Shobana Nimalarajan v. Wawanesa Mutual Insurance, 2023 CanLII 98402

Citation: Nimalarajan v. Wawanesa Mutual Insurance, 2023 ONLAT 21-008098/AABS

Licence Appeal Tribunal File Number: 21-008098/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:

Shobana Nimalarajan

Applicant

and

Wawanesa Mutual Insurance

Respondent

DECISION

VICE-CHAIR: Monica Ciriello

APPEARANCES:

For the Applicant: Marcello Novello, Paralegal

For the Respondent: Alanna Pink, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Shobana Nimalarajan, the applicant, was involved in an automobile accident on October 24, 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, Wawanesa Mutual Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The 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”)?

ii. Is the applicant entitled to $1,907.06 for chiropractic treatment, proposed by GTA Chiropractic in a treatment plan (“OCF-18”) dated June 17, 2019?

iii. Is the applicant entitled to $2,400.00 for a chronic pain assessment, proposed by OnCare Medical & Rehabilitation in an OCF-18 dated February 2, 2022?

iv. Is the applicant entitled $2,000.00 for a neurocognitive psychological assessment, proposed by OnCare Medical & Rehabilitation in an OCF-18 dated February 17, 2022?

v. Is the applicant entitled to $1,600.00 for an MRI of the cervical spine, proposed by OneCare Medical & Rehabilitation in an OCF-18 dated February 17, 2022?

vi. Is the applicant entitled to $16.51 for medication expenses, submitted on a claim form (“OCF-6”) dated October 22, 2019?

vii. Is the applicant entitled to $16.51 for medication expenses, submitted on an OCF-6 dated June 11, 2020?

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

ix. Is the respondent liable to pay any award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The 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 OCF-18s in dispute are not payable; and

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

ANALYSIS

APPLICABILTY OF THE MINOR INJURY GUIDELINE (“MIG”)

4The 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.”

5Section 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.

6An applicant may receive payment for treatment beyond the $3,500.00 limit under s. 18(2) if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or, if they provide evidence of an injury 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.

7It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant has reached the maximum payable under the MIG.

8The applicant was in an accident, the airbags did not deploy, she did not lose consciousness and she did not attend the hospital.

9The applicant submits that she should be removed from the MIG on the basis of chronic pain, and psychological impairments.

10After considering the submissions and evidence of the parties, I find that the applicant has not met her evidentiary burden of providing compelling evidence in support of her claim that she should be removed from the MIG. But rather, the applicant’s submissions and evidence with no chronological order or consistency leave it to the adjudicator to puzzle through a document dump of dates and statements to decipher and then assemble an evidentiary foundation for her case.

Does the applicant suffer physical injuries that warrant removal from the MIG?

11I find that the applicant has not provided me with persuasive evidence to demonstrate that her physical injuries justify removal from the MIG.

12The clinical notes and records (“CNRs”) of Dr. Hayam El-Kateb, family physician, and the Physiatry Consultation dated January 5, 2022, of Dr. Joseph Wong, physiatrist, reveal the applicant suffered from various sprains and strains following the accident. The applicant was prescribed Naproxen 375mg, to help reduce pain and inflammation and was recommended to attend physiotherapy and massage therapy.

The applicant has not produced any other medical evidence to demonstrate that her physical injuries warrant removal from the MIG. For these reasons, I find that the applicant has not met her onus in proving on a balance of probabilities that her physical injuries do not fit within the minor injury definition and therefore subject to the MIG

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

13I find that the applicant has not provided me with persuasive evidence to demonstrate that her pre-existing injuries justify removal from the MIG.

14The applicant references pre-existing medical conditions in her submissions including carpel tunnel syndrome and shoulder pain. I accept that the applicant has pre-existing carpel tunnel syndrome as referenced by Dr. Antonio Gallo, neurologist, in an assessment dated September 6, 2021. The presence of a pre-existing condition alone is not sufficient to remove the applicant from the MIG, and I find that the applicant did not demonstrate that her pre-existing condition prevent her from achieving maximal recovery under the MIG.

