Thayalan v. Wawanesa Mutual Insurance
Licence Appeal Tribunal File Number: 22-001345/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:
Methunaalini Thayalan
Applicant
and
Wawanesa Mutual Insurance
Respondent
DECISION
ADJUDICATOR: Edward Langley
APPEARANCES:
For the Applicant: Ardian Haruni, Paralegal
For the Respondent: David Visschedyk, Counsel
HEARD: By way of written submissions
OVERVIEW
1Methunaalini Thayalan (the “applicant”) was involved in a motor vehicle accident on August 27, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Wawanesa Insurance Company (the “respondent”) held the applicant within the Minor Injury Guideline (“MIG”) and denied certain benefits. The applicant submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2At the case conference, the respondent raised a preliminary issue requesting that the applicant be barred from bringing issue #3 (for a neurological assessment) from the application forward because the two-year time limitation to dispute the denial has expired.
3As it is my decision that the applicant is being held in the MIG, the preliminary issue becomes moot because the cost of the neurological assessment would fall outside the $3,500 limit of the MIG.
ISSUES
4The following substantive 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 $2,200.00 for psychological services, proposed by Princeton Hills Medical in a treatment plan/OCF-18 dated September 24, 2021?
- Is the applicant entitled to $1,970.00 for a neurological assessment, proposed by Toronto Medical Centre in a plan dated October 19, 2018?
- Is the applicant entitled to interest on any overdue payment of benefits?
5Neither the CCRO that set this matter down for a written hearing nor the parties in their submissions confirm if there was any funding remaining within the MIG limit of $3,500.00.
RESULT
6I find that:
i. The applicant has failed to demonstrate that her accident-related impairments warrant removal from the MIG.
ii. The applicant is entitled to any amount that remains within the $3,500.00 MIG limit as of the date of this decision.
ANALYSIS
The Minor Injury Guideline (“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 determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.
9The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG.
10The applicant submits that there is compelling medical evidence from the family doctor, hospital, OHIP summary, treatment, and assessments on file which support that the applicant sustained severe physical, psychological, and neurological injuries. The respondent argues that the applicant should not be removed from the MIG, as she has not substantiated that any pre-existing injury or condition precludes her recovery within the MIG, nor that she suffers from chronic pain or a psychological injury (an issue not raised by the applicant) not defined as a minor injury in the Schedule. The applicant, however, does not direct me to any sufficient medical evidence indicating that such symptoms, precluded her recovery within the MIG.
The applicant remains within the MIG
11I find that the applicant has not met her onus and demonstrated that her accident-related impairments warrant removal from the MIG.
The applicant does not suffer from an injury or condition that precludes her recovery within the MIG
12As noted earlier in paragraph 10 above, the applicant submits that there is “compelling medical evidence from the family doctor, hospital, OHIP summary, treatment, and assessments on file support that the applicant sustained severe physical, psychological and neurological injuries”, but she does not direct me to sufficient medical evidence indicating that such symptoms precluded her recovery within the MIG.
13The clinical notes and records (“CNRs”) of Dr. Sivagami Jeevanandam, family physician, dated August 29, 2017 (two days post-accident), substantiate that the applicant was prescribed Tylenol and recommended for physiotherapy. On November 7, 2017, on a subsequent visit, the applicant complains of back, left shoulder and left knee pain to the family doctor, which yielded the same results. Specifically, prescribed Tylenol