Licence Appeal Tribunal File Number: 22-007994/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:
Alagaiah Gnanaswaran
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR: Monica Ciriello
APPEARANCES:
For the Applicant: Mona Khattra, Counsel Dayana Soto Santana, Paralegal
For the Respondent: Julianne Brimfield, Counsel
HEARD: By way of written submissions
OVERVIEW
1Alagaiah Gnanaswaran, the applicant, was involved in an automobile accident on October 4, 2021, 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, Co-operators 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 treatment plans (“OCF-18”) proposed by 101 Assessments as follows:
$2,460.00 for the cost of a chronic pain assessment submitted by treatment plan on June 13, 2022?
$539.00 for psychological services submitted by treatment plan on June 13, 2022?
$2,460.00 for the cost of a psychological assessment submitted by treatment plan on January 24, 2022?
$4,688.38 for psychological services submitted by treatment plan on January 24, 2022?
$2,460.00 for the cost of a neurological assessment submitted by treatment plan on January 24, 2022?
$2,460.00 for the cost of a functional abilities evaluation submitted by treatment plan on October 5, 2022?
$2,460.00 for the cost of a functional cognitive assessment battery submitted by treatment plan on October 5, 2022?
iii. Is the applicant entitled to $2,862.48 for physiotherapy services proposed by 101 Physio in a treatment plan submitted October 7, 2021?
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 plans in dispute; and
iii. The applicant is not entitled to interest.
ANALYSIS
The applicability of the minor injury guidelines (“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 he suffers a pre-existing condition that prevents his from maximum recovery within the MIG. The respondent submits that the applicant has failed to establish that his injuries are not predominately minor and that they can be treated within the confines of the MIG, in the alternative the respondent submits that the applicant has only included one out of the eight disputed treatment plans in his submissions, and the missing treatment plans cannot be assessed by the Tribunal.
Pre-existing injuries
8Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500.00 cap on benefits. In order to do so, the applicant must provide compelling evidence meeting the following requirements:
i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and
ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.
9The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.
10I find that the applicant has not provided me with persuasive evidence to demonstrate that he has a pre-existing condition that justifies removal from the MIG.
11The applicant submits that he has a history of pre-existing left knee pain, which has been documented by Dr. Vinoja Vanniyasingam, family physician. Despite this statement, the applicant does not direct me to the clinical notes and records (“CNRs”) that support this claim. The applicant refers to the CNRs of Dr. Vanniyasingam following the accident, including October 8, 2021, and October 12, 2021, that reveal complaints of pain in his knee, next, back shoulders and arms. The applicant was diagnosed with soft tissue injuries and referred for massage.
12The respondent submits that the applicant did not identify any left knee complaints prior to the accident in the CNRs of Dr. Vanniyasingam, and even if the applicant did have a pre-existing knee pain the applicant failed to provide compelling evidence of a documented pre-existing medical condition that would prevent the applicant from achieving maximal recovery if subject to the limits under the MIG.
13The respondent relies on the examination CNRs of Dr. Michael Pflug, physician, dated December 29, 2021, and the section 44 insurer examination (“IE”) by Dr. Gina Pohani, general physician dated May 26, 2022. Dr. Pflug assessed the applicant’s left knee pain and diagnosed it as a left knee strain and quadriceps weakness. Dr. Pflug recommended that the applicant undertake quad exercises and take Tylenol Arthritis. Dr. Pohani undertook an extensive review of the applicant’s medical documents and completed an in-person assessment. Dr. Pohani concluded that the applicant’s left knee reveal evidence of effusion with no erythema, tenderness, and pain was noted on palpation along the quadriceps tendon. Dr. Pohani also reviewed left knee imaging and noted that there was evidence of a pre-existing degenerative changes but concluded that this would not prevent the applicant’s recovery within the MIG. It was the opinion of Dr. Pohani that the applicant had no musculoskeletal impairments related to the accident, and only soft tissue injury of the left knee.
14I agree with the respondent that there is no reference of a pre-existing left knee injury, and I am persuaded by the medical evidence of Dr. Pflug and Dr. Pohani that conclude the applicant sustained soft tissue injury of the left knee. I find that although the applicant’s submissions reference pre-existing left knee pain, the applicant did not direct me to specific CNRs or diagnosis to support this claim. There were no pre-accident imaging reports provided for my review, and no CNRs from his family physician or another medical professional that documented a pre-existing medical condition before the accident. I also find that even if the applicant did have a pre-existing medical condition, the applicant did not provide evidence that the condition was worsened by the accident, or the condition would prevent maximal recovery under the MIG.
15As a result, I find that the applicant did not provide persuasive evidence that he suffers from a documented pre-existing condition would prevent him from achieving maximal recovery from the minor injury if subject to the MIG.
16The applicant is not entitled to the disputed treatment plans because I have found that the applicant is subject to the MIG. As a result, an analysis on whether the treatment plans are reasonable and necessary is not required.
INTEREST
17Given there are no overdue payment of benefits, the applicant is not entitled to interest pursuant to section 51 of the Schedule.
ORDER
18The 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; and
iii. The applicant is not entitled to interest.
Released: August 21, 2024
Monica Ciriello
Vice-Chair