Licence Appeal Tribunal File Number: 22-009810/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:
Usanthini Inparaj
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Kathleen Wells
APPEARANCES:
For the Applicant: Bianca Marinescu, Counsel
For the Respondent: Madison McNerney, Counsel
HEARD: By way of written submissions
OVERVIEW
1Usanthini Inparaj, the applicant, was involved in an automobile accident on November 7, 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, Certas Home and Auto 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 Minor Injury Guideline limit?
ii. Is the applicant entitled to $495.00 ($3,795.50 less $3,300.00 approved) for chiropractic services proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan/OCF-18 (“plan”) dated November 21, 2020?
iii. Is the applicant entitled to $2,026.55 for chiropractic services proposed by Mackenzie Medical Rehabilitation Centre in a plan dated December 23, 2020?
iv. Is the applicant entitled to $1,417.70 for chiropractic services proposed by Mackenzie Medical Rehabilitation Centre in a plan dated February 5, 2021?
v. Is the applicant entitled to $2,486.00 for a psychological assessment proposed by A&B Medical Assessment Inc. for in a plan dated November 17, 2021?
vi. Is the applicant entitled to $2,486.00 for a chronic pain assessment proposed by A&B Medical Assessment Inc. for in a plan dated March 24, 2022?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
a. The applicant’s injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the Minor Injury Guideline (“MIG”);
b. As the MIG limits have been exhausted, the applicant is not entitled to any of the treatment plans in dispute; and
c. The applicant is not entitled to interest.
d. The application is dismissed.
ANALYSIS
Applicability of the Minor Injury Guideline
4I find the medical evidence indicates that the applicant sustained minor injuries and has not demonstrated that removal from the MIG is warranted.
5The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
6Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the applicant sustains an impairment that is predominantly a minor injury in accordance with the MIG.
7An applicant may receive payment for treatment beyond the $3,500.00 limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery of the minor injury sustained in the accident if they were kept in the MIG, or if they provide evidence of an injury sustained in the accident that is not included in the minor injury definition in s. 3(1). The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG.
8It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
9The applicant submits she suffers from physical and psychological conditions and chronic pain that prevent her from maximum recovery within the MIG. The respondent submits that the applicant has failed to establish that her injuries are not predominately minor that they cannot be treated within the confines of the MIG.
Physical Injuries
10I find that the evidence establishes that the applicant’s physical injuries fall within the definition of minor injury under s. 3(1) of the Schedule.
11The applicant has provided limited submissions as to how her accident-related physical injuries fall outside of the MIG. The applicant submits that following the accident she had arm, neck, shoulder and back pain. The applicant relies on self-reports of pain to the Lakeridge Hospital Emergency Department and Dr. Rajaratnam Kirubarahan, family physician, who opined in the clinical notes and records (“CNRs”) that the applicant should attend physiotherapy and massage therapy. Additionally, the applicant relies on the November 21, 2020 Disability Certificate (OCF-3) completed by Dr. Nilav Bhowmik, chiropractor, who opined that the applicant had sprain and strain related injuries.
12The respondent submits that the evidence provided by the applicant demonstrates no more than sprain and strain injuries as a result of the accident. The respondent relies on the CNRs of Dr. Kirubarahan and Dr. Shanthiya Sanmugathas, of the Fenton Medical Clinic, which reveal limited medical intervention, no referrals to specialists, and no description of functional impairment as a result of accident-related impairments.
13I am not satisfied that the applicant has provided evidence that she suffers from physical injuries that would remove her from the MIG, because the OCF-3 identifies impairments which fall squarely within the definition of a minor injury under s. 3 of the Schedule and is consistent with the treatment recommendations contained in the CNR’s of the Fenton Medical Clinic.
14As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a physical injury resulting from the accident that would warrant her removal from the MIG.
Psychological Injuries
15I find that the evidence establishes that the applicant’s psychological injuries fall within the definition of minor injury under s. 3(1) of the Schedule.
16An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under s. 3(1) of the Schedule.
17In order to be removed from the MIG due to psychological impairments, the applicant must show that she has an actual psychological impairment and not post-accident sequelae. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.
