Licence Appeal Tribunal File Number: 21-006274/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:
Vyshnavan Murukaiyah
Applicant
and
Wawanesa Insurance
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Hermia Leung, Paralegal
For the Respondent:
Paul Omeziri, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Vyshnavan Murukaiyah (the “applicant”), was involved in an automobile accident on August 17, 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 Wawanesa Insurance (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:
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 $1,034.58 for chiropractic services, proposed by Activa Scarborough in a treatment plan/OCF-18 (“OCF-18”) dated May 11, 2020, and denied on June 24, 2020?
Is the applicant entitled to $1,215.29 for chiropractic services, proposed by Activa Scarborough in an OCF-18 dated July 3, 2020, and denied on July 23, 2020?
Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Access Rehab Inc., in an OCF-18 dated August 11, 2021, and denied on August 26, 2021?
Is the respondent liable to pay an award pursuant to s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant’s impairments are predominantly minor and therefore subject to the treatment limit of the MIG.
ii. As the MIG funding limit has been exhausted, no additional analysis is required to determine if the OCF-18s in dispute are reasonable and necessary pursuant to the Schedule.
iii. As no benefits are owing, no interest or award is payable.
ANALYSIS
The Minor Injury Guideline
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”
5An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 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.
6In all cases, the burden of proof lies with the applicant.
7The applicant submits he should be removed from the MIG on the basis of his chronic pain and psychological impairments, as these impairments are outside of the MIG.
8In response, the respondent submits that the applicant has sustained soft tissue injuries which fall under the MIG.
The applicant is not removed from the MIG due to chronic pain
9I find that the applicant has failed to demonstrate on a balance of probabilities, that he has a chronic pain condition with functional impairment, that would warrant removal from the MIG.
10A diagnosis of chronic pain or chronic pain syndrome is not strictly required for removal from the MIG treatment limits. However, in the absence of a diagnosis, the applicant must demonstrate, on a balance of probabilities, that he suffers from accident-related pain that causes functional impairment. In this matter, I have not been provided with persuasive medical evidence to indicate the applicant’s related impairments have resulted in chronic pain with functional impairment.
11The applicant submits that his accident-related injuries to his neck, lower back, mid back, upper back, and right wrist have persisted for almost four years, and that this affects his performance at work and his daily activities. To this end, the applicant relies on the chiropractic assessment reports by his treating chiropractor, Dr. Mozadami, dated August 21, 2019, November 9, 2019, and July 3, 2020, a pre-screen interview, dated July 29, 2021, and the clinical notes and records from Activa Scarborough.
12The respondent submits that the applicant’s family physician, Dr. Aruna Lanbotharan and One Stop Medical’s records do not indicate that he complained of accident-related impairments following the accident. The respondent further submits that the applicant’s pain is not functionally disabling, as he has returned to work. As such, the respondent submits that the applicant’s soft tissue injuries fall within the MIG.
13The records of One Stop Medical and Dr. Lanbotharan do not support the applicant’s position that his accident-related injuries are chronic, as he has not sought medical attention for his accident-related injuries. The records provided are also largely illegible. Although, the applicant submits he has ongoing pain from this accident, which has persisted, he has not pointed me to a single entry from One Stop Medical or Dr. Lanbotharan’s records that show he reported the accident or complained of symptoms in relation to the accident.
14For example, from the records that can be read, the applicant saw various medical practitioners at One Stop Medical and met with Dr. Lanbotharan following the accident, on several occasions for unrelated health issues from 2020 to 2021. In my view, if the applicant had developed accident-related chronic pain, he would have sought medical attention from Dr. Lanbotharan or the various medical practitioners at One Stop Medical.
15The records completed by Dr. Mozadami, dated August 21, 2019, November 9, 2019, and July 3, 2020, do not support the applicant’s position that he has chronic pain with a functional impairment. The record of Dr. Mozadami, dated July 3, 2020, shows that the applicant advised that his pain was improving, which in my view, supports a finding that he does not have accident-related chronic pain. Moreover, Dr. Mozadami did not address whether the applicant’s pain had progressed into chronic pain in his reports, dated August 21, 2019, November 9, 2019, and July 3, 2020.
16While I acknowledge that the applicant submits that he self-reported to Dr. Mozadami on August 21, 2019, November 9, 2019, and July 3, 2020, that he had neck pain, lower back pain, and upper back pain with: pushing motions, pulling motions, walking, lifting, carrying his backpack, and disturbed sleep, and that he cannot lift heavy objects like a bed, walk more than a mile or sit for more than half an hour without pain. However, the applicant has not pointed me to a single entry from Dr. Mozadami’s records, where Dr. Mozadami opined that the applicant has functional impairments as a result of chronic pain from this accident. Moreover, I note that the applicant completed the Neck Disability Index and Oswestry Disability Index, however the results of these were not contained in the records produced by the applicant.
17I also acknowledge that the records of Activa Scarborough show the applicant received physiotherapy, massage, and chiropractic treatment from August 21, 2019, to July 10, 2020. However, I find that this is insufficient alone to prove that the applicant suffered chronic pain, especially given that it appears that the applicant has not sought medical attention in relation to this accident from Dr. Lanbotharan or One Stop Medical. Moreover, from September 2019 to July 10, 2020, the applicant reported that his neck, lower back, and right wrist pain were getting better with treatment. Accordingly, the applicant has not provided compelling medical evidence to support his removal from the MIG is merited.
