Jeyabalasingam v. Wawanesa Insurance, 2024 CanLII 102110

Jeyabalasingam v. Wawanesa Insurance, 2024 CanLII 102110

Citation: Jeyabalasingam v. Wawanesa Insurance, 2024 ONLAT 22-009957/AABS

Licence Appeal Tribunal File Number: 22-009957/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:

Alakeswary Jeyabalasingam

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR: Caley Howard

APPEARANCES:

For the Applicant: Anna Korolkova, Paralegal

For the Respondent: Mark Pascoal, Counsel

HEARD: In Writing

OVERVIEW

1Alakeswary Jeyabalasingam, the applicant, was involved in an automobile accident on May 18, 2020, 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 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 treatment within the $3,500.00 Minor Injury Guideline limit?

ii. Is the applicant entitled to $1,633.85 for physiotherapy services, proposed by 2431512 Ontario Inc. in a treatment plan/OCF-18 (“plan”) submitted on January 11, 2021?

iii. Is the applicant entitled to $3,051.28 for physiotherapy services, proposed by 101 Physio in a plan submitted on March 16, 2022?

iv. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a plan submitted on March 29, 2022?

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

3In their submissions, the respondent raised the issue of whether the accident was the cause of the applicant’s injuries. As a result, the issue of causation will also be addressed in this written decision.

RESULT

4I find that:

i. The applicant has not proved that she has a psychological impairment caused by the subject accident.

ii. The applicant has not proved that she has chronic pain with functional impairment caused by the subject accident.

iii. The applicant has not proved that she suffers from a pre-existing condition that would preclude her recovery from the subject accident if she was subject to the MIG limits. The applicant remains within the MIG and its $3,500.00 limit on treatment.

iv. As the MIG limits have been reached, the applicant is not entitled to the disputed treatment plans.

v. As no benefits are payable, the applicant is not entitled to interest.

ANALYSIS

The applicant is subject to treatment within the MIG limit

5I find that the applicant is subject to treatment within the MIG as she has not demonstrated on a balance of probabilities that she suffered accident-related injuries that fell outside of the definition of “minor injury” or that she had a documented pre-existing medical condition that would preclude recovery within the confines of the MIG.

6Section 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.”

7An insured 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 condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

8The test to determine causation is the “but for” test. Causation is a factual determination made on a balance of probabilities: see Sabadash v. State Farm et al, 2019 ONSC 1121. The applicant must show that she would not have suffered the injuries “but for” the subject accident. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.

The applicant has not proved that she has a psychological impairment caused by the accident

9The applicant submits that she has been diagnosed with the following psychological impairments: Adjustment Disorder, Specific (Isolated) Phobia (Driving/Passenger), and Somatic Symptom Disorder with predominant pain. The applicant submits that these psychological impairments are excluded from the MIG. In this respect, the applicant relies on the July 7, 2022 psychological assessment report of her psychological assessor, Dr. Papazoglou, and the March 29, 2022 OCF-18 completed by Dr. Papazoglou. The applicant directed me to Dr. Papazoglou’s opinion that the applicant’s psychological impairments were a direct consequence of the accident.

10The respondent submits that the applicant had documented symptoms such as fear of driving, poor sleep, nightmares/flashbacks, anxiety and anger prior to the accident: see the clinical notes and records of Complete Rehab Centre dated September 2019 (exact date illegible) and October 3, 2019. The respondent submits that the applicant’s injuries were caused by a prior accident and not by the subject accident.

11The respondent submits that Dr. Papazoglou’s opinion that the subject accident caused the applicant’s psychological impairments was based on the assessor’s misunderstanding that the applicant was not involved in a prior motor vehicle accident.

12The applicant chose not to file a reply to the respondent’s submissions on causation. The applicant acknowledged in her initial submissions that she was injured in a prior accident on September 12, 2019, but submitted that she was improving until she was injured again in the subject accident.

