Kottakaran v. Economical Mutual Insurance Company, 2024 CanLII 123302

Licence Appeal Tribunal

Citation: Kottakaran v. Economical Mutual Insurance Company, 2024 ONLAT 22-005175/AABS

Licence Appeal Tribunal File Number: 22-005175/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:

Tony Kottakaran

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Georgina Blanas

APPEARANCES:

For the Applicant:

Christina Trotta, Counsel

For the Respondent:

Alexander Dos Reis, Counsel

Written Hearing:

Heard by way of written submissions

OVERVIEW

1Tony Kottakaran (the “applicant”) was involved in an automobile accident on June 12, 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 Economical Mutual 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:

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 Minor Injury Guideline limit?

ii. Is the applicant entitled to $387.78 ($1,372.78 less $985.00 approved) for chiropractic treatment, physiotherapy and massage therapy, proposed by Scarborough South Physio and Rehabilitation Centre in a treatment plan/OCF-18 submitted September 16, 2021?

iii. Is the applicant entitled to $3,252.37 ($3,651.87 less $399.50 approved) for chiropractic treatment, physiotherapy, and massage therapy, proposed by Scarborough South Physio and Rehabilitation Centre in a treatment plan/OCF-18 submitted March 24, 2022?

iv. Is the applicant entitled to $2,200.29 for a psychological assessment, proposed by Scarborough South Physio and Rehabilitation Centre in a treatment plan/OCF-18 submitted October 3, 2022?

v. Is the applicant entitled to $45.00 for ambulance transport, submitted on a claim form/OCF-6 submitted March 21, 2023?

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

3Interest was not included in the case conference report and order as an issue in dispute. However, I note that both parties provided submissions that refer to interest as an issue. Also, the applicant included interest as an issue in his original application to the Tribunal. As such, I have considered interest in my ruling.

RESULT

4I find that:

i. The applicant is removed from the MIG, as he has met his burden and demonstrated on a balance of probabilities that his injuries fall outside of the definition of a minor injury in the Schedule.

ii. The applicant is not entitled to $387.78 ($1,372.78 less $985.00 approved) for chiropractic treatment, physiotherapy, and massage therapy.

iii. The applicant is not entitled to $3,252.37 ($3,651.87 less $399.50 approved) for chiropractic treatment, physiotherapy, and massage therapy.

iv. The applicant is entitled to $2,200.29 for a psychological assessment, plus interest pursuant to s. 51 of the Schedule.

v. The applicant is entitled to $45.00 for ambulance transport, submitted by an OCF-6 on March 21, 2023, plus interest pursuant to s. 51 of the Schedule.

ANALYSIS

The Minor Injury Guideline (“MIG”)

5I find that the applicant has demonstrated that he suffers from a psychological condition that warrants removal from the MIG. I am persuaded by the applicant’s medical evidence regarding his claims of suffering a psychological impairment as a result of the accident. I find that the applicant has a psychological impairment as a result of the accident that falls outside of the Schedule’s definition of a minor injury. He is removed from the MIG and its $3,500.00 limit on treatment.

6Section 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, confusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

7An 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 a documentation of a pre-existing condition combined with compelling medical evidence stating that the condition precludes recover 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.

8The burden is on the applicant to demonstrate on a balance of probabilities that his injuries fall outside of the MIG.

9The applicant submits that he suffers from a psychological impairment as a direct result of the accident, and that this condition warrants his removal from the MIG. The applicant relies on: Clinical notes and Records (“CNRs”) and a Disability Certificate (“OCF-3”) from his Family Physician, Dr. Armen H. Boyrazian; a Psychological Assessment report on February 28, 2023, by Dr. Zubina Ladak, Psychologist; an Insurer Examination report on March 15, 2023, by Dr. Sukhi Bhangu, Physiatrist; CNRs from Dr. Tom Chen; CNRs from Dr. Christos Soulios and an Insurer’s Examination (“IE”) Report from Dr. Marc Mandal dated April 21, 2023.

