Vageeswaran v. The Dominion of Canada General Insurance Company, 2024 CanLII 15889

Citation: Vageeswaran v. The Dominion of Canada General Insurance Company Travelers Canada, 2024 ONLAT 21-010339/AABS - A

Licence Appeal Tribunal File Number: 21-010339/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:

Krishnapriya Vageeswaran

Applicant

and

The Dominion of Canada General Insurance Company Travelers Canada

Respondent

AMENDED DECISION

ADJUDICATOR: Trina Morissette

APPEARANCES:

For the Applicant: Ardi Deti, Paralegal

For the Respondent: Sara Baum, Counsel

HEARD: In Writing

OVERVIEW

1Krishnapriya Vageeswaran, the applicant, was involved in an automobile accident on December 4, 2019, 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, The Dominion of Canada General Insurance Company Travelers Canada, 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 (“MIG”) limit?

ii. Is the applicant entitled to $2,610.00 for an orthopaedic assessment, proposed by All Health Medical Care in a treatment plan/OCF-18 (“plan”) submitted May 21, 2020 and denied May 22, 2020?

iii. Is the applicant entitled to chiropractic services, proposed by Wexford Wellness, as follows:

i. $1,883.00, in a plan submitted February 24, 2021 and denied February 25, 2021; and

ii. $1,997.08, in a plan submitted March 23, 2021 and denied April 6, 2021?

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

3Through her written submissions, the applicant withdrew the issue of an award under s. 10 of Ontario Regulation 664.

4Both parties confirmed in their written submissions that the MIG limit has been exhausted.

RESULT

5I find that the applicant has not demonstrated, on a balance of probabilities, that her removal from the MIG is warranted. As the MIG limit has been exhausted, the applicant is not entitled to payment for the treatment plans and interest in dispute.

ANALYSIS

Does the applicant suffer from chronic pain or a chronic pain syndrome that would remove her from the MIG?

6I find the applicant has not demonstrated that removal from the MIG is warranted.

7Section 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.”

8An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under section 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.

9The applicant submits that she should be removed from the MIG because of her chronic pain. The applicant relies on an orthopaedic report by Dr. Ogilvie-Harris, her disability certificate (“OCF-3”) and the clinical notes and records of her family physician, Dr. Ravindran.

10The respondent submits that the applicant’s level of functionality is inconsistent with chronic pain and the applicant has not provided evidence that a medical professional diagnosed her with chronic pain or that her chronic pain is of such a degree to warrant removal from the MIG. The respondent relies on a s. 44 physiatry report by Dr. Ko that determined the applicant’s injuries fall within the MIG.

11On the evidence, I find the physical injuries documented in the OCF-3 and in the weeks and months after the applicant’s accident fall squarely within the definition of “minor injury” under the Schedule, as they are listed as pain and sprain and strain-type injuries.

12The OCF-3 describes the applicant’s injuries as “stress, not elsewhere classified, headache, whiplash associated disorder [WAD3] with complaint of neck pain with neurological signs, sprain and strain of shoulder joint, sprain and strain of lumbar spine, sprain and strain of other unspecified parts of knee, anxiety disorder, unspecified” which the applicant submits has become chronic and warrant treatment beyond the MIG.

13Visits to the applicant’s family doctor do not support a diagnosis of chronic pain. The applicant attended Dr. Ravindran on two occasions. The first was on December 5, 2019, where the applicant complained of “post [motor vehicle accident] (“MVA”) neck and back pain for 5 days”. There is discrepancy around the reference to “5 days” as the accident occurred the previous day on December 4, 2019, but the discrepancy is minor and does not impact the conclusion reached in this decision. The second visit to Dr. Ravindran was on March 19, 2021, more than 16 months later, where the applicant complained of “chronic neck and back pain post-MVA”. Upon examination during the second visit, Dr. Ravindran noted “mild painful ROM neck and back” and “sprained neck and back”, counseled the applicant on chronic pain management and prescribed Ibuprofen, extra strength Tylenol and Voltaren gel. No submissions were provided by the applicant as to why she only attended her family physician’s office on these two occasions and although Dr. Ravindran counseled the applicant on chronic pain management, a diagnosis of chronic pain was not made nor were any further investigations ordered.