18The applicant submits that although the applicant did not complain of any psychological impairment to her family physicians, she did seek treatment from a psychologist after the accident. The applicant relies on the pre-screening treatment and assessment plan (OCF-18) of Dr. Kenneth Keeling, psychologist, based on an interview conducted by Irina Petrova, Registered Psychotherapist, dated December 8, 2021. The pre-screening assessment concludes that the applicant is exhibiting symptoms and signs related to emotional state and problems related to life management. Dr. Keeling recommends an assessment to determine a diagnosis or diagnoses, and treatment plan if required.
19The respondent submits that the applicant has not proved that she suffered a psychological impairment as a result of the accident. Dr. Keeling did not make a diagnosis based on the DSM-5, and the complaints the applicant made in the pre-screening assessment call were not supported by any evidence from the applicant’s family physicians.
20I agree with the respondent. The applicant has not provided sufficient evidence to establish that the applicant suffers from a psychological impairment as a result of the accident. The applicant relies on the OCF-18 of Dr. Keeling, which was submitted a year after the accident and does not provide a DSM-5 diagnosis. Dr. Keeling did not meet with the applicant and based his recommendations on a pre-screening assessment conducted by Ms. Petrova. The applicant acknowledges that she did not complain of a psychological impairment to her family doctors and has not directed me to any evidence of complaints to other treatment providers to corroborate her claim of a psychological impairment as a result of the accident.
21As a result, I find that the applicant has not satisfied her onus to prove on a balance of probabilities that she has a psychological injury resulting from the accident that would warrant her removal from the MIG.
Chronic Pain
22I find that the applicant does not suffer from a functional impairment as a result of accident-related pain. As a result, I find the applicant has not established that she sustained accident-related chronic pain.
23In order to be taken out of the MIG due to chronic pain, the applicant must have been diagnosed with chronic pain syndrome or there must be evidence of severe or functionally disabling pain that is consistent and that affects her day-to-day or work function.
24The applicant submits that the pain in her left shoulder and upper back are chronic in nature and her complaints of pain to her medical providers have been “numerous and ongoing.” The applicant cites a visit to the emergency department at Lakeridge Hospital on November 8, 2020, and 3 visits to her family doctor on November 19, 2020, June 9, 2021, and September 28, 2021, and that the applicant has continued to require treatment for her accident-related injuries. The applicant relies on the CNRs from MacKenzie Medical Rehabilitation, where the applicant received chiropractic and massage treatments between November 21, 2020 and April 11, 2021. The applicant submitted an OCF-18 for a chronic pain assessment on March 22, 2022.
25The respondent submits that the applicant has not provided compelling evidence in support of her claim of chronic pain. The respondent relies on the CNRs from Fenton Medical Clinic and the Lakeridge Hospital Emergency Department, which reveal that, on June 9, 2021, the applicant complained of shoulder pain after “heavy lifting and pushing” at work. On September 28, 2021, the applicant complained of symptoms of upper back pain, which had started one week before. The respondent further argues that the CNRs do not indicate chronic pain, nor any functional impairment, and that the applicant returned to work after the accident.
26Even if I were to accept the applicant’s view that the pain she experienced in June and September of 2021 was related to her accident, I am not persuaded that the applicant has met her burden to prove that she is experiencing chronic pain as a result of the accident.
27The applicant directed me to 3 reports of accident-related pain to her family doctor in the year after the accident, which I find is indicative of a sporadic rather than chronic complaint, and the applicant has not been diagnosed with chronic pain or a chronic pain condition. CNRs from Fenton Medical Centre include no diagnosis of chronic pain by a qualified healthcare practitioner, and the applicant has not directed me to any such diagnosis.
28Further, I am not persuaded that the applicant demonstrated that her accident-related injuries had a detrimental impact on her functionality, because the applicant has not identified how the pain affects her ability to carry out her daily activities.
29As such, I am not convinced on a balance of probabilities that the applicant suffers from chronic pain with functional impairment because of the accident that would remove her from the MIG.
30Since I have found that the applicant’s claims are subject to treatment within the $3,500.00 limit of the MIG, and since that limit has already been exhausted, the applicant is not entitled to the benefits claimed. It is not necessary to determine whether the OCF-18s in dispute are reasonable and necessary as a result of the accident.
Interest
31Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
ORDER
32The application is dismissed, and I find that:
i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plans in dispute; and
iii. The applicant is not entitled to interest.
Released: December 24, 2024
Kathleen Wells
Adjudicator