Citation: Yogarajah v. Intact Insurance, 2023 ONLAT 21-002745/AABS

Licence Appeal Tribunal File Number: 21-002745/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:

Sharmini Yogarajah

Applicant

and

Intact Insurance

Respondent

DECISION

ADJUDICATOR:

Bonnie Oakes Charron

APPEARANCES:

For the Applicant:

Nicholas Whelan, Paralegal

For the Respondent:

Khelan Soogrim, Counsel

HEARD: In Writing

OVERVIEW

1Sharmini Yogarajah, the applicant, was involved in an automobile accident on October 8, 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, Intact Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to the $3,500.00 treatment limit under the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to medical benefits in the amount of $2,414.84 for physiotherapy services recommended by Midland Wellness Centre in a treatment plan submitted July 6, 2019, and denied by the respondent on July 12, 2019?

iii. Is the applicant entitled to medical benefits in the amount of $2,768.66 for physiotherapy services recommended by Midland Wellness Centre in a treatment plan submitted April 11, 2019, and denied on April 24, 2019?

iv. Is the applicant entitled to medical benefits in the amount of $3,093.20 for chiropractic and massage services recommended by Midland Wellness Centre in a treatment plan submitted on January16, 2019, and denied on January 18, 2019?

v. Is the applicant entitled to medical benefits in the amount of $2,119.22 for chiropractic and massage services recommended by Midland Wellness Centre in a treatment plan submitted December 10, 2019, and denied on December 17, 2019?

vi. Is the applicant entitled to the cost of examination in the amount of $1,995.33 for a psychological assessment recommended by Midland Wellness Centre in a treatment plan submitted March 20, 2019, and denied by the respondent on March 27, 2019?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant has failed to demonstrate that her accident-related injuries warrant removal from the MIG. She remains within the MIG and is subject to the $3,500.00 treatment limit.

ii. The MIG limits having been exhausted, she is not entitled to the treatment plans.

iii. As no benefits are payable, no interest is owed.

ANALYSIS

Applicability of the Minor Injury Guideline (“MIG”)

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury. 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.”

5An 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.

6The Tribunal has also found that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.

7In all cases, the burden of proof lies with the applicant.

8In this case, the applicant submits that her injuries from the accident are not minor, that she sustained both physical and psychological impairments, and suffers from chronic pain. The respondent submits that the applicant failed to establish that she sustained anything more than minor injuries as defined in the Schedule.

The applicant has not demonstrated that her injuries fall outside of the MIG

9I find that the applicant did not demonstrate that her injuries from the accident go beyond those defined as “minor” under the Schedule.

10The applicant submits that her struggle to recover from the accident lasted several years, pointing to numerous visits to medical professionals. She relies on an OCF-3 prepared by Dr. McCutcheon (D.C.), the clinical notes and records of her general practitioner (“GP”) Dr. Mohammed, as well as the results of a telemedicine examination by Dr. Kachooie, physiatrist. Drs. McCutcheon, Mohammed, and Kachooie all record that the applicant had soft tissue injuries after the accident.

11Dr. Mohammed’s clinical notes and records immediately following the accident show that the applicant had low back pain, headaches, anxiety, and tenderness in the upper back, neck, shoulder, and elbow. The applicant was referred for physiotherapy and comprehensive x-rays of the shoulder, elbow, wrist, and spine were ordered. No fractures or significant abnormalities were found.

12Dr. McCutcheon’s OCF-3 dated December 3, 2018, identified the applicant’s injuries as whiplash associated disorder, neck pain, headaches, sleep disorder, nervousness, and low back pain. Any limitations identified were expected to last 9-12 weeks in duration.

13The applicant continued to visit Dr. Mohammed regularly, reporting that she was experiencing pain that interfered with her everyday activities and ability to work long hours. Dr. Mohammed referred her to a dentist and optometrist for pain in her eye and teeth, and to an orthopaedic surgeon for pain in the left knee. The complaints related to pain in her eye and teeth appear to be unrelated to the accident, based on the evidence submitted. The knee pain was investigated by orthopaedic surgeon Dr. Peskun approximately two years after the accident. Dr. Peskun noted that previous tests had not found any abnormalities in the applicant’s knee. However, an MRI was ordered since the applicant reported that the pain had existed for over two years. The imaging results were unremarkable and revealed no evidence of tears or other abnormalities.

14In late 2021, the applicant requested painkillers from Dr. Mohammed, who subsequently referred her to a Multidisciplinary Progressive Disability Management clinic. The consult request was marked as “non-urgent”. Dr. Kachooie, a physiatrist, interviewed the applicant in a telemedicine appointment and noted that she was in good shape with regard to ‘Social History’, was otherwise healthy with regard to ‘Past Medical History’ and would be seen at an in-person visit for further assessment. The report showed that “X-rays of the lumbosacral spine, SI joints and sacrum and coccyx were all normal”. The applicant did not submit any further reports from Dr. Kachooie.

