Saravanapavananthan v. Economical Mutual Insurance Company, 2024 CanLII 102093

Citation: Saravanapavananthan v. Economical Mutual Insurance Company, 2024 ONLAT 23-007825/AABS

Licence Appeal Tribunal File Number: 23-007825/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:

Suganthini Saravanapavananthan

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

VICE-CHAIR: Jeremy A. Roberts

APPEARANCES:

For the Applicant: Mark Stoiko, Counsel

For the Respondent: Kevin So, Counsel

Interpreter: Gayathri Sri, Tamil Interpreter

Heard by Videoconference: August 12-13, 2024

OVERVIEW

1Suganthini Saravanapavananthan, the applicant, was involved in an automobile accident on August 19, 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, Economical Mutual Insurance Co., 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. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from September 19, 2024 to date and ongoing?

ii. Is the applicant entitled to $5,542.82 for chiropractic services, proposed by SpinoCare Physical Therapy in a treatment plan (“plan”) dated November 30, 2022?

iii. Is the applicant entitled to $3,159.80 for an attendant care assessment, proposed by Meditecs HM IME in a plan dated November 30, 2022?

iv. Is the applicant entitled to $23,142.40 for a catastrophic impairment assessment, proposed by Meditecs HM IME in a plan dated November 30, 2022?

v. Is the applicant entitled to $9,288.60 for a neurological assessment, proposed by Meditecs HM IME in a plan dated November 30, 2022?

vi. Is the applicant entitled to $4,373.10 for a chronic pain assessment, proposed by Meditecs HM IME in a plan dated November 25, 2022?

vii. Is the applicant entitled to $4,373.10 for a mental health assessment, proposed by Meditecs HM IME in a plan dated November 25, 2022?

viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant is not entitled to NEBs, the treatment plans in dispute, an award, or interest.

PROCEDURAL ISSUES

Length of witness examinations

4At the start of the hearing, I asked both parties how much time they would need to examine and cross-examine each witness. The applicant’s representative argued that he required three to four hours in order to conduct his examination-in-chief of the applicant due to the requirement of interpretation and up to two hours to conduct the examination-in-chief of the applicant’s son. The respondent argued that he required up to an hour for the cross-examination of the applicant and up to 30 minutes for the cross-examination of the applicant’s son.

5Upon consideration of the submissions of both parties and the issues in dispute, I utilized my authority under s. 23(2) of the Statutory Powers Procedure Act (“SPPA”) to limit the applicant’s examination-in-chief to a maximum of two hours and the examination-in-chief of the applicant’s son to one hour. The respondent was limited to 45 minutes for its cross-examination of the applicant and 30 minutes for its cross-examination of the applicant’s son. I found that this would better reflect the length of testimony required to address the issues in dispute and facilitate a more timely and efficient resolution of this matter.

ANALYSIS

The applicant is not entitled to a NEB

6I find that the applicant is not entitled to a NEB because the applicant was driving without a valid licence at the time of the accident.

7Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

8Subsection 31(1)(a)(ii) of the Schedule, however, states that the insurer is not required to pay a NEB if the person driving the automobile was driving without a valid driver’s licence at the time of the accident.

9The applicant argued that at the time of the accident, she was not aware that she was driving without a valid driver’s licence because she had received no notice of her licence expiry.

10The respondent’s position was that the Motor Vehicle Collision Report entered into evidence clearly shows that the applicant was driving the vehicle with a suspended licence which is in violation to s. 31(1)(a)(ii) of the Schedule. It argues that the applicant’s ignorance of the suspension is not a valid reason under the legislation to escape the consequences of this provision.

11I find that the applicant was driving with a suspended licence which constitutes “driving without a valid driver’s licence” and, therefore, the insurer is not required to pay an NEB per s. 31(1) of the Schedule. The applicant admitted that her licence was suspended during her testimony, corroborating the evidence from the Motor Vehicle Collision Report. Moreover, I do not find that ignorance of that suspension is a compelling argument because in other sections of s. 31(1)(a), the legislation denotes whether or not the driver “knew or ought reasonably to have known,” whereas in s. 31(1)(a)(ii), the wording is clear that if the driver was driving the automobile without a valid driver’s licence, the insurer is not required to pay an NEB. As such, I find that the insurer is not required to pay the NEB in dispute.

The applicant is not entitled to the proposed treatment plans

12I find that the applicant has not met her onus in demonstrating that the proposed treatment plans are reasonable and necessary on a balance of probabilities.

13Sections 14 and 15 of the Schedule state that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person as a result of the accident. Section 16(1) of the Schedule provides that the insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person in undertaking activities and measures described in subsection (3) for the purpose of reducing or eliminating the effects of any disability resulting from the impairment or to facilitate the person’s reintegration into her family, the rest of society, or the labour market.

14The applicant bears the onus of proving on a balance of probabilities that the claimed medical benefits are reasonable and necessary. In order to do so, an applicant should establish that the treatment goals are reasonable, that the goals are being met to a reasonable degree, and that the overall cost of achieving the goals is reasonable.

15The applicant argued that the treatment plans were reasonable and necessary in order to address her ongoing pain and psychological issues that resulted from the accident. She specifically argued that the chronic pain assessment was necessary in order to address the cause of her chronic pain, which was persistent as evidenced by the repeated visits to the Toronto Poly Clinic for pain relief injections. Furthermore, she argued that because she is easily angered since the accident, she required a mental health assessment in order to determine the cause of her mood issues. The applicant gave no submissions on the proposed chronic pain assessment and catastrophic impairment assessment, and suggested that the cost of the proposed neurological assessment was likely excessive.

16The respondent argued that the applicant failed to demonstrate the reasonableness and necessity of the proposed treatment plans because she failed to provide convincing medical evidence suggesting that these treatment plans were required as a result of accident-related impairments.

17I find that the applicant has failed to meet her onus in demonstrating that the proposed treatment plans are reasonable and necessary. It is well settled that in order to prove entitlement to treatment plans the applicant must point to medical evidence to support their reasonableness and necessity. The applicant’s testimony and/or the treatment plans are insufficient on their own to meet that test. In this instance, the applicant failed to enter as exhibits relevant medical evidence to support the proposed chiropractic treatment as well as the neurological and mental health assessments. Only two sets of clinical notes and records were entered in as exhibits and neither addressed the subject motor vehicle accident. The applicant failed to provide any evidence whatsoever to support the proposed attendant care and catastrophic impairment assessments. I have no records to demonstrate whether the treatment goals are reasonable, that they will be met to a reasonable degree, and that the costs are reasonable.

18As it relates to the proposed chronic pain assessment, the only treatment plan for which the applicant provided contemporaneous medical evidence to support her entitlement in the form of clinical notes and records from a pain relief clinic, I find that I agree with the respondent that these records do not conclusively demonstrate that her chronic pain is accident related. In fact, this record is silent on the motor vehicle accident. Moreover, because the records of these pain relief injections administered at this clinic pre-date the accident by two years, I find that on a balance of probabilities I cannot determine that her pain was caused by or worsened by the subject motor vehicle accident. These records do not demonstrate whether the treatment goals are reasonable, whether they will be met to a reasonable degree, or that the costs are reasonable.

19With a lack of compelling medical evidence to support her entitlement to these treatment plans, I find that the applicant has failed to meet her onus in demonstrating that these plans are reasonable and necessary.

The applicant is not entitled to an award or interest

20As there are no payments owed, the applicant is not entitled to an award or interest.

ORDER

21I order the following:

i. The applicant is not entitled to a NEB, the proposed treatment plans, interest, or an award; and

ii. The application is dismissed.