Licence Appeal Tribunal File Number: 21-010439/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:
Nagendran Sandralingam
Applicant
and
Primmum Insurance Company
Respondent
DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: Zoe Meditskos, Paralegal
For the Respondent: Priyanka Monpara, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Nagendran Sandralingam (the “applicant”) was involved in a motor vehicle accident on January 9, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Primmum Insurance Company (the “respondent”) determined that the applicant should be treated within the Minor Injury Guideline (“MIG”) and its $3,500.00 limit on treatment and also partially denied one treatment plan/OCF-18. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The respondent noted in submissions that the MIG limit of $3,500.00 had been exhausted, as reaching this limit was why the treatment plan in dispute was only partially approved. The applicant did not mention the MIG limit in submissions. As a result, I accept that the MIG has been exhausted. Entitlement to the remainder of the treatment plan in dispute is dependent on a finding that the applicant should be removed from the MIG.
ISSUES IN DISPUTE
3The following issues are in dispute:
Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and subject to treatment within the $3,500.00 limit of the MIG?
Is the applicant entitled to $400.00 ($1,700.00 less $1,300.00 approved) for physiotherapy services in a treatment plan/OCF-18 recommended by ALFI Physiotherapy dated April 3, 2019?
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits pursuant to s. 51 of the Schedule?
RESULT
4I find that:
i. The applicant has failed to demonstrate that his accident-related injuries warrant removal from the MIG. He remains within the MIG and is subject to its $3,500.00 limit on treatment.
ii. As the applicant remains within the MIG, and as the MIG limit of $3,500.00 has been exhausted, he is not entitled to the treatment plan in dispute, nor interest.
iii. The respondent is not liable to pay an award.
ANALYSIS
The Minor Injury Guideline (“MIG”)
5Section 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 minor injuries. 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.”
6An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2). The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.
7The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG. Here, the applicant submits that his injuries go beyond the definition of a minor injury as defined in the Schedule due to chronic pain of such a severity that it has led to a functional impairment or disability.
8The respondent counters that the applicant failed to establish that he sustained anything more than minor injuries. It holds that he should remain within the MIG.
The applicant has not demonstrated that he suffers from chronic pain
9I find that the applicant has failed to support his claims to sustaining chronic pain with a functional impairment as a direct result of the accident. His physical injuries are predominantly minor as defined in the Schedule. Thus, he remains within the MIG.
10I am not persuaded by the applicant’s submissions that accident-related injuries to his neck, shoulders, back, and legs progressed to chronic pain that he continued to suffer for more than four years post-accident. He relies on Nirmal v. Certas Direct Insurance Company-009302/AABS-R, 2021 CanLII 30753 (ON LAT), a reconsideration decision that referenced the Tribunal’s acceptance that chronic pain is a condition that persists for three to six months after an initial trigger or injury. However, while I accept that this is one of the criteria to be assessed when determining a condition of chronic pain, it is not the only one. An applicant must still demonstrate, on a balance of probabilities, that objective medical evidence supports such a diagnosis of chronic pain.
11In this instance, the applicant has failed to meet this burden. Clinical notes and records (“CNRs”) of the applicant’s appointment with the Carefirst Family Health Team on January 30, 2019 indicate that he was diagnosed with soft-tissue injuries including pain in his neck that radiated to his right shoulder due to a “strain,” along with mild shoulder and back tenderness. He was prescribed Mobicox, an NSAID pain reliever, and recommended that he continue physiotherapy (physiotherapy and medication were apparently advised when the applicant visited a walk-in clinic between the accident and his visit to Carefirst). All of this treatment was, in my view, in accordance with minor injuries.
12The CNRs of Dr. Anuradha Srinivasan, family physician, support the same conclusion that the applicant sustained soft-tissue injuries as a result of the accident. The applicant visited Dr. Srinivasan with complaints of accident-related neck and shoulder pain on seven occasions between June 18, 2019 and September 8, 2021. Dr. Srinivasan also noted chronic pain in his CNRs resulting from an appointment on July 3, 2019. However, this observation was based on the self-reporting of the applicant. While Dr. Srinivasan advised during this visit that the applicant see Dr. Gary Shapero, family physician, for possible facet joint injection for pain relief, he did not prescribe medication, order diagnostic imaging, or treat the applicant in a way that would indicate he suffered from anything but soft-tissue sprains and strains defined as minor injuries in the Schedule.
13Medical records from 2019 through 2021 also fail to demonstrate chronic pain resulting from the accident. While the applicant continued to report neck and back pain to Dr. Srinivasan, x-rays taken on March 2, 2019 yielded unremarkable results. An MRI of the cervical spine ordered by Dr. Shapero and conducted on December 14, 2019 was similarly unremarkable aside from mild multilevel degenerative disc changes. No medical evidence has been submitted demonstrating that the accident played a role in these degenerative changes, or that these issues were pre-existing and were exacerbated by the accident to such a point that they precluded his recovery if kept within the MIG.
