Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-003665/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:
Arulchelvi Arulpragasm
Applicant
and
TD General Insurance Company
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Jamie Min, Counsel
For the Respondent: Taylor Cawley, Counsel
HEARD: In Writing March 3, 2024
OVERVIEW
1Arulchelvi Arulpragasm, the applicant, was involved in an automobile accident on November 26, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
2The following issues are to be decided:
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 the amount of $2,200.00 for a chronic pain assessment, proposed by Community Health and Counselling Services Inc., in a treatment plan dated April 25, 2020?
iii. Is the respondent liable to pay an award under s. 10 of O.Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant's injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plan in dispute;
iii. The applicant is not entitled to an award; and
iv. The applicant is not entitled to interest.
ANALYSIS
Applicability of the Minor Injury Guideline ("MIG")
4The 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."
5Section 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.
6An 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.
7It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The applicant submits she suffers from chronic pain, which is not included in the definition of a minor injury. The respondent submits that the applicant has failed to establish that her injuries are not predominately minor and that they can be treated within the confines of the MIG, which has already been exhausted. I agree with the respondent.
The applicant does not suffer chronic pain that warrant removal from the MIG
8I find that the applicant does not suffer from functional impairment as a result of accident-related chronic pain.
9In 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. The pain must be continuous (in that the initial minor injury never fully healed) and it must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person's function, or whether the pain is bearable without treatment will not meet the applicant's burden to show that chronic pain is more than mere sequelae from her soft tissue injuries.
10The applicant submits that her medical records are rife with ongoing complaints of pain and functional impairment stemming from the accident.
11In support for her chronic pain claim, the applicant relies on clinical notes and records ("CNRs") of Scarborough Grace Hospital, which she attended on November 28, 2015, the applicant was discharged with Advil. The applicant also relies on the CNRs of Dr. Elizabeth George, family physician, dated December 3, 2015, where she reported pain in her neck, shoulder, back and left arm. Dr. George diagnosed the applicant with strain and sprain injuries, and recommended Tylenol. On November 10, 2021, the applicant saw a new family physician, Dr. Nageswary Muraleetharan, with complaints of back pain.
12The applicant also relies on a section 25 chronic pain report dated May 13, 2020, of Mr. Adib Ashraf, chiropractor. The applicant reported significant changes with regards to her usual activities and social functioning since the accident, and Mr. Ashraf diagnosed the applicant with a chronic pain disorder. The applicant cites a consultation letter dated May 17, 2021, of Dr. Viet Dao, chronic pain specialist. Dr. Dao diagnosed the applicant with chronic pain and recommended an ultrasound. An ultrasound on May 17, 2021, of the applicant's left shoulder revealed cuff tendinopathy, and an MRI dated November 12, 2022, reveal the applicant has supraspinatus tendinopathy with evidence of small intrasubstance tears and minor fraying along the articular surface.
13The respondent relies on the insurer examination ("IE") reports of Dr. Raymond Zabieliauskas, physiatrist dated July 14, 2016, and Dr. Alborz Oshidari, physiatrist, dated September 1, 2017. Both Dr. Zabieliauskas and Dr. Oshidari diagnosed the applicant with sprain and strains and concluded that from a physical standpoint the applicant's injury from the accident met the definition of minor injury as defined in the MIG. The respondent notes that following the IE reports there was inactivity on this file until March 5, 2020, when the respondent advised the applicant, the file would be closed. It is the respondent's position that this prompted the applicant to submit an OCF-18 for a chronic pain assessment on April 25, 2020.
14The evidence tendered does not establish that the applicant meets three of the six criteria for chronic pain as identified in the American Medical Association Guides to the Evaluation of Permanent Impairment (6th Edition, 2008, pp. 23-24) ("AMA Guides"). Mr. Ashraf and Dr. Dao's diagnosis of chronic pain syndrome fails to make any reference to the AMA Guides. The records do not establish an abuse or dependence upon prescription drugs, excessive dependence upon health care providers or family, any secondary deconditioning due to disuse or fear-avoidance, no withdrawal from social milieu, failure to restore pre-injury function sufficient to pursue work, family or recreational needs, nor any psychosocial sequelae stemming from the accident, except self reporting. Even if I did accept the chronic pain diagnosis of Mr. Ashraf and Dr. Dao, for chronic pain to be more than just sequelae from soft tissue injuries it must be of such a severity that it causes suffering and distress accompanied by functional impairment or disability.
15Neither CNRs of Dr. George or Dr. Muraleetharan include a diagnosis of chronic pain, nor indicating of any ongoing impairment due to the pain symptoms linked to the accident. Furthermore, through the CNRs I find that the applicant's last visit to Dr. George in relation to accident-related pain was August 27, 2017, despite having appointments for other reasons and the only visit to Dr. Muraleetharan that mentions accident pain was November 10, 2021, despite the applicant containing to see Dr. Muraleetharan for reasons unrelated to the accident.
16Based on the totality of the evidence tendered, and in consideration of the AMA Guides, I find that there is sporadic and limited reporting on the applicant's accident-related pain. I find that the CNRs of family physicians Dr. George, Dr. Muraleetharan, and IE physicians Dr. Zabieliauskas and Dr. Oshidari provide a similar diagnosis of sprain and strains, finding that the applicant suffered a minor injury, and the CNRs did not reveal medical evidence of ongoing permanent accident-related impairments.
17I am not persuaded that the applicant demonstrated that her accident-related soft tissue injuries, confirmed by the medical evidence, had a detrimental impact on her functionality. As 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.
18The applicant is not entitled to the disputed treatment plans because I have found the applicant is subject to the MIG, and the MIG has been exhausted. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.
AWARD
19Given that no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s. 10 of O. Reg. 664. Thus, no award is payable.
INTEREST
20Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
21The application is dismissed, and I find that:
i. The applicant's injuries are predominately minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plan in dispute;
iii. The applicant is not entitled to an award; and
iv. The applicant is not entitled to interest.
Released: June 11, 2024
Monica Ciriello
Vice-Chair