Citation: Selveneyagam v. Aviva General Insurance Company, 2024 ONLAT 21-008618/AABS

Licence Appeal Tribunal File Number: 21-008618/AABS

In the matter of an application per subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Balamurali Selveneyagam

Applicant

and

Aviva General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Michael Beauchesne

APPEARANCES:

For the Applicant:

Alexei Antonov, Counsel

For the Respondent:

Mark Rybnik, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Balamurali Selveneyagam (the “applicant”) was involved in an automobile accident on January 9, 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 Aviva General 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 section 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 the following services, goods, and assessments proposed by Toronto Healthcare Clinic Inc., as follows:

i. Physical rehabilitation therapy services in the amount of $1,704.25, in a treatment plan (“OCF-18”) dated August 2, 2019;

ii. Psychological services in the amount of $2,887.14, in an OCF-18 dated August 30, 2019;

iii. Driving reintegration services in the amount of $1,981.70, in an OCF-18 dated September 17, 2019;

iv. Assistive devices (i.e., psychoeducational CDs) in the amount of $627.92, in an OCF-18 dated September 6, 2019; and

v. Chronic pain assessment in the amount of $2,000.00, in an OCF-18 dated January 22, 2020?

vi. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant remains in the MIG and is not entitled to any of the disputed OCF-18s. The respondent is not liable to pay an award and no interest is payable.

ANALYSIS

The applicant remains in the MIG

4I find the applicant has failed to demonstrate he should be removed from the MIG.

5Section 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.” The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if he is 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.

6In this case, the applicant submits he should be removed from the MIG because he suffers accident-related chronic pain and sustained a psychological injury as a result of the accident.

No accident-related chronic pain with functional impairment

7I find the applicant has not established functional impairment arising from accident-related chronic pain that would warrant removal from the MIG.

8The applicant submits he should be taken out of the MIG because he suffers from neck, shoulder, and back pain that resulted from the accident. The applicant says this pain severely interferes with his mood, walking, work duties, interpersonal relations, sleep, enjoyment of life, concentration, and appetite. The applicant adds that he has been diagnosed with “post-traumatic cervical greater than lumbar spine dysfunction” with musculoligamentous injury. The applicant relies on the August 2019 chronic pain assessment report of Dr. Mark D’Souza (physician); the clinical notes and records of Dr. Mahendira (family physician) from January 2016 to April 13 2019; the two disability certificates (“OCF-3”) completed by Dr. Domenic Minnella (chiropractor) in February and May of 2019; the June 2019 occupational therapy in-home assessment completed by Robert Campos (occupational therapist) on behalf of the respondent; and the clinical notes and records of Toronto Healthcare Clinic from January 2019 to January 2020.

9The respondent argues that the applicant’s injuries fall within the MIG because he has not suffered a psychological impairment or developed chronic pain. The respondent contends the applicant has failed to show his pain is chronic per the criteria set out in the 6^th^ edition of the American Medical Association’s Guide to the Evaluation of Permanent Impairment, 2008 (the “Guides”). The respondent relies on the section 44 report completed by Dr. Alborz Oshidari (physiatrist) in May 2019, and Mr. Campos’ occupational therapy in-home assessment report of May 2019.

10I placed no weight on the evidence of Dr. Mahendira. The applicant says these clinical notes and records show complaints of post-accident neck, shoulder, and back pain, for which he was prescribed various medications. The applicant’s submissions refer me to 51 pages of documents in Tab 14 of his evidence brief without specifying if this evidence is in Tab 14(a) or (b), and without directing me to a specific page as required by the case conference report and order for this matter. I find it is inappropriate—and procedurally unfair to the respondent—for the Tribunal to comb through the applicant’s evidence to sort out his case, as the applicant bears the onus of proof. I therefore did not review the evidence of Dr. Mahendira as referenced in the applicant’s submissions.

11Similarly, I was not persuaded by the clinical notes and records of the Toronto Healthcare Clinic. The applicant’s submissions point to these 20 handwritten pages to show he regularly attended therapy sessions to treat his post-accident injuries and impairments. But the applicant again fails to pinpoint evidence in these entries to support his case. I am not directed to where the applicant’s injuries or functional limitations were documented in these records, nor to the degree that the applicant’s functionality was restored by treatment or even what type of treatment he received. I therefore gave this evidence little weight in my decision.

12The OCF-3s completed by Dr. Minnella were referenced as “corroborating” evidence in the applicant’s submissions on chronic pain, however, the applicant did not direct me to what aspects of these forms he was relying on to corroborate functional impairment arising from accident-related chronic pain. I find it is not proper for me to conduct my own analysis of this evidence and determine for myself if any of Dr. Minnella’s opinions support the applicant’s claim because the onus is on the applicant to prove his case. I therefore did not review the OCF-3s produced by the applicant.

13While the applicant also points to Mr. Campos’ report as evidence that corroborates his chronic pain claims, I find the applicant’s submissions rely on self-reported limitations and restrictions that are not supported by Mr. Campos’ own testing and observations of the applicant’s function. I accept that the applicant told Mr. Campos he had difficulties completing self-care and housekeeping tasks due to pain, as well as caregiving limitations owing to back and shoulder pain. However, as referenced in the respondent’s submissions, I find Mr. Campos concluded that despite the applicant’s pain complaints, he demonstrated sufficient mobility, range of motion, and strength to resume his normal activities of daily living, including personal care tasks, caregiving responsibilities, leisure activities, driving, and most housekeeping tasks. In my view, the conclusions of Mr. Campos diminish the weight of the applicant’s self-reports and do not support functional impairment arising from pain as claimed by the applicant.