14However, I find it noteworthy that Dr. Srinivasan noted in his CNRs in 2020 and 2021 that this degenerative disc disease was a primary reason for the applicant’s pain, and for prescriptions of Toradol (an NSAID) and flexeril (a muscle relaxant) along with injections provided by Dr. Shapero and continuing physiotherapy. While the accident is not mentioned in the CNRs of Dr. Srinivasan from January 8, 2020 through January 26, 2022, multilevel degenerative changes are always referenced. It seems clear that disc degeneration played the major role in the applicant’s medical treatment from the start of 2020 onward, or at least a much more important role than injuries resulting from the accident.
15The CNRs of Dr. Shapero and a letter to Dr. Srinivasan written by Dr. Thomas Han, physiatrist, dated July 2, 2019, further fail to substantiate the applicant’s contention that he suffered from chronic pain as a result of the accident. Dr. Shapero provided therapeutic nerve blocks and trigger point injections to the applicant on a number of occasions in 2019 and 2020. But no evidence has been submitted indicating that this treatment resulted from injuries sustained in the accident, aside from what the applicant self-reported to Dr. Shapero. The Dr. Han letter similarly recounted the applicant’s pain complaints “that he attribute[d] to his involvement in an MVA 6 months ago.” However, Dr. Han further noted that an examination of the applicant revealed unremarkable results aside from mild muscle tenderness and slightly decreased range of motion that may have been due to myofascial pain.
16I find little from Dr. Shapero and Dr. Han to support the applicant’s argument that he suffered from accident-related chronic pain. Dr. Shapero based most of his conclusions on the self-reporting of the applicant, while Dr. Han’s examination indicated minor injuries. In my view, this evidence better supports a finding that the applicant suffered soft-tissue sprains and strains that fit the definition of minor injuries in the Schedule than chronic pain with functional impairment.
17I prefer the s. 44 insurer’s examination (“IE”) physiatry MIG assessment report of Dr. Yong-Kyong (Michael) Ko, dated September 19, 2022. Dr. Ko diagnosed the applicant with a strain/sprain injury of the cervical and lumbar spine and the bilateral trapezii, all of which meet the criteria of a minor injury as defined in Schedule. He also found no evidence of a pre-existing condition that would preclude the applicant from achieving maximum medical recovery if treated within the MIG and its $3,500.00 limit. As a result, Dr. Ko found that the applicant sustained soft-tissue injuries and should remain within the MIG. I place significant weight on this report, as its conclusions align with a preponderance of the objective medical evidence before me.
18Additionally, the applicant has failed to direct me to any medical evidence supporting claims that he suffered from a functional impairment in relation to chronic pain. In submissions, he claims that chronic pain has been debilitating enough to qualify as an impairment on its own, and that this pain was exacerbated by gripping and holding to the point where it impacted on his employment as a forklift operator. Nothing was adduced to demonstrate this, however. The applicant did not submit evidence detailing how this alleged functional impairment caused issues with this job. Nor did he provide medical records or diagnostic imaging indicating any sort of hand or arm trauma. Nor did he produce any information from an employer supporting these claims.
19If anything, evidence points to the conclusion that the applicant was not impaired by the accident. For example, the applicant reported to Dr. Ko during the physiatry IE assessment that he was independent in the activities of daily living and that he went on light work duties for just one or two days immediately after the accident, but then resumed full-time work in a new position as a crane operator within two weeks. The applicant told Dr. Ko that he had been off his job for some time at the time of his examination, although he explained that this was due to him witnessing the traumatic event of a co-worker’s death, not as a result of accident-related injuries.
20For the above reasons, I find that the applicant suffered soft-tissue injuries as a result of the accident. He remains within the MIG and is subject to its $3,500.00 limit on treatment.
The Treatment Plans
21Having found that the applicant remains within the MIG and its $3,500.00 limit on treatment, which has been exhausted, it follows that he is not entitled to the treatment plan in dispute, nor interest.
Award
22Pursuant to s. 10 of O. Reg. 664, the respondent may be liable to pay an award if it unreasonably withheld or delayed payment of a benefit.
23As I have concluded that the applicant remains within the MIG and is not entitled to the treatment plans in dispute, it follows that no benefits were unreasonably withheld or delayed.
24Accordingly, the respondent is not liable to pay an award.
ORDER
25I find that:
i. The applicant has failed to demonstrate that he suffers from an injury that is not defined as minor in the Schedule. He remains in the MIG and is subject to its $3,500.00 limit on treatment.
ii. As the applicant remains within the MIG, and as the MIG limit of $3,500.00 has been exhausted, he is not entitled to the treatment plan in dispute, nor interest.
iii. The respondent is not liable to pay an award.
Released: July 21, 2023
Brett Todd
Vice-Chair