Licence Appeal Tribunal File Number: 22-010950/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:
Kandasamy Kugathasan
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
VICE-CHAIR:
Monica Ciriello
APPEARANCES:
For the Applicant:
Camille Narine-Ramrattan, Paralegal
For the Respondent:
Michael Brown, Counsel
Eric Boate, Counsel
HEARD:
In Writing
OVERVIEW
1Kandasamy Kugathasan, the applicant, was involved in an automobile accident on March 20, 2020, 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, Wawanesa Mutual Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
Non-Compliance with the Case Conference Report and Order
2The respondent took issue with the applicant’s failure to comply with the Tribunal’s Case Conference Report and Order (“CCRO”) dated My 26, 2023, that outlined the timeline for submissions and evidence. The CCRO required the applicant to provide the respondent with the following documents:
i. Prescription summaries from all pharmacies attended from one year pre-accident to date;
ii. Clinical notes and records from all treating physicians and medical facilities/clinics, including hospitals, attended from one year pre-accident to date;
iii. A copy of the Ambulance Call Report and hospital records;
iv. Clinical notes and records of family physician from one year pre-accident to date;
v. A complete copy of extended collateral benefits file;
vi. A complete copy of decoded OHIP summary from one year pre-accident to date;
vii. Particulars of any incurred treatment;
viii. Any other relevant records in the Applicant’s possession
3On January 10, 2024, the respondent brought a preliminary issues motion before the Tribunal seeking a negative inference be drawn against the applicant for failing to produce the aforementioned documents in accordance with the CCRO. On January 16, 2024, the motion was denied by the Tribunal, finding that it is open to the respondent to make submissions on any non-compliance with the Tribunal’s orders and the weight that should be accorded to the evidence to the written hearing adjudicator.
4The respondent requests that the Tribunal draw a negative inference from the applicant’s failure to produce relevant medical records in accordance with the CCRO without a reasonable explanation. The respondent submits that the applicant did not comply with the CCRO, did not bring a motion to change the production timeline, and did not provide submissions as to why the documents were not provided.
5Furthermore, the respondent submits that non-compliance with the CCRO is prejudicial to the respondent, depriving the respondent of its ability to do a potential insurer’s examination on these documents and its ability to review relevant medical records, including
i. medical records from before the subject March 20, 2020 motor vehicle accident;
ii. the OHIP summary;
iii. medical records from before October 21, 2021, notably the ambulance call report, hospital records, family doctor records, OHIP summary and treatment records; and
iv. medical records, notably ambulance call records, hospital records, family doctor records, OHIP records and treatment records, in relation to the applicant’s subsequent September 3, 2022, motor vehicle accident.
6In reply, the applicant submits that due to unforeseen reasons, updated medical records were not provided by the treating facilities. No clarity was provided by the applicant as to the unforeseen reasons. Furthermore, the applicant submits that the Tribunal may use its discretion to make a decision based on the evidence already submitted.
7The Tribunal has the discretion to draw negative inference where, in the absence of a reasonable explanation, a party fails to produce evidence that is within its control or is equally available to the parties and such evidence is material to the dispute. I find that to date, the respondent has not received the relevant documents. I am persuaded by the submissions of the respondent to draw a negative inference against the applicant for failing to provide the particulars in accordance with the CCRO. I find that the applicant failed to provide a persuasive explanation or reason as to why he failed to comply with the CCRO.
8Ultimately, it is the applicant’s onus to meet and the unavailability of the records will go against his ability to make his case. I will grant the respondent’s request and draw a negative inference against the applicant for failing to produce the documents outlined in paragraph [2] i-viii.
ISSUES
9The 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? Note: The parties agree the MIG limits have been exhausted.
ii. Is the applicant entitled to the treatment proposed by Midland Wellness Centre as follows:
$2,148.20 for physiotherapy services submitted by treatment plan on April 17, 2021?
$2,472.90 for physiotherapy services submitted by treatment plan on March 13, 2021?
$1,995.33 for psychological services submitted by treatment plan on February 4, 2021?
$2,860.40 for physiotherapy services submitted by treatment plan on November 24, 2020?
$2,564.80 for physiotherapy services submitted by treatment plan on January 12, 2021?
$1,971.30 for physiotherapy services submitted by treatment plan on June 26, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
10I 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
Applicability of the Minor Injury Guideline (“MIG”)
11The 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.”
12Section 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.
13An 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.
14It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities. The MIG submissions did not clarify the applicant’s theory of the case. I have inferred that the applicant’s position is that he should be removed from the MIG based on physical, psychological and chronic injuries. 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. I agree with the respondent.
The applicant did not suffer physical injuries that warrant removal from the MIG
15I find that the applicant has not provided sufficient evidence to demonstrate that his physical impairments justify treatment beyond the MIG.
