Citation: Kanagarajah v. Economical Insurance, 2023 ONLAT 21-005615/AABS

Licence Appeal Tribunal File Number: 21-005615/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:

Satkunavathy Kanagarajah

Applicant

and

Economical Insurance

Respondent

DECISION AND ORDER

ADJUDICATOR: Kevin Lundy

APPEARANCES:

For the Applicant: Satkunavathy Kanagarajah, Applicant David Schell, Counsel Alexandra L. Patruno, Paralegal

Observers: Pryea Chowbay, Justin Ho and Armin Mosaffa

For the Respondent: Kevin Kane, Representative Earl Murtha, Counsel

Tina Keeley, Observer

Interpreters: Ignasius M. Selliah and Thayani Guranathan (Tamil language)

Court Reporter: Jason Nebelung

Heard by videoconference: October 12, 13, and 14, 2022

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was involved in an automobile accident on November 29, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the ‘Schedule’). After the respondent denied certain benefits, the applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the ‘Tribunal’).

BACKGROUND

2On Friday, November 29, 2019, the applicant was driving her SUV when she came to a full stop at an intersection. No one else was in the car with her and she was wearing her seatbelt. A pickup truck approaching behind her failed to stop and collided with the rear of her vehicle, thereby pushing her car into the vehicle ahead of her. The uncontested police report provided by the investigating officer indicated that the vehicle that struck the applicant’s vehicle was travelling at approximately ten kilometers per hour. The air bags in the applicant’s vehicle did not deploy. No part of her body struck the interior of her vehicle and she did not lose consciousness. She contacted one of her sons and he arrived at the scene before the police. After the officers had concluded their investigation, since her vehicle remained driveable, she was able to follow her son home to her residence. She did not seek initial medical attention until the following Monday, December 2, 2019.

3The applicant was 56 years old at the time of the accident and resides with her son, Kajanthan Kanagarajah (‘K.K.’), his spouse, Nuon Yoeun (‘N.Y.’), their three young children and one of her adult daughters in Oshawa. Her daughter is severely disabled due to autism and requires significant care.

4At issue was whether the applicant had attained maximal recovery in the months following the accident and, as a consequence, reduced her participation in recommended treatment, or if other factors such as a prior health issue, impeded her recovery. To that end, the parties disagreed on whether the applicant’s injuries fell within the Minor Injuries Guideline (the ‘MIG’), whether she is entitled to income replacement benefits and whether the treatment plans proposed are necessary and reasonable. The applicant took the position that she suffers from chronic pain and as a result, her injuries place her outside of the MIG.

ISSUES IN DISPUTE

5The following issues are contested:

1. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?

2. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from November 9, 2020, to date and ongoing?

3. Is the applicant entitled to chiropractic services in the amount of $199.29 ($1,299.29 less $1,100.00 approved) as recommended by Whitby Wellness Centre Ltd. in a treatment plan submitted on February 7, 2020 and denied by the respondent on February 18, 2020?

4. Is the applicant entitled to physiotherapy services in the amount of $2,195.00 as recommended by Whitby Wellness Centre Ltd. in a treatment plan submitted on April 15, 2020 and denied by the respondent on May 13, 2020?

5. Is the applicant entitled to chiropractic services in the amount of $2,562.79 as recommended by Whitby Wellness Centre Ltd. in a treatment plan submitted on December 1, 2020 and denied by the respondent on December 16, 2020?

6. Is the applicant entitled to physiotherapy services in the amount of $2,204.04 as recommended by Whitby Wellness Centre Ltd. in a treatment plan submitted on February 25, 2021 and denied by the respondent on March 15, 2021?

7. Is the applicant entitled to chiropractic services in the amount of $2,185.00 as recommended by Whitby Wellness Centre Ltd. in a treatment plan submitted on September 2, 2021 and denied by the respondent on September 21, 2021?

8. Is the applicant entitled to chiropractic services in the amount of $2,276.00 as recommended by Midland Wellness in a treatment plan submitted on September 2, 2021 and denied by the respondent on November 4, 2021?

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

RESULT

6I find that:

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

b. The applicant is not entitled to income replacement benefits; and

c. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to subsection 40(8) of the Schedule, plus any applicable interest.

EVIDENCE

7From 2009 to the date of the accident, the applicant was employed as an assembler for Axiom Group Inc. (‘Axiom’), an auto parts manufacturer. As of November 2019, she worked eight hours each day, at least five and occasionally six days a week. Her job involved multiple tasks including feeding parts into machines, cleaning various components and assembly. Some of her duties involved bending to transfer parts from a lower part of a machine to feed them into higher intake areas. Lifting was also necessary in her job, and although most parts were comparatively lightweight, they may be assembled into larger items weighing as much as 25 kilograms.

Medical Conditions Predating the Accident

8In 2016, the applicant underwent a total replacement to her right knee and took six months off work to recover. After the surgery, she could no longer remain standing through the full work-day as she had done previously. At the request of her family physician, Dr. Rajaratnam Kirubaharan, her employer accommodated her medical condition by allowing her to sit at her workstation. She also received assistance lifting any heavier items.

