Citation: Sivagnanam v. TD General Insurance Company, 2024 ONLAT 21-013722/AABS

Licence Appeal Tribunal File Number: 21-013722/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:

Vanajah Sivagnanam

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Anita Sol-Edeigba

APPEARANCES:

For the Applicant:

Vanajah Sivagnanam, Applicant Tal Eshel, Counsel

For the Respondent:

Jason Meloche, Counsel

Written Hearing:

Heard by way of written submissions

OVERVIEW

1Vanajah Sivagnanam, the applicant, was involved in an automobile accident on November 18, 2017, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by the TD Insurance Company and the respondent and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (“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 medical benefits in the amount of $2,200.00 for a worksite assessment proposed by ALCAT Assessment Inc. in a treatment plan/OCF-18 dated October 24, 2019?

iii. Is the applicant entitled to benefit in the amount of $2,198.26 for a functional assessment, proposed by ALCAT Assessment Inc. in a treatment plan/OCF-18 dated October 24, 2019?

iv. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for a psychological assessment, proposed by ALCAT Assessment Inc. in a treatment plan/OCF-18 dated October 24, 2019?

v. Is the applicant entitled to medical benefits in the amount of $4,587.28 for manipulation, acupuncture and therapy-multi body sites and assessment, described in a treatment plan/OCF-18 dated January 29, 2022?

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

RESULT

3I find that the applicant sustained minor injuries as a result of the accident and that the minor injuries are treatable within the MIG. The MIG limit has not been exhausted. The treatment and assessment plans in dispute, if it has been incurred, are deemed to be reasonable and necessary, and are payable in accordance with s. 40(8). Interest, which applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.

ANALYSIS

The Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairment that are predominantly a minor injury. Section 3(1) defines a minor injury 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.”

5An insured will not be subject to the MIG if they can establish that their accident-related injuries are not included in the definition of “minor injury” in s.3(1). The Tribunal has determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG since they are not included in the definition of a “minor injury”.

6The applicant has the onus of establishing entitlement on a balance of probabilities.

7The applicant’s position is that she suffers from non-minor physical injuries, chronic pain, and psychological impairments that remove her from the MIG.

The applicant does not suffer from chronic pain with functional limitations

8I find that the applicant has not provided sufficient evidence that she should be removed from the MIG on the basis of chronic pain with functional limitations.

9The applicant takes the position that if the pain has been present for longer than six months it is considered chronic pain. But I disagree with the applicant’s opinion that the duration of the pain is sufficient reason to remove her from the MIG.

10In order to be removed from the MIG as a result of chronic pain, an applicant must show that they have been diagnosed with chronic pain syndrome or demonstrate that the pain has resulted in functional impairments. In the applicant’s case, the evidence doesn’t support that she suffers from chronic pain syndrome with functional limitations.

11The applicant submits that she should be removed from the MIG, on the basis that she suffers from intermittent headaches. Mr. Vincent Yip, a physiotherapist assessor on October 29, 2019, characterized applicant headache as intermittent headaches in his assessment report. In addition, Mr. Yip indicated that the applicant continued to work on modified duties. I place little weight to this evidence because without objective compelling evidence from a medical professional, I am unable to conclude that she suffers from intermittent headaches which affects her work and daily activities.

12The respondent submits that the applicant should not be removed from the MIG on the basis of chronic pain, as she resumed her employment twelve days after the accident and had no functional impairment. The respondent submits further that the applicant continues to work full time.

13I find that the chronic pain and headaches have not caused any functional limitation and disability to the applicant. There has been no significant disruption or disablement of the applicant’s activities of daily living.

14The applicant was examined by Dr. Thicke, the applicant’s chiropractor, and she diagnosed the applicant with neck/shoulder strain, back and lumber strain as well headache and anxiety. The respondent observed that Dr. Thicke initially completed the applicant’s OCF-3 on February 24, 2018, and concluded that applicant did not suffer injuries which impaired her from work, housekeeping and a normal life. In another breath the OCF-18 report dated March 24, 2018, and completed by Dr. Thicke, she diagnosed the applicant with sprain and strain of thoracic spine, chronic, post-traumatic stress disorder and low back pain. In addition to these physical injuries, Dr. Thicke noted that the applicant was unable to return to work and suffered a complete inability to carry on her normal life because of the accident and can only return to work on modified hours and/or duties.

15I find that the statements made by the applicant’s chiropractor are contradictory because her first diagnosis was that the applicant did not suffer injuries that would impair her from work, and subsequently she reversed the position to indicate that applicant would not be able to return to work. Dr. Thicke never clarified this discrepancy. Therefore, I am giving less weight to Dr. Thicke’s evidence.

16Further, the applicant relies on the insurer’s examination (IE”) dated July 27, 2018, by psychiatrist Dr. Sukhi Bhangu, during which Dr. Bhangu observed that the applicant’s gait was slow and guarded. Dr. Bhangu also observed that the applicant moved with difficulty from the sitting to standing position and from the supine to the recumbent position and vice versa. Dr. Bhangu also mentioned that the applicant was unable to perform Spurling’s test bilaterally. The applicant mentioned that she was in too much pain to perform the test in the submission. This test is used during a musculoskeletal assessment of the cervical spine when looking for cervical nerve root compression causing cervical radiculopathy, or to determine possible causes of neck pain. During Dr. Bhangu’s examination, the applicant diagnosed absent sensation to light touch and prick over the right upper arm which was not fitting a peripheral nerve, or dermatomal pattern. Dr. Bhangu then attempted to complete empty can testing on the right, which caused pain over the upper arm of the applicant.

