Licence Appeal Tribunal File Number: 22-002803/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:
Shivanee Eswaran
Applicant
and
Aviva Insurance Company
Respondent
DECISION
ADJUDICATOR:
Michael Beauchesne
APPEARANCES:
For the Applicant:
Lawrence Calenti, Counsel
For the Respondent:
Thulasi Kandiah, Counsel
HEARD:
By way of written hearing
OVERVIEW
1Shivanee Eswaran (the “applicant”) was involved in an automobile accident on November 4, 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 Aviva Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
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 Minor Injury Guideline (the “MIG”) limit?
Is the applicant entitled to chiropractic treatment proposed by North Toronto Rehab as follows:
i. $3,472.82 in a treatment plan (the “OCF-18”) dated December 1, 2021;
ii. $2,487.53 in an OCF-18 dated January 10, 2022;
iii. $1,495.05 in an OCF-18 dated February 16, 2022;
iv. $1,382.24 in an OCF-18 dated March 16, 2022;
v. $1,185.55 in an OCF-18 dated April 16, 2022;
vi. $983.81 in an OCF-18 dated May 14, 2022;
vii. $1,495.05 in an OCF-18 dated June 7, 2022;
viii. $983.81 in an OCF-18 dated July 5, 2022;
ix. $871.00 in an OCF-18 dated July 29, 2022;
x. $983.81 in an OCF-18 dated August 30, 2022;
xi. $871.00 in an OCF-18 dated September 22, 2022; and
xii. $983.81 in a plan dated October 25, 2022?
- Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG and is not entitled to the OCF-18s at issue. No interest is payable.
ANALYSIS
The applicant has not demonstrated she should be removed from the MIG.
4I am not convinced the applicant has met her onus to show removal from the MIG is warranted.
5Section 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.” The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under section 18(2), that she has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury if she is 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.
6For this matter, the applicant says she should be removed from the MIG because of chronic pain.
The applicant did not sustain chronic pain with functional impairment as a result of the accident
7I find the applicant has not demonstrated she should be removed from the MIG because of functional impairment resulting from chronic pain.
8The Tribunal has consistently held that for chronic pain to be found to be more than sequelae from soft-tissue injuries, it must be chronic pain syndrome, or it must be continuous and of a severity that it causes suffering and distress accompanied by functional impairment or disability.
9The applicant’s submissions say she incurred extensive treatment in order to return to work after the accident, and has been diagnosed with chronic pain by Dr. Aruna Lambotharan (family doctor). The applicant explains that Dr. Lambotharan’s clinical notes make repeated reference to persistent pain symptoms, and that this is also evident in her treatment records with North Toronto Rehabilitation. In addition to the clinical notes and records of Dr. Lambotharan and her treatment provider, the applicant relies on an affidavit she completed in March 2023.
10The respondent’s submissions argue that notations of chronic pain, in and of themselves, are not sufficient to remove the applicant from the MIG, and claims a distinction exists between chronic pain complaints and an actual diagnosis of chronic pain syndrome. The respondent further contends that the applicant does not meet the chronic pain threshold set out in the 6th edition of the 2008 American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”). The applicant relies on the Insurer’s Examination (the “IE”) completed by Dr. Michael Hanna (physician).
11I accept the applicant experienced accident-related pain for more than six months as noted on the legal form (dated January 5, 2023) completed by Dr. Lambotharan. Medical opinions in evidence consistently diagnose musculoskeletal sprain and strains (i.e., soft-tissue injuries) in areas of the applicant’s body that experience accident-related pain. There are complaints of pain in the applicant’s neck, shoulders, arms, elbows, back, chest, right leg, and knees in Dr. Lambotharan’s transcribed clinical notes and the treatment records of North Toronto Rehabilitation. For clarity here, I agree with the respondent’s observation that Dr. Lambotharan’s non-transcribed notes are illegible, and I did not rely on them to inform my analysis.
12However, I find there is insufficient medical evidence of functional impairment or disability arising from the applicant’s accident-related pain. The respondent submits the applicant has never reported any functional impairments to Dr. Lambotharan, and I agree that the bulk of the medical evidence referenced in the applicant’s submissions that pertain to Dr. Lambotharan’s records does not confirm functional impairment resulting from chronic pain. Rather, I am persuaded by the treatment records of North Toronto Rehabilitation, which report, at the end of February 2022, that the applicant had regained productivity at work five days per week. This is corroborated in the applicant’s affidavit, where she indicates she was able to return to regular duties for four days per week on average as of January 20, 2022. I find this is two months after the accident and within the generally expected healing time of 10-12 weeks for soft-tissue injuries as indicated in Dr. Hanna’s report. The applicant’s treatment records further indicate she had resumed full duties at regular hours by June 2022. In my view, this evidence does not establish functional impairment or disability arising from chronic pain.
13This is not to say I believe the applicant stopped experiencing pain when she returned to work. On the contrary. The applicant’s pain at work is supported by her affidavit and treatment records. While I agree her pain persisted, I am persuaded the pain was at manageable levels and occurred intermittently as opposed to continuously (i.e., “comes and goes”). I find this evidence establishes it is more likely that the applicant’s pain is sequelae resulting from her accident-related soft-tissue injuries.
