Licence Appeal Tribunal File Number: 22-006964/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:
Sivamaran Sountharapandiyan
Applicant
and
Aviva Insurance Company
Respondent
DECISION
VICE-CHAIR: Brett Todd
APPEARANCES:
For the Applicant: Michael Pryce, Paralegal
For the Respondent: James Kolumbus, Counsel
HEARD BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Sivamaran Sountharapandiyan (the “applicant”) was involved in a motor vehicle accident on December 24, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Aviva Insurance Company (the “respondent”) held the applicant within the Minor Injury Guideline (“MIG”), denied a claim for non-earner benefits (“NEB”), and denied three treatment plans. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
2The following issues are in dispute:
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 limit of the MIG?
Is the applicant entitled to NEB in the amount of $185.00 per week from January 24, 2020 to December 22, 2022?
Is the applicant entitled to $180.23 ($1,365.23 less $1,185.00 approved) for physiotherapy, proposed by Pro-Life Wellness in a treatment plan/OCF-18 (“plan”) submitted on April 24, 2021 and denied on May 14, 2021?
Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Pro-Life Wellness in a plan submitted on May 9, 2022 and denied on November 21, 2022?
Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Pro-Life Wellness in a plan submitted on September 23, 2022 and denied on November 22, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
3In the Case Conference Report and Order (“CCRO”) dated May 3, 2023 that set this matter down for a written hearing, the dates listed in issue #2 incorrectly noted the NEB time period in dispute as being from “January 24, 2023 to date and ongoing.” I find that the actual NEB term in dispute is January 24, 2020 until December 22, 2022, in accordance with the submissions of both parties and the provisions of s. 12(3) of the Schedule. This section mandates that an insurer is not required to pay NEB for the first four weeks after the onset of the complete inability to carry on a normal life (in this instance, the accident), and that an insurer is not required to pay NEB for more than 104 weeks after the accident. I have adjusted these dates accordingly in issue #2 listed above.
4According to an Explanation of Benefits letter dated November 21, 2022 provided by the respondent, $3,450.73 has been paid within the $3,500.00 limit of the MIG. This leaves $49.27 remaining under the MIG. As a result, I accept that the MIG has been functionally exhausted and that the applicant must be removed from the MIG to be entitled to the treatment plans in dispute.
RESULT
5I find that:
i. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule. He remains within the MIG and its $3,500.00 limit on treatment.
ii. The applicant is not entitled to NEB of $185.00 per week from January 24, 2020 to December 22, 2022.
iii. As the applicant remains within the MIG, which has been functionally exhausted, he is not entitled to the treatment plans in dispute.
iv. As there are no benefits owing, it follows that the applicant is not entitled to interest.
ANALYSIS
The Applicant Remains Within the Minor Injury Guideline (“MIG”)
6I find that the applicant has failed to demonstrate that he suffers from an injury or condition that warrants removal from the MIG.
7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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.”
8An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.
9The burden is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG. In this instance, the applicant argues that he suffers from a range of ongoing physical complaints as a direct result of the accident that have caused chronic pain. He also alludes to a pre-existing medical condition that prevents him from reaching maximal recovery from the injuries that he sustained in the accident.
10The respondent submits that the applicant has failed to make any submissions on the applicability of the MIG. Further, the respondent claims that the applicant has not referenced any medical evidence showing that his injuries fall outside the definition of a minor injury in the Schedule, that he suffers from chronic pain, or that he has a pre-existing injury that would preclude treatment within the MIG.
11I agree with the respondent. The applicant has produced negligible evidence for his claims to be removed from the MIG.
12Most notably, it is somewhat unclear what specific reasons the applicant is advancing to support his removal from the MIG. While the applicant mentions both chronic pain and a pre-existing injury in his written submissions, he does so only passingly. He does not provide a compelling argument regarding these claims (or even much of an argument at all). Nor does he direct me to evidence that would support his assertions.
13First, even though the applicant’s submissions reference a significant number of injuries that he claims to have sustained as a result of the accident, all fall into the definition of a minor injury in the Schedule. For example, the applicant’s Disability Certificate/OCF-3 dated January 23, 2021 lists sprain and strain of the cervical and lumbar spine, sprain and strain of the shoulder girdle, and sprain and strain of unspecified parts of the hand. Nothing here supports the applicant’s removal from the MIG.
