Citation: Ratnarajah v. BelairDirect, 2023 ONLAT 20-010209/AABS
Licence Appeal Tribunal File Number: 20-010209/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:
Ahalyah Ratnarajah
Applicant
and
BelairDirect
Respondent
DECISION
ADJUDICATOR: Kate Grieves
APPEARANCES:
For the Applicant: Ryan Turner, Counsel Alexei Antonov, Counsel
For the Respondent: Nicole A. Dowling, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Ahalyah Ratnarajah, the Applicant, was involved in an automobile accident on September 17, 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 BelairDirect, 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:
(1) Are the Applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment?
(2) Is the Applicant entitled to medical benefits for treatments proposed by Toronto Healthcare Inc. as follows: (a) $2,786.52 for chiropractic treatment, in a treatment plan dated September 25, 2018; (b) $2,200.00 for chiropractic treatment, in a treatment plan dated October 9, 2018; (c) $125.00 for chiropractic treatment, in a treatment plan dated November 16, 2018; (d) $1,755.98 for chiropractic treatment, in a treatment plan dated December 11, 2018; (e) $1,467.85 for chiropractic treatment, in a treatment plan dated March 21, 2019; (f) $1,800.00 for shockwave therapy, in a treatment plan dated May 14, 2019; (g) $12,986.56 for chronic pain treatment, in a treatment plan dated August 20, 2019?
(3) Is the Applicant entitled to the costs of examinations proposed by Toronto Healthcare Inc. as follows: (a) $2,000.00 for a chronic pain assessment in a plan dated April 10, 2019; (b) $2,000.000 for an MRI in a plan dated August 19, 2019; (c) $2,000.00 for a psychological assessment in a plan dated January 26, 2019; (d) $2,000.000 for a neurological assessment in a plan dated October 5, 2020; (e) $2,000.00 for an electrophysiological study in a plan dated December 1, 2020; (f) $2,000.00 for an MRI in a plan dated December 7, 2020?
(4) 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?
(5) Is the Applicant entitled to interest on any overdue payment of benefits?
RESULT
3The Applicant sustained a minor injury as a result of the accident.
4The Applicant is not entitled to the treatment and assessment plans or expenses because they propose treatment outside of the MIG and the $3,500.00 funding limit for a minor injury.
5No payments are overdue or unreasonably withheld or delayed, therefore no interest or award is payable.
6The Application is dismissed.
BACKGROUND
7The Applicant was the seat-belted passenger in a vehicle that was rear-ended while slowing for traffic. The ambulance call report indicates “little to no damage to the car”, the airbags did not deploy and the Applicant did not lose consciousness. She reportedly struck her head on the door and reported a brief moment of dizziness that resolved. At hospital, she complaint of blurriness in her right eye and low back pain.
8The Applicant was thoroughly assessed at hospital including a CT scan of her head which showed no acute findings. X-rays of her cervical spine revealed mild degenerative disc disease. She was diagnosed with whiplash and advised to return to the hospital if she experienced any vomiting or headaches. She was advised to rest and use heat and Tylenol.
9Clinical notes and records of the family doctor, Dr. Muraleetharan indicate that Applicant was involved in a prior accident in March 2018 and complained of back and shoulder pain. She was seen for pain in her left shoulder after a fall, and for low back pain in June 2018.
10Three days after the subject accident, the Applicant followed up with her family doctor. She reported having a headache, pain in her shoulder, neck and low back. Dr. Muraleetharan noted no cervical spine tenderness, stiffness and mild tenderness of both shoulder and lower back, full range of motion of the neck and shoulder. She was advised to go to physiotherapy, use a heat pack, and Tylenol.
11Her next visit occurred on October 13, 2018, when she reported being involved in another rear-end accident on October 5, 2018. She reported that she went to hospital and x-rays were normal. The Applicant reported pain in her low back, right leg, and both shoulders.
12The Applicant followed up with her family doctor regularly after the accident, mostly for evaluation of her diabetes, with sporadic reports of pain. In May 2019, she attended for body pain, reporting that her left shoulder was aching but no cervical spine tenderness. She was advised to stretch and was given a referral for an ultrasound of her left shoulder. It’s not clear if the Applicant underwent the ultrasound as there are no ultrasound reports around that time. In October 2019, she reported aching pain in her right shoulder, and her neck and shoulder were noted to have full range of motion. In December 2019, she reported having upper back pain for one week, that had improved. She was advised to stretch and use a heat pack. In April 2021, she reported pain in her right arm after a fall, and she was advised to use ice and Tylenol. According to the family doctor’s notes, an ultrasound reportedly completed in April 2021 revealed a possible low grade partial thickness tear; however, the report itself was not included with the evidence. On other occasions, the Applicant saw her doctor to review bloodwork; she denied any issues and advised that that she was doing well with no complaints. It doesn’t appear that the Applicant was prescribed any medication for pain, nor were there any reports of headaches since the initial visit post-accident.
ANALYSIS
The Minor Injury Guideline
13The 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 s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
14An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. In all cases, the burden of proof lies with the Applicant.
15The Applicant submits that she suffered physical injuries such as a concussion and chronic pain that fall outside the definition of a minor injury and is therefore entitled to treatment beyond the $3,500.00 MIG limit. The Respondent submits that she has not met the burden of proving that the accident caused injuries that fall outside of the scope of the MIG. I agree with the Respondent.
Concussion
16I find that the Applicant has not met her burden to prove that she sustained a concussion as a result of the accident.
