disorders with radiculopathy, strain and strain of lumbar spine, whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, problems related to employment and unemployment, headache, sprain and strain of other and unspecified parts of shoulder girdle, other sleep disorders, problems related to lifestyle, internal derangement of knee, and chronic instability of knee.

18Aside from chronic pain, the only injury in this list that could take the applicant out of the MIG on its own is radiculopathy. The other injuries appear to be sprain/strain type injuries, or are so non-specific that it is impossible to determine what they are without further elaboration. Even though Dr. Selvananthan did make note of the applicant’s lower back pain, he did not mention radiculopathy and in fact noted that the applicant was not experiencing radiation, numbness, or parasthesia. He was not referred to a neurologist. There are no other indications of radiculopathy in evidence.

19I agree with the respondent that the use of the word “chronic” without further evidence is not sufficient to determine whether the applicant is suffering from a chronic pain condition related to the accident. There is such limited evidence before me of the applicant’s pain, functional difficulties, or treatment course that I am unable to conclude that the applicant is suffering from a chronic pain condition. I do not know the extent to which the accident has impacted the applicant’s life, despite his brief submission that his injuries interfere with important day-to-day activities. Submissions are not evidence.

20The applicant has not proven on a balance of probabilities that he sustained physical injuries that are not defined as minor pursuant to s. 3 of the Schedule.

Psychological Injuries

21There is no evidence before me that the applicant sustained a psychological injury in the accident such that the MIG should not apply. The only indication of any psychological difficulties in the records were noted by Dr. Patel in March 2020. As a chiropractor, Dr. Patel is not qualified to comment on the applicant’s psychological condition. In any event, there is no indication that the applicant has been referred to a psychologist, or has even sought help from anyone for these symptoms.

22Although I have found that the applicant’s injuries as a result of the accident fall within the MIG, I find that the treatment plan in dispute is payable by virtue of s. 38(8) and s. 38(11) of the Schedule.

23The applicant submitted the OCF-18 for chiropractic services, massage, a knee brace, and an ankle brace, in the amount of $3,500, on March 11, 2020. It appears that this was the first OCF-18 submitted to the respondent, and no medical or rehabilitation benefits had been paid to date. In a letter dated April 2, 2020, the respondent explained that in order to qualify for medical and rehabilitation coverage in excess of $3,500, it must be determined that his impairment was not predominantly minor, or there is compelling evidence that he had a pre-existing injury that would prevent him from achieving maximal recovery based on the MIG limits.

24The respondent’s letter goes on to state that in the OCF-18, the health practitioner indicated that his injuries are not predominantly minor, but that diagnosis conflicts with the medical documentation submitted. It was therefore the respondent’s position that the applicant qualified for treatment under the MIG, and the OCF-18 would not be approved.

25The applicant submits that the only documentation provided to the respondent at that point in time was the OCF-1, OCF-3, and OCF-18. The respondent does not dispute this. I note that the OCF-18 and OCF-3, both prepared by Dr. Patel, have the exact same list of injuries. The list of injuries includes chronic pain and radiculopathy, which are not necessarily included in the definition of minor injuries under the MIG. While I have issues with those diagnoses as stated above, it cannot be said that there is a conflict between the applicant’s injuries not being minor and the injuries listed on those documents. If there is a different document that the respondent was referring to, it does not specify what it is, which is a problem in itself.

26Under s. 38(8), an insurer has the obligation to provide the insured person with a notice identifying the medical and all of the other reasons why the insurer finds the treatment plan not to be reasonable and necessary. There should be clear and sufficient information for an unsophisticated person to make an informed decision to either accept or dispute the denial.¹ If those reasons are not provided, the consequence under s. 38(11) is that the insurer cannot take the position that the MIG applies with respect to this treatment plan, and must pay for the goods and services described therein.

27I find that the reasons provided in the respondent’s letter were erroneous, confusing, and lacked specificity. An unsophisticated person would not have an understanding of why their claim is being denied, what information was looked at to come to this conclusion, what is keeping them in the MIG, and whether this is something they wish to dispute. The respondent breached its obligation under s. 38(8) and thus the consequences under s. 38(11) are triggered. An analysis as to whether the treatment plan is reasonable and necessary is not required.

28I note that the respondent does not dispute that the notice was deficient. The respondent submits that if I find that this treatment plan is payable by virtue of s. 38(11) of the Schedule, it does not mean that the applicant is removed from the MIG permanently. I agree. This particular treatment plan, however, is payable.

Interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest on the overdue benefit is payable.

ORDER

30The applicant has not met his onus in demonstrating that his injuries entitle him to treatment outside the MIG.

31Pursuant to s. 38(11) of the Schedule, the applicant is entitled to $3,500.00 for chiropractic services described in a treatment plan submitted by Ajax Rehabilitation Centre on March 11, 2020.

32Interest is payable pursuant to s. 51 of the Schedule.

Footnotes

1. 1FC v. Aviva Insurance Canada, 2020 CanLII 63586 (ON LAT) at para. 16.