15The CNRs of Dr. El-Kateb do not make refence to a shoulder injury pre-accident, nor reference the ability of the applicant to recover within the MIG. After the accident on March 4, 2020, the applicant was referred to Dr. Kuldip Minhas, anesthesiologist. Dr. Minhas reported that the applicant had right shoulder osteoarthritis, tendonitis, and a partial tear, however there was no reference to the accident in the report. In 2022, the applicant was assessed by Dr. Wong, the physiatry consultation noted the applicant described one episode of right shoulder pain in 2014, but the pain subsided without further intervention. I am not persuaded that the conditions warrant removal from the MIG as the applicant did not provide evidence that the shoulder injury was a pre-existing condition nor did the applicant persuade me that it would prevent maximal medical recovery if she was subject to the MIG, as resulted by s. 18(2).

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

16I find that the applicant has not provided me with persuasive evidence to demonstrate that her alleged psychological impairments justify removal from the MIG.

17An 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. In 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.

18The applicant relies on two psychiatric consultation sessions with Dr. Ravi Kakar, referencing September 29, 2022, and October 4, 2022. Despite this assertion, the evidence of Dr. Kakar suggests that the applicant did not undergo two sessions, rather there were two reports generated with different dates, September 29, 2022, and October 4, 2022, but there was only one session with the applicant on August 16, 2022.

19The applicant submits that she presented symptoms of adjustment disorder with mixed emotions, such as anxiety, nightmares and difficulty sleeping. Dr. Kakar prescribed her amitriptyline for nightmares.

20The respondent submits that the applicant saw Dr. Kakar solely in relation to the applicant’s psychological condition in relation to her sick 15-year-old child. I agree. The applicant did not seek psychological treatment until four years after the accident and in reviewing Dr. Kakar’s report it is in reference to her child’s health. There is a one-line reference to the accident, about the applicant’s right shoulder pain, as well as reference to experiencing headaches since 2020.

21I find that the applicant did not produce medical evidence to suggest that her psychological condition was a result of or was exacerbated by the accident.

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

22I find that the applicant has not provided me with persuasive evidence to demonstrate that she has chronic pain that warrants removal from the MIG.

23For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide evidence that her accident-related injuries and/or pain have had a detrimental impact on her functionality.

24The applicant relies on Dr. Wong’s report, submitting that it supports her claim that she suffers from chronic pain and various impairments including features of fibromyalgia that affect her daily functioning and quality of life. Dr. Wong opined that the applicant continued to show abnormal physical findings despite the normal passage of healing times, suggesting that the applicant has chronic pain.

25The respondent submits not independent medical evidence to challenge Dr. Wong’s findings. Rather, the respondent submits that the only mention of chronic pain is in the report of Dr. Wong. There is no further medical evidence in the applicant’s submissions to support the findings of Dr. Wong. It is the respondent’s position that the applicant has not demonstrated difficulties in daily living or interference in work, as the applicant has continued to work, participate in activities of daily living and take care of her family.

26While I accept the opinion of Dr. Wong, I find that the term chronic pain is inadequate to remove the applicant from the MIG and on its own is not enough to establish that there has been an effect on the applicant’s functionality. Accordingly, where the applicant sustained soft tissue sprain and strain injuries, where the CNRs from various treating physicians reveal that the applicant has not been reporting consistent complaints, where the CNRs of Dr. El-Kateb make no reference to chronic pain and where she has demonstrated functionality in her daily activities, I find that the applicant has not provided compelling evidence of chronic pain as a result of the accident that causes functional impairment in the applicant’s life, such that the pain can only be improved with treatment outside of the MIG. Furthermore, I am not satisfied that the report of Dr. Wong is enough on its own to establish the impact the applicant’s accident-related pain has had on her functionality.

27For the above reasons, the applicant has not met her onus to prove on a balance of probabilities that her accident-related impairments require treatment beyond the MIG.

28As the applicant remains within the MIG and its $3,500.00 limit on treatment, she is not entitled to the OCF-18’s in dispute as it is not reasonable and necessary.

INTEREST AND AWARD

29Given that no benefits are overdue, the applicant is not entitled to interest or an award.

ORDER

30The 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 OCF-18s in dispute are not payable; and

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