Citation: Balasundaram v. Allstate Canada, 2024 ONLAT 23-001940/AABS

Licence Appeal Tribunal File Number: 23-001940/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:

Ramesh Balasundaram

Applicant

and

Allstate Canada

Respondent

DECISION

VICE-CHAIR:

Robert Maich

APPEARANCES:

For the Applicant:

Naguleswary Rajaratnam, Paralegal

Thamara Jeyakumar, Paralegal

For the Respondent:

Andrew Cottreau, Counsel

Interpreter:

Ignatious Salleh (Tamil language)

HEARD by Videoconference:

April 8, 2024

OVERVIEW

1Ramesh Balasundaram, the applicant, was involved in an automobile accident on August 21, 2021, 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, Allstate Canada Insurer, 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? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to an income replacement benefit in the amount of $333.75 per week from May 27, 2022 to September 19, 2022?

iii. Is the applicant entitled to $3,485.00 for Physiotherapy Services proposed by Aqua Wellness Centre Ltd in a treatment plan/OCF-18 dated March 21, 2022?

iv. Is the applicant entitled to $3,395.00 for Physiotherapy Services proposed by Aqua Wellness Centre Ltd in a treatment plan dated May 12, 2022?

v. Is the applicant entitled to $2,500.00 for a Psychological Assessment proposed by Scarborough Rehabilitation Clinic in a treatment plan dated March 24, 2022??

vi. Is the applicant entitled to $835.00 for custom orthotics submitted on an OCF-6 form dated February 11, 2022?

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

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

3Resolved Issues: The applicant withdrew issue 3 as listed in the application.

RESULT

4The applicant has not proven on a balance of probabilities that the applicant’s injuries are outside of the MIG.

5The applicant is entitled to an income replacement benefit in the amount of $333.75 per week from May 27, 2022 to September 19, 2022, plus interest.

6The applicant is not entitled to the disputed treatment plans or an award.

PROCEDURAL ISSUES

The respondent’s evidentiary motion

7On April 4, 2024, the respondent brought a motion to be heard at the hearing pursuant to Rule 9 of the Common Rules of Practice & Procedure for the following relief:

i) An Order permitting the respondent to rely on the clinical notes and records (CNRs) of Dr. Tharmaratnam from August 21, 2018 to February 9, 2024 on as evidence at the hearing; and

ii) An Order excluding the applicant’s document brief from evidence.

8I granted the respondent’s motion in part. I granted the respondent’s request to admit the CNRs of Dr. Tharmaratnam but denied its request to exclude the applicant’s document brief.

9The CNRs of Dr. Tharmaratnam were produced to the respondent by email of March 15, 2024 from the applicant. The delay was the result of a third party’s failure to comply with the applicant’s request in a timely manner and through no fault of the applicant. Any prejudice to the applicant in the submission of these CNRs into evidence is minimal. On the other hand, to exclude the CNRs would significantly prejudice the respondent’s ability to marshal a full defence. Accordingly, I granted this portion of the respondent’s motion.

10The applicant emailed his document brief to the respondent on April 2, 2024 at 8:39 p.m. Pursuant to the Case Conference Report and Order, the document brief was due on March 18, 2024. The late delivery of the applicant’s document brief was due to significant personal injury of the applicant’s representative. Prejudice to the respondent was minimal as the content of a majority of the documents was known well in advance. Exclusion of the applicant’s entire document brief would be prejudicial and fatal to the applicant’s ability to advance its position. I advised the parties that any prejudice to the respondent resulting from any new material disclosed in the applicant’s brief could be addressed by submissions on the assignment of weight to such evidence.

The applicant’s motion regarding determination of MIG

11At the start of the hearing, the applicant brought an oral motion for determination that the applicant fell outside of the Minor Injury Guideline at the commencement of the hearing. A motion for such relief was unnecessary, as the remedy the applicant sought was the determination of one of the substantive issues to be decided in the hearing. I denied the applicant’s motion.

ANALYSIS

Minor Injury Guideline

12I find the applicant has not met his onus of proving on a balance of probabilities that the applicant’s injuries are outside of the MIG.

13Section 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.”

14An insured may be removed from the MIG if one can establish that the accident-related injuries fall outside of the MIG or, under s. 18(2), that a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

15The applicant submitted it should be removed from the MIG due to a psychological condition, specifical anxiety and post traumatic stress disorder (PTSD), and chronic pain.

a) Psychological condition

16I find that the applicant does not have a psychological condition that warrants removal from the MIG.

17The applicant referred to evidence contained in the CNRs of Appletree Medical group, citing physician’s handwritten notations that appear in of the applicant’s document brief persistently suggesting a referral to a psychologist for anxiety and PTSD.

18I find the above-described notes do not make a diagnosis of anxiety, PTSD and/or chronic pain, but repeatedly endorse a referral for investigation of these issues.