15The respondent submits that the applicant sustained only soft tissue injuries as a result of the accident. As evidence, it points to:

i. The notes of the applicant’s family doctor from October 15, 2018, which indicate there was soft tissue pain in her upper back, neck, and right shoulder. Medical imaging confirmed that there were no fractures.

ii. The notes from further visits to her GP that extended into 2019 where the applicant complained of pain throughout her body. However, s. 44 assessor Dr. Safir found that there were only soft tissue injuries, with normal functional ranges, and no objective musculoskeletal impairments observed. Consults with an orthopaedic surgeon found no evidence of fracture or abnormalities of the knee.

iii. Imaging of the applicant’s spine ordered by Dr. Mohammed in 2021, the results from which revealed no fractures or bone lesions and “was generally unremarkable”.

16The respondent submits the findings of an Insurer’s Examination (IE) on April 5, 2019, with an addendum report in May 2019, which both conclude that the applicant sustained soft tissue injuries amenable to treatment within the MIG. In addition, no functional limitations have been reported and the applicant has worked continuously since first returning after the accident to her role as a personal support worker.

17I am persuaded by the findings of the diverse medical professionals as outlined above, all of whom record the applicant’s injuries as being soft tissue in nature. As such, they fall within the definition of “minor” under the Schedule.

The applicant has not demonstrated that she suffers from chronic pain as a result of the accident

18I find that the applicant did not demonstrate that her injuries from the accident led to the development of chronic pain.

19The Tribunal has found that ongoing pain alone does not automatically take someone out of the MIG. Where there is no express diagnosis of chronic pain syndrome, the Tribunal has found that the pain must be of such a severity that it causes functional impairment.

20The applicant submits that she has had ongoing pain since the accident, particularly in the lower back. The evidence shows that she visited her family doctor many times and was consistent with her reports of pain. However, I cannot conclude that there is compelling evidence that the applicant suffers from pain of a severity that would remove her from the treatment limits of the MIG. There is no official chronic pain syndrome diagnosis, nor evidence of a significant functional impairment or disability.

21The respondent submits that despite undergoing various x-rays, an MRI, and a section 44 examination with Dr. Safir, no functional limitations were identified and there were no significant abnormalities or serious injuries found. Dr. Safir diagnosed the applicant with sprain/strain of the spine and soft tissue injuries to the right shoulder, elbow, wrist, and knee. The applicant was advised to continue with a self-directed exercise program at home as she had likely achieved the maximum recovery possible from attending a facility-based rehabilitation program.

22Based on the totality of the evidence outlined above, the applicant has not persuaded me that she suffers from chronic pain of a severity that warrants removal from the MIG.

The applicant has not demonstrated that she suffers from a psychological impairment as a result of the accident

23I find that the applicant did not demonstrate that she suffers from a psychological impairment that prevents her from reaching maximum recovery within the MIG.

24The applicant submits that as a result of the accident, she endures ongoing depression, stress, low mood, and driving-avoidance due to anxiety. As evidence, she cites her ongoing reports of these symptoms to her family doctor between 2018 and 2021. To address these symptoms, the applicant submitted a treatment plan for a psychological assessment at Midland Wellness Centre.

25The respondent counters that the applicant’s psychological symptoms are slight mood and behavioural changes and are not sufficient to remove her from the MIG. The respondent points to the findings of the applicant’s s. 44 examination with Dr. Couperthwaite, a psychological assessment, where the doctor concluded that the applicant did not meet the criteria for Post Traumatic Stress Disorder, or any other disorder. Further, the applicant self-reported to the assessor that she did not require psychological treatment.

26I agree with the respondent and give weight to the finding of psychologist Dr. Couperthwaite who determined that the applicant does not suffer from any disorder. The applicant herself reported during the examination that she did not require any psychological treatment. In short, I find that the applicant has not demonstrated that removal from the MIG due to psychological impairment is warranted.

27The respondent submits that it paid the applicant the full limits of the MIG. I have also determined that the applicant’s accident-related injuries are properly captured within the MIG.

28An analysis of whether the disputed treatment plans are reasonable and necessary is therefore not required since the treatment plans are beyond the MIG limit.

Interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, no interest is owed.

ORDER

30I find that the applicant remains in the MIG and is subject to its $3,500.00 limit on treatment.

31As the MIG limit of $3,500.00 has been exhausted, the applicant is not entitled to the treatment plans and assessment in dispute.

32The applicant is not entitled to interest as no benefits are payable.