20-011520/AABS

Licence Appeal Tribunal File Number: 20-011520/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:

Sivasathiyan Kumarasamy

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Ryan. St. Aubin, Counsel

For the Respondent: Shane Baker, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sivasathiyan Kumarasamy (“the Applicant”) was involved in an automobile accident on September 10, 2018 and sought benefits from Certas Direct Insurance Company, (“the Respondent”), 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 a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (the “MIG”) and the $3,500.00 funding limit for minor injuries?

ii. Is the Applicant entitled to a medical benefit in the amount of $200.00 for chiropractic treatment recommended by Trillium Rehab Physiotherapy Inc. in a treatment plan dated January 15, 2019?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,200.00 for chiropractic treatment, recommended by Trillium Rehab Physiotherapy Inc. in a treatment plan dated March 7, 2019?

iv. Is the Applicant entitled to a medical benefit in the amount of $200.00 for a disability certificate completed by Trillium Rehab Physiotherapy Inc. in a treatment plan dated September 29, 2018?

v. Is the Applicant entitled to a medical benefit in the amount of $1,731.91 for chiropractic services, recommended by Trillium Rehab Physiotherapy Inc. in a treatment plan dated March 26, 2019?

vi. Is the Applicant entitled to a medical benefit in the amount of $1,815.62 for chiropractic treatment, recommended by Trillium Rehab Physiotherapy Inc. in a treatment plan dated August 1, 2019?

vii. Is the Applicant entitled to a medical benefit in the amount of $1,761.01 for chiropractic treatment, recommended by Trillium Rehab Physiotherapy Inc. in a treatment plan dated November 7, 2019?

viii. Is the Applicant entitled to a medical benefit in the amount of $657.75 for chiropractic treatment, recommended by Trillium Rehab Physiotherapy Inc. in a treatment plan dated August 18, 2019?

ix. Is the Applicant entitled to a medical benefit in the amount of $2,000.00 for a mental health assessment, recommended by Trillium Rehab Physiotherapy Inc. in a treatment plan dated June 15, 2020?

x. Is the Applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week for the period from September 25, 2018 to-date and ongoing?

xi. Is the Applicant entitled to attendant care benefits (“ACBs”) in the amount of $3,000.00 per month for the period from October 25, 2018 to April 30, 2019?

xii. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the Applicant sustained a minor injury as a result of the accident. He is not entitled to the treatment plans in dispute because they propose treatment outside the MIG and the $3,500.00 funding limit provided for minor injuries.

4The Applicant is not entitled to ACBs because he sustained a minor injury.

5The Applicant is not entitled to IRBs.

6No interest is payable.

BACKGROUND

7The Applicant was the driver of a vehicle that was struck from behind while stopped at a suburban traffic light. The Applicant sought no medical attention at the scene of the accident but went to the local hospital later with complaints of neck, shoulder, and chest pain. Imaging taken at the hospital revealed no fractures and the Applicant was discharged from care and advise to return if his symptoms worsened. There is no evidence before me that indicates the Applicant returned to the hospital at any time thereafter.

8The Respondent characterized the Applicant’s injuries as a minor injury and subjected him to the MIG and the $3,500.00 funding limit for minor injuries. It also denied the Applicant entitlement to the treatment and assessment plans in dispute, ACBs, and IRBs.

ANALYSIS

Minor Injury Guideline (“MIG”)

9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

10The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

11For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.

The Applicant sustained a minor injury

12The Applicant sustained predominately soft tissue injuries which fall within the minor injury definition in section 3 of the Schedule.

13The Applicant’s medical records demonstrate he sustained predominantly soft tissue injuries. Hospital records and x-rays from the day of the accident indicate that the Applicant was involved in a motor vehicle accident but did not sustain a fracture. The clinical notes and records from Dr. K. Vaithianathan, family physician, are mostly illegible. Where legible, they note a meeting with the Applicant on October 2, 2018, about 3 weeks post-accident and document complaints of shoulder and neck pain with headaches and tinnitus. It appears that the Applicant was referred for additional imaging of his left shoulder and left knee during this visit. The imaging conducted that day indicated that the Applicant had tenosynovitis in the left shoulder and osteoarthritis in his left knee. Tenosynovitis is inflammation in the shoulder, which is a soft tissue injury. Osteoarthritis is a degenerative condition which occurs over a long time period and the Applicant has failed to demonstrate that it was caused by the accident. The Applicant provided no other CNRs from Dr. Vaithianathan for this hearing.

