Citation: Baskaran v. Security National Insurance Company, 2024 ONLAT 21-008435/AABS

Licence Appeal Tribunal File Number: 21-008435/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:

Shanoojan Baskaran

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR:

Leo Demarce

APPEARANCES:

For the Applicant:

Vanessa Liang, Paralegal

For the Respondent:

Nicole De Bartolo, Counsel

HEARD:

By way of written sumissions

OVERVIEW

1Shanoojan Baskaran, the applicant, was involved in an automobile accident on October 18, 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, Security National Insurance Company, 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 a medical benefit in the amount of $4,483.36 for chiropractic services, proposed by Alexmuir Wellness Centre in a treatment plan/OCF-18 (“plan”) submitted on February 13, 2020 and denied on February 27, 2020?

iii. Is the applicant entitled to a medical benefit in the amount of $2,125.00 for psychological services, proposed by Alexmuir Wellness Centre in a plan submitted on July 23, 2020 and denied on August 12, 2020?

iv. Is the applicant entitled to a medical benefit in the amount of $3,500.00 for other goods and services, proposed by 2430307 Ontario Ltd. in a plan submitted on October 27, 2020 and denied on November 12, 2020?

v. Is the applicant entitled to a medical benefit in the amount of $2,834.54 for psychological services, proposed by Alexmuir Wellness Centre in a plan submitted on January 12, 2021 and denied on February 19, 2021?

vi. Is the applicant entitled to a medical benefit in the amount of $2,898.65 for chiropractic services, proposed by Alexmuir Wellness Center in plan submitted February 4, 2021 and denied on March 4, 2021?

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

viii. Is the applicant entitled to an award pursuant to s. 10 of O. Reg. 664?

RESULT

3I find the applicant has not demonstrated that removal from the MIG is warranted.

4I find the applicant is not entitled to the treatment plans.

5I find the applicant is not entitled to interest or an award as no benefits are payable or unreasonably withheld or delayed, respectively.

ANALYSIS

The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule

6I find that the applicant did not provide sufficient evidence to prove 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 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 a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

9The applicant submits she should be removed from the MIG on these grounds:

i. A pre-existing injury to the applicant’s right shoulder that was dislocated while playing a sport; and

ii. She suffered a psychological impairment as a result of the accident, namely Adjustment Disorder with Mixed Anxiety and Depressed Mood – Specific Phobia, Situational (Driver/Passenger-related).

Pre-existing injury to the applicant’s right shoulder

10The applicant relies on the clinical notes and records from Dr. Lambotharan and Alexmuir Wellness. The applicant made complaints of neck, shoulder, and back pain. The doctor prescribed physiotherapy and over the counter pain medication.

11The respondent submits that the applicant’s injuries to his shoulder, neck and back were not caused or worsened by the accident. This is supported by the following:

i. s. 44 assessor Dr. Farooq Ismail dated September 4, 2020 stating that the applicant’s only injuries were sprains/strains of the cervical and lumbar spine.

ii. Clinical notes and records from Alexmuir Wellness that report improvements and record that the applicant attended his physiotherapist at six days after the accident and there is no mention of the accident in the clinical notes and records.

iii. The first visit to the family doctor was 17 days after the accident.

iv. s. 44 assessor Dr. Ariel Zielinsky reports that the applicant returned to work immediately after the accident and had not missed any time from work. She also reported that the applicant stated that he had not played hockey in the past three years due to COVID and because his right shoulder had been dislocated while playing hockey.

12I find the applicant did not meet the burden of proof that his condition would preclude his recovery if he remained in the MIG. The pre-existing condition of the applicant’s dislocated right shoulder was well documented prior to the accident. However, the applicant also needs to demonstrate that there is compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. This has not been done.

13I am most persuaded by the following:

i. The injuries caused by the accident were primarily sprains and strains.

ii. The physiotherapist was seen 6 days after the accident and did not report any mention of the accident.

iii. The physiotherapist reports that the applicant had seen improvement since the accident.

iv. The physiotherapy treatment and over the counter medication that the applicant is receiving is consistent with the treatment that he had been receiving prior to the accident.