19The applicant relies on the psychological report of Dr. Mrahar, psychologist, dated September 22, 2022. Dr. Mrahar’s report noted that he administered the following tests to the applicant: Beck Anxiety Inventory (BAI); Clinical Assessment of Depression (CAD); and Pain Patient Profile (P3). Dr. Mrahar described the results as follows: BAI in the severe range for anxiety; CAD valid with significant risk for several hallmarks of depression; P3 testing was concluded as invalid and no interpretation of the responses could be provided.

20Dr. Mrahar opined that the applicant suffered from adjustment disorder (with mixed anxiety and depressed mood, and chronic pain syndrome (exacerbation of pre-existing injuries). In making his diagnosis, Dr. Mrahar notes that the applicant was having difficulties with sleep initiation and maintenance, as well as predominately negative changes to his activities of daily living and affective function. Specifically, Dr. Mrahar notes the applicant’s inability to return to work, engage in housekeeping chores, and some negative impact to social life. Dr. Mrahar further noted highly entrenched perception of pain and subsequent self-limiting behaviours.

21I do not find Dr. Mrahar’s diagnosis to be persuasive due to lack of detail and reasons for his conclusions. Dr. Mrahar does not consider the specific impediments that cause the applicant not to return to work or engage in household chores, nor dies he consider the reasons for negative social life impacts. Dr. Mrahar’s conclusions are bald statements without specific factual underpinnings. Further, Dr. Mrahar leaves his findings unknown as to how the applicant’s symptoms relate to the accident.

22The respondent maintains the applicant’s injuries are within the MIG. The respondent relies upon the reports of Dr. Dumitrascu, psychologist, entitled “Medical and Rehabilitation Benefit and Treatment Plan – Material Review” dated November 28, 2022, and a paper review of Dr. Mrahar’s report of September 22, 2022.

23Dr. Dumitrascu in his report noted that no diagnosis of psychological disorder made by any examiner were provided at the time of his initial assessment of April 19, 2022, entitled “Income Replacement benefit Psychologist’s Report”.

24Dr. Dumitrascu noted that the applicant had a tendency towards symptom magnification which was depicted on objective psychometric measures and precluded any valid results. Further, Dr. Dimitrascu noted that during the examinations by Dr. Marchie, physiatrist, of April 25, 2022, entitled “Income Replacement Benefit and Medical Rehabilitation Benefit Physiatrist’s Report”, no complaint of psychological symptoms was made by the applicant. The applicant also did not complain of such symptoms during a physiotherapy examination of March 10, 2022.

25I find the applicant is not removed from the MIG for his psychological condition because I give little weight to Dr. Mrahar’s report due to the invalidity of the P3 test administered by Dr. Mrahar and the lack of detailed reasoning of Dr. Mrahar’s diagnosis; taken together with the analysis of Dr. Dumitrascu, including a tendency towards symptom magnification depicted on objective psychometric measures, I find Dr. Dumitrascu’s conclusions to be persuasive. Accordingly, the applicant is not removed from the MIG based upon psychological condition.

b) Chronic pain

26I find that the applicant does not have a chronic pain condition that warrants removal from the MIG.

27The applicant relies on the psychological report of Dr. Mrahar, psychologist, dated September 22, 2022. Dr. Mrahar’s report noted that he administered the following tests to the applicant: Beck Anxiety Inventory (BAI); Clinical Assessment of Depression (CAD); and Pain Patient Profile (P3). Dr. Mrahar described the results as follows: BAI in the severe range for anxiety; CAD valid with significant risk for several hallmarks of depression; P3 testing was concluded as invalid and no interpretation of the responses could be provided.

28Dr. Mrahar opined that the applicant suffered from chronic pain exacerbated in the accident from pre-existing injuries, amongst other issues previously described. In making his diagnosis, Dr. Mrahar notes that the applicant was having difficulties with sleep initiation and maintenance, as well as predominately negative changes to his activities of daily living and affective function. Specifically, Dr. Mrahar notes the applicant’s inability to return to work, engage in housekeeping chores, and some negative impact to social life. Dr. Mrahar further noted highly entrenched perception of pain and subsequent self-limiting behaviours.

29I do not find Dr. Mrahar’s diagnosis to be persuasive due to lack of detailed reasons for his conclusions. Dr. Mrahar does not consider the specific impediments that cause the applicant not to return to work or engage in household chores or negative social life impacts. Dr. Mrahar’s conclusions are similarly lacking in detail as noted previously, and without specific factual underpinnings. There is no specific analysis of chronic pain articulated by Dr, Mrahar. Further Dr. Mrahar leaves his findings unknown as to how it relates to the accident, other than to make a bald statement without specific factual underpinnings.