9Following her surgery, Dr. Kirubaharan prescribed Tylenol to manage the pain in her knee as well as her arthritis; later, she simply purchased it over the counter. Her doctor also prescribed anti-inflammatory lotion with respect to osteoarthritic pain in her wrists. She denied any other issues aside from occasional headaches or any other health issues until the date of the accident. While she complained of shoulder and joint pains in the two years following her surgery, Dr. Kirubaharan’s case notes primarily related to worsening osteoarthritis and cholesterol issues not related to the operation.

10Since at least April 2017, Dr. Kirubaharan had repeatedly discussed lifestyle changes with the applicant, including healthier eating habits and exercise. When asked under cross-examination whether she complied with her doctor’s dietary recommendations, the applicant was non-responsive, conflating the content of her diet with dining times. However, K.K. confirmed that his mother’s diet had remained unchanged to the present. Similarly, while the applicant was unable to explain a number of absences from work between her surgery and the accident, no persuasive evidence was presented to suggest that these absences related to health issues. As well, the applicant and her witnesses consistently rejected the respondent’s suggestions that her present medical deterioration could be traced to the effects of the 2016 knee surgery rather than the accident.

11K.K. testified that his mother continued to coordinate the household chores via notes until she was able to walk normally, when she resumed all of her former duties. He agreed that although she did not return to full strength at work after the operation, she continued to work, with no apparent reduction in her hours or any further accommodations beyond those provided when she returned to work after her surgery.

Actions Following the Accident

12Immediately following the collision, the applicant stepped out of her car and experienced a severe headache. When she arrived at home over an hour later, she also experienced dizziness and nausea, as well as a slight pain in her lower back the following day. She explained that she was unable to attend at her doctor’s office until the following Monday, primarily as her family members were busy and she did not want to ask them for a ride. She simply took some Tylenol that she had on hand to address the pain until she visited her doctor on the following Monday. The evidence did not suggest that the applicant viewed immediate medical treatment as a pressing necessity that could not wait until after the weekend.

13When the applicant met with Dr. Kirubaharan on Monday, December 2, 2019, she described the accident and her symptoms, specifically: pain in her lower back, neck, left leg, intermittent pain in her right knee, numbness in her leg and headaches and difficulty sleeping. She also explained that the pain prevented her from either sitting or standing for prolonged periods. Dr. Kirubaharan prescribed painkillers and anti-inflammatories; he also recommended that she attend physiotherapy.

Reduction in Functionality Following the Accident

14The applicant testified that prior to the accident, in addition to her full-time employment, she was extremely active, looking after the entire household, cooking and cleaning, as well providing care for her daughter and elderly mother who lived with her until late 2021. The applicant bathed, groomed and fed her mother and helped her up and down the stairs. She provided similar comprehensive daily care to her autistic daughter who cannot take care of herself. The applicant also provided childcare for her grandchildren while their parents were busy or elsewhere.

15Both N.Y. and K.K. offered similar accounts of the applicant’s extensive daily routine. While N.Y. assisted her with some of these tasks, she described the applicant as the “main lady” in the home, who undertook the majority of the household duties and never requested assistance. K.K. recalled that prior to the accident, his mother prepared meals for the whole family and maintained a large garden. She shovelled the driveway of snow in the winter if she believed the accumulation would inconvenience N.Y. or K.K. by the time they returned home.

16By contrast, after the accident, the applicant experienced depression was able to do very little, delegating the vast majority of the household chores to her daughter-in-law. N.Y. testified that the applicant now requires considerable assistance with cooking and cleaning, leaving approximately 80% of the household tasks to her.

17While the applicant still attends to her disabled daughter’s care, she now supervises N.Y. with respect to the actual physical tasks of her care, including food preparation. N.Y. cannot care for her sister-in-law entirely as the latter does not recognize her. As the applicant could also no longer adequately care for her elderly mother, approximately one year prior to the present hearing, her mother moved to the residence of her older daughter.

18N.Y. has also noticed a marked change in the applicant’s demeanor since the accident as she is now less social, quick to anger and spends much of her day complaining and sitting on the couch. Similarly, K.K. noted that she now frequently second-guesses herself and complains frequently of pains that she doubts will ever leave her. She is generally depressed and anxious as she can no longer manage a small fraction of her former household duties. He was aware of her doctor’s advice that she exercise more and noted that she is slowly trying to integrate the exercises recommended by her chiropractor into her routine.

Response to Medical Treatment

19The applicant initially attended at Whitby Wellness Centre for physiotherapy treatments three days a week for the first three to four months after the accident. On her first visit on December 6, 2019, she was assessed by a registered chiropractor Dr. Milen Branko, who listed her subjective complaints as: right knee pain, left ankle pain, dizziness with stomach upsets, headaches, lower back pain and left hip pain. While the applicant testified that she also mentioned neck pain, she could not account for its omission on the clinical note generated for that visit. Similarly, she testified that she did not understand that Dr. Branko had listed only soft tissue injuries on the OCF-23 form. The applicant also denied discussing his belief that her injuries fell within the MIG, as noted in the OCF-18 dated February 7, 2020 and speculated that her language barrier prevented her from understanding of his position on this issue. I find that she was also somewhat evasive when asked whether Dr. Branko had advised her that her knee surgery would not have interfered with her recovery.