13While I accept Dr. Papazoglou’s assessment report as far as it relates to the diagnoses of psychological impairments, I am persuaded by the respondent’s submissions with respect to the report. I therefore give little weight to Dr. Papazoglou’s opinion that the subject accident caused the applicant’s psychological impairments as it was based on the assessor’s understanding that the applicant was not involved in a prior motor vehicle accident. The applicant acknowledges that she was in a prior motor vehicle accident and the clinical notes and records of Complete Rehab Centre indicate that the applicant complained of similar psychological symptoms prior to the subject accident.

14While the OCF-18 prepared by Dr. Papazoglou on March 29, 2022 does connect the applicant’s psychological symptoms to the subject accident, I find that the applicant has not directed me to any compelling and contemporaneous evidence in support of this connection. For example, the applicant has provided no clinical notes and records from a treating psychologist.

15The applicant has the onus of proving that the subject accident caused her injuries on a balance of probabilities. I find that the applicant has not proved that she suffers from psychological impairments that would not have occurred but for the subject accident.

The applicant has not proved that she has chronic pain with functional impairment caused by the accident

16The applicant submits that she has chronic pain with functional impairment and, as such, should be removed from the MIG.

17The applicant relies on the comments of Dr. Papazoglou in an OCF-18 dated March 29, 2022 and the comments of Dr. Counti in an OCF-3 dated May 29, 2020. The applicant also relies on the clinical notes and records from Lifecare Medicentre, which document the clinic’s treatment of the applicant’s neck and back pain between May 19, 2020 and October 2021. She also relies on a letter from Dr. Kohli, of the Scarborough Pain Clinic, dated June 7, 2023, in which the summary of Dr. Kohli’s impression of the applicant includes a diagnosis of chronic pain syndrome.

18The respondent raises the issue of causation and submits that the applicant’s injuries were caused by the prior accident and not by the subject accident. The respondent directs me to the records of Complete Rehab Centre dated September 2019, which demonstrate that the applicant’s symptoms after the prior motor vehicle accident included pain in her neck, right shoulder, lower back, mid back and headaches.

19The medical evidence submitted by the applicant demonstrates that she has made consistent complaints of neck and back pain to various health care practitioners since at least May 19, 2020. In addition, she was diagnosed with chronic pain syndrome by Dr. Kohli on June 7, 2023.

20I find that the applicant has proved that her pain was caused by the subject accident. Some of the applicant’s medical evidence refers to chronic pain caused by the prior accident, for example, the OCF-3 prepared by Dr. Counti on May 29, 2020. Some of the applicant’s medical evidence refers to both the prior accident and the subject accident as the cause of the applicant’s pain, for example, the March 23, 2022 clinical notes and records of Dr. Jeyaranjan and the May 25, 2021 clinical notes and records of Lifecare Medicentre. In addition, the respondent has directed me to the clinical notes and records of Complete Rehab from September 2019, which record the applicant’s complaints of neck and low/mid-back pain approximately eight months prior to the subject accident.

21However, the clinical notes and records of Lifecare Medicentre show that the applicant attended the clinic ten times between May 19, 2020 and October 2, 2021 and primarily attributed her complaints of pain to the subject accident during this period. I note that the applicant does not have to prove that the subject accident was the only cause of her pain, rather that it was a necessary cause. I find that while there is evidence that the prior accident may have played a part in causing the applicant’s pain, the applicant has proved on a balance of probabilities that the subject accident was a necessary cause of the applicant’s pain.

22Despite the above, I find that the applicant has not directed me to sufficient compelling evidence of functional impairment caused by chronic pain.

23The applicant directed me to the treatment plan (OCF-18) of Dr. Papazoglou dated March 29, 2022 and the OCF-3 completed by Dr. Counti on May 29, 2020. These documents record the applicant’s reports of functional impairment.

