Citation: Banugoban v. Sonnet Insurance Company, 2024 ONLAT 22-011336/AABS

Licence Appeal Tribunal File Number: 22-011336/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:

Mathivathani Banugoban

Applicant

and

Sonnet Insurance Company

Respondent

DECISION

VICE-CHAIR:

Neil Levine

APPEARANCES:

For the Applicant:

Myra Mohamed, Paralegal

For the Respondent:

Branson Wong, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Mathivathani Banugoban, the applicant, was involved in an automobile accident on September 9, 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, Sonnet 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 treatment within the $3,500.00 limit and in the Minor Injury Guideline (MIG)?

ii. Is the applicant entitled to $2,200.00 for psychological services, proposed by Clinique Dr. Bita in a treatment plan/OCF-18 (“plan”) submitted on October 15, 2021?

iii. Is the applicant entitled to $3,506.00 for physiotherapy services, proposed by 1791850 Ontario Inc. in a plan submitted on March 15, 2022?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

PROCEDURAL ISSUES

Failure to comply with the page limits

3Neither party complied with the Tribunal’s Order regarding their submissions. In an Order dated June 22, 2023, the Tribunal ordered those submissions be double-spaced and 12-point Arial or Times New Roman font, with a ten page limit. The applicant submitted single-spaced submissions and the respondent submitted what appears to be a smaller font in excess of the page limits. Counsel are expected to comply with the Tribunal’s Orders.

4While I am prepared to admit the full submissions in this instance as both parties breached the Order, this should not be viewed as tacit acceptance of a breach of the Tribunal’s Order.

Failure to comply with production deadlines

5In its submissions, the respondent submitted that updated records from Dr. Miriam Moss should be excluded as evidence as they were not provided to the respondent prior to the delivery of submissions on February 14, 2024.

6I do not find the records of Dr. Marian Moss to be relevant to this case, nor are they prejudicial to the respondent, and therefore I will allow them to be used.

7The Tribunal is permitted to admit any records or documents that are relevant to the issues in dispute (see s. 15(1) of the SPPA and Rule 9.3).

RESULT

8The applicant has not demonstrated on a balance of probabilities that they should be removed from the MIG.

9The applicant is not entitled to the treatment plans.

10Note that the applicant is entitled to treatments up to the MIG limits, but it is not clear from the submissions whether or not the MIG limits have been exhausted.

11The applicant is not entitled to interest.

ANALYSIS

Minor Injury Guideline

12The applicant has not proven based on the balance of probabilities that her injuries are not minor injuries as defined by the Schedule.

13Section (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.”

14An insured may be removed from the MIG if they can establish that their accident-related injuries exceed the definition of a minor injury under the Schedule,” or under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if the insured person is kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG.

15The applicant submits that they should be removed from the MIG on the grounds of a pre-existing condition and chronic pain.

Pre-existing Condition

16The applicant has not proven on a balance of probabilities that her pre-existing condition of shoulder pain would prevent maximal recovery under the MIG.

17The applicant claims that her pre-existing shoulder pain prevents maximal recovery under the MIG and that she should be removed from the MIG on this basis. To support her position, the applicant relies on the following evidence:

i. Medical records from William Osler Hospital in 2019 noting left and right shoulder pain.

ii. The consultation report of orthopaedic surgeon Dr. Edward Lansang (April 29, 2019) which noted that the applicant had low symptomatology and a full active and passive range of motion.

iii. Clinical notes and records from 2019 from physician Dr. Marian Moss which noted the applicant had rotator cuff tendinitis and tenosynovitis.

18Conversely, the respondent submitted a s. 44 report from Dr. David Mula, physician and chronic pain specialist, dated May 30, 2022, which noted that there was no compelling evidence of a pre-existing condition which would prevent a maximal recovery.

19When determining if the applicant is removed from the MIG on the basis of a pre-existing condition s. 18(2) requires a consideration of whether this pre-existing condition will prevent the applicant from achieving a maximal recovery outside of the MIG.

20There are no further records of shoulder pain post-2019 up until the accident in September 2021. There are no medical records that show that the applicant’s shoulder condition has been worsened by the accident or that it prevents maximal recovery. Critically, the applicant has not provided the Tribunal with evidence that her pre-existing condition would affect her recovery if she were kept within the MIG framework, which is the requirement for removal from the MIG under s. 18(2).

21Accordingly, I find that the applicant has not met her burden of proving on a balance of probabilities that her pre-existing condition would prevent a maximal recovery under the MIG. Therefore, she is not removed from the MIG on this basis.

Chronic Pain

22I find that the applicant has not proven on a balance of probabilities that chronic pain with functional impairment exists.

23The applicant submitted that as a result of the accident she suffers from chronic back pain, thigh pain, chronic headaches, chronic left and right shoulder pain and chronic neck pain and should be removed from the MIG on this basis.

24Medical records submitted by the applicant to support her claim of chronic pain are reports from her family doctor, Dr. Marian Moss, from October 12, 2021 noting MVA-related back pain, and hip/back pain on November 15, 2021. Additional post-MVA back pain is reported on April 27, 2022, thought the applicant reported that it had improved as a result of physiotherapy.

25While it is not binding on the Tribunal, the respondent submitted that the applicant had not met three of the six criteria for the diagnosis of chronic pain syndrome as per the AMA Guides. These criteria, summarized, are: the use of prescription drugs beyond the recommended duration, excessive dependence on health care providers or family, secondary physical deconditioning due to disuse, withdrawal from social milieu including work or social contacts, failure to restore pre-injury function after a period of disability such that the physical capacity is insufficient to pursue work, family or recreational needs, and development of psychosocial sequelae after the incident (AMA Guides, 6th ed.). The respondent also submitted that the applicant suffered from no functional impairment as a result of the chronic pain.

26It is important to note that a formal diagnosis of chronic pain is not required to be removed from the MIG, but it is required that the applicant show evidence. In this respect, the Tribunal has adopted the AMA Guides criteria as an interpretive tool for evaluating chronic pain with functional impairment claims in the absence of a formal diagnosis.

27The applicant has presented little objective evidence from a medical professional diagnosing chronic pain. As noted by the respondent, chronic pain syndrome must meet three of the six criteria noted in the AMA Guides. The applicant has not submitted any evidence that shows the applicant has, for example, become dependent on prescription drugs, has excessive dependence on health care providers, shows physical deconditioning due to disuse or fear-avoidance, or has withdrawn from social activities. There has been no evidence submitted by the applicant of any functional impairment, nor evidence that any of these six AMA Guides criteria have been met.

28There may be some evidence of anxiety, as noted by Dr. Bita Sharifzadeh in her OCF-18 seeking a psychological services assessment, but there is no other medical evidence save for an episode in which the applicant was unable to complete an MRI due to anxiety (December 28, 2022). There were no other psychological complaints on any record submitted by the applicant.

29Accordingly, on a balance of probabilities, there is insufficient evidence submitted by the applicant to show that she suffers from chronic pain with functional impairment, which would remove the applicant from the MIG.

30The applicant remains within the MIG, and accordingly is not entitled to the treatment plans in dispute. Accordingly, an analysis into whether the treatment plans in dispute are reasonable and necessary is not required.

Interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No benefits are payable and no interest applies.

ORDER

32I find that the applicant:

i. Remains within the MIG;

ii. Is not entitled to the treatment plans in dispute if the applicant has reached the $3,500.00 MIG limit; and

iii. Is not entitled to interest.

33The application is dismissed.