Sabaratnam v. Economical Mutual Insurance Company, 2024 CanLII 28702

Licence Appeal Tribunal

Citation: Sabaratnam v. Economical Mutual Insurance Company, 2024 ONLAT 21-005884/AABS

Licence Appeal Tribunal File Number: 21-005884/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:

Varatharajah Sabaratnam Applicant

and

Economical Mutual Insurance Company Respondent

DECISION

ADJUDICATOR: Ludmilla Jarda

APPEARANCES:

For the Applicant: Shahzad Ayub, Counsel

For the Respondent: Colin MacDonald, Counsel

HEARD: By Written Submissions

OVERVIEW

1Varatharajah Sabaratnam (the “applicant”) was involved in an automobile accident on January 15, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Economical Mutual Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. 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?
2. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from April 26, 2020 to date and ongoing?
3. Is the applicant entitled to $3,025.20 for chiropractic services, proposed by Aqua Wellness Centre in a treatment plan/OCF-18 (“treatment plan”) dated April 26, 2019?
4. Is the applicant entitled to $2,856.00 for chiropractic services, proposed by Aqua Wellness Centre in a treatment plan dated August 30, 2019?
5. Is the applicant entitled to $2,517.60 for chiropractic services, proposed by Aqua Wellness Centre in a treatment plan dated February 28, 2020?
6. Is the applicant entitled to $2,200.00 for a Chiropractic Assessment, proposed by Aqua Wellness Centre in a treatment plan dated February 2, 2020?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3For the reasons that follow, I find that:

1. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
2. The applicant is not entitled to the disputed treatment plans.
3. The applicant is not entitled to NEB.
4. The applicant is not entitled to interest.

PROCEDURAL ISSUES

4The respondent requests the right to file a sur-reply in response to the applicant’s reply submissions. The respondent submits that the applicant’s reply submissions contain false and misleading statements regarding the denial of the treatment plans dated April 26, 2019 and August 30, 2019. It directs the Tribunal to a denial letter dated May 22, 2019 which was initially included at Tab 14 of its responding submissions, and to a copy of the treatment plan dated August 30, 2019 which was initially included at Tab 17 of its responding submissions. It argues that a sur-reply is necessary to ensure that the Tribunal is not misled by the applicant’s false statements, and to put the proper evidence before the Tribunal.

5The applicant did not send correspondence to the Tribunal objecting to the respondent’s request to file a sur-reply prior to the hearing, despite having the opportunity to do so. As such, the applicant’s position is unknown.

6It is well established that sur-reply submissions should only be permitted in exceptional circumstances. They are not intended to be an additional opportunity for parties to bolster their case or supplement previous submissions. Sur-reply submissions may only be necessary when a party has made additional legal arguments or introduced additional issues in reply, provided an inaccurate statement of the law, or an inaccurate statement of facts critical to the determination of the issues in dispute.

7In the circumstances, I find that the applicant’s reply submissions contain inaccurate statement of facts critical to the determination of the issue of the applicant’s entitlement to the treatment plans dated April 26, 2019 and August 30, 2019. While the applicant alleges that the only reason given by the respondent to deny the treatment plan dated August 26, 2019 was that the applicant was within the MIG, a review of the denial letter dated May 22, 2019 confirms that the applicant’s statement is inaccurate. The letter contains several other reasons for the denial.

8Further, while the applicant alleges that there was no indication that the treatment plan dated August 30, 2019 was submitted on September 3, 2019, a review of the treatment plan confirms that the applicant’s statement is inaccurate. It is noted on the treatment plan that it was submitted through the Health Claims for Auto Insurance (“HCAI”) electronic system on September 3, 2019 at 9:41 am.

9Accordingly, I am prepared to admit the respondent’s sur-reply into the record, and I find that procedural fairness requires me to do so.

ANALYSIS

Minor Injury Guideline (“MIG”)

10Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

11An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from their minor injury if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

12The applicant submits that he should be removed from the MIG as he suffers from chronic pain as a result of the accident. The applicant relies on a Disability Certificate (OCF-3) dated February 5, 2019 completed by Dr. Roy Priesnitz, chiropractor, and the clinical notes and records (“CNR”) of his family physician, Dr. Komathy Jayashankar.