16The applicant provides limited submissions as to how his accident-related physical injuries fall outside of the MIG. The applicant submits that following the accident he had complaints of neck, shoulder and back pain with musculoskeletal sprains and strains. The applicant relies on x-ray results of October 30, 2021, which found that the soft tissues were normal, and no fracture. The applicant also relies on the November 6, 2021, clinical notes and records (“CNRs”) of Dr. Ramesh Asirwatham, general physician who diagnosed the applicant with right cervical radiculopathy. Lastly, the applicant refers to the CNRs of Dr. Jacky Chen, pain specialist, dated April 21, 2023, following a second motor vehicle accident on September 3, 2022. The applicant reported injuries to his neck, shoulder, back, elbow, wrist, leg and foot.
17The respondent submits that Dr. Asirwatham did not diagnose the applicant with anything beyond MIG related injuries and any diagnosis of the applicant was not attributed to the accident. Furthermore, the respondent highlights that Dr. Asirwatham’s first assessment of the applicant was a year and a half after the accident and there is no record of the applicant attending Dr. Asirwatham since March 5, 2022.
18After reviewing the evidence, I agree with the respondent. The applicant has not provided compelling evidence that he suffers physical injuries that would remove him from the MIG. In reviewing the CNRs of Dr. Asirwatham I note that the applicant was first assessed a year and a half after the accident, the applicant has not been assessed since March 5, 2022, and the CNRs did not attribute the applicant’s injuries to the accident. Furthermore, the CNRs of Dr. Chen do not document any opinion on the part of Dr. Chen that the applicant’s injuries were attributed to the accident. This supports a finding that the applicant sustained minor soft tissue injuries which fall squarely within the s. 3 definition of a minor injury under the Schedule.
The applicant did not suffer psychological injuries that warrant removal from the MIG
19I find that the applicant has not provided sufficient evidence to demonstrate that his psychological impairments justify treatment beyond the MIG.
20An applicant may be removed from the MIG if they sustain a psychological impairment as a result of the accident, as psychological impairments are not captured within the definition of minor injuries under section 3(1) of the Schedule.
21To be removed from the MIG due to psychological impairments, the applicant must show that he has a psychological impairment and not just post-accident psychological sequelae of minor injuries. A psychological diagnosis requires the progression of ongoing, post-accident symptomatology, or clinically significant psychological impairments.
22The applicant does not produce any medical evidence or written submissions to establish his alleged psychological impairments. The OCF-1 dated July 17, 2020, and the additional comments section of the OCF-18 dated February 4, 2021, reference claims of anxiety and fear of driving. These references to psychological symptomatology do not establish a psychological impairment.
23The respondent submits that the applicant has not met his onus to show that he has a psychological impairment. It is the respondent’s position that there is no mention of any psychological symptoms in the medical evidence submitted.
24The evidence the applicant provided does not show that he suffers from a psychological impairment that would remove him from the MIG. There is no evidence of complaints of accident-related psychological injuries in the CNRs of his family physician.
25As a result, I find that the applicant has not satisfied his onus to prove on a balance of probabilities that he has a psychological injury resulting from the accident that would warrant him removal from the MIG.
The applicant does not suffer from chronic pain that warrants removal from the MIG
26I find that the applicant has not provided sufficient evidence to demonstrate that his chronic pain justify treatment beyond the MIG.
27For chronic pain to take someone out of the MIG, there must be an effect on their functionality. The applicant must provide medical evidence that his accident-related injuries had a detrimental impact on his functionality. More is required to establish what extent a chronic pain condition, be it a syndrome or chronicity of symptoms, affects functionality. This opinion must be supported by medical evidence that establishes the applicant’s functionality is impaired and that the chronic pain is the cause of the disability.
28The applicant submits that he has chronic lower back pain that is aggravated during activities which therefore exempts him from the MIG.
29I find that the applicant has not provided medical evidence demonstrating that he has a chronic pain condition requiring removal from the MIG. The applicant’s CNRs lack any diagnosis of chronic pain or chronic pain syndrome. The evidence suggests that the applicant is not impaired by pain.
30I find that the applicant failed to provide evidence demonstrating that he developed or suffers from chronic pain resulting from the accident.
31As the parties agree that the applicant has exhausted the limits of the MIG, I do not need to address the disputed treatment plans and if they are reasonable and necessary.
Interest
32Given that there are no overdue payments of benefits, the applicant is not entitled to interest.
ORDER
33The 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 plans in dispute; and
iii. The applicant is not entitled to interest.
iv. The application is dismissed.
Released: September 25, 2024
__________________________
Monica Ciriello
Vice-Chair