18The applicant also self-reported to Dr. Prudcoi, a qualifying psychotherapist and Dr. Bhatia, registered psychologist, during a pre-screen interview on July 29, 2021, that his performance at work has been affected by this accident. However, the applicant has not pointed me to evidence from his employer, or other corroborating evidence, to establish that his self-reported accident-related injuries affected his performance at work. As such, I find that the applicant has not met his onus of establishing pain of the duration, severity, and functionally disabling extent necessary to remove him from the MIG.
The applicant has not established that he should be removed from the MIG on the basis of a psychological impairment
19The applicant has failed to prove on a balance of probabilities that he suffers from a psychological impairment that will remove him from the MIG.
20Psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule. The onus is on the applicant to establish that he had a psychological impairment and not just psychological symptoms or sequelae of a minor injury.
21The applicant submits he has psychological symptoms and impairments following this accident, which fall outside the definition of a minor injury. To this end the applicant relies on the clinical note and record of Dr. Lanbotharan, his family physician, dated February 12, 2021, a Disability Certificate (“OCF-3”), dated August 23, 2021, the chiropractic assessment reports of Dr. Mozadami, dated November 9, 2019, and July 3, 2020, and the pre-screen interview, dated July 29, 2021, completed by Dr. Prudcoi, and Dr. Bhatia.
22The respondent submits that the applicant’s family physician records do not reveal a psychological condition, diagnosis, or impairment as a result of the accident.
23I agree with the respondent and find that the applicant has not established on a balance of probabilities, that he has an accident-related psychological impairment that would warrant removal from the MIG.
24In my view, the record of Dr. Lanbotharan, dated February 12, 2021, does not support the applicant’s position that he was diagnosed with a psychological impairment as a result of the accident. On February 12, 2021, the applicant met with Dr. Lanbotharan for acne-related complaints and there is no reference to the accident. Moreover, the applicant relies on the medical code at the bottom of the entry which states- “300- Anxiety neurosis, hysteria, neurasthenia, obsessive compulsive neurosis, reactive depression.” In his submissions, the applicant argues that this was a psychological diagnosis however, he does not provide clarification as to which of these impairments he was purportedly diagnosed with and whether it is connected to the accident.
25Nor did the applicant direct me to other evidence that shows he has complained of psychological symptoms in relation to this accident to Dr. Lanbotharan or One Stop Medical. As such, I find that the applicant has not established that he was diagnosed with a psychological impairment as a result of the accident.
26Next, the applicant relies on the OCF-3 completed by Dr. Mozadami, dated August 23, 2019, and his reports, dated November 9, 2019, and July 3, 2020, to support his position that he suffered from psychological symptoms, including nervousness, anxiety, and sleeping difficulties. I place little weight on these records, as they are based entirely on the applicant’s self-reporting. These records are also unsupported by other contemporaneous medical evidence, like the records of Dr. Lanbotharan and One Stop Medical.
27I am also not persuaded by the pre-screen interview, dated July 29, 2021, and completed by Dr. Prudcoi, and Dr. Bhatia. Dr. Prudcoi and Dr. Bhatia’s opinion that the applicant is dealing with emotional difficulties such as insomnia, short-term memory, concentration difficulties, irritability, sadness, anger, low mood, depression, and nervousness/anxiety while driving, was based entirely on the applicant’s self-reporting. The pre-screen interview is unsupported by the other contemporaneous medical evidence. As noted previously, the applicant has not directed me to evidence that supports he has complained of accident-related psychological impairments to his family physician or One Stop Medical. Lastly, Dr. Prudcoi and Dr. Bhatia did not conduct psychometric testing on the applicant, nor did they review the applicant’s medical evidence.
28I also take note that the applicant referred me to the authority of 17-005791 v. Aviva Insurance Canada, 2018 CanLII 112107 (ON LAT) to support his position that documented psychological symptoms, even without a diagnosis, warrant removal from the MIG. However, upon review of the above-referenced authority, I note that the applicant reported psychological symptoms to her family physician and was diagnosed with a psychological impairment that was accepted by the Tribunal. The facts in the above-referenced authority are distinguishable from the facts in this matter since the applicant has not pointed me to an entry where he presented with psychological symptoms as a result of this accident to his family physician or One Stop Medical, and he has not been diagnosed with psychological impairments.
29For these reasons, I find that the applicant has not established he experienced an accident-related psychological impairment that warrants removal from the MIG.
OCF-18s in dispute will not be analyzed as MIG limits are exhausted
25Given the $3,500.00 funding limit was previously exhausted, no additional analysis is required to determine if the OCF-18s in dispute are reasonable and necessary pursuant to the Schedule.
The applicant is not entitled to interest pursuant to s. 51 of the Schedule
26Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
The applicant is not entitled to an award pursuant to Regulation 664
27The applicant seeks an award and interest under s. 10 of Regulation 664. Under s. 10, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. For conduct to attract a s. 10 award, the conduct must rise above being simply an incorrect decision and be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”
28As the applicant has been found to have sustained minor injuries and is not entitled to the benefits in dispute, it follows that no benefits were unreasonably withheld or delayed. Thus, the applicant is not entitled to an award.
ORDER
29I find that:
i. The applicant’s impairments are predominantly minor and therefore subject to the treatment limits of the MIG.
ii. Given the MIG funding limit has been exhausted, the OCF-18s in dispute are not payable.
iii. As no benefits are owing, no interest or award is payable.
iv. The application is dismissed.
Released: January 16, 2024
Tanjoyt Deol
Adjudicator