Khanthaiya v. Travelers Insurance Company of Canada, 2023 CanLII 7302

Citation: Khanthaiya v. Travelers Insurance Company of Canada, 2023 ONLAT 21-004514/AABS

Licence Appeal Tribunal File Number: 21-004514/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:

Bhawanandam Khanthaiya

Applicant

and

Travelers Insurance Company of Canada

Respondent

DECISION

ADJUDICATORS:

Deborah Neilson Clive Forbes

APPEARANCES:

For the Applicant:

Naman Nanda, Articling Student

For the Respondent:

Sara Baum, Counsel

HEARD:

By Way of Written Submissions and By Videoconference – November 30, 2022

BACKGROUND

1The applicant was involved in an automobile accident on January 30, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). He was denied certain benefits by the respondent on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (the “MIG”). The applicant disagreed and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2If the applicant’s position that treatment should be outside the MIG, is correct, then we must address the issue of whether the medical treatment claimed is reasonable and necessary, whether the applicant is entitled to an award under Regulation 664 and whether the applicant is entitled to interest on any overdue payment of benefits pursuant to s.51 of the Schedule.

3If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits as prescribed by s.18(1) of the Schedule, and in turn, a determination of whether the claimed medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted in this case.

ISSUES

4The 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 and the MIG?
2. If the applicant’s injuries are not subject to treatment within the MIG, i. Is the applicant entitled to $178.69 ($1,278.69 less $1,100.00 approved) for physiotherapy recommended by Dr. Jessa Rahim of Complete Rehab Centre as set out in a treatment plan (“OCF-18”) dated August 23, 2019? ii. Is the applicant entitled to $2,486.00 for a chronic pain assessment recommended by Dr. Grigory Karmy in a treatment plan (“OCF-18”) dated July 04, 2022?
3. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

5We find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The respondent has approved benefits up to the MIG limits,¹ therefore it is not necessary for us to determine whether the treatment and assessment plans in dispute are reasonable and necessary. As no benefits are payable, no interest is payable, and a Regulation 664 award is not appropriate.

ANALYSIS

Applicability of the MIG

6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly a minor injury in accordance with the MIG. Section 3(1) of the Schedule 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.” An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain syndrome or a psychological impairment may warrant removal from the MIG. In all three cases, the burden of proof lies with the applicant on a balance of probabilities.²

7The applicant submits that he should be removed from the MIG because he has sustained a psychological impairment and chronic pain with functional impairment, which likely converted to chronic pain syndrome, superimposed by pre-existing injuries as a result of the accident. He refers to an OCF-3 dated February 19, 2019, completed by Dr. Jessa Rahim, his treating chiropractor, that lists his injuries and sequalae as headache and sprain and strain of the cervical spine, thoracic spine, lumbar spine; other parts of the shoulder girdle, other and unspecified parts of knee, and the hip.³

8The respondent submits that the applicant has not met his burden to prove that he suffers from more than minor injuries, that his pre-existing condition prevents maximal medical recovery under the MIG, that he has developed a chronic pain condition or that he sustained an actual psychological impairment from the accident.

9According to Dr. Rahim’s diagnosis, the applicant sustained minor injuries as a result of the accident. Even so, we must address the applicant’s submissions that the following factors remove him from the MIG:

a. A pre-existing condition; b. Chronic pain; or c. Psychological impairment.

Does the applicant suffer from a pre-existing condition?

10The applicant submits that his pre-existing back pain, left leg pain and knee pain were documented prior to the accident and worsened as a result of it. He states that this supports his removal from the MIG under s. 18(2). The applicant’s evidence of pre-existing conditions is found in the clinical notes and records of Dr. Subram Sothilingam, his family physician.⁴ Further, on May 07, 2018, the applicant was diagnosed by Dr. Subram Sothilingam with possible osteoarthritis.⁵

11There is no dispute that the applicant’s pre-existing conditions are documented in his family physician’s clinical notes and records. However, the MIG is clear that it is not enough to simply have a documented condition or injury during the pre-accident period. According to s. 18(2), there must also be compelling evidence of a pre-existing condition that would prevent the applicant from achieving maximal recovery if he were subject to the limit in the MIG. In the case before us, there is no medical opinion or compelling medical evidence that any of the applicant’s pre-existing health conditions would prevent him from reaching maximum medical recovery if he is kept within the MIG. In fact, the applicant admitted that he has no evidence of this. Accordingly, we are unable to find that he is excluded from the MIG due to his pre-existing injuries.