20However, she acknowledged that Dr. Branko had advised her that her injuries should resolve in a few months provided that she participated in treatment. Similarly, he stated on the OCF-3 Disability Certificate that her symptoms should be expected to resolve after nine to twelve weeks.

21Case notes and records generated from subsequent visits to Whitby Wellness Centre indicated a disparity between her self-reported recovery as recorded by Dr. Branko and her contrary view expressed at the hearing that throughout the same period, her pain was getting progressively worse. At the hearing, she consistently disagreed with subjective observations noted at the time of the visits that she was feeling “a little better” and insisted that she had complained of specific pains often not listed in the notes.

22To explain this inconsistency, the applicant testified that she could not understand her treatment providers or read their notes due both to the language barrier and social distancing restrictions at the time that prevented an interpreter from attending in the same room when her doctors discussed her case. Although one of her sons often attended with her, she typically did not ask that the doctors repeat their comments to him before leaving to ensure full comprehension of their discussions. For example, she denied recalling a conversation over discontinuation of ultrasound treatment on the basis that she no longer required it. She testified that she simply nodded at whatever her health providers said and acquiesced to their decisions, despite experiencing unrelenting pain.

23When asked why her worsening pain issues were not reflected in Dr. Kirubaharan’s notes, she stated that if she reported symptoms to her doctors every day, she believed that they would yell at her. When challenged on this theory under cross-examination, she explained that she defined “yelling” as simply advice to continue with treatment and take her medication. Nothing in Dr. Kirubaharan’s case notes and records suggested a strained relationship between doctor and patient or that they could not understand one another. It is also worth noting that she had been under his care for over twenty years by the date of the accident.

24During the same period, the applicant’s prescription history suggested an improving rather than worsening situation. On February 6, 2020, Dr. Kirubaharan reduced the dosage for the applicant’s prescription for Mylan-Naproxen, originally prescribed before the accident. The applicant explained that she was told that the original dosage was too high, a seemingly counter-intuitive change if her pain symptoms had worsened. After that date, she testified that she managed her pain by taking non-prescription Tylenol. While the applicant complained of difficulties sleeping since the date of the accident, she self-medicated with over the counter Tylenol, but was not prescribed sleep medication until March 2022. Similarly, the applicant acknowledged that Dr. Kirubaharan did not refer her to a neurologist or schedule an MRI at any time.

25The applicant met with physiatrist Dr. Alireza Kachooie starting October 9, 2020. In his assessment from that initial meeting, he focussed on the effect of her weight and poor posture on recovery. Although she was uncertain what he had stated to her with respect to a possible diagnosis, she acknowledged that he recommended that she attend physiotherapy and engage in self-initiated exercises. She did not recall that he recommended a self-initiated hydrotherapy program and deep water jogging on a regular basis and took no steps to engage in these activities.

26As with Whitby Wellness Centre, the applicant testified that she did not understand anything Dr. Kachooie said during this initial meeting since only one person could attend in the room at a time and her son was therefore unable to interpret. However, Dr. Kachooie’s notes mentioned no communication problems and referred to the meeting on October 9, 2020 as a “discussion,” stating that “we discussed intervention pain management” strongly implying some degree of dialogue. While she could not recall the names of the medications that he prescribed for her, she agreed that they assisted with some of her pain and sleep issues. Again, although she stated that she would have been interested in discussing the results of this meeting with her family doctor and was aware that Dr. Kachooie sent his report to Dr. Kirubaharan, she was evasive in her responses when asked if she ever followed up with Dr. Kirubaharan with respect to the contents of Dr. Kachooie’s letter dated October 9, 2020.

27There are also numerous gaps in the clinical notes and records for both Whitby Wellness Centre and the applicant’s family doctor. The applicant stated that she was prevented from attending treatment in response to the lockdowns associated with the COVID-19 pandemic and she had concerns over potentially infecting her elderly mother, autistic daughter and grandchildren residing in her house. However, she could offer no explanation for missed treatment appointments prior to March 2020 before the regulations associated with the pandemic were widely imposed.

28The applicant acknowledged that Whitby Wellness Centre offered virtual treatment online via videoconference and described exercises that she could perform at home to continue her recovery. She explained that she did not avail herself of the option to receive treatment by videoconference due to childcare obligations and care responsibilities related to her daughter and mother. However, it is worth noting that on the applicant’s own evidence, by April 2020 when Whitby Wellness Centre recommended future treatment be conducted by video, N.Y. had already assumed the majority of these duties. The applicant also stated that she did not have her own computer and did not want to bother her family for assistance, particularly as the children in the home used the available computers for studying. She acknowledged that she opted not to advise Whitby Wellness Centre of this issue. While K.K. stated that neither he nor his mother were particularly “tech savvy,” he acknowledged that he would have attempted to assist her with videoconferencing had she asked. There was also no indication that N.Y. would have been unable to assist.

29The applicant testified that she performed the exercises recommended by Whitby Wellness Centre at home on average three to four times each week when she was able and continued to do so to the date of the hearing. She acknowledged that the exercises lessened her neck pain. However, there was little evidence to support her stated commitment to this exercise regime. N.Y. offered a vague recollection that the applicant exercised but offered no details, while K.K. did not mention this issue at all during his testimony.

