Kothiya v. The Co-operators General Insurance Company, 2023 CanLII 72651

Citation: Kothiya v. The Co-operators General Insurance Company, 2023 CanLII 72651

Licence Appeal Tribunal File Number: 21-005414/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:

Brijen Kothiya

Applicant

and

The Co-operators General Insurance Company

Respondent

DECISION

VICE-CHAIR: Brett Todd

APPEARANCES:

For the Applicant: Omar Haidary, Paralegal

For the Respondent: Amanda M. Lennox, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Brijen Kothiya (the "applicant") was involved in a motor vehicle accident on August 30, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The Co-operators General 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 denied six treatment plans/OCF-18s. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2In email correspondence to the Tribunal dated July 30, 2021, the respondent provided a statement of benefits showing that the applicant had received a total of $3,574.85 in medical benefits, in excess of the MIG limit of $3,500.00. As a result, the MIG is exhausted. Entitlement to the treatment plans in dispute is dependent on a finding that the applicant warrants treatment outside of the MIG.

ISSUES IN DISPUTE

3The following issues are in dispute:

1. 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 MIG?
2. Is the applicant entitled to $2,160.51 for a psychological assessment in a treatment plan/OCF-18 recommended by Unison Medical Assessments dated February 4, 2021?
3. Is the applicant entitled to $1,995.00 for an orthopaedic evaluation in a treatment plan/OCF-18 recommended by Unison Medical Assessments dated February 4, 2021?
4. Is the applicant entitled to $1,895.30 for an activities of daily living assessment in a treatment plan/OCF-18 recommended by Unison Medical Assessments dated February 4, 2021?
5. Is the applicant entitled to $1,999.01 for a chronic pain assessment in a treatment plan/OCF-18 recommended by Unison Medical Assessments dated February 4, 2021?
6. Is the applicant entitled to $1,892.50 for physiotherapy services in a treatment plan/OCF-18 recommended by Unison Medical Assessments dated November 3, 2020?
7. Is the applicant entitled to $3,425.76 for physiotherapy services in a treatment plan/OCF-18 recommended by Apollo Physical Therapy Centre dated May 26, 2021?
8. 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?
9. 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 plans 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.

8Here, the applicant submits that he suffered a right-knee injury in the subject accident on August 30, 2019 that contributed to a tear of his right anterior cruciate ligament ("ACL") that took place when he slipped on ice on December 23, 2019. As such a tear is outside of the minor injury definition in the Schedule, the applicant argues that this necessitates his removal from the MIG. He further submits that he sustained psychological impairments as a result of the subject accident, which also warrants removal from the MIG.

9The respondent submits that the ACL tear would not have occurred but for the slip-and-fall accident on ice. As a result, the subject motor vehicle accident did not directly result in the ACL tear and the applicant should remain within the MIG. The respondent also asserts that the applicant's psychological complaints have not been corroborated by medical records, so they do not warrant removal from the MIG. And as the respondent denies that any benefits are overdue, it also denies that it is liable to pay an award or interest.

10Below, I review each of the applicant's two primary arguments that his physical and psychological injuries warrant removal from the MIG.

The ACL tear is not directly related to the accident

11I find that the applicant has not substantiated his claims that injuries sustained in the subject accident directly resulted in the ACL tear that he later suffered in an unrelated slip-and-fall accident. I further find the applicant's accident-related physical injuries to be predominantly minor as defined in the Schedule.

12The crux of the applicant's argument for removal from the MIG due to physical injury involves his claim that an ACL tear of his right knee was the direct result of the subject accident. He was diagnosed with this tear just over four months after the automobile accident took place on August 30, 2019, shortly after a fall on ice on December 23, 2019 while he was visiting family in Pennsylvania in the United States. The applicant was treated at St. Luke's Hospital in Stroudsburg, Pennsylvania immediately following the fall. He was diagnosed there with a right-knee sprain, prescribed ibuprofen, and advised to apply ice to reduce swelling. An MRI conducted at Colmar Imaging Center in Colmar, Pennsylvania on January 6, 2020 revealed a tear of the right ACL at its insertion from the distal femur and a horizontal tear of the extreme anterior horn of the medial meniscus. A second MRI, this one conducted in India on January 22, 2020, confirmed a complete ACL tear. This tear was then repaired on February 10, 2020 by Dr. Nilesh Shah, orthopaedic surgeon, at Saviour Hospital in Ahmedabad, India.

13Such an ACL tear is outside of the Schedule's definition of a minor injury. Therefore, the applicant argues that the results of both MRIs and the surgery performed by Dr. Shah demonstrate that he should be removed from the MIG.

14In answer, the respondent raises the question of causation. It cites the "but for" test as confirmed by the Divisional Court in Sabadash v. State Farm et al, 2019 ONSC 1121, arguing that but for the slip and fall on ice, the applicant would not have suffered the right-knee ACL tear, causing him to require surgery and to suffer subsequent impairments necessitating treatment outside of the MIG.

15I concur with the respondent, for the following reasons.

16Initially, the applicant's post-accident neck, back, and right-knee injuries were demonstrated to be soft-tissue in nature. X-rays of his right knee taken on August 31, 2019 yielded unremarkable results. CT scans of his lumbar, thoracic, and cervical spine taken the same day were similarly unremarkable. Dr. James Wawrow, chiropractor, noted in a Disability Certificate/OCF-3 dated September 16, 2019 that the applicant suffered lumbar and thoracic spinal strain and an MCL sprain of the right knee in the accident, predominantly minor injuries as defined in the Schedule.