13The applicant argues that any pain that has been ongoing for 3 to 6 months constitutes chronic pain even if it was not diagnosed expressly. He relies on T.S. v. Aviva Insurance Canada, 2018 CanLII 83520 (ON LAT) and P.L. v. Aviva Insurance Canada, 2019 CanLII 22223 (ON LAT).

14The respondent submits that the applicant sustained soft tissue injuries as a result of the accident that can be treated within the MIG and notes that the applicant’s submissions contain no compelling medical evidence to remove him from the MIG. The respondent relies on various insurer examination reports including a general practitioner report dated June 24, 2019 completed by Dr. Riaz Moolla, physician, a general practitioner report dated September 16, 2019 and a general practitioner addendum report dated December 21, 2021, both completed by Dr. Hashmat Khan, physician, and a psychology report dated November 3, 2022 completed by Dr. Janet Clewes, psychologist.

15The respondent further argues that the applicant did not demonstrate that he meets at least three out of six criteria set out in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th Edition (the “Guides”). The respondent denies that the applicant suffers from chronic pain with functional impairment. The respondent argues that in order for chronic pain to remove the applicant from the MIG, the pain must adversely affect the applicant’s wellbeing. Chronic pain has an adverse effect when it is functionally disabling. The respondent relies on A.J. v. Aviva Insurance Canada, 2021 CanLII 35559 (ON LAT).

16On reply, the applicant maintains that he suffers from chronic pain and submits that he meets more than three criteria set out in the Guides for establishing chronic pain.

The applicant did not sustain injuries that warrant removal from the MIG

17I find that the applicant failed to prove, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, he remains within the MIG and its $3,500.00 limit on treatment.

18I find that there is insufficient evidence to support that the applicant suffers from chronic pain with functional limitations. Although Dr. Jayashankar diagnosed the applicant with “MSK pain-chronic” on May 16, 2020 and with “chronic pain MSK” on February 6, 2021, the applicant has not directed me to any evidence to support that he suffers from functional limitations as a result of his pain. In T.S. v. Aviva Insurance Canada, the Tribunal described chronic pain as ongoing or recurrent pain, lasting beyond the usual course of acute illness or injury for more than 3 to 6 months, and which adversely affects the individual’s well-being. Chronic pain has an adverse effect when it is functionally disabling (see: A.J. v. Aviva Insurance Canada).

19Additionally, I find that the applicant has failed to demonstrate that he meets the test for chronic pain as outlined in the Guides. While the Guides are not incorporated into the Schedule or otherwise binding on this Tribunal to determine if someone suffers from chronic pain, they provide a helpful tool in that they set forth that a person must meet at least three out of six criteria to support a diagnosis of chronic pain. These criteria are:

1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence of prescription drugs or other substances;
2. Excessive dependence on health care providers, spouse, or family;
3. Secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;
4. Withdrawal from social milieu, including working, recreation, or other social contacts;
5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, and recreational needs; and
6. Development of psychosocial sequelae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviours.

20I am not persuaded by the applicant’s medical evidence and submissions that he meets at least three out of six criteria set out in the Guides for establishing chronic pain. Although the applicant does not indicate which criteria he is relying on, he submits that he failed to restore pre-injury function, that he is excessively dependant on family and friends to help him following the accident, that he has developed psychological issues as a result of the accident, and that he now displays a higher degree of social withdrawal.

21First, there is no evidence to support that the applicant excessively depends on family and friends, and the applicant has not directed me to any such evidence.

22Second, there is no evidence to support that the applicant withdrew from social milieu as a result of his accident-related injuries, and the applicant has not directed me to any such evidence.

23Third, there is no evidence to support that the applicant failed to restore pre-injury function such that his physical capacity is insufficient to pursue work, family, or recreational needs, and the applicant has not directed me to any such evidence. Also, I note that the applicant was retired at the time of the accident.