9In response, the respondent contends that the applicant has not met this onus in establishing that he should be removed from the MIG. The Respondent relies on a s. 44 IE Report by Dr. Marc Mandel dated April 21, 2023; a s. 44 IE Report by Dr. Bhangu, Physiatrist, dated April 21, 2023; and Dr. Ladak’s s. 25 Report dated February 28, 2023. The respondent submits that the medical evidence substantiates that the applicant suffered uncomplicated injuries as a result of the accident. Further, the respondent submits that the applicant did not suffer from any psychological conditions as a result of the accident. Accordingly, the respondent seeks a ruling that the applicant remains within the MIG and its $3,500.00 limit on treatment.

The applicant is removed from the MIG

I am persuaded by the applicant’s evidence provided in the CNRs from the physicians that examined him which support his claim of suffering from a psychological impairment as a result of the accident. The applicant meets the criteria for a psychological diagnosis (under DSM IV or V) . On July 9, 2022, the applicant continued to express concerns to Dr. Boyrazian, regarding his psychological injuries. Dr. Boyrazian referred him to a psychiatrist, Dr. Soulios, and he was examined on September 8, 2022, regarding his accident-related psychological concerns. Dr. Soulios diagnosed the applicant with a Major Depression and Post-Traumatic Stress Disorder and fear of Driving. In a s. 44 report at the request of the respondent, the applicant was examined by Dr. Mandel, who noted that the applicant lost his job due to poor performance and reporting poor sleep and diminished activities as a result of lack of interest and continued pain. From an emotional perspective, the applicant reported feeling dull and not being too enthusiastic and endorsed sadness. The report from Dr. Mandel, dated April 21, 2023, found the applicant does not merit a psychological diagnosis as a result of the accident and the applicant should not be removed from the MIG.

10I prefer Dr. Ladak’s report on February 28, 2023, over Dr. Mandel’s, because Dr. Mandel’s did not take into consideration the psychological diagnosis and recommendation of psychological counseling which was also recommended by Dr. Soulios, which was also supported in Dr. Ladak’s Psychological Assessment report on February 28, 2023.

11Dr. Ladak’s report finds that the applicant’s symptoms include passive sleep initiation difficulties, reduced energy, and cognitive challenges.

12Dr. Mandel’s s. 44 report also confirms that the applicant lost his job in relation to poor performance, reporting poor sleep and diminished personal relationship activity, and feeling dull and not being too enthusiastic and endorsed in sadness. Dr. Mandel’s concluded that the applicant does not merit a psychological diagnosis as a result of the accident and the applicant should not be removed from the MIG. I find the diagnosis in the report by Dr. Ladak, the examinations by Dr. Soulios, and by the applicant’s family physician corroborate the applicant’s claim. I do not give weight to Dr. Mandel’s conclusions for the reasons that he reviewed the applicant’s medical records but did not consider the medical reports by the physicians who examined the applicant. Accordingly, I find that Dr. Mandel’s report did not account for Dr. Soulios’ and Dr. Ladak’s findings, because he notes there is a lack of consistent objective information that would support a poor prognosis and or suggest that the applicant suffers clinically significant symptoms that would indicate a substantial psychological impairment from the motor vehicle accident. However, I find that this is what both Dr. Soulios and Dr. Ladak found in their reports, and, on balance, I afford these consistent reports greater weight.

13I find the applicant again expressed concerns to Dr. Boyrazian on July 9, 2022, regarding his psychological injuries. The applicant has not been able to return to his pre-accident activities and continues to struggle with stress, anxiety, depression and post traumatic stress. The applicant submitted a treatment plan for a psychological assessment. Dr. Ladak examined the applicant on February 25, 2023, with the purpose to assess the impact of the accident on the applicant. The applicant reported being sad, frustrated and overwhelmed and about the impact of his limitation on his performance at work. Once again, Dr. Ladak noted that the applicant’s symptoms include sleep limitation difficulties, reduced energy, and diminished appetite and cognitive challenges. Dr. Ladak concluded that the results of the applicant’s testing are consistent and that he meets the criteria for a DSM 5 diagnosis of Adjustment Disorder with mixed anxiety and depressed mood.