14Turning then to Dr. D’Souza’s report, I find there is little evidence here to support the applicant’s claim of chronic pain with functional impairment. While neither parties’ submissions reference page numbers that pinpoint the evidence they rely on here, I nevertheless considered this report because I find it features prominently in the applicant’s chronic pain submissions and is limited to just eight typewritten pages.

15I accept that the applicant complained of neck and back pain to Dr. D’Souza, and that the applicant attributed a variety of functional limitations to this pain. However, I place more weight on the outcome of Dr. D’Souza’s general examination, which produced normal results on every measure and indicated the applicant was in no pain and distress. In my view, Dr. Souza’s examination of the applicant does not support the applicant’s own reports of functional difficulties while engaging in activities like sports, recreation, housekeeping, and caregiving. While I agree the applicant described pain while bending, I disagree that Dr. D’Souza attributed functional limitations to this pain in his report. I further find that the applicant’s submissions fail to point to evidence that establishes a relationship between functional limitation and the pain-management treatment proposed by Dr. D’Souza.

16Taken together on balance, I find the evidence relied upon by the applicant does not support his claim of chronic pain with functional limitations, and I decline to remove him from the MIG on this basis.

No psychological impairment resulting from the accident

17I find the applicant has not demonstrated he sustained an accident-related psychological impairment.

18The applicant submits he struck his head and loss consciousness during the accident, after which he experienced multiple physical and mental symptoms. He says he was diagnosed with an accident-related adjustment disorder with mixed anxiety, depressed mood, and a specific phobia involving vehicular travel. The applicant relies on the section 25 report completed in May 2019 by Dr. Andrew Shaul (psychologist); the August 2019 chronic pain assessment report of Dr. Mark D’Souza (physician); the two disability certificates (“OCF-3”) completed by Dr. Domenic Minnella (chiropractor) in February and May of 2019; and the June 2019 occupational therapy in-home assessment completed by Robert Campos (occupational therapist) on behalf of the respondent.

19The respondent argues that the applicant made no post-accident complaints about psychological symptoms to his family doctor, nor did his family doctor recommend psychological treatment or refer the applicant to a psychologist. The respondent adds that the applicant received no psychological treatment as a result of the accident. The respondent relies on the section 44 report completed by Dr. Mohammad Nikkhou in May 2019.

20Dr. Shaul’s assessment does not convince me that the applicant sustained accident-related psychological impairments. The crux of the dispute here, as I see it, is that both Dr. Shaul and Dr. Nikkhou report similar psychometric test results, but arrive at contradictory conclusions:

i. Dr. Shaul’s testing indicates the applicant was experiencing minimal and moderate levels of emotional distress, characterized primarily by symptoms of anxiety and somatic pain. Dr. Shaul diagnosed an adjustment disorder with mixed anxiety and depressed mood, as well as a phobia specific to travelling in and around a vehicle.

ii. Dr. Nikkhou’s testing indicates the applicant was moderately distressed on the measures he tested, which, like Dr. Shaul, included depression, pain, and somatic complaints. Dr. Nikkhou offered no diagnosis, indicating the applicant was suffering from the presence of persistent pain and subclinical features of adjustment reaction.

21In my view, Dr. Shaul’s evidence falls short of proving the applicant sustained an accident-related psychological impairment. While I accept that the applicant also reported psychological symptomology to Dr. Minnella, Mr. Robert Campos, and Dr. D’Souza between February 2019 and June 2019, I find the weight of Dr. Shaul’s opinion is diminished by the applicant’s failure to corroborate his diagnosis with contemporaneous reports of psychological symptomology to his family physician, or a referral for assessment or treatment from same.

22To put a finer point on this, I find the lack of psychological evidence from the family physician weighs significantly against the applicant in this matter because Dr. Shaul put greater emphasis on the applicant’s interview presentation (i.e., self-reports) than the psychometric testing results to inform his diagnosis. The applicant’s submissions do not point me to evidence that establishes Dr. Shaul corroborated the applicant’s interview responses with any other medical records, let alone those of the family physician. Further, I am not shown that the two documents reviewed by Dr. Shaul (i.e., the February 2019 OCF-3 completed by Dr. Minnella and an OCF-18 completed in January 2019 by Dr. Minnella) were contemplated as part of his diagnostic analysis.

23Taken together on balance, I find the evidence relied upon by the applicant does not support his claim of accident-related psychological impairment, and I decline to remove him from the MIG on this basis.

The applicant’s entitlement to the OCF-18s in dispute

24Having determined the applicant has not demonstrated that he should be removed from the MIG—and given that the parties agree the MIG has been exhausted—an analysis of whether the OCF-18s in dispute are reasonable and necessary is not required.

Interest

25Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. In this case, there are no overdue benefits, so no interest is payable.

Award

26The applicant seeks an award under section 10 of Regulation 664. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant remains in the MIG, and no benefits are payable. Therefore, the respondent is not liable to pay an award.

ORDER

27The applicant remains in the MIG and is not entitled to any of the disputed OCF-18s. The respondent is not liable to pay an award and no interest is payable. The application is dismissed.