17The respondent argued that the applicant does not suffer from Chronic Pain with functional limitations and relied on Physical Medicine and Rehabilitation Assessment of Dr. Hossein Hosseini’s evidence. In his physical and rehabilitation assessment report dated February 11, 2020, Dr. Hosseini diagnosed the applicant with having sustained cervicogenic headaches, with migraines features, cervical spine sprain/strain, thoracolumbar spine sprain/strain, right shoulder ligament joint sprain/sprain and subjective reports of radicular symptoms of the upper and lower extremities as a result of the accident. From a musculoskeletal perspective Dr. Hosseini noted that there was no significant objective finding that her injuries fell outside of the MIG.

18I find Dr Hosseini’s evidence convincing therefore I give it more weight. I find the applicant evidence establishes that she sustained injuries that are defined as predominantly minor.

19The applicant failed to refer to the six criteria laid out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th ed. (“AMA Guides”). The AMA Guides are useful interpretative tool for evaluating chronic pain claims and are not binding on the Tribunal and are not incorporated into the Schedule.

20These criteria include:

1. the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
2. excessive dependence on healthcare providers;
3. secondary physical deconditioning due to disuse and fear-avoidance of physical activity due to pain;
4. withdrawal from one’s social milieu, including work, recreation and other social contacts.
5. failure to restore pre-injury functions after a period of disability such that physical capacity is insufficient to pursue work, family or recreational needs;
6. and the development of psychosocial sequelae after the initial incident including anxiety, fear avoidance, depression or non-organic illness behaviours.

21While the applicant did not refer to the AMA Guides specifically, she made submissions in relation to criteria in 1 and 2. The applicant did not make any submissions with regard to criteria 3, 4,5 and 6. Therefore, I have not considered these four criteria.

22I find that the applicant does not meet criterion 1 for assessing chronic pain. With regards to criterion 1, the applicant submitted that she takes Naproxen (alleviates pain and inflammation) and Topiramate (relives epilepsy and treats migraines) However, the applicant did not provide any submissions to support how her use of these two prescription drugs meets the threshold under criterion 1.

23With respect to criterion 2, although the applicant suggested the names of various healthcare workers, such as lab attendants and cardiologists referred by her family physician, who were not directly involved with her care, I do not consider these individuals to be part of the healthcare team. I find that they are not classified as health care workers in this context and the applicant is not dependent on them.

24For the reasons above, I find that the applicant does not suffer from chronic pain as she does not meet any of the AMA Guide criteria for chronic pain. I find the evidence the applicant relied on to be unpersuasive.

The Applicant did not suffer non-minor physical injuries

25I find the applicant did not suffer non-minor physical injuries.

26The applicant relies on the clinical and records (“CNRs”) of Dr. Jeyapragasan to argue that she sustained physical non-minor physical injuries such as whiplash injury to the neck, rotator tendonitis, which are minor injury, which arose as a result of the accident. The applicant asserts that she experienced mechanical strain and her doctor prescribed Naproxen. According to the OCF-3 completed on March 6, 2018, by Dr. Jeyapragasen the applicant suffered from whiplash injury (to the neck), rotator tendonitis, headache, migraines, queried myofascial pain and shoulder pain due to the motor vehicle accident. These are all minor injuries under the MIG. Dr. Jeyapragasan also noted that the applicant reported pain in her right shoulder and wrist on June 24, 2019, and had an ultrasound which indicate biceps tenosynovitis, subscapularis and supraspinatus and ultrasound of right wrist showed extensor ganglion. The x-ray indicates that there are no fractures.

27Additionally, the findings indicated that the applicant had another ultrasound which showed partial thickness tear of the tendons, mild degenerative changes in the acromioclavicular joint and restrictive range of motion. The CNRs of Dr. Jeyapragasen indicates that applicant continues to have neck and low back pain, shoulder pain or dislocation which indicates that these are minor injuries. I find that the described injuries are all within the definition of motor injuries in the Schedule and the applicant has not demonstrated that removal from the MIG is warranted.

28Dr. Hosseini noted that applicant moved independently from standing to sitting postures and vice versa. The applicant was able to remove her boots and socks independently. The applicant’s neck alignment was normal as were her neurological examinations. Given all his observations, he noted that the applicant’s injury fell within the MIG. Dr. Ko, a physiatrist, who performed an examination on April 22, 2022, noted that the applicant stated that she is now experiencing pain on the left shoulder (despite having initial symptoms between 2017-2020 of the right shoulder). The respondent submits that the applicant did not injure her left shoulder in the accident. Dr. Ko concluded that there was “no clinically objective evidence of structural musculoskeletal injuries or nerve impingement” and that “her presentation …was superimposed with pain amplification behaviour”. Dr Ko concluded that the 2017 injuries were sprain/strain of the cervical spine, left trapezius/left upper extremity and that her injuries meet the definition of a minor injury.