14Second, the applicant substantiates his claims of “ongoing complaints” that have resulted in chronic pain with indistinct references to evidentiary tabs featuring the clinical notes and records (“CNRs”) of Dr. Michael Pflug, Dr. Francia Jayarajah, Markham McNicol Urgent Care, and ProLife Wellness. He does not provide any context, list the physicians’ area of practice and how they treated the applicant, or direct me to any specific parts of these records. Instead, the applicant states only that these records prove the existence of his claimed ongoing complaints involving intermittent upper and lower back pain; neck and hip pain; sprain and strain of “other” and parts of knees; sprain and strain of sternum, lumbar spine, and thoracic spine and shoulders.
15This amounts to an insufficient argument, as an applicant cannot simply submit evidence in this fashion and leave it up to the adjudicator to connect the dots by trawling through 200 pages of documentation.
16Regardless, such a search does not turn up adequate support to warrant the applicant’s removal from the MIG. The tabs referenced by the applicant reveal that he experienced soft-tissue sprains and strains as a result of the accident. The CNRs of Dr. Jayarajah (who seems to be the applicant’s family physician), for instance, note that the applicant mentioned the accident just once, during an appointment on January 9, 2021. There is no note of chronic pain or a pre-existing condition connected with the accident.
17In all, there is insufficient support within these records to substantiate the applicant’s claims of chronic pain or a pre-existing injury or condition that precludes his recovery if held within the MIG. Accordingly, the applicant remains within the MIG.
The Applicant is Not Entitled to Non-Earner Benefits (“NEB”)
18I find that the applicant is not entitled to NEB of $185.00 per week for the time period of January 24, 2020 to December 22, 2022, as he has not demonstrated that he suffers from a complete inability to carry on a normal life.
19Section 12(1) of the Schedule provides that an insurer shall pay NEB to an insured person who sustains an impairment as a result of an accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
20The test for NEB involves a consideration of the applicant’s activities pre- and post-accident, as set forth in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391. It is the burden of the applicant to demonstrate that his life circumstances have changed significantly enough to continuously prevent him from substantially engaging in the activities that he performed before the accident.
21Here, the applicant submits that his Disability Certificate/OCF-3 and the same medical records listed above in paragraph [14] “speak to Complete Disability in relation to the Non-Earner Benefit” claim.
22The respondent counters that the applicant has provided no written argument on the NEB claim, nor any evidence to meet the test as established in Heath.
23I agree with the position of the respondent. The applicant refers to the NEB issue in just one sentence of his written submissions, much of which I have quoted above. As with the applicant’s MIG claim, he asserts that the provided medical records as a whole support his entitlement to NEB without directing me to any specific sections of these records that would substantiate his contentions. And also, as with the MIG claim, this approach does not meet the evidentiary burden required to warrant entitlement to NEB. An applicant cannot reference medical reports in their entirety and expect an adjudicator to make his case for him by searching this evidence for what could be most pertinent to his claim.
24At any rate, the applicant has not provided written submissions or evidence that would meet the test as established by Heath. He has failed to present anything regarding his activities pre-accident or to demonstrate that he suffers from the complete inability to carry on a normal life following the accident. What is before me indicates that the applicant suffered from minor injuries as a result of the accident and that he continued his prior activities afterward, making only small adjustments to deal with pain symptoms when addressing chores that required mobility, and needing assistance with some household duties.
25This conclusion is supported by the most thorough and most reliable medical evidence before me regarding the applicant’s functionality post-accident—the insurer’s examination (“IE”) musculoskeletal report completed by Dr. Michael Hanna, family physician, and dated November 10, 2022. In this report, Dr. Hanna wrote that the applicant informed him that he had maintained his typical daily routine after the accident, which included him working full-time from 7:00 AM to 4:00 PM. The applicant also told Dr. Hanna that he remained independent with all pre-accident personal care and home maintenance work, albeit with the exacerbation of pain during mobility tasks and a requirement that his wife assist with household chores such as grocery shopping, meal preparation, and housecleaning.
26All of this indicates that the applicant carried on with the activities of normal living post-accident, not that he experienced any sort of substantial disruption that would meet the NEB test. In accordance with the above reasons, the applicant is not entitled to NEB, nor interest.
The Applicant is Not Entitled to the Treatment Plans
27As the applicant has been found to remain within the MIG, which has been functionally exhausted, he is not entitled to the treatment plans in dispute, nor interest.
ORDER
28The application is dismissed and I find that:
i. The applicant has failed to demonstrate that he suffers from injuries that are not defined as minor in the Schedule. He remains within the MIG and its $3,500.00 limit on treatment.
ii. The applicant is not entitled to NEB of $185.00 per week from January 24, 2020 to December 22, 2022.
iii. As the applicant remains within the MIG, which has been exhausted, he is not entitled to the treatment plans in dispute.
iv. As there are no benefits owing, it follows that the applicant is not entitled to interest.
Released: February 14, 2024
Brett Todd
Vice-Chair