14I am further persuaded by Dr. Hanna’s IE report of April 2022 because it is contemporaneous and consistent with the bulk of the evidence pertaining to the applicant’s functionality as presented in the applicant’s submissions. Dr. Hanna performed an in-person musculoskeletal assessment of the applicant’s functionality. This assessment included an “unremarkable” neurological examination, and determined the applicant’s active range of motion in her neck, upper and middle back, shoulders, elbows, wrists, and knees was normal. Although Dr. Hanna observed the applicant’s range of motion in her lower back was restricted, I did not place full weight here because the contemporaneous evidence is consistent with the applicant having regained work productivity by April 2022, which corroborates the applicant’s own report of being 90 per cent better at the time of her assessment with Dr. Hanna. As such, I find the applicant’s back restrictions, in and of themselves, fall short in a chronic context (i.e., suffering and distress accompanied by functional impairment or disability).
15The respondent’s submission on the chronic pain criteria factors set out in the Guides is also convincing. There are six criteria, and the Guides say at least three of these must be met for pain to be considered chronic. The respondent submits the applicant does not meet at least five of the six criteria, and I find this is accurate. The applicant did not make a submission on the applicant’s pain in the context of the Guides’ criteria, and I was not pointed to evidence that establishes excessive dependence on healthcare providers, spouse, or family; prescription drug use that goes beyond its recommended duration, or drug abuse or dependency; secondary physical deconditioning due to disuse or fear avoidance of physical activity due to pain; psychosocial issues sequalae; or social withdrawal. Although I am not bound by the AMA Guides in respect of chronic pain—and I agree with the applicant’s position that the Schedule does not incorporate the AMA Guides in this context, unlike for catastrophic impairment—I find the Guides to be a useful interpretive tool in this case where the applicant is not diagnosed with chronic pain syndrome.
16In conclusion, I believe the applicant suffered pain after the accident that required a gradual return to work with treatment and modified work duties over 10-12 weeks. But I find the evidence in this case, when taken together on balance, does not establish her pain as chronic because there is insufficient medical evidence of functional impairment or disability that continued beyond the normal expected healing times for her soft-tissue injuries. I therefore do not agree the applicant should be removed from the MIG.
The applicant is not entitled to the OCF-18s for chiropractic treatment
17The applicant remains in the MIG, so an analysis of the reasonableness and necessity of the disputed treatment plans is not required. The parties have not identified what balance, if any, remains in the MIG. The applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to section 40(8) of the Schedule.
Interest
18Interest applies on the payment of any overdue benefits per section 51 of the Schedule. There are no benefits owing, so not interest is payable.
Costs
The respondent is entitled to receive payment for costs in the amount of $250.00
19I find the respondent’s request for costs has merit.
20For context , the respondent’s written submissions reiterated its earlier motion (filed on August 21, 2023) to dismiss this application (with costs) as abandoned under Rule 3.4(d) of the Licence Appeal Tribunal Rules (the “Rules”) or, in the alternative, extend the deadline for the respondent’s submissions or permit the respondent to make additional submissions. The motion order—released on September 7, 2023, six calendar days after the respondent filed its written submissions on time—declined to dismiss the application as abandoned, but left the issue of costs to the hearing adjudicator.
21Rule 19.1 provides for a party to request costs, if that party believes the other party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.
22The respondent requests costs in the amount of $1,000.00. The respondent submits that the applicant acted unreasonably, frivolously, and in bad faith because she did not provide any explanation for the delay in providing her submissions, and, at the time the respondent filed its written submissions, had not provided her evidence in full. The respondent also claims the applicant did not respond to correspondence from the Tribunal or the respondent regarding the late submission, which, in turn, necessitated the motion and incurred the costs that are now being requested.
23The applicant’s reply submissions do not address the respondent’s request for costs, other than to seek an order that neither party is entitled to costs.
24I find the applicant acted unreasonably. The applicant’s deadline for her written submissions, evidence, and authorities was August 16, 2023, per the case conference report and order released on February 22, 2023, and the notice of written hearing dated March 16, 2023. The Tribunal sent a submission due date reminder to the applicant on August 16, 2023, and the respondent sent a reminder to the applicant the following day. I accept the applicant did not serve its written submissions until August 21, 2023, and its evidence brief until August 22, 2023. I also accept that, at the time the respondent served its written submissions on September 1, 2023, the applicant had not yet served its authorities. The applicant was also late filing documents with the Tribunal. Written submissions and authorities were not filed until August 23, 2023. The applicant’s evidence brief was not filed until after proceedings had commenced and even then, only after yet another reminder was sent by the Tribunal.
25The Tribunal’s orders are important and should be adhered to. The applicant failed to comply with the written hearing deadline ordered for her submissions and did not provide any explanation for this or seek a deadline extension order. In doing so, she caused the respondent to incur the costs of requesting a deadline extension for its submissions. She also interfered with the Tribunal’s ability to carry out an efficient and effective process by failing to file her evidence brief, which caused a delay in the proceedings. Taken together, I find these factors establish misconduct of sufficient seriousness to warrant costs.
26I order the applicant to pay $150.00 in costs to the respondent. Rule 19.5 allows the Tribunal to award a different amount than requested, and I find it is not reasonable to order $1,000.00 because part of these costs pertain to the respondent’s motion to dismiss this matter as abandoned, which, as indicated in the motion order, was not the proper course of action to take for a missed deadline.
ORDER
27The applicant remains in the MIG and is not entitled to the disputed OCF-18s or interest. The respondent is entitled to costs of $150.00. The application is otherwise dismissed.
Released: February 5, 2024
Michael Beauchesne
Adjudicator