29I find the applicant hasn’t met their onus to establish they suffered non-minor injuries as a result of the accident. The injuries captured in the Dr. Jeyapragasan CNR are minor injuries.

The applicant did not suffer from psychological impairment

30The applicant did not suffer a psychological impairment as a result of the accident. The respondent points out that the applicant’s experts have failed to use psychological validity test, which indicate that the applicant’s examination results can’t be confirmed and therefore less reliable.

31The applicant attended a psychological assessment with Dr. Betty Kershner, psychologist, on November 13, 2019. Dr. Kershner conducted the Beck Depression Inventory on the applicant and got a score consistent with severe levels of depression. Dr. Kershner diagnosed the applicant with adjustment disorder with mixed anxiety and depression with Somatic Symptom Disorder with specific phobia-situational-vehicular. Dr. Kershner recommended twelve sessions of psychological therapy and noted that the applicant cannot be treated within the MIG. Dr. Kershner, however, did not administer any validity testing to determine if the applicant’s testing was a reliable source of information.

32The applicant was also examined by two IE assessors who came to the conclusion that the applicant did not suffer from psychological impairments. Dr. Amena Syed, a psychologist, noted that the applicant had no psychological impairments after she conducted a s. 44 assessment on September 25, 2018. Dr. Syed’s assessment included several psychometric tests. Moreover, Dr. Syed stated in her psychological assessment report dated September 25, 2018, that during her assessment of the applicant, the doctor found no objective psychometric evidence to substantiate applicant’s subjective self-report of psychological impairment related to the subject accident. Dr. Syed also indicated that from a psychological standpoint, the applicant is able to work on a full-time basis. The findings were suggestive that certain symptomatology fell outside of the normal range.

33Dr. Syed, in her assessment opined that the applicant status appeared intact and unimpaired. Dr Syed indicated that the applicant ambulated independently at a normal pace, and she continued to work full time. She added that a present psychological investigation found no psychometric evidence to substantiate subjective self-report of psychological impairment related to the subject accident.

34Dr. Betty Kershner in her report also indicates that the applicant ‘’did not have any indication of gross abnormalities in her thought process, and that there was no report or indication of any hallucinations, delusions, or other disturbances.’’ I find these statements made by Dr. Kershner are contradictory as she inferred that the applicant did not experience impairments. Dr. Kershner did not provide clarification regarding this inconsistency. Consequently, I am assigning less weight to Dr. Kershner’s evidence.

35The applicant argued that the respondent ‘s opinion was heavily based on the results of validity testing. The applicant further contends that the respondent suggested that the applicant’s first language is not English, and that language and cultural factors may have impacted the applicant’s performance on the testing.

36According to the respondent, the applicant’s reading ability was below the acceptable range of 1.6 necessitating the completion of all the questionnaire by a Tamil interpreter.

37The respondent also noted that the applicant had never raised any language concern to the respondent. Dr. Ko in his IE dated April 22, 2022, mentioned that although a Tamil translator was present during the examination, her services were not needed because the applicant was highly proficient in English. In addition, the respondent indicated that Dr. Kershner, applicant psychologist in the report dated November 13, 2019, had no concerns regarding the applicant’s language proficiency.

38The respondent’s affirmed that the interview was conducted sufficiently in English, despite the applicant assertion that there was language barrier during the assessment. I am persuaded by the respondent findings about the applicant’s language proficiency.

39In a psychology assessment report dated February 2020, of Dr. Sherri MacKay, forensics psychologist stated that there was insufficient valid and reliable information on which to provide a Diagnostic and Statistic Manual of Mental Disorders diagnosis outside the MIG. During the interview with the applicant, Dr. MacKay observed that “the applicant was a pleasant informant. Her appearance was mildly subdued but did not appear to be depressed. There were no signs of undue overt anxiety. Clinically, there were no signs of undue overt anxiety. Also, clinically, there were no indications of cognitive difficulties or thought disorder. The results of Dr. MacKay showed likely over-reporting of somatic symptoms, cognitive symptoms, psychological symptoms and psychopathology that was not consistent with her presentation during the interview.

40I am persuaded by Dr. Syed and Dr. MacKay findings about the applicant’s psychological state because Dr. Syed used clinical testing methods which enabled her to determine whether the applicant was providing credible answers. Dr. MacKay testing also showed likely overreporting of somatic symptoms, cognitive symptoms, psychological symptoms and psychopathology that was not consistent with her presentation during the interview. As such, I find that the applicant has not demonstrated that she has any chronic pain and psychological impairment which would remove her from the MIG.

41As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.

42However, 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, once incurred.

Interest

43Interest will apply pursuant to s. 51 of the Schedule to treatment plans that were incurred and therefore deemed reasonable and payable in accordance with s. 40(8).

ORDER

44I order as follows:

1. The applicant suffered minor injuries in the accident and is subject to the MIG.
2. 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, once incurred. Interest applies to the payment of overdue benefits in accordance with s. 51 of the Schedule.