Kalyani Arulananthar v. Aviva General Insurance Company, 2023 CanLII 81827

Citation: Kalyani Arulananthar v Aviva General Insurance Company, 2023 ONLAT 20-015273/AABS

Licence Appeal Tribunal File Number: 20-015273/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:

Kalyani Arulananthar

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Alexei Antonov, Counsel Naman Nanda, Articling Student

For the Respondent: Noella Thompson, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Kalyani Arulananthar, the applicant, was involved in an automobile accident on December 7, 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 the respondent, Aviva General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2Before proceeding to decide the issues in dispute, the respondent submits I should strike the applicant’s submissions, beyond page 10. The November 9, 2022, Tribunal order specified the applicant’s written submissions to be delivered 30 calendar days before the hearing date of March 10, 2023, double spaced in 12-point font to a maximum of 10 pages. The applicant’s submissions were filed with the Tribunal 2 days late, submitted on February 10, 2023, and 12 pages single spaced.

3The Tribunal’s order states that the hearing adjudicator may not consider submissions which exceed the page limit.

4The applicant acknowledges that she was non-compliant with the Tribunal order and had to adjust the format and length of her submissions to account for the large number of issues in dispute. Furthermore, the applicant admits submitting the submissions late to the Tribunal, noting that due to the month of February being 28 days rather than 30, she had by-mistake noted in her calendar February 10, 2023, to be 30 days before the date of the hearing and the due date for her submissions instead of February 8, 2023.

5The respondent provides that the applicant’s submissions are non-compliant, and review and consideration should be reduced and restricted. I note that the respondent’s submissions complied with the Tribunal order, both date of submission and page limit.

6I find that the applicant failed to comply with the Tribunal order, which falls directly within the ambit of Rule 9.4. In my view, the lateness of the applicant’s submissions do not prejudice the respondent; however, the submissions beyond 10 pages double spaced would compromise the procedural fairness of the hearing pursuant to Rule 3.1(a). If the applicant needed additional pages to properly state the case, the applicant should have sought permission from the Tribunal. A tribunal’s orders must be complied with, and a party who fails to comply with an order runs the risk of an adverse consequence. For these reasons, the applicant’s submissions are struck beyond the 10-page double spaced limit (or 5 page single spaced excluding the cover page) and are not considered when rendering my decision on the substantive issue.

ISSUES

7The following issues are to be decided:

i. Are the applicant’s injuries predominately minor as defined by the Schedule and subject to the treatment limit under the Minor Injury Guideline (“MIG”)?¹

ii. Is the applicant entitled to medical benefits and cost of examination expenses recommended by Toronto Healthcare Clinic Inc. in the following treatment plans (OCF-18): i. $2,581.08 for chiropractic treatment submitted January 24, 2019; ii. $1,305.10 (less $1,100.00 approved) for chiropractic treatment submitted June 25, 2019; iii. $1,465.10 for chiropractic treatment submitted March 18, 2019; iv. $1,197.98 for chiropractic treatment submitted May 16, 2019; v. $1,054,25 for chiropractic treatment submitted July 15, 2019; vi. $3,335,98 for psychological treatment submitted July 5, 2019; vii. $2,000.00 for psychological assessment submitted March 5, 2019; viii. $2,000.00 for a chronic pain assessment submitted August 9, 2019; and ix. $2,000.00 for a chronic pain assessment submitted April, 26, 2021.

iii. 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?

iv. Is the applicant entitled to interest on any overdue payments of benefits?

RESULT

8I find that the applicant has not demonstrated that her accident-related impairments warrant treatment beyond the MIG. None of the treatment plans, interest, an award or interest is payable.

ANALYSIS

9On December 7, 2018, the applicant was t-boned on the driver’s side by a third party, the airbags did not deploy, and neither an ambulance nor the police attended the accident. The applicant went home and did not receive medical treatment on the date of the accident.

APPLICABILITY OF THE MINOR INJURY GUIDELINE (“MIG”)

10The MIG establishes a 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.”

11Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.

12An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s.3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

13It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.²

14The applicant submits that she should be removed from the MIG on the basis that she has sustained chronic pain with functional impairment, a psychological impairment, and her pre-existing injury was exacerbated by the accident.

Does the applicant have chronic pain that warrants removal from the MIG?

15For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that her accident-related injuries had a detrimental impact on her functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

16The applicant submits that she sustained accident-related chronic pain with functional impairment sufficient to remove her from the MIG. The applicant relies on the clinical notes and records (CNRs) of Dr. Rajaratnam Kirubaharan, family physician, that provide a history of osteoporosis and reference to chronic back pain and disc disease. The CNRs following the accident diagnose the applicant with sprains and strains. Furthermore, the applicant relies on the Disability Certificate (OCF-3) of Mr. Domenic Minnella, chiropractor, who opined that the applicant suffers from sprains and strains and recommended a chronic pain assessment. Dr. Dmitri Louvish, physician, conducted a chronic pain consultation on May 28, 2021, approximately 2.5 years since the accident. Dr. Louvish diagnosed the applicant with chronic pain syndrome.