30None of the clinical notes and records presented included any objective evidence to suggest that the applicant followed up with her doctor or attended treatment between March 16 and August 31, 2020. Her OHIP summary also indicated no activity during this period. While the applicant explained that she only presented her health card at in-person appointments, she submitted no documentary evidence to support her claim that she continued treatment at home under their direction during this period. While she maintained that she continued to experience pain, she continued simply to purchase Tylenol over the counter to address her symptoms.

31After an absence of almost six months, the applicant returned to Whitby Wellness Centre for treatment in person on November 6, 2020. This was her final in person treatment. While she testified to sharp recurring pains, the only objective findings in the corresponding notes related to neck tenderness, stiff lower back muscles, excessive lordosis and weak core muscles.

32Three days later, she had a short telephone consultation with Dr. Kirubaharan to refill medication. He recorded that other than her long-term gastroesophageal reflux disease and an intermittent dry cough, she reported “no other concerns or complaints.” She acknowledged that on November 12, 2020, Dr. Kirubaharan again suggested that she should stop eating spicy and oily foods to resolve her nausea and bloating issues. This indicated that her family doctor approached her symptoms as reported during this period as a dietary issue rather than the result of injuries from the accident.

33In a subsequent telephone consultation on July 19, 2021, Dr. Kirubaharan noted that the applicant complained of headaches. However, she acknowledged that she had suffered from headaches for several years. His notes omitted any mention of a possible causal nexus between the headaches and the accident but noted that the frequency of their occurrence had increased to “a couple times a month” from the previous twice yearly average. He recorded no complaints of neck or back pain. At a subsequent visit on December 18, 2021, she did not mention the headaches as they were not an issue at that time.

34The applicant ultimately discontinued her chiropractic treatment two years before the hearing when her collateral insurer company stopped paying for this service. She acknowledged that the chiropractic treatment that she did receive was helpful and felt good.

Ability to Return to Work and Collateral Benefits

35The applicant testified that her doctor did not discuss a potential return to work and simply advised her to keep active. Conversely, she did not deny that in his numerous notes excusing her from work, Dr. Kirubaharan never stated that she could not or should not work, or that these notes were based entirely on her subjective reports of pain.

36She explained that she never returned to her employment as she was unable sit or stand for prolonged periods. Her employer held her position for one year only. While she was unclear on the details, she recalled that Axiom offered her modified duties essentially permitting her to sit for further decreased hours; however, she never returned as she did not believe that she was able to work at all even under these modified conditions. She explained that at the time of the offer, she was still experiencing dizziness, nausea, back pain as well as other symptoms and could not even consider returning. At the hearing, she noted that she still did not believe that she could perform her former duties as she cannot sit or stand for very long and is still afflicted with the back pain and difficulty breathing. As a result, she stated that her condition effectively prohibited any employment. To that end, she did not request any further modification of her work hours or duties from her employer.

37The respondent paid the applicant income replacement benefits from December 6, 2019 but discontinued these payments as of November 8, 2020 based upon the results of the insurer’s examination. She also received long term disability benefits from The Cooperators through her employment via Green Shield Canada.

38By April 13, 2020, only $200.00 had been billed to the respondent with respect to physiotherapy despite twenty-three treatment sessions to that date. She could not explain why Whitby Wellness Centre had not invoiced the respondent further or who had paid for her physiotherapy between December 2019 and April 2020. However, an OCF-18 dated April 15, 2020 indicated that Green Shield Canada had been funding this treatment.

39On August 25, 2020, The Co-operators denied the applicant’s initial claim for long term disability on the basis that it did not receive satisfactory proof that she was totally disabled from performing the usual and customary duties of her own occupation due to her injuries or was participating in the usual and customary treatment. The applicant acknowledged that she had opted not to advise the adjusters at The Co-operators or her employer that she was conducting exercises at home as recommended.

The IRB Assessment

40On October 1, 2020, the applicant was assessed in person by Dr. Fathi Abuzgaya for an independent orthopaedic examination at the request of the respondent to assess income replacement benefits. At the hearing, he was qualified as an expert with respect to orthopaedic surgery, but not chronic pain as he acknowledged that this area is outside his field of expertise and requires specialized training. Similarly, while he agreed that the applicant reported headaches to him, he was unable to comment on this issue as headaches are also outside his field of expertise.

41With the assistance of a Tamil interpreter, the applicant described the accident in detail to Dr. Abuzgaya. She complained of pain in her neck, both shoulders, lower back, left hip and both knees. Based on her history, the physical examination and his review of the documentation provided, Dr. Abuzgaya determined that her accident-related diagnosis was consistent with cervical sprain, lumbar sprain, bilateral shoulder soft tissue injury, soft tissue injury left hip and bilateral knee soft tissue injury. She had a functional range of motion of her cervical spine, both shoulders, lumbar spine, both hips, and both knees. He observed a scar on her right knee apparently from the 2016 surgery with some clicking upon flexion but no marked tenderness. Her ligaments were stable and the range of motion for both knees were “equal and excellent.”