14I find that both Dr. Soulios and Dr. Ladak make findings that the applicant’s psychological impairment is a result of the accident. The onus is on the applicant, and I find he consistently complained about his psychological impairment and attempted to address his psychological matters post-accident. Accordingly, I find the applicant is removed from the MIG due to a psychological impairment. I find that the applicant has a psychological impairment as a result of the accident that cannot be addressed under the $3,500.00 limit under the MIG.

The applicant is not entitled to chiropractic treatment, physiotherapy and massage in a treatment plan/OCF-18 submitted September 16, 2021

The applicant is not entitled chiropractic treatment, physiotherapy and massage therapy, in a treatment plan/OCF-18 submitted March 24, 2022

15The applicant is not entitled to $387.78 ($1,372.78 less $985.00 approved) for chiropractic treatment, physiotherapy and massage, submitted on September 16, 2021, as he has not demonstrated it to be reasonable and necessary; similarly, he is not entitled to $3,252.37 ($3,651.87 less $399.50 approved) for chiropractic treatment, physiotherapy and massage therapy submitted on March 24, 2022, as he has not demonstrated it to be reasonable and necessary.

17I am not persuaded by the applicant’s argument. The applicant submits that these treatments plans should be deemed reasonable and necessary to treat his accident-related injuries because these injuries have significantly interfered with his everyday life and work performance. The applicant references his cervical strain, dorso lumbar, chest wall strain and right rib strain noted on August 30, 2021, by Dr. Boyrazian. In addition, he points to discomfort on the right sided back buttock and right thigh and along the limb, noted on March 11, 2022, by Dr. Chen. However, I find that Dr. Chen does not provide a further recommendation regarding the disputed treatment plans.

18The respondent submits that the applicant’s accident-related injuries fall within the MIG. Further, it submits that the applicant’s injuries would have healed as the treating Family Physician did not propose any further structured plans. It also references the IE report of Dr. Bhangu, which supports that from a musculoskeletal perspective, soft tissue injuries are considered a minor injury and that the applicant should engage in a self-directed stretching and strengthening program to improve symptoms; and assessment report that states that exercises can be followed at home. Dr. Bhangu’s notes also indicate that there “may be [an] underlying psychological condition that could be affecting his perception of pain.” While I have found that the applicant’s psychological impairment warrants treatment beyond the MIG, I prefer the respondent’s position on these treatment plans because both Dr. Chen and Dr. Bhangu’s IE report find that the applicant sustained minor physical injuries as a result of the accident that fall within the MIG and does not require further treatment and that the applicant could continue on his own with self led exercises. The applicant has not provided compelling evidence to support that these treatment plans for physical treatment are reasonable and necessary because the applicant’s family doctor corroborated his soft tissue injuries.

19As a result, for the reasons noted above, the applicant is not entitled to the chiropractic, physiotherapy and massage treatment plans because he has not demonstrated that the plans are reasonable and necessary. The applicant’s physical impairments are minor injuries. The applicant did not meet the onus. I find the treatment plans are not reasonable and necessary.

The applicant is entitled to a psychological assessment, submitted on October 3, 2022.

20The applicant is entitled to $2,200.29 for a psychological assessment with Dr. Ladak, Scarborough South Physio & Rehab Centre, which was completed on February 25, 2023.

21The applicant submits he withdrew from the social milieu, including work recreation and or other social contacts and developed psychological conditions after the initial incident, including anxiety, fear, avoidance, depression, which justify the assessment. The applicant relies on Dr. Ladak’s report which sets out that the applicant meets the criteria for psychological symptoms and diagnosis that include symptoms of adjustment disorder with mixed anxiety and depressed mood and somatic symptom disorder predominant pain. Dr. Ladak recommended psychological treatment based on her assessment that would assist the applicant to return to his pre-accident level of functioning.