24Finally, there is insufficient evidence to support that the applicant developed psychological sequelae after the initial incident. Although the applicant sought a psychological assessment, aside for the treatment plan, the applicant has not directed me to any evidence to support that he suffers from a psychological impairment as a result of the accident.

25I further find that the evidence supports that the applicant suffers from soft tissue injuries within the definition of minor injury under s. 3 of the Schedule. According to the Ambulance Call Report and the CNRs of the Scarborough General Hospital, following the accident, the applicant complained of pain to the left knee, left sided chest, and shoulder as well as a mild headache. Diagnostic imaging of his cervical spine, chest, left hand, and left knee was unremarkable.

26The applicant consulted his family physician, Dr. Jayashankar, on February 11, 2019, and complained of pain in both shoulders, stiffness, neck pain, left leg pain, foot pain, and chest wall pain. Dr. Jayashankar diagnosed the applicant with a whiplash injury as a result of the accident. He recommended the use of heating pad, local pain cream, and Tylenol.

27Moreover, I accept Dr. Moolla’s and Dr. Khan’s conclusion that the applicant sustained minor injuries as defined by the Schedule. Dr. Moola diagnosed the applicant with having sustained a cervical myofascial strain, a lumbar myofascial strain, and left chest wall strain. Similarly, Dr. Khan diagnosed the applicant with having sustained sprain and strain injuries to the cervical spine, thoracic spine, lumbar spine, left trapezius, left shoulder, left lower extremity, and chest wall. The objective examinations of Dr. Moolla and Dr. Khan were unremarkable, and both opined that the applicant’s prognosis was good for full recovery.

28Further, although the applicant has a pre-accident history of type 2 diabetes mellitus and hypertension, and a post-accident history of ischemic heart disease, neither Dr. Moolla nor Dr. Khan concluded that there was compelling evidence of an outside factor that would prevent the applicant from achieving maximal medical recovery.

29Additionally, I accept Dr. Clewes’ conclusion that the applicant does not suffer from a psychological condition as a result of the accident. Dr. Clewes noted that on examination, she did not identify any psychological symptoms that would require treatment outside the MIG, and she opined that the applicant did not suffer from any accident-related DSM-5 diagnostic condition.

30In light of all of the evidence, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.

Non-Earner Benefit (“NEB”)

31Section 12(1) of the Schedule 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.

32Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), which generally focuses on a comparison of the applicant’s pre-accident and post-accident activities.

33At the time of the accident, the applicant was a 69-year-old retired security guard. There is no dispute that upon receiving the OCF-3 dated February 5, 2019, which indicated that the applicant suffered from a complete inability to carry on a normal life, the respondent approved the applicant’s entitlement to NEB and paid benefits. The respondent terminated the applicant’s entitlement to NEB, effective April 26, 2020.

34Although the applicant seeks entitlement to NEB from April 26, 2020 to date and ongoing, he has made no submissions and tendered no evidence to support his entitlement to NEB.

35In response, the respondent submits that the OCF-3 dated March 19, 2019 completed by Dr. Jayashankar confirms that the applicant no longer suffers from a complete inability to carry on a normal life. The respondent relies on the medical opinion of the applicant’s treating family physician in terminating NEB and submits that no further NEB is payable.

36On reply, the applicant did not comment on the lack of submissions and evidence in support of NEB.

The applicant is not entitled to an NEB

37I find that the applicant is not entitled to NEB of $185.00 per week for the period of April 26, 2020 to date and ongoing as he has not demonstrated that he suffers from a complete inability to carry on a normal life.

38The applicant made no submissions as to how he meets the test to qualify for NEB. The applicant must direct the Tribunal to the relevant evidence in support of his case and explain why he meets the test for NEB. The applicant cannot submit evidence and leave it up to the Tribunal to connect the dots and make his case. As such, I find that the applicant has not met his burden to prove his entitlement to NEB.

39Further, the evidence supports that the applicant does not meet the NEB test. Specifically, the applicant’s family physician indicated in the OCF-3 dated March 19, 2019 that the applicant did not suffer from a complete inability to carry on a normal life.

40Accordingly, I find that the applicant is not entitled to NEB.