14The Applicant has not demonstrated that the injuries noted in a disability certificate completed by Dr. A. Alechina, chiropractor, dated September 29, 2018 are anything more than sequelae of his soft tissue injuries. In addition to various sprain and strain injuries, Dr. Alechina diagnosed the Applicant with headaches and dizziness and giddiness. Dr. Alechina is not qualified to diagnose neurological or psychological injuries. Thus, Dr. Alechina’s opinion on the Applicant’s neurological or psychological symptoms holds no weight. Further, the Applicant provided no other medical records to corroborate Dr. Alechina’s diagnoses. Considering this, I conclude that the headaches and dizziness and giddiness noted by Dr. Alechina are sequelae of his soft tissue injuries.

15Attending treatment beyond the funding limit of the confines of the MIG does not entitle the Applicant to medical and rehabilitation benefits that fall outside the MIG. The Applicant submits that he participated in 60 treatment sessions between the accident and August 18, 2020 and infers that this demonstrates that his injuries are not a minor injury. However, the test to demonstrate a non-minor injury is based on the Applicant’s injuries, or how his pre-accident state would impact recovery. The test does not include consideration for whether the Applicant incurs or is referred to additional treatment for soft-tissue injuries and associated sequalae.

16On the other hand, the insurer’s examination (“IE”) reports concluded that the Applicant sustained predominantly soft-tissue injuries. Dr. M. Ko, physician, assessed the Applicant and issued a report dated May 7, 2018. Dr. Ko noted that the Applicant had full active range of motion throughout his body and demonstrated no objective evidence of an impairment. Dr. Ko concluded that the Applicant sustained a minor injury.

17The Applicant has presented no evidence demonstrating that he sustained an injury that is not included in the minor injury definition in section 3 of the Schedule. As a result, I conclude that his injuries are rightfully captured under the minor injury definition.

ACBs and the disputed treatment and assessment plans

18The Applicant is not entitled to ACBs pursuant to section 14(2) of the Schedule. Section 14(2) provides that the Respondent is not liable to pay ACBs to anyone who sustained a minor injury as a result of the accident. Having concluded the Applicant sustained a minor injury, it follows that he is not entitled to ACBs.

19Likewise, the Applicant is not entitled to the disputed treatment and assessment plans because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit for a minor injury.

IRBs

20I find that the Applicant is not entitled to IRBs as claimed.

21Pursuant to section 5 of the Schedule, IRBs are payable to insured persons who, within the first 104 weeks following the accident, are substantially unable to perform the essential tasks of their pre-accident employment as a result of an impairment. The test for entitlement becomes more difficult after 104 weeks following the accident and asks whether the insured person suffers a complete inability to engage in employment or self-employment for which they are reasonably suited by education, training, or experience.

22The Applicant claims that his injuries preclude him from engaging in his pre-accident self-employment as a driving instructor and real estate agent. He submits that he has not worked since the accident. However, he has not provided evidence to support his claim or, his evidence contradicts his claims.

23The disability certificate dated September 29, 2018 is outweighed by the other medical evidence. The disability certificate by Dr. Alechina, lists mostly soft tissue injuries and opines on injuries that are outside of the scope of a chiropractor. The clinical notes and records from Dr. Alechina were not provided for this hearing, thus I am unable to determine how Dr. Alechina concluded that the Applicant is unable to complete his essential tasks as a self-employed driving instructor and real estate agent. Remarkably, Dr. Alechina is the only healthcare provider to conclude that the Applicant is unable to work. There is no other evidence or opinion, including one from his family physician Dr. Vaithianathan, indicating the Applicant is unable to work.

24The IE reports concluded that the Applicant is able to complete his pre-accident tasks as a self-employed driving instructor and real estate agent. As noted previously, Dr. Ko found no objective evidence of an impairment and concluded that the Applicant does not suffer from a substantial inability to complete his pre-accident work tasks. D. Polygenis, physiotherapist, assessed the Applicant and issued a report dated September 10, 2018, which concluded from validity testing that the Applicant provided an inconsistent effort during the examination.

25The Applicant’s tax returns indicate he continues to work. The Applicant provided his tax returns for the years 2015 to 2020. Those documents show that the Applicant’s income increased year over year following the accident. To-date, the Applicant has provided no other accounting or income information explaining how his employment income increased following the accident, during a time when he claims to be completely unable to work.

26In the end, the evidence does not indicate that the Applicant suffers from a substantial inability to complete his essential tasks as a self-employed driving instructor and real estate agent. Rather, the evidence suggests that the Applicant continued to work following the accident, despite his claims that he did not.

Interest

27The Applicant is not entitled to interest because he is not entitled to any of the benefits in dispute. Interest is payable only where the payment of benefits is overdue, pursuant to section 51 of the Schedule.

CONCLUSION AND ORDER

28The Applicant sustained a minor injury as a result of the accident. As a result, the Applicant is not entitled to the medical and rehabilitation benefits in dispute, nor ACBs.

29The Applicant is not entitled to IRBs because he has not demonstrated a substantial inability to complete his pre-accident tasks of self-employment and employment.

30No interest is payable as no payments went overdue.

31The application is dismissed.