42In Dr. Abuzgaya’s review of x-rays and other medical documents, he also found slight cervical spondylosis at C4-5 and C5-6 levels but no evidence of fracture or encroachment upon intervertebral foramina. As well, he noted mild lower lumbar degenerative disc disease, most pronounced at L4-5 level and degenerative changes in the lower lumbar apophyseal joints. However, while he noted tenderness in her spine, he observed no lumbar fractures.

43Dr. Abuzgaya observed some indication of symptom magnification as demonstrated by positive jump sign test. A positive jump test involves inappropriate or exaggerated movement in response to a mild touch and represents one of the non-organic signs that an assessor evaluates to establish a relationship between the reported pain and the examination. There was also some discrepancy between Dr. Abuzgaya’s formal examination findings and casual observation. Specifically, casual observation revealed a better range of motion than that seen upon formal examination. An example of such a discrepancy occurs when a patient moves her neck to a greater degree than requested by the examiner.

44Similarly, the applicant described her pain as 6 or 8 out of 10 for various body parts where a zero on this scale indicates no pain and a ten indicates excruciating pain so severe that one cannot live with it. Dr. Abuzgaya noted that these subjective ratings were inconsistent with her observed near normal range of movement.

45In Dr. Abuzgaya’s opinion, there was no objective evidence of residual musculoskeletal impairment attributable to the injuries the applicant sustained in the accident and no evidence of significant injury related to her knee replacement surgery. He also found that she had functional range of motion of her cervical spine, both shoulders, lumbar spine, both hips, and both knees. Ultimately, Dr. Abuzgaya found that the applicant did not suffer a substantial inability to perform the essential demands of her pre-accident employment as a result of the accident of November 29, 2019. He advised her that her issues were minor and that she could return to work.

46Dr. Abuzgaya subsequently conducted a paper addendum review with respect to the applicability of the MIG and income replacement benefits that included a consultation report by Dr. Kachooie from assessments on August 12 and November 9, 2020 and a report by Dr. Kirubaharan dated December 2, 2020. Dr. Abuzgaya’s opinion was not impacted as a result of his review of these documents, primarily as these reports relied extensively on the applicant’s own subjective description of her pain and included nothing objectively inconsistent with his own observations.

47At the hearing, Dr. Abuzgaya also reviewed a subsequent report written by Dr. Joseph Wong, dated December 3, 2021. A physiatrist and a specialist in physical medicine and rehabilitation, Dr. Wong examined the applicant in his office in the presence of her son, who helped with translation in Tamil, on December 3, 2021 in an independent medical examination regarding her injuries sustained in the accident. Dr. Wong performed a Spurling’s test on the applicant with negative results, indicating that there was no pressure on the nerve roots in her neck that would affect maneuvering of the neck in certain positions. He also found that the alignment of the applicant’s spine was normal with no muscle wasting that would have indicated disuse of one body part such as a leg or a hip. Dr. Wong also found the applicant’s gait normal.

48Dr. Wong nonetheless opined that the applicant’s pre-existing condition with her right knee placed her outside of the minor injury guideline and rendered her substantially unable to perform any type of employment at this time due to her injuries. However, Dr. Abuzgaya stated that he did not understand the basis for Dr. Wong’s opinion, noting that it was in part based upon observations outside his own area of expertise, specifically chronic pain.

ANALYSIS

49To establish causation, the applicant must demonstrate that but for the accident on November 29, 2019, she would not have suffered the incapacities that form the basis of her claim.¹ As well, the accident need not represent the sole cause, but rather a necessary cause of her impairment.²

The Minor Injuries Guideline – Chronic Pain

50The MIG establishes a treatment framework in respect of one or more minor injuries. The term “minor injury” is defined in subsection 3(1) of the Schedule 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.”

51Subsection 18(2) of the Schedule provides an exception where a person’s health practitioners provide “compelling evidence” of a previously documented pre-existing medical condition that prevents the insured from reaching maximal recovery within the MIG limits. To that end, the Ontario Divisional Court held in Scarlet v. Belair Insurance that the applicant bears the burden of proving, on a balance of probabilities, that his or her injuries are not minor within the meaning of the Schedule.³

52The applicant took the position that her injuries did not fall within the MIG as she suffers from severe and significant chronic pain. Chronic pain was loosely defined at the hearing as persistent or intermittent pain that does not heal within the expected timeframe. For chronic pain to take an applicant out of the MIG, the applicant must provide medical evidence that accident-related injuries have had a detrimental impact on functionality. This evidence must support a claim that the applicant’s functionality has been impaired and that chronic pain is the cause of that disability. However, as the Tribunal held in Stephen v. Unifund Assurance Company, reliance upon the applicant’s self-reported complaints of ongoing pain are not sufficient to remove her from the MIG.⁴ Although tribunal decisions are not binding upon me, I find that the analysis in Stephen persuasive since unbiased medical evidence would be necessary to support a diagnosis of chronic pain, particularly given the extensive specialized training required to offer such an opinion. While it was not disputed that the applicant suffered from soft tissue injuries, as confirmed by Dr. Abuzgaya, this is not equivalent to a diagnosis of reduced functionality.