Does the applicant have chronic pain as a result of the accident?

12In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects his day-to-day or work function.⁶ The pain must be continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae from his soft tissue injuries. We find that the applicant’s complaints of chronic pain are not of a severity that take him out of the MIG.

13A review of the clinical notes and records of the applicant’s family physician and other treating practitioners made no mention of chronic pain, referral to a chronic pain specialist or any negative impact on activities of daily living for the applicant. However, the applicant relies on the s. 44 report of Dr. Rakesh Ratti, psychologist, dated September 14, 2022, who mentioned that his scores for completion of housekeeping tasks, participation in activities away from home, social activities, and overall activity level were within the range that is typically reported by individuals with chronic pain.⁷ He also relies on the evidence of Dr. Michael Hanna, physician and chronic pain specialist, dated September 14, 2022, to submit that he has chronic pain that is so functionally disabling that he should be taken out of the MIG. Dr. Hanna noted that the applicant reported the exacerbation of his pain when bathing, grooming, riding in a car, sitting, preparing meals, cooking, sweeping, removing the garbage, cutting grass and shovelling snow to argue his removal from and treatment beyond the MIG.⁸ However, it is important to note that an exacerbation of pain while doing such activities is not the same as having a functional impairment or disability.

14The applicant further submits that Dr. Rahim made mention in the OCF-3 dated February 19, 2019, that he suffers from a substantial inability to perform the housekeeping and home maintenance duties that he normally performed before the accident.⁹ On the other hand, the applicant also reported to Dr. Hanna that he requires the assistance of his children with bed making and laundry but otherwise he remained independent with pre-accident chores.¹⁰ Given that the applicant took on a full-time job in addition to his pre-accident work of 20 hours per week, it is understandable that he would require more assistance to complete his household chores regardless of whether he had any impairments.

15The respondent submits that Dr. Ratti’s and Dr. Hanna’s evidence show that the subject accident did not impair the applicant’s ability to function or prevent him from engaging in his pre-accident activities. Following the accident, the applicant remained independent in all activities of daily living. Approximately two to three days post-accident, he returned to his pre-accident employment hours and duties and currently works at his pre-accident capacity. In August 2022, he began a full-time position as a warehouse worker and now has two jobs.¹¹ There is no persuasive evidence before us that the applicant required modified duties, hours, or missed any extended time due to his accident-related injuries. In fact, the applicant has taken on more work since the accident.¹²

16In addition, Dr. Hanna determined that the applicant did not meet the diagnostic criteria for chronic pain syndrome because he did not satisfy any of the six chronic pain criteria categories as per the 6th Edition of the American Medical Association’s Guide to the Evaluation of Permanent Impairment (“AMA Guides”), where three or more of the categories must be satisfied.¹³ Those categories are as follows:

a. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances. b. Excessive dependence on health care providers, spouse, or family. c. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain. d. Withdrawal from social milieu, including work, recreation, or other social contacts. e. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family or recreational needs. f. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

17We are not compelled to apply the AMA Guides in determining whether the applicant is out of the MIG. They are factors that are helpful in determining whether an insured person’s pain is of a severity that takes him or her out of the MIG. Dr. Hanna determined, and we agree, that the applicant does not meet at least three of the AMA Guides’ factors.

18From his reports of pre-accident and post-accident back pain, left leg pain and knee pain to his family physician who has treated him on an ongoing basis, the applicant has primarily been prescribed Naproxen and Voltaren gel. As this was prescribed pre-accident, there is no indication that he has developed a dependence on these medications as a result of the accident.

19Given the above, it is difficult to find that the accident contributed to a chronic pain condition with functional impairment that requires treatment beyond the confines of the MIG. As such, the applicant has failed to establish that he suffers from chronic pain as a result of the accident that warrants his removal from the MIG.