17The respondent submits that the evidence reveals that the applicant only sustained soft tissue injuries as a result of the accident, which is within the MIG. The respondent relies on Mr. Minnella, Dr. Kirubaharan, physician and Dr. Sabrina Ming-Wai Tu, physician, diagnosis of the applicant’s sprains and strains, and raises concern with assessment completed by Dr Louvish to arrive at his diagnosis. The respondent submits that there was no compelling evidence for a chronic pain consultation, 2.5 years after uncomplicated strains and uncomplicated soft tissue injuries were sustained. It is the respondent’s position that the applicant does not meet the threshold for a diagnosis of chronic pain that would warrant removal from the MIG.

18The respondent relies on the section 44 Insurer Examination (“IE”) of Dr. Sabrina Ming-Wai Tu, family physician, dated March 28, 2019. The Musculoskeletal Assessment found that the complaints of the applicant were low back pain and neck pain. Dr. Tu diagnosed the applicant with cervical and lumbar strain and found no objective musculoskeletal or neurological impairments. A Musculoskeletal paper review by Dr. Tu was completed April 12, 2019 found that the applicant sustained sprains and strains as a result of the accident, which falls within the MIG.

19I am not persuaded that the applicant demonstrated that her accident-related injuries of sprains and strains, confirmed by Dr. Kirubaharan, Mr. Minnella, and Dr. Tu, had a detrimental impact on her functionality. Although the applicant underwent a chronic pain assessment, 30 months after being diagnosed with strains and sprains. I am persuaded by the respondent’s submission that there has been no change in the applicant’s functionality following the accident. Dr. Louvish’s finding is inadequate to remove the applicant from the MIG and is not enough to establish that there has been an effect on the applicant’s functionality. I am not persuaded that the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.

20Furthermore, I find that the applicant failed to provide evidence demonstrating that she developed or suffers from chronic pain resulting from the accident. In addition, the applicant also failed to refer to the six criteria laid out in the American Medical Association Guides (“AMA Guides”).³ The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule. However, several of the Tribunal’s decisions have found the AMA Guides to be a useful interpretative tool for evaluating chronic pain claims. The AMA provides that you can be diagnosed with chronic pain when you have three or more of the six factors. Before me there is no evidence that the applicant has excessive dependence on prescription medication, health care providers, spouse, or family and there is no evidence of withdrawal from work, social contacts or recreational activities.

21For all the above reasons, the applicant has not met her onus in proving on a balance of probabilities that her accident-related pain warrants removal from the MIG.

Did the applicant suffer psychological injuries that warrant the removal from the MIG?

22An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.

23In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not just post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.

24I find that the applicant has not provided me with persuasive evidence to demonstrate that her alleged psychological impairments justify removal from the MIG.

25The applicant relies on the OCF-3 of Mr. Minnella, which provides that the applicant has a psychological impairment, including difficulty with housekeeping and home maintenance services and the chronic pain consultation report of Dr. Louvish, which concluded that the applicant has psychological distress. The applicant also relies on a psychological report by Ms. Helen Ilios, registered psychotherapist, supervised by Dr. Andrew Shaul, psychologist, dated May 18, 2019. During the assessment the applicant reported sleep disturbances, changes in appetite and weight, low energy, fear and anxiety. The applicant was diagnosed with adjustment disorder with mixed anxiety and depressed mood.

26The respondent submits that the applicant did not provide compelling evidence to document any accident-related psychological issues. The respondent submits that it is beyond the scope of a chiropractor, Mr. Minnella, to opine on issues of psychological impairment, and that the psychological report of Ms. Helen Ilios reflects self-reporting, and that her sleep issues and depression related to her deceased son, as she was still devasted by his unexpected passing, and are not related to the accident.

27The respondent relies on the section 44 Insurer Examination (“IE”) psychological assessment by Dr. Robert Woods, psychologist, dated March 28, 2019. Dr. Woods reported that the applicant was visibly emotional and upset only while discussing the loss of her son in 2014, that her general presentation was otherwise unremarkable, that there were no other indications of significant emotional distress in her overt expression, and that there were no obvious behavioural signs of anxiety, panic, depression or other mood disturbance. Furthermore, the applicant expressed to Dr. Woods a lack of interest in pursuing psychological treatment. Dr. Woods opined that the applicant did not present evidence of a psychological impairment or meet the DSM-5 criteria for any psychological disorder as a result of the accident. Dr. Woods found no evidence of psychological impairment that would result in treatment needs exceeding the limits of the MIG.

