Licence Appeal Tribunal File Number: 23-015382/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:
Varathaluxmy Sovunthararajan
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Mark Stoiko, Counsel
For the Respondent:
Thulasi Kandiah, Counsel
Interpreter:
Ignasious Selliah, Tamil Language
Court Reporter:
Siriana Taylor, Professional Court Reporters
HEARD: by Videoconference:
November 7, 2024
OVERVIEW
1Varathaluxmy Sovunthararajan, the applicant, was involved in an automobile accident on November 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The parties were unable to resolve the matter at the case conference, so the matter proceeded to a one-day videoconference hearing.
ISSUES
3I have been asked to decide the following issues:
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 Minor Injury Guideline limit (“MIG”)?
Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from November 18, 2021o to October 6, 2022?
Is the applicant entitled to medical benefits proposed by Roy Priesnitz and Ying Wu in the following treatment plans/OCF-18 for physiotherapy:
a) $3,919.10 submitted March 4, 2022;
b) $3,394.25 submitted August 17, 2022;
c) $3,732.80 submitted April 22, 2022;
d) $3,580.40 submitted June 17, 2022; and
e) $4,672.20 submitted May 11, 2023?
Is the applicant entitled to $1,808.00 for an accounting report submitted on an invoice dated January 24, 2022?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4After considering the submissions of both parties and all the evidence I find:
The applicant’s accident-related impairments fit within the MIG. Since the MIG limits have been exhausted, she is not entitled to any of the treatment plans for physiotherapy.
The applicant is not entitled to an IRB for the time period claimed or the accounting report. Interest is not payable because I have not determined that any benefits are overdue.
PROCEDURAL ISSUES
Withdrawal of the Award Claim
5Prior to the hearing the respondent brought a motion seeking to have the applicant’s claim for an award dismissed because the applicant did not comply with the Tribunal’s case conference report and order which ordered the applicant to provide the respondent with the particulars of the award claim within 30 days of receiving the adjuster’s log notes.
6In response to the respondent’s motion, the applicant wrote the Tribunal advising that she was withdrawing her claim for an award. In the middle of the hearing, the applicant requested to re-add the award claim in response to some questions the respondent asked during cross-examination about the applicant having to repay EI for misrepresenting her income. The respondent opposed the request on the basis that the issue was withdrawn, and it would be procedurally unfair because no particulars about the award claim were provided in advance of the hearing, and it has a right to know the case it must meet.
7I decline the applicant’s request to re-add the award as an issue in dispute because she withdrew the issue prior to the hearing. As a result, I find that it would be procedurally unfair to add the issue at this stage in the process. Further, the applicant made no submissions and did not refer to any evidence throughout the hearing which support that the respondent unreasonably withheld or delayed payment of any of the benefits in dispute, which would warrant a claim for an award.
Adjuster’s Log Note
8The applicant opposed the respondent’s reliance on an adjuster’s log note in closing submissions in support of its position that the applicant did not submit a disability certificate (“OCF-3”) until February 20, 2022, and is not entitled to an IRB prior to the date of its submission. The applicant argues that it is procedurally unfair for the respondent to refer to evidence in closing submissions where the respondent did not call the adjuster to be cross-examined on the log note. In light of my decision in this matter, I do not find it necessary to address this issue because it had no bearing on the outcome of my decision.
ANALYSIS
The applicant’s accident-related impairments fit within the MIG.
9Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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.”
10An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that her accident-related impairments fall outside of the MIG.
11The applicant submits that she should be removed from the MIG because she suffers from chronic pain as a result of the accident which has resulted in her inability to work in her pre-accident occupation as a card inspector. Further, her pain has interfered with her ability to carry out her pre-accident housekeeping and home maintenance tasks. In support of her position, she relies on an OCF-3 completed by Dr. Priesnitz, chiropractor, dated December 14, 2021, and the report of Dr. Kachooie, physiatrist, dated May 11, 2023. She also maintains that she sustained a psychological impairment as a result of the accident which has resulted in mood swings and has also impacted her ability to function. The applicant and her daughter also testified about her accident-related impairments and its impact on her ability to function.
12The respondent argues that the applicant’s accident-related impairments fall within the MIG. It relies on the insurer examination (“IE”) report of Dr. Martin, orthopaedic surgeon, dated April 12, 2022, who diagnosed the applicant with soft tissue injuries which fall within the MIG. Further, the respondent maintains that the OCF-3 relied on by the applicant supports that she sustained a minor injury. Finally, the respondent submits that the applicant’s first visit to her family doctor was 18 months post-accident and the two visits thereafter do not refer to the accident or support a diagnosis of chronic pain.