14Furthermore, I give little weight to the s. 25 orthopaedic report by Dr. Ogilvie-Harris that the applicant relies upon, as its findings rely entirely on the applicant’s self-reports. Dr. Ogilvie-Harris’ report, dated August 14, 2020, follows a telephone consultation and the administration of three questionnaires (the Pain Disability Questionnaire, the Central Sensitization Inventory questionnaire and the World Health Organization Disability Assessment Schedule). Dr. Ogilvie-Harris found that, based on the applicant’s responses to the questionnaires, her prognosis was poor “because of the features of a chronic pain syndrome or somatic symptom disorder.”

15Dr. Ogilvie-Harris’ findings of August 14, 2020 are also in contrast to a treatment and assessment plan (“OCF-18”) he completed on May 21, 2020 – less than three months previously – where the doctor listed the applicant’s injuries as “stress, not elsewhere classified; headache; whiplash associated disorder [WAD3] with complaint of neck pain with neurological signs; sprain and strain of shoulder joint; sprain and strain of lumbar spine; sprain and strain of other and unspecified parts of knee; other anxiety disorders.” Dr. Ogilvie-Harris does not make any finding or reference to chronic pain at that time.

16I find that the s. 44 physiatry report of Dr. Ko dated June 28, 2021, garners more weight. The report followed a physical examination of the applicant and a diagnosis of sprain/strain injury to her thoracic spine. In addition to the fact that Dr. Ko conducted an objective assessment of the applicant, when a decision rests on competing medical opinions, secondary sources of information are important. I find Dr. Ko’s diagnosis is consistent with those of Dr. Ravindran and of Ms. Varsha Ahir, physiotherapist who completed the OCF-3.

17I therefore find the applicant has not demonstrated she suffers from chronic pain or a functional impairment. The medical documentation shows no formal diagnosis of either chronic pain or chronic pain syndrome and the mere mention of pain that is “chronic” by a physician is not an automatic ground for removal from the MIG. I find this is especially so where there is limited evidence of any functionally-disabling pain in the medical documentation before the Tribunal to justify removal from the MIG on that basis. I acknowledge that Dr. Ogilvie-Harris diagnosed the applicant with chronic pain syndrome or somatic symptom disorder, however, as noted above, I give little weight to this report as it was prepared following an-over-the-phone assessment and three subjective questionnaires. While the family doctor’s clinical notes reference “chronic pain management” and “follow up for chronic neck and back pain”, I agree that this is not a diagnosis of chronic pain or chronic pain syndrome nor is there medical evidence that establishes the applicant’s functionality is impaired as a result of the accident. While a formal diagnosis of chronic pain syndrome is not required to be removed from the MIG, I note the applicant’s family physician never referred her to a chronic pain specialist or ordered diagnostic imaging to explore her complaints or investigated additional avenues for treatment beyond prescriptions and pain management.

18Based on the medical records, I agree with the respondent that there is little to suggest that the applicant’s physical injuries and resulting pain are severe enough to require treatment beyond the MIG. I find that she has not demonstrated that recovery from this pain is practically prevented if she is kept within the MIG.

19As a result, I find that the applicant has not satisfied her burden of proving her accident-related impairments require removal from and treatment beyond the MIG.

Are the treatment plans reasonable and necessary?

20Having determined that the applicant can be properly treated within MIG and the parties’ confirmation that the MIG funding has been exhausted, it is not necessary to conduct an analysis of whether the various treatment plans in dispute are reasonable and necessary.

ORDER

21The applicant has not demonstrated, on a balance of probabilities, that her impairments warrant removal from the MIG. As the MiG has been exhausted, the applicant is not entitled to payment for the treatment plans in dispute.

22Because the applicant is not entitled to the benefits in dispute, interest is not payable.

23The application is dismissed.