Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-005746/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:
Kanapathipillai Thirunavukarasu
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATOR: Brian Norris
APPEARANCES:
For the Applicant: Dean Trinetti, Counsel
For the Respondent: Monika Korona, Counsel
HEARD: By way of written submissions
OVERVIEW
1Kanapathipillai Thirunavukarasu ("the Applicant") was involved in an automobile accident on May 14, 2022, and sought benefits from Sonnet Insurance Company ("the Respondent") pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule").
2The Respondent characterized the Applicant's injuries as falling within the "minor injury" definition as outlined in section 3 of the Schedule and denied funding for the treatment and assessment plans in dispute. The Applicant disagrees and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
3The issues in dispute are:
i. Are the Applicant's injuries predominantly a minor injury as defined in section 3 of the Schedule and subject to the MIG and the $3,500.00 funding limit for a minor injury?
ii. Is the Applicant entitled to a non-earner benefit in the amount of $185.00 per week for the period from August 16, 2022 to May 14, 2024?
iii. Is the Applicant entitled to a medical benefit in the amount of $3,216.18 for chiropractic treatment proposed by 101 Physio in a treatment and assessment plan/OCF-18 ("plan"), dated May 17, 2022?
iv. Is the Applicant entitled to a medical benefit in the amount of $1,300.00 (less $928.75 approved by the Respondent), for chiropractic treatment proposed by Scarborough Health and Wellness Centre Inc. in a plan, dated August 12, 202?
v. Is the Applicant entitled to a medical benefit in the amount of $3,444.10 for chiropractic treatment proposed by Scarborough Health and Wellness Centre Inc. in a plan, dated August 12, 2022?
vi. Is the Applicant entitled to a medical benefit in the amount of $2,208.00 for a chronic pain assessment, proposed by Paramount Medical Assessments Ltd, in a plan, dated March 14, 2023?
vii. Is the Applicant entitled to interest on the overdue payment of benefits?
RESULT
4The Applicant withdrew his claim for NEBs.
5The Applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.
6The Applicant is not entitled to the plans in dispute because they propose goods and services outside of the MIG.
7No interest is payable.
Background
8The Applicant was the driver of a vehicle which was struck from behind while traversing an urban intersection. No paramedics attended at the scene of the accident and the Applicant drove himself to a collision reporting centre thereafter. He went to the hospital later that day and was examined due to complaints of back pain. The physician at the hospital diagnosed him with musculoskeletal pain, provided Tylenol for pain relief, and discharged him with instructions to follow up with his family physician. He visited his family physician two days later and was examined again. His family physician referred the Applicant to physiotherapy and prescribed naproxen for pain relief.
ANALYSIS
Minor Injury Guideline ("MIG")
9The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A "minor injury" is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
10The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule. Alternatively, he may demonstrate that he suffers from a pre-existing injury which precludes his maximal recovery if subject to the MIG and the $3,500.00 funding limit.
11The Applicant submits that his advanced age, and his pre-existing knee, shoulder, and back pain preclude his recovery if subject to the MIG. In the alternative, he submits that he has developed a chronic pain condition as a result of the accident and should not be subject to the MIG as a result.
12For the following reasons, I find that the Applicant sustained a minor injury as a result of the accident.
Pre-Existing Condition
13The Applicant has not demonstrated that he suffered from a pre-existing condition which precludes his maximal recovery if subject to the MIG.
14The Applicant submits that his advanced age and his medical history involving knee replacement surgery in 2015, and that he sustained a shoulder strain in motor vehicle accidents in 2015, 2017, and 2019, are evidence of pre-existing conditions which preclude his maximal recovery in the MIG. The Respondent disagrees that the Applicant has an ongoing condition what would preclude maximal recovery if subject to the MIG.
15I find that the Applicant's advanced age and surgical history is not a pre-existing condition which would preclude his recovery if subject to the MIG. The Applicant's medical record, including the clinical notes and records ("CNRs") of his family physician, do not indicate that his age or knee replacement is a barrier to recovery in any way. Similarly, the disability certificate completed by Dr. B. Nikolis, chiropractor, dated May 31, 2022, denies that the Applicant has any pre-existing conditions that would impair his recovery.