24For example, Dr. Papazoglou records in the OCF-18 that the applicant reports a lack of concentration and focus on completing tasks due to intense pain and that she is no longer able to participate in recreational activities that she enjoyed pre-accident. I note that Dr. Papazoglou, who is a psychologist, does not diagnose the applicant with chronic pain syndrome. Rather, he records the applicant’s subjective report of her functional impairments, some of which the applicant ties to her subjective report of pain. Dr. Papazoglou’s focus during the preparation of this document was the applicant’s psychological symptoms and proposed psychological treatments and the applicant’s functional impairments were recorded in that context. In addition, I find that the OCF-18 was prepared after a single telephone interview with the applicant. As a result of the above factors, I give the above-referenced OCF-18 limited weight.

25Dr. Counti indicates that the applicant had modified her work duties to compensate for pain and that her capacity for all activities of daily living was limited. I note that Dr. Counti, who is a chiropractor, does not diagnose the applicant with chronic pain syndrome, although the OCF-3 does refer to chronic pain associated with the prior accident. Rather, the OCF-3 contains a record of the applicant’s subjective report of her functional impairments on the date of the document. I therefore give limited weight to the OCF-3.

26The only references to functional impairment in the clinical notes and records of Lifecare Medicentre are brief and vague. For example, the record dated May 25, 2021 indicates “prior to MVC she was very active.” Due to the lack of detail or specificity, I attribute limited weight to this evidence of functional impairment. Despite the diagnosis of chronic pain syndrome by Dr. Kohli, I find that the applicant has directed me to insufficient compelling and contemporaneous medical evidence to support the evidence of functional impairment set out in the OCF-18 and the OCF-3 and therefore has not proved that she has chronic pain with functional impairment.

27For the above reasons, I find that the applicant has not met her onus of proving that she has chronic pain causing functional impairment caused by the accident, which would warrant her removal from the MIG.

The applicant has not proved she had a pre-existing chronic pain condition that would preclude her recovery if she was kept within the MIG

28The applicant submits that she had a history of chronic pain due to the prior accident on September 12, 2019.

29In support of this claim, the applicant relies on the comments of Dr. Coghlan (chiropractor) in the OCF-18 dated March 16, 2022 and Dr. Counti (chiropractor) in the OCF-18 dated January 11, 2021. Dr. Coghlan’s comments indicate that the applicant’s pre-existing chronic pain would preclude her from achieving maximum recovery if she remains subject to the MIG. The applicant also relies on the clinical notes and records from Lifecare Medicentre, which document the clinic’s treatment of the applicant’s neck and back pain between May 19, 2020 and October 2021. She also relies on a letter from Dr. Kohli, of the Scarborough Pain Clinic, dated June 7, 2023.

30The respondent submits that the applicant has provided no evidence as to how the accident has exacerbated any pre-existing injuries.

31I find that the applicant has directed me to no compelling evidence of a pre-existing condition that was documented by a health care practitioner before the subject accident. The references to chronic pain in the applicant’s evidence were all dated after the accident and are based on the applicant’s post-accident reports to health care practitioners. I have been directed to no medical evidence demonstrating the applicant’s chronic pain that is dated prior to the subject accident.

32In addition, the applicant has directed me to no compelling and contemporaneous evidence in support of the position of Dr. Coghlan that the applicant’s pre-existing chronic pain would preclude her recovery if she remained subject to the MIG.

33I find that the applicant has failed to prove on a balance of probabilities that she had a pre-existing chronic pain condition that would have precluded her recovery under the MIG.

34As I have found that the applicant remains within the MIG, it is not necessary to review the treatment plans in dispute to determine if they are reasonable and necessary.

35Pursuant to the Case Conference Report and Order dated May 18, 2023, the parties agreed that the MIG limit has been exhausted. Therefore, there is no overdue amount of any treatment plan and no interest due pursuant to s. 51 of the Schedule.

ORDER

36I find that:

i. The applicant remains within the MIG and its $3,500.00 limit on treatment.

ii. As the MIG limits have been reached, the applicant is not entitled to the disputed treatment plans.

iii. As no benefits are payable, the applicant is not entitled to interest.

37The application is dismissed.