13I find the applicant’s accident-related impairment fits within the MIG for the following reasons.
14The applicant’s submissions and evidence fell far short of meeting her onus that she suffers from chronic pain as a result of the accident to warrant removal from the MIG. As a starting point, the OCF-3 completed by Dr. Priesnitz states that the applicant sustained sprain and strain injuries of the shoulder girdle and thoracic spine and an injury of the muscle and tendon at neck level. I find that these impairments fit within the definition of the MIG.
15The applicant relies on the report of Dr. Kachooie who diagnosed her with whiplash, rotator cuff tendonitis, sacroiliac joint disorder, chondromalacia patella and chronic pain as a result of the accident. I do not find Dr. Kachooie’s diagnosis of chronic pain persuasive because there is no objective medical evidence, such as CNRs of the family doctor or treating clinic to support the diagnosis. For example, the doctor did not review any medical records in preparing the report that supports this opinion and relied on the applicant’s self-reports. Further, the report states that the applicant’s vehicle was t-boned, rendering her unconscious. During cross-examination, the applicant was asked whether she agreed that she reported to the doctor that she lost consciousness and she said “maybe.” I do not find this answer reliable. Further, it was also inconsistent with the applicant’s reports to Dr. Martin, where the applicant did not report that she lost consciousness. For these reasons, I give this report little weight.
16The respondent directed me to the CNRs of the applicant’s family doctor which support that the applicant did not report any accident-related complaints to any doctor (with the exception of the above mentioned OCF-3) until April 3, 2023, which notes “accident in 2020. Has residual bilateral shoulder and neck pain. Requesting specialist opinion.” I agree with the respondent that the fact the applicant did not make any accident-related complaints for almost 17 months post-accident does not support a diagnosis of chronic pain. Further, two CNRs from September and October 2023 diagnose her with degenerative changes and osteoarthritis of the lumbar spine with no mention or link to the accident.
17The applicant testified that she suffers from ongoing pain which has resulted in mood swings and functional limitations in her ability to carry out most of her housekeeping and home maintenance tasks. She testified that she cannot do any heavy housework post-accident. Overall, I find the applicant’s testimony unhelpful because it was not supported by the medical evidence before me. Further, it was inconsistent with the fact that she has been working as a Personal Support Worker (“PSW”) since June 2022 which requires the ability to help lift and transfer patients. For the same reason, I did not find the applicant’s daughter’s testimony convincing in support of the applicant’s position that she suffers from chronic pain or a psychological impairment because she is not a medical professional.
18In contrast, the respondent relies on the s. 44 IE report of Dr. Martin who diagnosed the applicant with soft tissue injuries to the neck, shoulder girdles and lumbar spine. I accept Dr. Martin’s opinion because the doctor’s report was more thorough in that they reviewed the applicant’s pre and post medical records. Further, it is consistent with the medical evidence (or lack thereof) before me which implies that the applicant sustained a minor injury.
19Other than the applicant’s testimony that she has mood swings where she gets angry and throws things, there is no medical evidence of any psychological diagnosis before me to support that the applicant sustained a psychological impairment as a result of the accident which would warrant removal from the MIG.
20For the above-noted reasons, the applicant has not met her onus in proving on a balance of probabilities that she suffers from chronic pain or a psychological impairment as a result of the accident which warrants removal from the MIG. Since the MIG limits have been exhausted, she is not entitled to any of the disputed treated plans for physiotherapy.
The applicant is not entitled to an IRB for the time period claimed.
21Section 5(1)(1)(ii) of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were receiving benefits under the Employment Insurance Act (Canada) at the time of the accident, were at least 16 years old, and as a result of the accident and within 104 weeks after the accident, suffered a substantial inability to perform the essential tasks of the employment in which they spent the most time during the 52 weeks before the accident.
22It is undisputed that the applicant was a recipient of employment insurance (EI) at the time of the accident. The applicant submits that she was unable to return to work between November 18, 2021, and October 6, 2022, because she suffers from chronic pain as a result of the accident. In support of her claim for an IRB, the applicant relies on an application for accident benefits (OCF-1), the aforementioned report of Dr. Kachooie and the OCF-3 which supports that she had a substantial inability to perform the essential tasks of her employment.