14As a result, I find that the applicant’s pre-existing condition was not worsened by the accident. The medical evidence presented by the applicant is not compelling to me to prove that pre-existing condition would preclude recovery if kept within the confines of the MIG.

Adjustment Disorder with Mixed Anxiety and Depressed Mood - Specific Phobia, Situational (Driver/Passenger-related)

15I find the applicant did not meet the burden of proof to be removed from the MIG based on the psychological impairment of Adjustment Disorder with Mixed Anxiety and Depressed Mood - Specific Phobia, Situational (Driver/Passenger-related).

16The applicant relies on the following:

i. Clinical notes and records from his family doctor Dr. Lambotharan

ii. s. 25 Psychological report by Dr. Steiner dated December 22, 2020.

17The applicant submits that he suffers from anxiety, mood, sleep disorder, post traumatic stress disorder (“PTSD”) and experiences driving anxieties. The diagnosis by Dr. Steiner is Adjustment Disorder with Mixed Anxiety and Depressed Mood Specific Phobia, Situational (Driver/Passenger-related).

18The respondent relies on the following:

i. s. 44 Psychiatry report by Dr. Zielinski dated September 29, 2020 and the addendum reports dated December 14, 2020 and March 9, 2021.

ii. Clinical notes and records of Dr. Lambotharan.

iii. Clinical notes and records of Alexmuir Wellness.

iv. s. 25 Psychological Report by Dr. Steiner dated December 22, 2020

19The respondent produced the following arguments to rebut the s.25 report and diagnosis by Dr. Steiner:

i. Dr. Zielinsky’s s. 44 report and addendums state the following:

a. Dr. Steiner’s s. 25 report only had subjective reports within the psychometric testing.

b. The applicant’s sleep and appetite are normal, and he returned to work immediately post-accident and had no issues with attendance or work performance. The applicant commutes from Markham to downtown Toronto for work without difficulty.

c. The applicant self-reported that he has no persistent depressed mood or loss of pleasurable activities, no flashbacks, nightmares or intrusive thoughts about the accident.

d. The addendum report states that the applicant has a well described history of chronic anxiety which Dr. Steiner failed to obtain as part of his analysis.

ii. There were no medications prescribed for psychological issues, nor was there any psychological treatment referred by the family doctor. The applicant was prescribed 12 counselling sessions by Dr. Steiner but the applicant did not seek any treatment.

20The respondent submits that the applicant’s psychological issues are self-reported. The respondent further states that based on the arguments above, and that the s. 25 report from Dr. Steiner was produced more than one year post accident, the s. 25 report of Dr. Steiner should carry little weight and the diagnosis should not be considered.

21I find that the applicant did not meet the burden of proof required to be removed from the MIG based on psychological grounds. The clinical notes and records of Dr. Lambotharan shows that the applicant consistently complained of anxiety, depression, PTSD and sleep disorder. The ongoing treatment, however, is focused on the physical issues presented. I wasn’t pointed to any evidence of any psychological treatment through either medication or psychotherapy. I am further persuaded that the applicant had the opportunity to partake in psychological treatment as prescribed by Dr. Steiner. However, I was not shown any evidence that the applicant received any psychological treatment, or why he declined to do so.

22When I weigh the expert reports, the clinical notes and records of the family doctor, and the applicant’s treatment plans pre and post accident, I find that based on the balance of probabilities that the applicant has not met the burden of proof to be removed from the MIG based on the psychological impairment as diagnosed by Dr. Steiner.

Medical Benefits Denied

23The applicant is denied treatment plans as listed under paragraph two above as the applicant is confined to the MIG

24The applicant remains within the MIG; however, the applicant is entitled to whatever amount remains within the $3,500.00 MIG limit as of the date of this decision, as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule.

Interest not payable

25I find that as there are no benefits overdue, there is no interest on overdue benefits payable.

Award not payable

26I find that as there are no benefits unreasonably withheld or delayed, there is no award payable.

ORDER

27I find that the applicant is not removed from the MIG. The application for consideration to be removed from the MIG and to have treatment plans approved is denied.