Did the applicant suffer a psychological impairment as a result of the accident?

20The applicant asserts that his psychological impairments justify removal from the MIG. To this end, he relies on the report from Dr. Ratti dated September 14, 2022, where on the BDI-II, a self-report measure, the applicant’s responses suggest he is experiencing symptoms that place him in the high-mild/low-moderate range; and on the BAI, a self-report measure, his responses fell in the high-mid/low moderate range.¹⁴ Dr. Ratti also indicated that the applicant presented with mild to low-moderate emotional/psychological distress in regard to the subject accident.¹⁵ The applicant submits the fact that he was experiencing these psychological symptoms three and a half years after the accident, is evidence that his psychological complaints are more than just mere sequelae from his soft tissue injuries.

21The respondent relies on the s. 44 IE report of Dr. Ratti, psychologist, dated September 14, 2022, who opined that the applicant presented with mild to low-moderate emotional/psychological distress in regard to the subject motor vehicle accident but did not meet criteria for any mental health diagnosis. Dr. Ratti also concluded that from a psychological perspective the applicant does not present with any concerns that would place him outside the MIG.¹⁶

22The respondent submits that despite the applicant’s regular visits following the accident with his family physician, Dr. Sothilingam, there is no record of any psychological complaints in the clinical notes and records of the doctor. In addition, the applicant has not been prescribed medication for any psychological complaints. Further, in his report, Dr. Ratti opined that the applicant did not meet the criteria for any mental health diagnosis and that his injuries fell within the MIG.¹⁷

23We have not been directed to any notations of psychological concerns from the applicant's family doctor nor other medical practitioners who have treated the applicant on an ongoing basis in order to support the applicant's submission that he has a psychological injury that is more than just sequelae and would, therefore, take him out of the MIG. Nor were we provided with any evidence, expert or otherwise, to support the applicant’s submission that psychological symptoms that are not of a severity to warrant a psychological diagnosis amount to an impairment that is more than sequelae if it is apparent three or more years after the accident.

24We agree with the respondent that more compelling evidence of a psychological impairment is required for removal from the MIG on this ground. Without contemporaneous reporting in the medical documentation or elsewhere of psychological complaints or emotional distress, we are not able to find that the applicant sustained predominantly a psychological impairment. Accordingly, for these reasons, we find the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

CONCLUSION

25The applicant has not demonstrated that removal from the MIG is warranted. The MIG limits have been exhausted. As such, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required.

26It follows that the respondent cannot be found to have unreasonably withheld or delayed payment of the benefits pursuant to section 10 of Regulation 664. Thus, no award is payable in that regard.

27Finally, given that there is no overdue payment of benefits, the applicant is not entitled to any interest pursuant to s. 51 of the Schedule.

28The application is dismissed.

Footnotes

1. 1Respondent Written Submission page 5 and Respondent’s Hearing Brief Tab 4, page 72
2. 2Scarlett v. Belair, 2015 ONSC 3635 para.24
3. 3Applicant’s Combined Documents Brief Tab 3, page 15/206
4. 4Applicant’s Combined Documents Brief Tab 4, pages 16-18/206
5. 5Applicant’s Combined Documents Brief Tab 4, page 16/206
6. 6JJ v Allstate Insurance Company of Canada, 2019 CanLII 101599 (ONLAT) at para 26
7. 7Applicant’s Combined Documents Brief Tab 8, page 70/206
8. 8Applicant’s Combined Documents Brief Tab 9, page 83/206
9. 9Applicant’s Combined Documents Brief Tab 3, page 12/206
10. 10Respondent’s Hearing Brief Tab 8, page 103
11. 11Respondent’s Hearing Brief Tab 8, pages 102 & 103
12. 12Respondent’s Hearing Brief Tab 8, page 102
13. 13Respondent’s Hearing Brief Tab 8, page 115
14. 14Applicant’s Combined Documents Brief Tab 8, page 70/206
15. 15Applicant’s Combined Documents Brief Tab 8, page 71/206
16. 16Respondent’s Hearing Brief Tab 9, page 127
17. 17Respondent’s Hearing Brief Tab 9, pages 126 & 127```