16I find that the Applicant's lingering shoulder pain is not a pre-existing condition which would preclude his recovery if subject to the MIG. There are three instances in the period between September 30, 2019 and May 14, 2022, the date of the accident, where the Applicant complained of shoulder pain. Twice on the left shoulder, on September 30, 2019, and March 12, 2020, and once for the right shoulder on September 29, 2021, when the Applicant complained of shoulder pain increasing with cold weather. There is no evidence before me that these lingering pains are of a severity to impair the Applicant's recovery from the strains he sustained in the accident. Further, he met with his family physician following the accident and the record from that visit does not mention any pre-existing condition. Likewise, there is no indication in the CNRs that the Applicant has an atypical treatment regiment due to pre-existing issues.
17My findings are consistent with the insurer's examination ("IE") report of Dr. M. Fung, physician, dated September 29, 2022. Dr. Fung reviewed the Applicant's medical records and performed an in-person assessment. The report notes that the Applicant stated that his left shoulder pain from the 2015 accident had resolved prior to the subject accident, and that he remained independent with his activities of daily living following the accident, but has occasional help from family members for heavier chores. On examination, Dr. Fung found no objective findings to support any substantial accident-related musculoskeletal, neurological, or osseous impairment. Dr. Fung concluded that the Applicant sustained, at most, soft tissue injuries to the neck, left trapezius/scapular, and low back that fall within the minor injury definition. Lastly, Dr. Fung opined that the Applicant's prior strains and knee surgery would not preclude maximal recovery if subject to the MIG.
18Accordingly, I find that the Applicant has not demonstrated that he suffers from a documented pre-existing health condition which precludes his maximal recovery if subject to the MIG and the $3,500.00 funding limit for a minor injury.
Chronic Pain
19The Applicant has not demonstrated that he suffers from a chronic pain condition as a result of the accident.
20The Applicant claims that he has chronic pain from the accident and submits that he meets the criteria for a chronic pain condition, according to the American Medical Association Guides to the Evaluation of Permanent Impairment ("AMA Guides"). He claims that he meets at least three of the six criteria for a chronic pain condition. He submits that he relies on treatment for pain relief, his family doctor and chiropractor for assistance, and he developed psychological sequalae.
21I find that the Applicant has not demonstrated that he meets the six criteria for a chronic pain condition. The six criteria in the AMA Guides are a dependency or misuse of prescription medical or other substances, excessive dependence on healthcare providers and family, secondary deconditioning due to disuse or fear avoidance, withdrawal from social milieu, a failure to restore pre-injury function, and the development of psychosocial sequalae.
22For the applicant's case, there is no evidence to support his claims. He is not dependent on healthcare professionals or his family. His family physician's CNRs include only three instances during the period from the date of the accident to May 29, 2023, where the Applicant complained of pain – the initial visit on the day following the accident, and visits on November 30, 2022, and May 29, 2023. The only reference to psychological sequalae is in the June 3, 2022 disability certificate, completed by Dr. A. Nalli, chiropractor. Identifying psychological injuries is outside of the scope of a chiropractor and I give this reference to anxiety no weight considering that no other healthcare provider has identified any psychological symptoms presented by the Applicant. The Applicant has led no evidence demonstrating an excessive dependence on prescription medication, or secondary deconditioning due to disuse. Lastly, the Applicant has not indicated that he has withdrawn from social milieu. On the contrary, he continues to assist his son with regular dialysis appointments.
23Overall, the Applicant has not demonstrated that he suffers from a chronic pain condition, or that he is impaired by pain. At most, his submissions suggest that he continues to have lingering occasional bilateral shoulder pain, which is consistent with his pre-accident health status. Thus, I find that he does not suffer from a chronic pain condition which would warrant treatment outside of the MIG and the $3,500.00 funding limit for a minor injury.
36The plans in dispute proposed goods and services that fall outside the MIG and beyond the $3,500.00 funding limit for a minor injury. Having found that the Applicant is subject to the MIG, it follows that he is not entitled to the plans in dispute.
Interest
24Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.
CONCLUSION AND ORDER
25The Applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.
26The Applicant is not entitled to the treatment and assessment plans in dispute because the plans propose goods and services outside of the MIG and beyond the $3,500.00 funding limit for a minor injury.
27No interest is payable because no benefits went overdue.
28The Application is dismissed.
Released: April 10, 2025
Brian Norris
Adjudicator