41When an insurer denies a treatment plan, s. 38(8) of the Schedule requires that the insurer reply to a treatment and assessment plan within 10 business days after receiving the treatment plan, identifying the goods and services it will or will not pay for and provide the medical and all other reasons for its decision.

42If the insurer believes that the MIG applies to the insured person’s impairment, s. 38(9) of the Schedule provides that the notice under s. 38(8) must so advise the insured person.

43Section 38(11) provides the consequences of an insurer’s failure to comply with s. 38(8) and 38(9) of the Schedule, which includes the insurer being prohibited from taking the position that the insured person has an impairment to which the MIG applies and the obligation to pay for the goods and services incurred by the applicant starting on the 11th business day and ending on the day a compliant notice is provided.

44The applicant submits that the respondent is required to pay for the disputed treatment plans pursuant to s. 38(11) of the Schedule. The applicant states that the respondent did not provide sufficient medical and other reasons as required by s. 38(8) of the Schedule in its denial letters. Further, the applicant indicates that the denial letter for the treatment plan dated August 30, 2019 was not denied within 10 business days after it was submitted, as required by the Schedule. The applicant relies on 17-003774/AABS v. Aviva Canada Inc., 2018 CanLII 84051 (ON LAT) [Aviva].

45In response, the respondent submits that its denial letters were timely and provided sufficient medical and other reasons as required by s. 38(8) of the Schedule. The respondent argues that the standard for providing medical and any other reasons is not one of perfection and relies on Aviva. The respondent also notes that the applicant has failed to lead any evidence to support that the disputed treatment plans have been incurred.

The disputed treatment plans are not payable under s. 38(11) of the Schedule

46I find that the applicant has failed to demonstrate, on a balance of probabilities, that the disputed treatment plans are payable pursuant to s. 38(11) of the Schedule.

47I find that the evidence supports that the respondent denied the treatment plan dated August 30, 2019 within 10 business days after it was submitted in accordance with s. 38(8) of the Schedule. Although the treatment plan is dated August 30, 2019, there is a notation on the treatment plan indicating that it was submitted through HCAI on September 3, 2019 at 9:41 am. As a result, the respondent had until September 17, 2019 to respond to the treatment plan. Considering that the respondent denied the treatment plan by way of a letter dated September 17, 2019, I find that it complied with the time requirement set out in the Schedule.

48Further, I am not persuaded by the applicant’s submissions that the respondent’s denial letters failed to provide sufficient medical and other reasons as required by s. 38(8) of the Schedule.

49At paragraph 14 of 17-003774/AABS v. Aviva Canada Inc., the Tribunal reiterated the comments in M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) and indicated as follows:

In my view, an insurer satisfies its obligation to provide its “medical and any other reasons,” whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.

50I have reviewed the respondent’s denial letters, and I find that the reasons provided clearly identify the medical reasons, including specific details about the applicant’s condition forming the basis of the respondent’s decision, or information about the applicant’s condition that it does not have but requires to make a determination of whether the treatment plan is reasonable and necessary. Moreover, the reasons provided are sufficient to allow the applicant to make an informed decision to either accept or dispute the respondent’s decision. The medical and other reasons contained in the respondent’s denial letters are consistent with the Schedule and M.B. v. Aviva Insurance Canada.

51I further find that the respondent is not prohibited from taking the position that the applicant has an impairment to which the MIG applies under s. 38(11)1 of the Schedule. There is no evidence that the respondent did not comply with s. 38(9) of the Schedule. Indeed, all the denial letters indicate that the respondent believes that the applicant’s injuries are subject to the MIG in accordance with the Schedule.

52Accordingly, the applicant has failed to establish that the treatment plans are payable pursuant to s. 38(11) of the Schedule. Moreover, having determined that the applicant’s injuries fall within the MIG, the applicant is not entitled to the disputed treatment plans because they propose treatment outside of the MIG and the $3,500.00 funding limit for a minor injury.

Interest

53Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.

ORDER

54For the reasons outlined above, I find that:

1. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
2. The applicant is not entitled to the disputed treatment plans.
3. The applicant is not entitled to NEB.
4. The applicant is not entitled to interest.

55The application is dismissed.