53On the contrary, it is worth noting that the only direct medical testimony presented at the hearing was that of Dr. Abuzgaya, who candidly noted that a diagnosis of chronic pain was outside his field of expertise. Similarly, while Dr. Kachooie used the term “chronic pain syndrome” in his report, as a physiatrist, he is not qualified to diagnose the applicant as having suffered from this condition. He also included the term in a list of diagnoses with no clear explanation with respect to how it applied to the applicant’s condition.

54As well, Dr. Wong’s diagnosis of chronic pain appeared based entirely upon the applicant’s self-reporting. Unlike Dr. Kachooie, he did not reference chronic pain syndrome in his report and used the more general term “chronic pain” with respect to the applicant’s “diffuse body pain, which is complicated with insomnia and stress problems, which is frequently seen in patients that suffer with chronic pain.” As Dr. Wong did not testify at the hearing, it was not clear whether he relied upon any other objective criteria beyond the applicant’s self-reporting or was even qualified to diagnose chronic pain. There was no evidence before me to indicate whether Dr. Wong had completed the specialized training described by Dr. Abuzgaya to diagnose chronic pain.

55As a result, I agreed with the respondent’s submission that the chronic pain assessments offered by both Dr. Kachooie and Dr. Wong do not represent reliable evidence as they were offered by physiatrists, not chronic pain experts. There is also no evidence in the case notes and records submitted that any sort of extensive examination was ever conducted with regard to chronic pain, by physiatrists, chiropractors or anyone else.

56In the absence of a qualified diagnosis, both parties agreed that the evidence may be assessed with reference to the six point test provided by the American Medical Association Guides to the Evaluation of Permanent Impairment, 6th Edition (the ‘AMA Guides’). Although reference to these guidelines is not mandatory, in Zappia v. Unica Insurance Inc., the Tribunal held that the AMA Guides should be used to determine whether “the applicant has chronic pain that is severe enough that it takes him or her out of the MIG.”⁵ While the applicant subjectively described her pain experience since the accident in considerable detail, in Grant v. Allstate Insurance, the Tribunal held that “chronic pain, a severe, debilitating condition, is distinct from the applicant’s circumstances and may be evaluated against [the AMA Guides],” which in turn “sets out that at least 3 of the 6 AMA Guides criteria must be met to establish a diagnosis of chronic pain syndrome.⁶ Those criteria are as follows:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;

2. Excessive dependence on health care providers, spouse, or family;

3. Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain;

4. Withdrawal from social milieu, including work, recreation, or other social contacts;

5. 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; and

6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.

Misuse of prescription drugs or other substances

57While the applicant relied upon regular purchases of over the counter Tylenol, there was no medical evidence or opinion submitted to suggest that she over-medicating or abused either this medication or any of those prescribed to her. She was also never prescribed any narcotic or otherwise dangerous medications that could reasonably lead to additive behaviour.

58There was no evidence that the applicant requested medication beyond the amounts prescribed, or approached multiple providers for additional prescriptions. When she stopped attending treatment between April 12 and August 31, 2020, she simply purchased Tylenol over the counter; there was no evidence that she consumed this medication in excess of the recommended dosage or improperly supplemented it with other medications. On the contrary, she was mindful of potential kidney damage from overconsumption of medication. Similarly, although she took more medications after the accident than before, there was no evidence of misuse or abuse. I do not find that this criterion was satisfied.

Excessive dependence on health care providers, spouse, or family

59With respect to the second criterion, I do not find that the applicant was overly dependent on health care providers. Given her extended absences from chiropractic treatment and her family doctor, the evidence indicates quite the opposite. However, the overwhelming evidence from the applicant and her family members was that she has become overly dependent on their assistance with respect to everyday tasks such as cooking, cleaning and care for other family members. As the second criterion requires overreliance at least one of the listed groups, I find that this criterion has been satisfied.

Secondary physical deconditioning or fear-avoidance of physical activity

60While the applicant has substantially reduced her pre-accident activities in response to pain, there was no cogent evidence of secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain. While the applicant testified that she no longer carries out the same comprehensive list of pre-accident activities, on her own evidence, this reduction of engagement was the result of her pain rather than apprehension. As well, her explanation for discontinuing in person attendance at medical treatments and her doctor’s office related to pandemic restrictions and concerns that she may contract COVID-19 and transmit it to her family.

61Dr. Abuzgaya also did not observe this behaviour during his examination of the applicant. Rather, he described her range of movements as close to normal and noted exaggerated responses that he diagnosed as symptom magnification. He also observed no evidence of muscle wasting that would suggest physical deconditioning. As a result, I do not find that this criterion has been satisfied.

Withdrawal from social milieu

62While there was no dispute that the applicant stopped going to work after the accident, the wording of criterion 4 suggests that the subject behaviour is distinct from functionality to conduct employment duties as addressed in criterion 5 and relates instead to social relationships and engagement in various milieu including but not limited to the workplace. There was no persuasive evidence that she withdrew from a previously active social life outside the home primarily because there was little evidence presented to suggest that she had any significant engagement with anyone outside the household including co-workers, even before the accident.

63However, within the home, there was some evidence of social withdrawal. N.Y. testified that the applicant was “less social” after the accident and that she retreated into a sullen and consuming preoccupation with her pain. While N.Y. did not go into further detail regarding this change to the applicant’s engagement with others, this evidence was also never challenged under cross-examination. As well, K.K. testified that his mother ceased to leave the house for other activities such as food shopping and gardening that she enjoyed before the accident. As a result, on the balance of probabilities, I find that this criterion has also been satisfied.