23The respondent argues that the applicant has not met her onus of proving entitlement to the benefit. It argues that other than the insurance forms, the applicant has not submitted any medical evidence to establish that she was unable to work as a result of any accident-related impairment for the period in dispute. It maintains that documents within the EI file support that the applicant was willing to return to work but could not find a job. It also relies on the above-noted IE report of Dr. Martin.
24I find the applicant has not met her onus of proving entitlement to an IRB on a balance of probabilities for the following reasons.
25First, I find there is insufficient medical evidence that supports that the applicant has any accident-related impairments that have impacted her ability to work. For the reasons already provided above, I have given Dr. Kachooie’s report little weight. Further, Dr. Kachooie’s report post-dates the time period in dispute by 18 months and does not address the applicant’s employment duties at all. In addition, the Tribunal has consistently held that insurance forms on their own are not sufficient to prove entitlement to a benefit when they are not supported by objective evidence.
26The applicant submits that she is at a disadvantage because she does not have deep pockets like the respondent to commission expert reports. Although I acknowledge that the applicant does not have the resources that the respondent does, there is no requirement that the applicant produce medical reports to meet their burden and, in any event, this does not explain the absence of any accident-related complaints or references to her inability to work in the family doctor’s CNRs which could have corroborated her entitlement to an IRB.
27Second, I have no evidence before me about what the essential tasks of the applicant’s employment were in which she spent the most time during the 52 weeks before the accident. The EI file confirms that the applicant had been employed as a card inspector for a printing company until November 2020, when she was laid off because of COVID 19, and that this business did not reopen. The applicant testified that her employment duties included packing books. This is the only evidence I was provided with about the essential tasks of the applicant’s prior employment in the 52 weeks before the accident. What is equally unclear is what accident-related impairment would result in a substantial inability to carry out the essential tasks of her employment packing books.
28Finally, the applicant’s testimony about being unable to work because of an accident-related impairment is inconsistent with what she reported in an EI application which notes that she is able to work full-time, in the same capacity, and is ready, willing, and capable of working immediately. This form was completed during the same period in which she is seeking payment of an IRB. Finally, the applicant completed the PSW course within the six-month time period required which does not support that she had any functional limitations in completing the course.
29For all of the above-noted reasons, I find the applicant has not met her onus in proving on a balance of probabilities that she is entitled to an IRB.
The applicant is not entitled to the accounting report in the amount of $1,808.00.
30Section 7(4) of the Schedule requires an insurer to fund an accountant’s report where three preconditions are satisfied: first, the insured person must be applying for an IRB that is based on the employment or self-employment considered in the report; second, the report must be prepared by a member of a designated body within the meaning of the Public Accounting Act, 2004; and, finally, the expense must be reasonable and necessary for the purpose of determining the insured person’s entitlement to an IRB. The applicant bears the onus of proving that the accounting report is reasonable and necessary based on the aforementioned conditions on a balance of probabilities.
31The applicant did not make any submissions in support of why the accounting report is reasonable and necessary other than saying that s. 7(4) of the Schedule states that the insurer “shall pay” for an accounting report.
32The respondent submits that the accounting report was premature, because it was prepared before the respondent determined whether the applicant was eligible for the benefit as it was still waiting for documents from the applicant and the quantum was not in dispute. Further, it also maintains that the calculation of the applicant’s IRB was straightforward. Therefore, the accounting report is not reasonable and necessary.
33I find the first two pre-conditions noted above were satisfied in that the applicant was applying for an IRB that is based on the employment considered in the report. Second, the report was prepared by a member of a designated body of the Public Accounting Act. However, I find the applicant did not address why the report was reasonable and necessary for the purpose of calculating the benefit. I agree with the respondent that the calculation of the applicant’s IRB was straight forward as the only document necessary to calculate it was the income tax return from 2020, which noted income received from EI. Further, I also agree that the report was premature because the respondent had not yet determined whether the applicant was eligible for the benefit and was waiting for documents from EI which had not been submitted. As a result, I find that the quantum of the benefit was not in dispute.
34The applicant has not met her onus in proving on a balance of probabilities that the accounting report is reasonable and necessary.
The applicant is not entitled to payment of interest.
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to interest because I have not determined that any benefits are overdue.
ORDER
36For all the above-noted reasons, I order as follows:
The applicant’s accident-related impairments fit within the MIG. Since the MIG limits have been exhausted, she is not entitled to any of the treatment plans for physiotherapy.
The applicant is not entitled to an IRB for the time period claimed or the accounting report. Interest is not payable because I have not determined that any benefits are overdue.
Released: December 3, 2024
Rebecca Hines
Adjudicator