17Although the applicant complained about worsening knee pain from September-November 2019, no evidence has been provided to substantiate the extent of this injury beyond the strain diagnosed by Dr. Wawrow in the OCF-3. He attended the walk-in service at Elite Care Clinics (the applicant is an international student without OHIP coverage or a family doctor in Canada) in Windsor, Ontario with complaints of back and right-knee pain on September 25, 2019, and received a prescription for the pain reliever Naproxen as well as an MRI requisition for his right knee. The applicant further visited Dr. Wawrow for treatment four times in November 2019, consistently complaining that his right-knee pain was gradually worsening. But neither the MRI nor any other medical diagnostics seem to have been conducted in Ontario before the slip and fall on the ice on December 23, 2019.

18Aside from the above, all that the applicant submits to demonstrate a connection between the knee injury suffered in the subject accident and the ACL tear is a handwritten note by Dr. Shah, the surgeon who performed the ACL repair surgery. In this note, dated May 18, 2020, Dr. Shah opined that the subject accident and the fall in December 2019 were "interrelated and should be considered together for his injury." Dr. Shah wrote that an injury suffered in the initial accident caused a "weak leg" that led to the re-injury in the December 2019 fall, leading directly to the ACL injury.

19However, I assign this opinion minimal weight as it is largely speculative. As noted above, no objective medical evidence aside from this Dr. Shah note has been submitted supporting a direct link between the automobile accident and the fall on ice/ACL tear. The automobile accident was not mentioned in any medical reports immediately following the fall on ice. The MRI report from Pennsylvania dated January 6, 2020 noted "History: Fell on ice, sprain[ed] right knee," with no comment about a prior accident. None of the clinical notes and records ("CNRs") from the applicant's treatment in India list anything legible (some of these notes are handwritten and impossible to decipher) about the cause of the ACL tear. Lastly, Dr. Shah wrote in his note that the December 2019 incident was a fall "on stairs." This inconsistency makes me further doubt the accuracy of Dr. Shah's conclusions, given that all other evidence indicates that this fall took place on ice.

20In addition, I am persuaded by the respondent's s. 44 insurer's examination ("IE") reports that the applicant sustained soft-tissue injuries as a result of the subject motor vehicle accident. In a functional abilities evaluation report dated November 9, 2020, Michele Kershaw, registered kinesiologist, concluded that the applicant displayed slight limitation in right knee flexion, and that he demonstrated unrestricted lumbar flexion under distraction (she noted issues with the applicant's "varied effort" elsewhere in the report). Dr. Alfonse Marchie, physiatrist, observed in his physiatry evaluation report of the same date that the applicant's accident-related impairments "relate to soft tissue injuries to his right knee (which was further exacerbated from his fall which occurred after the MVA), shoulders, and back region." He concluded that the applicant "sustained soft tissue injuries to his shoulders, thoracic and lumbosacral region, as well as his right knee as a direct result of the motor vehicle accident."

21To summarize, medical evidence predominantly shows that the applicant suffered soft-tissue sprains and strains as a result of the accident. He has not submitted sufficient evidence to demonstrate that his right knee was injured beyond the diagnosed sprain in the subject accident, or that his right knee was worsening in the four months between the subject accident and the fall on the ice in such a way that the injuries were "interrelated," to borrow the term used by Dr. Shah. So, while I accept that the applicant's right knee was injured in the subject accident, the later slip and fall on ice broke the chain of causation.

22In accordance with the above, I find that the applicant sustained minor physical injuries in the accident as defined in the Schedule that do not warrant removal from the MIG and its $3,500.00 limit on treatment.

The applicant does not suffer from an accident-related psychological impairment

23I am not persuaded by the applicant's argument that he suffers from a psychological impairment as a direct result of the accident.

24The applicant makes this claim largely through citing the treatment plans completed by Dr. Chad Hefford, chiropractor, and Mehdi Lotfalizadeh, psychologist. However, I assign these recommendations minimal weight. They are unsupported by objective medical evidence outside of the treatment plans themselves. Dr. Hefford is a chiropractor, not a psychologist, without any apparent expertise in psychological matters. And although Mr. Lotfalizadeh performed a psychological pre-screening as part of a treatment plan dated February 23, 2021 that recommended a psychological assessment, his notations from this pre-screening consist almost entirely of self-reporting.

25The applicant further refers to notations made by Dr. Marchie in his IE report dated November 9, 2020 that the applicant reported that he was experiencing significant "mood problems" since the subject accident. But I assign this minimal weight, as well. Dr. Marchie is a physiatrist with no claimed psychological expertise, this entire section of his report recorded solely the self-reported concerns of the applicant, and he concluded by deferring an opinion here to a medical professional better qualified to evaluate psychological symptoms.

26For the above reasons, I find that the applicant has not demonstrated that he suffers from a psychological impairment that would require treatment beyond the MIG and its $3,500.00 limit on treatment.

The Treatment Plans

27Having found that the applicant remains within the MIG, which has been exhausted, it follows that he is not entitled to the treatment plans in dispute, nor interest.

Award

28Pursuant 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. Such an award may consist of up to 50-per-cent of the amount deemed to have been withheld or delayed.

29As 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. Accordingly, the respondent is not liable to pay an award.

ORDER

30The application is dismissed and I find that:

i. The applicant has failed to demonstrate that he suffers from a physical injury or a psychological impairment that is not defined as minor in the Schedule. 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 plans in dispute, nor interest.

iii. The respondent is not liable to pay an award.