30The respondent maintains the applicant’s injuries are within the MIG. The respondent relies upon the reports of Dr. Dumitrascu, psychologist, entitled “Medical and Rehabilitation Benefit and Treatment Plan – Material Review” dated November 28, 2022, and a paper review of Dr. Mrahar’s report of September 22, 2022.

31Dr. Dumitrascu in his report noted that no diagnosis of chronic pain syndrome made by any examiner was provided at the time of his initial assessment of April 19, 2022.

32Dr. Dumitrascu noted that the applicant had a tendency towards symptom magnification which was depicted on objective psychometric measures and precluded any valid results. Further, Dr. Dimitrascu noted that in the report by Dr. Marchie, physiatrist, of April 25, 2022, , no report of chronic pain syndrome was made by the applicant.

33Accordingly, I find the applicant did not meet his onus of the burden of proof on a balance of probabilities, that the applicant’s injuries are outside of the MIG.

Income Replacement Benefits for the period of May 27, 2022 to September 19, 2022

34I find the applicant has proven on a balance of probabilities that he is entitled to an income replacement benefit (IRB) in the amount of $333.75 per week from May 27, 2022 to September 19, 2022.

35To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

36The applicant submits the Disability Certificate (OCF-3) dated August 24, 2021 completed by Dr. Priesnitz, chiropractor, establishes the applicant’s entitlement to IRB from May 27, 2022 to September 19, 2022. The applicant also relies upon the OCF-24 dated August 21, 2021, completed by Dr. Priesnitz. These documents outline the extent of the applicant’s injuries and how they relate to his inability to work.

37The applicant worked in the hospitality industry prior to the accident. His essential daily tasks where physical, involving long periods of standing, frequent turning and bending of his hip and spine as well as moderate to heavy lifting of objects. The injuries to his hip and spine precluded him from a return to work in the opinion of Dr. Priesnitz.

38The applicant further relies upon the CNRs of Aqua Wellness Rehabilitation Clinic, the CNRs of Ontario Shores, and the CNRs of Appletree Medical Group. The above described CNRs of Aqua Wellness Rehabilitation Clinic and Appletree Medical Group detail the applicant’s history of medical complaints in respect to pain and weakness of his hip and spine, resulting limitations to movement and load, as well as treatment over the disputed period and beyond.

39Upon review of the CNRs, I find that the applicant consistently maintained similar physical complaints in respect to pain and weakness of his hip and spine, and resulting limitations to movement and load, from August 24, 2021 through to September 19, 2022.

40The respondent submits that it’s insurer’s examination, conducted by Dr. Marchie, physiatrist, on April 25, 2022 is sufficient evidence that the applicant no longer meets the test of a substantial inability to complete the tasks of his employment. Specifically, the examiner did not find a link between the injuries to his hip and spine from the accident and his ability to complete the essential tasks of his work, as the assessor stated the applicant self-limited his evaluation. Based upon the conclusions in this report, the respondent stopped payment to the applicant of IRB as of May 23, 2022.

41I note that Dr. Marchie stated in his report that he relied upon the finding in the Functional Capacity Evaluation of V. Yip, physiotherapist, dated March 10, 2022. I further note V. Yip stated in his report that he was unable to determine the applicant’s true functional limitations, as the applicant self-limited sitting, standing, walking, lifting and gripping.

42I find that the evidence of Dr. Priesnitz together with the extensive clinical notes and records of Aqua Wellness Rehabilitation Clinic and Appletree Medical Group, are persuasive and I prefer them over the evidence presented by the respondent’s assessors.

43I find the applicant’s physical complaints prevented him from being able to substantially complete the essential tasks required by his employment.

44Accordingly, I find the applicant met his onus in proving entitlement to an income replacement benefit (IRB) in the amount of $333.75 per week from May 27, 2022 to September 19, 2022, as described in issue [6] ii herein.

The applicant is not entitled to the disputed treatment plans

45As I have found that the applicant is not removed from the MIG and the parties agree that the MIG limits have been exhausted, the applicant is not entitled to the disputed treatment plans.

Interest

46Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

47The applicant is entitled to interest on the overdue payment of IRBs.

Award

48The applicant sought an award under s. 10 of Reg. 664. Section 10 of Regulation 664, R.R.O. 1990 states that if the Tribunal finds that an insurer has unreasonably withheld or delayed payments, the Tribunal may award a lump sum of up to 50% of the amount to which the person was entitled at the time of the award with interest on all amounts then owing including unpaid interest.

49It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract an award under Reg.664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

50The applicant did not make any submissions to the Tribunal in support of an award. Accordingly, the applicant is not entitled to an award under Reg. 664.

ORDER

51I find:

i. The applicant’s injuries are not outside of the MIG;

ii. The applicant is entitled to IRBs in the amount of $5,489.04 plus interest.

iii. The applicant is not entitled to the disputed treatment plans or an award.