17The objective medical evidence does not support that the Applicant sustained a concussion as a result of the accident. The Applicant underwent a comprehensive assessment at hospital, including a CT scan. There was no diagnosis of concussion made by doctors at the hospital. The family doctor assessed the Applicant three days after the accident, and although she reported a headache, he also did not diagnose a concussion. The family doctor’s records do not contain any further references to headache.
18I give the most weight to the hospital and family physician records because they include accounts and assessments of the Applicant immediately following the accident, when she would likely be most symptomatic. The family doctor did not prescribe any pain medication nor make any referrals for further investigations.
19A disability certificate dated September 28, 2018 identifies a concussion; however, it was completed by Dr. Minnella, a chiropractor. It is beyond the scope of his practice to make such a diagnosis and therefore I give it no weight.
20The Applicant relies on a report prepared by Dr. Basile, neurologist, dated October 20, 2020. Dr. Basile diagnosed post-concussive syndrome, post-traumatic headaches, likely radiculopathy, vertigo, soft tissue injuries to her neck and back, and likely converted to chronic pain syndrome. These conclusions contradict what was otherwise a largely normal examination, other than some mild tenderness to palpation of the neck and back. Dr. Basile reviewed the x-ray and CT scan from the date of loss, but it appears he did not review the hospital records or the clinical notes and records of the family doctor—neither of which diagnosed a concussion. There is also no mention of the subsequent motor vehicle accident a few weeks later, or how that may have impacted the Applicant. Dr. Basile also conducted the assessment without the aid of an interpreter, while the Applicant required an interpreter when attending the insurer’s examinations. I therefore give Dr. Basile’s report little weight.
21The clinical notes and records of the family doctor indicate that the Applicant went to hospital following the second accident. Despite being ordered by the Tribunal to produce all clinical notes and records of all hospitals, these records were not provided. X-rays were also reportedly performed after the October 2018 accident, and those records were not provided despite being ordered by the Tribunal.
22Having considered the submissions and evidence, I am not persuaded on a balance of probabilities that the Applicant sustained a concussion as a result of the subject accident.
Chronic Pain
23The Applicant has not demonstrated a functional impairment as a result of ongoing pain, nor does she meet the criteria for a chronic pain condition as outlined by the American Medical Association. As a result, I find that the Applicant has not met her burden to prove that she suffers from a chronic pain condition.
24I am not persuaded by the report prepared by Dr. Jacobs, dated May 9, 2019. The Applicant described pain in her left shoulder and low back that occasionally radiated down her legs or to her right foot. The neurological examination was noted to be normal, with full ranges of motion of her neck and shoulder, and some mild limitation with side bending, yet Dr. Jacobs concluded that the Applicant had developed chronic pain and made various recommendations for further investigations and treatment. There is very little analysis about her ability to function despite this largely normal evaluation. Further, Dr. Jacobs reviewed only the two imaging reports from the date of loss, but no hospital records or notes from the family doctor. The Applicant did not describe any headaches or cognitive issues to this assessor.
25I prefer the submissions of the respondent. While the onus is on the Applicant, I found the reports of Dr. Stewart to be more thorough in terms of the detail provided. There was also an interpreter present during this assessment. The Applicant reported that she was not taking any medication for pain. She had resumed cooking and was independent with her personal care. She required assistance with sweeping and mopping. She returned to work full time on regular duties after taking two weeks off. The examination was largely normal with some reports of tenderness. Dr. Stewart diagnosed soft tissue injuries as a result of the accident that would likely have been aggravated by the subsequent accident. Dr. Stewart provided an updated paper review in which he maintains his conclusions.
26Similarly, Dr. Alika, family physician, concluded in her musculoskeletal assessment reports that the Applicant sustained uncomplicated soft tissue injuries as a result of the accident. The physical examination did not support a diagnosis of chronic pain or complex regional pain syndrome.
27I am not persuaded that the Applicant has demonstrated a functional impairment due to pain.
28Further, the Applicant also does not meet the criteria in the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition. While she is not required to demonstrate that she meets the criteria, it is often used by the Tribunal as a tool to help determine whether a person suffers from a chronic pain condition. Here, the Applicant doesn’t meet any of the criteria: there was no indication she abused prescription drugs, she was not excessively dependent on family or healthcare providers, and no evidence that she failed to restore to pre-injury function or that she was physically deconditioned due to disuse and/or fear avoidance of activity due to pain, she returned to work on a full-time basis, and there was no psychological impairment.
29When considering the functionality exhibited in the evidence, I find that the Applicant does not suffer from a chronic pain condition which would constitute an injury that is not included in the minor injury definition in section 3 of the Schedule.
The Disputed Treatment and Assessment Plans
30Having found that the Applicant sustained a minor injury as a result of the accident, it follows that she 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.
Interest and Award
31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having found that the Applicant is not entitled to the disputed treatment and assessment plans, it follows that no payments are overdue and thus, no interest is payable.
32Likewise, the Applicant may be entitled to an award pursuant to section 10 of Reg. 664 if the Respondent unreasonably withheld or delayed payment of a benefit. Having found that the Applicant sustained a minor injury and is not entitled to the benefits claimed, it follows that no benefits were unreasonably withheld or delayed. Thus, the Applicant is not entitled to an award.
ORDER
33The Applicant sustained a minor injury as defined in section 3 of the Schedule. She is not entitled to the treatment and assessment plans in dispute because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit.
34No award or interest is payable because there the Respondent did not unreasonably withhold or delay payment of benefits.
Released: August 9, 2023
Kate Grieves Adjudicator