Failure to restore pre-injury function after a period of disability

64The applicant highlighted her lack of return to her employment and almost total delegation of household tasks as evidence of a clear failure to restore pre-injury function after a period of disability. As noted above, the applicant and both lay witnesses testified at length that she was unable to carry out the majority of her pre-accident household duties.

65However, the applicant’s failure to return to work cannot be viewed in a vacuum without considering the larger context of her own contribution to her delayed recovery and half-hearted participation in treatment. The evidence demonstrated that the applicant failed to follow recommendations intended to accelerate her recovery and suspended her treatment for weeks and months at a time. She also chose to largely disregard her treatment providers’ recommendations regarding maintaining an active lifestyle, losing weight and altering her diet, all of which could have assisted in her recovery within the timeframe estimated by her chiropractor.

66While the applicant attributed her failure to attend at Whitby Wellness Centre in person to COVID-19 restrictions and cited various excuses for not participating virtually, the overwhelming evidence was that she did not attempt to find alternatives to these obstacles and instead simply surrendered to them.

67The applicant testified that she was aware of the exercises that she was expected to perform while at home, but the only evidence before me that she complied with these recommendations was her very broad assurances to her doctors and at the hearing that she did so. Neither N.Y. nor K.K. described her continuing her exercise regime at home at least until very recently. Rather, both focussed on her descent into a demoralized and sedentary daily routine, sitting on the couch and coordinating her former household tasks through N.Y. Her claims that she followed Dr. Kirubaharan’s advice on these issues were undermined by his repetition of the same recommendations in clinical notes and records with no reference to progress or ongoing compliance. When Dr. Kachooie recommended that she attend specific hydrotherapy exercises at a community pool, she did not do so. By contrast, Dr. Abuzgaya identified no objective functional limitations on her range of motion. As a result, in light of all of the evidence, I do not find that this criterion has been satisfied.

Development of psychosocial sequelae after the initial incident

68The only evidence presented on this criterion related to the applicant’s altered mood following the accident, specifically her short temper, frequent complaints and depressed demeanor. Much of this related to an understandable dissatisfaction with the duration of the pain and her reduced ability to undertake her prior extensive household duties prior to the accident. N.Y. in particular described her mother-in-law as anxious and frustrated with her situation. Similarly, the applicant repeatedly emphasized her frustration and despair at no longer being able to look after her daughter and mother. As well, she reported that pain had interfered with her ability to sleep since the date of the accident. In addition, the applicant was prescribed the anti-depression medication, Cymbalta on May 22, 2021.

69However, it was unclear whether this medication was helpful as the applicant denied a clear comprehension of why it was prescribed and Dr. Kirubaharan did not testify at the hearing with respect to any tests or assessments that may or may not have formed the basis for the prescription. To suggest that the applicant suffers from a chronic pain condition at least in part because she is anxious and depressed over her chronic pain condition offers a less than helpful circular argument.

70Although the applicant maintained that she required medication to sleep, on her own evidence, she was able to get to sleep after taking non-prescription Tylenol. She was not actually prescribed any medication related to sleep issues until October, 2021, almost two years after the accident, undermining any suggestion that this was a sufficiently serious concern to warrant earlier action. There was no suggestion that the severity of her sleep issues worsened in the two years following the accident.

71Moreover, no qualified medical professional has formally diagnosed the applicant with a psychological disorder or condition, let alone a psychological injury resulting from the accident. Although both Dr. Kirubaharan and Dr. Wong noted that the applicant reported suffering from psychological symptoms, neither doctor noted engaging in any kind of formal diagnostic process with respect to these complaints. Without evidence of the full medical basis for rather vague labelling, I cannot consider the applicant’s self-reporting of psychological symptomology to be sufficient to satisfy the requirements of the Schedule. Similarly, the observations of her family members is not equivalent to a diagnosis that she suffered a psychological injury as a result of the accident. As a result, on the balance of probabilities, I do not find that this criterion has been satisfied.

72As I find that the applicant demonstrated only two of the six criteria of the AMA Guides, I find on the balance of probabilities that she has failed to establish that she suffers from chronic pain justifying treatment beyond the MIG.

The Minor Injuries Guideline – Pre-Existing Condition

73Both parties circled around the issue of whether lasting symptoms from the 2016 knee surgery may have had some effect on the applicant’s timely recovery. However, the evidence submitted on this issue was too ambiguous upon which to base a finding that any such condition would reasonably remove the applicant from the MIG. While she apparently continued to suffer various symptoms following the surgery that may have increased in number and severity, the same evidence fell far short of establishing that the comparatively minor complaints reported related to the surgery rather other unrelated degenerative issues. The only clear evidence on this issue was that although she experienced some ongoing symptoms after the surgery, these issues did not prevent her from carrying out the duties of her employment after her employer provided accommodation by allowing her to sit while working.

74Based on the evidence before me, I find that the applicant has not been diagnosed with chronic pain syndrome, does not suffer from chronic pain as set out by the AMA Guides or ongoing pain that is accompanied by a functional impairment or disability and, therefore, she sustained predominantly minor injuries as defined by the Schedule.