22I find this assessment is reasonable and necessary, as I found that the applicant suffered psychological impairments as a result of the accident. I am persuaded by the combined reports from the applicant’s family physician, Dr. Boyrazian, who found that the applicant’s psychological impairments were a result of the accident, and who also found it necessary to investigate the applicant’s psychological impairments by referring the applicant to a psychiatrist, and Dr. Soulios. Both Dr. Soulios and Dr. Ladak find it reasonable and necessary to recommend treatment for the applicant. I found it reasonable and necessary for the assessment in light of the applicant having been assessed and diagnosed with psychological impartments as a result of the accident. The assessment also provided further conclusions that the applicant would benefit from psychological treatment and as a result of this treatment could return to his pre-accident level of functioning and assist the applicant with his psychological injuries.

23Dr. Soulios’ clinical notes and records reveal that the applicant’s psychological injuries have been negatively affecting his personal life and professional career because he is not able to handle the duties of his new job and was laid off due to his poor performance.

24I am not persuaded by the respondent’s position as it relies on Dr. Mandel’s report, who makes similar findings as Dr. Ladak and Dr. Soulios but declines to make a psychological diagnosis in his conclusions. I prefer the corroborating opinions of Dr. Soulios, Dr. Ladak (who examined the applicant and reviewed the applicant’s medical records), and the applicant’s treating physician, Dr. Boyrazian, who found it reasonable and necessary for the applicant to seek psychological examination and treatment as a result of his psychological symptoms. While the respondent acknowledges the psychological diagnosis of Dr. Soulios and Dr. Ladak, the respondent did not address Dr. Ladak’s recommendation for psychological treatment as a result of the accident.

25For these reasons, the applicant has established on a balance of probabilities that the proposed psychological assessment is reasonable and necessary.

The applicant is entitled to ambulance transport, as proposed in an OCF-6 submitted on March 21, 2023

26I find that the applicant is entitled to $45.00 as submitted on an OCF-6 on March 21, 2023, as he has demonstrated it to be reasonable and necessary.

27I was persuaded by the applicant’s CNRs provided by the paramedics and the hospital, that the Ambulance transport to the hospital was reasonable and necessary. The clinical notes and records on the date of the accident, from the examination by the paramedics, noted complaints of right flank pain and right arm pain. As well, the paramedics noted that there were abrasions and swelling to his elbow and upper arm, finding that the applicant required further necessary treatment. Immediately after the accident, the Ambulance transported him to the Headwaters Health Care Centre. The Headwaters Health Care Centre’s clinical notes and records state that the applicant received reasonable and necessary treatment, therefore the applicant required treatment further to what was provided by the paramedics.

28The respondent’s contention is that the applicant has failed to prove the ambulance bill was reasonable and necessary. I find that it was reasonable and necessary for the applicant to be transported by the paramedics and Ambulance to the hospital because the applicant needed to receive further treatment.

29I am persuaded by the paramedics’ recommendation that the applicant be transported to Headwaters Health Care Centre for further treatment as a result of the accident.

30I find that the applicant has established on a balance of probabilities that he is entitled to the cost of $45.00 for ambulance transport service as it is reasonable and necessary.

Interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment of benefits in accordance with s. 51.

ORDER

32I find that:

i. The applicant is removed from the MIG, as he has met his burden and demonstrated that he should be removed as a result of psychological impairments.

i. The applicant is entitled to $2,200.29 for a psychological assessment, plus interest pursuant to s. 51 of the Schedule.

ii. The applicant is entitled to $45.00 for Ambulance transport, as detailed in an OCF-6 submitted on March 21, 2023, plus interest pursuant to s. 51 of the Schedule.

iii. The applicant is not entitled to the remaining benefits as he did not meet his evidentiary burden to establish entitlement and has not demonstrated that they are reasonable and necessary.