28After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that she suffers from a psychological impairment as a result of the accident that would remove her from the MIG. I agree that the psychological impairment findings of Mr. Minnella are not within a chiropractor’s scope of practice of comment on. I am persuaded by the findings of Dr. Woods over Ms. Ilios, as Ms. Ilios acknowledges the applicant’s ongoing devastation over her son’s death but does not consider it a factor when arriving at her conclusion. Furthermore, the findings of Dr. Wood are consistent with the findings of the totality of the medical evidence. The CNRs of Dr. Kirubaharan, her family physician whom the applicant visited 18 times in 14 months post-accident, did not mention a psychosocial impairment, nor was the applicant referred to or recommended to attend a psychologist. Taken together, I find no compelling evidence to demonstrate that the applicant suffered a psychological injury as a result of the accident.

Does the applicant have a pre-existing condition that warrant the removal from the MIG?

29I find that the applicant has not met her onus to demonstrate that she has pre-existing injuries that would preclude her recovery if limited to the MIG.

30The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG.

31Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempt from the $3,500.00 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident, and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500.00 limit on treatment costs under the MIG.

32It is the applicant’s position that she has a pre-existing condition of osteoporosis and lumbar spine disc disease, supported by the CNRs of Dr. Kirubaharan. The applicant also relies on the opinion of Dr. Louvish, that provides the applicant’s pre-existing injuries were exacerbated as a result of the accident.

33The respondent submits that without compelling and documented medical evidence that the applicant has a pre-existing condition precluding recovery if she is kept within the MIG, the applicant has not satisfied her onus under s. 18(2).

34The respondent takes issue with the applicant’s interpretation of the CNRs of Dr. Kirubaharan, submitting that the CNRs demonstrate that her complaints pre- and post-accident are similar with no change in symptoms but instead a reduction in pain-associated medications. Although the CNRs reveal the continued presence of osteoporosis, degenerative disc disease, uncontrolled Type II diabetes and hypercholesterolemia, these pre-existing conditions are all non-accident related with no evidence the MIG limits would limit recovery from any minor injury sustained as a result of the accident. The respondent further provides that the applicant never submitted a Minor Injury Treatment Discharge Report (OCF-24), over the 4 years post-accident and there was no evidence of exacerbation of her pre-existing conditions, functional impairment or more frequent medical attendances post-accident.

35The respondent also relies on the section 44 IE Musculoskeletal Assessment of Dr. Tu, dated April 12, 2019. Dr. Tu found that the applicant sustained a cervical and lumbar strain as a result of the accident, which falls within the definition of the MIG, and it was Dr. Tu’s opinion that there are no pre-existing medical conditions that would prevent the applicant from achieving maximal medical recovery.

36In reviewing the CNRs of Dr. Kirubaharan, I find that the applicant attended her family physician office 18 times in the 14 months post- accident and the accident was only referenced once in the CNRs, on December 10, 2018. Dr. Kirubaharan provides a diagnosis of right shoulder and low back pain to muscular strain. I also accept that the applicant has pre-existing conditions, including osteoporosis, degenerative disc disease, uncontrolled Type II diabetes and hypercholesterolemia. However, a pre-existing condition will not automatically exclude a person’s impairment from the MIG. Beyond the statement of Dr. Louvish, the applicant’s evidence did not include a supported medical opinion suggesting that the applicant’s pre-existing conditions would prevent her maximum recovery if remaining in the MIG. Rather, the medical evidence presented in the submissions of both parties is that the applicant suffered sprain and strains from the accident. This is consistent with Dr. Tu’s assessment of the applicant. The applicant has not provided sufficient evidence to persuade me that she would be prevented from achieving maximal medical recovery from soft tissue injuries if subject to the MIG limit.

THE DISPUTED TREATMENT PLANS

37The applicant is not entitled to the disputed treatment plans because the plans propose treatment outside of the MIG limit. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required. It is worth noting that even if I were to find the applicant outside of the MIG and consider the treatment plans, the respondent submitted that all should be dismissed as they were contravened the requirements of sections 38(3)(a) and (b) of the Schedule. I agree and find that none of the treatment plans were signed by the applicant (nor did the respondent waive such requirement) and none were completed and signed by a regulated health professional, respectively.

Interest and Award

38Given that there is no unreasonable delay in payments to the applicant or overdue payments of benefits, the applicant is not entitled to interest or an award.

ORDER

39The application is dismissed, and I find that:

i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;

ii. The treatment plans in dispute are not payable; and

iii. The applicant is not entitled to interest or an award.

Footnotes

1. 1Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, pp. 23-24.