Licence Appeal Tribunal File Number: 21-004965/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:
Sinnavan Rasalingam
Applicant
And
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Anita Goela
APPEARANCES:
For the Applicant: Godfrey Bakeerathan, Counsel
For the Respondent: Daniel Iaboni, Counsel
HEARD: By way of Written Submissions
OVERVIEW
1The applicant was involved in an automobile accident on November 11, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").
2The applicant was denied benefits by the respondent, Intact, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Are the applicant's injuries predominantly minor as defined in s.3 of the Schedule and the $3,500.00 limit and therefore subject to treatment within the Minor Injury Guideline ("MIG")?
ii. Is the applicant entitled to the physiotherapy/chiropractic services proposed by Scarborough Health and Wellness, as follows:
a) $200.00 ($1,304.98 less $1,104.98) for physiotherapy services, in a treatment plan, submitted on March 16, 2021, denied on March 30, 2021; and
b) $3,376.51 for chiropractic services, in a plan, submitted on May 4, 2021 and denied on May 17, 2021?
iii. Is the applicant entitled to the assessments proposed by Toronto Independent Medical Evaluators, as follows:
a) $2,200 for a physiatry assessment, in a treatment plan, submitted on November 6, 2021 and denied on November 18, 2021; and
b) $2,200 for a psychology assessment, in a treatment plan, submitted on March 4, 2022 and denied on March 16, 2022.
iv. 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?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is subject to the MIG.
5The applicant is not entitled to the disputed benefits, interest or an award.
ANALYSIS
Minor Injury Guideline
6The applicant bears the onus of proving, on a balance of probabilities, that he is not subject to the MIG.
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustained impairments that are predominantly a minor injury in accordance with the MIG.
8Section 3(1) defines a "minor injury." This definition includes "one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and clinically-related sequelae."
9Section 18(2) provides the MIG does not apply if the insured has a documented pre-existing injury or condition that precludes maximal medical recovery if confined to the MIG.
10The applicant submits that he has been diagnosed with chronic pain and psychological injuries as a direct result of the accident. The respondent disagrees and raises the issue of causation with respect to the applicant's chronic pain related injuries. The respondent also denies that the applicant has suffered an accident-related psychological injury.
11Following the accident, the applicant met with Dr. Yasotha Thayaparan, his family physician, on November 13, 2019, two days after the accident. In the clinical notes and records (CNR), Dr. Thayaparan noted that the applicant said that he had pain in his back, neck and headaches. The applicant also indicated that he experienced a panic episode shortly after the accident. She diagnosed him with acute whiplash, back strain and concussion. The notes from her physical examination did not show any objective signs of injury.
12The next entry is from March 23, 2020. The applicant indicated that his back pain persisted but that he was not going to physiotherapy due to concerns regarding the pandemic. He had a visit with Dr. Thayaparan on June 8, 2020 for the same complaints.
13On June 16, 2020, Dr. Thayaparan reviewed the results of his lumbar spine x-ray which showed mild arthritic changes, a muscle spasm in his cervical spine and mild narrowing.
14On December 14, 2020, the applicant reported that he continued to experience back pain and shooting pain in his leg. On April 21, 2021, Dr. Thayaparan referred the applicant to a pain clinic. The applicant met Dr. Thayaparan several more times during the year regarding his back and leg pain, which he attributed to the accident.
15The applicant received chiropractic treatment at Scarborough Health and Wellness Centre following the accident. He attended 22 sessions between October 2020 and May 2021. The respondent highlights that the CNR indicate "some improvement" over that time period. The respondent submits that the CNR demonstrate that the applicant has improved and sufficiently recovered to their pre-accident state of health.
16The respondent submits that the prescription summaries from June 16, 2020 to May 24, 2022 demonstrate that while the applicant may be experiencing pain, it does not rise to the level of a chronic pain condition to warrant removal from the MIG. Specifically, the respondent submits that the applicant went over seven months and six months during that timeframe without renewing his pain medication. The prescriptions were limited in the amount dispensed (between 14-60 capsules.) The applicant has not provided evidence that he has significantly relied on medication to relieve his symptoms, which weakens his claim that he suffers from chronic pain.
17The applicant also relies on the CNR of Dr. Ashok Chakaravarthy, pain medicine specialist, and the s. 25 physiatry assessment by Dr. Joseph Wong.
18Dr. Chakaravarthy did not diagnose the applicant with chronic pain or physically examine the applicant. Dr. Chakaravarthy indicated that if the applicant continues to experience significant pain, he should be examined in person and receive injections, if appropriate.
19I find that the s. 25 physiatry assessment by Dr. Wong supports the respondent's position that causation is a live issue that undermines the applicant's claim. Dr. Wong notes that the applicant was involved in three prior motor vehicle accidents (one in 2017 and two in 2018), which caused him to experience pain in his neck, back and arms. The applicant told Dr. Wong that the pain subsided and that he did not experience pain before the accident. However, on balance, I find that the applicant has not persuaded me that his current impairments are accident-related despite making that claim to Dr. Wong.
20I do not find that the evidence in Dr. Chakaravarthy's CNR and Dr. Wong's report provide sufficient evidence that the applicant's impairments and injuries are accident-related.
21The respondent argued the applicant was not experiencing any pain prior to the accident. Specifically, the respondent submits that the applicant had medical imaging done on his spine in August 2019, three months before the accident, which found that the applicant was suffering minimal to mild degenerative disc disease. The respondent submits that the applicant would not have undergone this imaging and assessment if his back pain had resolved.
22The respondent relies on four s. 44 reports (including one paper review and two addendums) by Dr. Michael Hanna, physician, and three s. 44 reports (including one paper review and one addendum) by Dr. Terra Seon, psychologist.
23Dr. Hanna opined that the applicant's reported limitations were not consistent with his assessment of the applicant. Dr. Hanna opined that any treatment beyond 12 weeks was unlikely to add long-term benefits from his accident-related injuries. Dr. Hanna opined that while the applicant's pre-existing back pain may have been temporarily exacerbated by the accident, it was not expected to prevent him from achieving maximal medical recovery from his accident-related injuries.
24The applicant submits that Dr. Hanna did not review the medical documentation that was provided during his initial assessments because it is unclear from the initial report. In any event, I find that Dr. Hanna did review the documentation by the time he drafted the addendums.
25Dr. Seon opined that the applicant endorsed symptoms of irritability, agitation and frustration but denied significant symptoms of depression, anxiety or post-traumatic stress that would cause functional impairment from the accident. She did not find evidence that would warrant a psychological diagnosis or intervention.
26The respondent submits that evidence of a pre-existing medical condition does not automatically warrant removal from the MIG. The applicant must provide compelling evidence that the pre-existing condition prevents maximal medical recovery. I agree with the respondent's interpretation. While the applicant does provide evidence that he continues to experience pain, I find that he has achieved maximal medical recovery from his accident-related injuries and impairments. I do not find that being confined to the monetary limit of the MIG has prevented this recovery.
27For the reasons above, I find that the applicant's accident-related injuries and impairments are subject to the MIG. Overall, I do not find that the applicant has demonstrated, on a balance of probabilities, that his injuries and impairments are more than minor. While he does provide evidence of a pre-existing impairment, I do not find that he was prevented from achieving maximal medical recovery under the MIG as a result of this impairment.
Interest and Award
28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
29As I have found no benefits are owing, the applicant is not entitled to an interest or award.
ORDER
30The applicant is subject to the MIG.
31No benefits are owing.
32The application is dismissed.
Released: July 20, 2023
Anita Goela
Adjudicator