The Treatment Plans

75With respect to treatment plans, subject to section 18, subsection 15(1) of the Schedule requires the insurer to pay medical benefits “for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident.”

76The applicant received treatment between December 6, 2019 and March 11, 2021 with some interruptions. However, while she described the treatments as helpful, the evidence indicated that she did not prioritize them and often failed to attend treatment well before the pandemic lockdowns would have had any effect on her ability to attend in person either at her family doctor’s office or her chiropractor. As well, despite the availability of video participation, she did not make a significant effort to avail herself of this option. Although she and her son may not have been “tech savvy,” the evidence strongly suggested that others in the home could and would have assisted.

77As early as two weeks after starting treatment, I find that the applicant reported feeling “a little better” and continued to describe her condition as improving. She offered no persuasive explanation for why her doctors allegedly misrepresented her statements or her apparent acquiescence to this misinformation. As well, objective evidence such as the x-ray of the applicant’s spine taken in January 2020 revealed only normal degenerative changes. The near consistent discrepancy between the applicant’s reported improvements during treatment and her recantations of these statements at the hearing implies a revisionist perspective on historical progress that is not compatible with her application or the other evidence submitted. As a result, between the applicant’s reported descriptions of her symptoms as stated in the case notes and records and her contradictory testimony at the hearing, I prefer the former as the more credible evidence.

78The applicant’s lack of engagement with treatment in the face of ongoing pain as described at the hearing leads to two possibilities: she did not recover within the nine to twelve weeks predicted by Dr. Branko as she did not follow the reasonable recommendations of her treatment providers ,or she was feeling better as stated in the notes and records and therefore began to deprioritize treatment. As both explanations are supported by the evidence, I find that the applicant failed to demonstrate on the balance of probabilities that, but for the accident, she would not have suffered the incapacities that form the basis of her claim.

79While the applicant noted that $7,207.36 remained outstanding from her various treatment plans, the evidence was unclear with respect to how much of the $3,500.00 had been exhausted or which of her treatment plans had been partially funded by her collateral benefits insurer.

80In any event, I find that it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans given my finding that the applicant sustained predominantly minor injuries as a result of the accident and is not removed from the MIG.

81Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits and/or assessments incurred under the MIG are deemed reasonable and necessary. Therefore, the applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to the Schedule.⁷

Income Replacement Benefit

82Paragraph 1 of subsection 5(1) of the Schedule governs eligibility for income replacement benefits for claimants who were employed at the time of the accident:

5. (1) The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:

6. The insured person,

i. was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment…

83Section 6 of the Schedule addresses the duration of payment for such claims, as well as the test for payment after 104 weeks:

6. (1) Subject to subsection (2), an income replacement benefit is payable for the period in which the insured person suffers a substantial inability to perform the essential tasks of his or her employment or self-employment.

(2) The insurer is not required to pay an income replacement benefit,

(a) for the first week of the disability; or

(b) after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

84The applicant bears the evidentiary burden of proving her claim to income replacement benefits on the balance of probabilities.

85Dr. Kirubaharan’s notes excusing the applicant from work never included a medical opinion that she could not work and he ultimately stated that she could return to work. The applicant seemingly refused to consider or attempt to return to her employment despite offers of modified duties from her employer. Her opinion that she could not carryout the normal duties of her employment was not supported by medical evidence apart from her own subjective reports of pain.

86As well, Dr. Abuzgaya found no objective residual impairment from the accident and no substantive inability to perform the duties of her employment. While he found evidence of tenderness in various parts of her body, as noted above, Dr. Abuzgaya also identified no objective functional limitations on the applicant’s range of motion. I do not find that Dr. Abuzgaya was shaken to any meaningful degree under cross-examination and his testimony should therefore be accorded substantial weight as the only expert testimony at the hearing.

87Having considered all of the evidence, I do not find that the applicant met her evidentiary burden to demonstrate on the balance of probabilities that she suffers a substantial inability to perform the essential tasks of that employment or that she suffers a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.

88As a result, I find that the applicant has not demonstrated on the balance of probabilities that she is entitled to income replacement benefits.

ORDER

89For the reasons outlined above, I find that:

a. The applicant sustained predominantly minor injuries as defined under the Schedule and therefore subject to treatment within the $3,500.00 limit of the MIG.

b. The applicant is not entitled to income replacement benefits.

c. The applicant is entitled to the benefits set out in the disputed treatment plans, once incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to subsection 40(8) of the Schedule, plus any applicable interest.

Footnotes

1. 1Sabadash v. State Farm et al., 2019 ONSC 1121 (‘Sabadash’).
2. 2Ibid. at para. 39.
3. 32015 ONSC 3635 at para 24 (Div. Ct).
4. 42022 CanLII 81514 (ON LAT) (‘Stephen’).
5. 52020 CanLII 101805 at para 11 (ON LAT).
6. 62022 CanLII 30676 (ON LAT); also see 17-007825 v. Aviva Insurance Canada, 2018 CanLII 98282 at para. 6 (ON LAT).
7. 7Patel v. Security National Insurance Company, 2022 CanLII 14936 (ON LAT).