Licence Appeal Tribunal File Number: 22-011936/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:
Padmavathi Sriskantharajah
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR: Tyler Moore
APPEARANCES:
For the Applicant: Neda Nazari-Pruden, Counsel
For the Respondent: Peter Durant, Counsel
HEARD: By Way Of Written Submissions
OVERVIEW
1Padmavathi Sriskantharajah, the applicant, was involved in an automobile accident on May 29, 2021, 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, Co-operators General Insurance Company, 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 Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit on treatment?
ii. Is the applicant entitled to the following medical benefits proposed by Spine Health Care Clinic:
a) $3,436.33 for chiropractic services, proposed in a treatment plan/OCF-18 (“plan”) dated August 17, 2021;
b) $3,390.00 for psychological services, proposed in a plan dated August 30, 2021;
c) $2,484.59 for occupational therapy services, proposed in a plan dated September 15, 2021;
d) $4,360.67 for occupational therapy services, proposed in a plan dated September 20, 2021;
e) $3,916.58 for chiropractic services, proposed in a plan dated December 2, 2021; and
f) $3,889.15 for chiropractic services, proposed in a plan dated February 17, 2022?
iii. Is the applicant entitled to $3,726.00 for a chronic pain assessment proposed by Spine Health Care Clinic in a plan dated March 17, 2022?
iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.
4The applicant is not entitled to the treatment and assessment plans in dispute.
5The applicant is not entitled to interest or an award.
ANALYSIS
Minor Injury Guideline (“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 injury or 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.
8For the following reasons, I find that the applicant sustained a minor injury as a result of the accident.
Psychological Injuries
9I find no compelling evidence demonstrating that the applicant suffers from a psychological injury as a result of the accident.
10The applicant submits that a pre-screening psychological interview conducted by Dr. Bita Sharifzadeh on September 13, 2021 concluded that she was suffering from driving anxiety and emotional problems as a result of the accident.
11The respondent submits that there was no psychological report or intake interview ever conducted by Dr. Sharifzadeh. Rather, Mary Clark, psychotherapist conducted an intake interview with the applicant on September 13, 2021 and only provided ‘additional comments’ as part of an OCF-18. There was no formal report. While Ms. Clark did note that the applicant had some driving anxiety, she also indicated that she regained sound sleep and only had mild pain as a result of the accident.
12The respondent submits that Ms. Clark’s comments about psychological problems as a result of the accident are completely uncorroborated in the medical record. It relies on the clinical notes and records of the applicant’s family physician, Dr. Manjula Jeyaspargan which make no mention of any psychological complaints, including driving anxiety after the accident.
13I am not persuaded by the applicant’s submissions or limited evidence. I find that the applicant has not been diagnosed with any psychological conditions as a result of the accident. I do not place any weight on Ms. Clark’s comments because there is no formal report and there is no corroborating evidence of any psychological sequelae, particularly from the applicant’s family physician. The applicant also continues to drive when needed and reports that she sleeps well.
14Accordingly, I find that the applicant has not demonstrated that she suffers from a psychological injury as a result of the accident.
Chronic Pain
15I find that the applicant has not demonstrated that she suffers from a chronic pain condition that warrants removal from the MIG.
16I find that the applicant has not provided a diagnosis of chronic pain with functional impairment and has not demonstrated that she meets at least three of the six criteria for a chronic pain condition as outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). While the AMA Guides’ provisions about chronic pain are not incorporated into the Schedule, this Tribunal has consistently applied them as a useful interpretive tool on chronic pain.
17There is no evidence of abuse or dependence on prescription drugs or other substances, and the applicant has not indicated any reliance on prescription pain medication. There is no evidence of excessive dependence on healthcare providers or family. The applicant does not visit her family physician or treatment facility excessively. The CNRs indicate that she goes to her family doctor every few months and to her chiropractor ever few weeks. The applicant is the caregiver of her elderly father-in-law, she has been working since September 2021, and she does the cooking and cleaning at home.
18In light of the absence of a diagnosis of a chronic pain condition with functional impairment, and by not meeting at least three of the six criteria for a chronic pain condition, I conclude that the applicant has not sustained a chronic pain condition as a result of the accident. As such, I find that her injuries are rightly captured by the minor injury definition in section 3 of the Schedule.
Pre-existing Condition
19I find, on a balance of probabilities, that the applicant does not suffer from a pre-existing condition that would warrant removal from the MIG.
20To be removed from the MIG based on a pre-existing condition, the applicant must satisfy both parts of a two-part test pursuant to section 18(2) of the Schedule. She must provide documented evidence of a pre-existing medical condition by a health practitioner, and she must also provide evidence that the pre-existing condition will prevent her from achieving maximal recovery from the minor injury if she is subject to the MIG limits.
21I find that the applicant has provided documented evidence by a health practitioner of a pre-existing medical condition. Dr. Jeyasparagan documented low back pain in 2018, swollen hands/feet and pain in the heels in 2019, and on March 14, 2021, just a few months before the accident, he documented a muscle strain in the neck/shoulder and tension headaches.
22The applicant has not, however, met her onus of providing evidence from a health practitioner that a pre-existing medical condition will prevent her from achieving maximal medical recovery if she is subject to the MIG limits. As a result, I find that the applicant has not satisfied section 18(2) of the Schedule.
23The applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury. The treatment plans in dispute propose goods and services that fall outside the MIG. As a result, I find that the applicant is not entitled to the treatment and assessment plans in dispute dated August 17, August 30, September 15, September 20, December 2, 2021, February 17, 2022 and March 17, 2022. The applicant is only entitled to treatment up to the MIG limits.
Interest
24Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having concluded that no benefits are payable, it follows that no payments are overdue, and no interest is payable.
Award
25The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find that the applicant is not entitled to an award as the respondent has not unreasonably withheld or delayed payment.
ORDER
26The applicant sustained a minor injury as a result of the accident. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.
27The applicant is not entitled to the treatment plans in dispute because they propose goods and services outside of the MIG and the $3,500.00 funding limit. The applicant is only entitled to treatment up to the MIG limits.
28The applicant is not entitled to interest or an award.
Released: October 24, 2024
__________________________
Tyler Moore
Vice-Chair