Citation: Kalirasa v Wawanesa Insurance, 2024 ONLAT 22-012470/AABS

Licence Appeal Tribunal File Number: 22-012470/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:

Kulendra Kalirasa

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR: Leo Demarce

APPEARANCES:

For the Applicant: Anna Korolkova, Paralegal

For the Respondent: Mark Pascoal, Counsel

HEARD: by way of written submissions

OVERVIEW

1Kulendra Kalirasa, 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, Insurer, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue(s) in dispute is/are:

1. 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 and in the Minor Injury Guideline (“MIG”)?
2. Is the applicant entitled to $978.11 for physiotherapy services, proposed by 2431512 Ontario Inc. in a treatment plan/OCF-18 (“plan”) dated January 23, 2021?
3. Is the applicant entitled to $3,051.58 for physiotherapy services, proposed by 101 Physio in a plan dated March 16, 2022?
4. Is the applicant entitled to $5,272.00 for psychological services proposed by 101 Assessments in a plan dated September 19, 2022?
5. Is the applicant entitled to the assessments proposed by 101 Assessments as follows: i. $2,799.00 for a psychological assessment in a plan dated April 26, 2022; ii. $2,686.00 for an orthopedic assessment, in a plan submitted on September 19, 2022; and iii. $2,460.00 for a neurological assessment in a plan dated September 29, 2022?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 MIG limit. As a result, the applicant is not entitled to any of the treatment plans in dispute and the application is dismissed.

4However, 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 s. 40(8) of the Schedule, once incurred.

The Minor Injury Guideline

5I find that the applicant did establish on a balance of probabilities to prove that his injuries remove him from the MIG because of the accident.

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.

8The applicant submits she should be removed from the MIG on two grounds:

1. Chronic pain with a functional impairment; and
2. psychological condition arising from the accident.

Chronic Pain

9I find that the applicant has not met his onus to demonstrate he suffers from chronic pain with a functional impairment that warrants removal from the MIG. The applicant points to a diagnosis of chronic pain as his argument to be removed from the MIG.

10The applicant submits that Dr. Coghlan, a chiropractor, provides a diagnosis of chronic pain on the OCF-18 dated March 16, 2022. I do not find this to be compelling evidence in support of the applicant being removed from the MIG because a chiropractor is not qualified to make this diagnosis, it is made on an OCF-18 without further explanation. Further, there is no corroborating evidence and no evidence that the applicant is suffering from a functional impairment as a result of chronic pain.

11In the absence of a diagnosis of chronic pain from a chronic pain specialist, the Tribunal has adopted the criteria as set out in the American Medical Association’s Guides (“AMA Guides”) as an interpretive tool for chronic pain claims. Under the AMA Guides, an applicant must provide evidence that they meet three of the six criteria to establish they are suffering from chronic pain.

12In the absence of a diagnosis of chronic pain from a qualified chronic pain specialist the applicant must provide other compelling medical evidence to warrant removal from the MIG based on chronic pain,

13I find that the applicant has not pointed to sufficient compelling medical evidence to establish removal from the MIG based on having at least three of the six criteria as set out in the AMA Guides.

14Due to the reasons above I find that the applicant has not established, on a balance of probabilities, that he suffers from chronic pain with a functional impairment that would warrant removal from the MIG

Potential Psychological impairments arising from the accident.

15I find that the Applicant has not provided sufficient evidence to demonstrate that psychological impairments were sustained as a result of the accident, which would justify removal from the MIG.

16An applicant may be removed from the confines of the MIG should they have sustained a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule. A psychological impairment must be more than clinically related sequelae of a minor injury. The applicant relies on a report dated September 2, 2022 from Dr. Papazoglou that diagnosed the applicant with Adjustment Disorder (with mixed anxiety and depressed mood), Specific (Isolated) Phobia (Driving/Passenger).

17The respondent submits that Dr. Papazoglou’s assessment was conducted over the telephone, and that it is not evident if the applicant was ever examined in-person or virtually. While Dr. Papazoglou reports that the applicant was noted as being alert and attentive, and that there were no signs of pain-inflicted behaviour, the respondent argues that it is difficult to accept this when the assessor was not able to view the applicant. The respondent argues that Dr. Papazoglou’s report appears to rely entirely on the applicant’s own self-reporting.

18I agree with the respondent’s arguments regarding the findings of Dr. Papazoglou because the applicant was not observed in person or virtually, and because the report relies predominantly on the applicant’s own self-reporting and because of this I give little weight to the findings of Dr. Papazoglou.

19The respondent further argues that the applicant made little to no complaints of a psychological nature to any of his treatment providers after the accident and has not received any psychological treatment after the accident.

20I also take note that the applicant continued to work after the accident, and in the report from Dr. Papazoglou the applicant continues to keep a driver’s license and continuously checks the window and mirrors, which would suggest that he is driving a vehicle, not just riding as a passenger in the backseat. This gives weight to the applicant’s ability to continue to drive and less weight to the diagnosis of Adjustment Disorder (with mixed anxiety and depressed mood), Specific (Isolated) Phobia (Driving/Passenger).

21I am not persuaded that the applicant has proven on a balance of probabilities that he has been diagnosed with or suffering from a psychological condition arising from the accident. The applicant has not pointed to any other evidence to persuade me that he suffers from a psychological impairment arising from the accident.

22As I have found the Applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.

23However, 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 s. 40(8) of the Schedule, once incurred.

Interest

24As there are no overdue benefits there is no interest payable.

ORDER

25I find that the applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 MIG limits and the application is dismissed.

26However, 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 s. 40(8) of the Schedule, once incurred.