Citation: Thavanesan v. TD Home and Auto Insurance Company, 2024 ONLAT 22-004102/AABS

Licence Appeal Tribunal File Number: 22-004102/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:

Kavinsan Thavanesan

Applicant

and

TD Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Doina Marinescu, Paralegal

For the Respondent:

Michaelson Fleurantin, Counsel

HEARD:

By Way of Written Submissions

OVERVIEW

1Kavinsan Thavanesan (the “applicant”), was involved in an automobile accident on February 22, 2020, 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 TD Home and Auto 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:

i. Is the applicant entitled to $2,401.25 for a chronic pain assessment, proposed by Q Medical in treatment plan/OCF-18 (“OCF-18”) submitted on December 14, 2020 and denied on December 16, 2020?

ii. Is the applicant entitled to $359.34 for a standing desk, submitted in an OCF-6 form on May 14, 2020 and denied on June 12, 2020?

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

RESULT

3I find that:

i. The applicant is entitled to the OCF-18 for a chronic pain assessment, in the amount of $2,401.25, submitted on December 14, 2020, plus interest, in accordance with s. 51 of the Schedule.

ii. The applicant is not entitled to an OCF-6 for a standing desk, in the amount of $359.34, submitted on May 14, 2020.

ANALYSIS

The applicant is entitled to a chronic pain assessment in the amount of $2,401.25, in an OCF-18, dated December 14, 2020

4I find that the applicant has established that the proposed chronic pain assessment is reasonable and necessary.

5To receive payment for a treatment and assessment plan pursuant to sections 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident.

6In determining whether an assessment is reasonable and necessary, I note that assessments, by their nature, are speculative. The purpose of an assessment is to determine if a condition exists. Notwithstanding their speculative nature, the applicant still bears the onus of establishing that there are grounds to suspect he has the condition for which he seeks the assessment.

7The applicant submits that he continues to have ongoing mid-lower back pain, upper back pain, neck pain, and right knee pain, despite the treatment to date. He further argues that the clinical notes and records of Dr. Roberto Matta, family physician and Dr. Alireza Kachooie, physiatrist, support that he has chronic musculoskeletal issues from this accident. As such, the applicant further submits that the proposed assessment is crucial to comprehensively understand the extent of his ongoing symptoms and to devise a tailored treatment plan aimed at enhancing his quality of life and functional abilities.

8Meanwhile, the respondent’s submissions are somewhat unclear, but it argues that the applicant’s physical injuries are captured within the MIG, and he was only removed from the MIG based on his psychological impairments. The respondent also submits that the applicant has not provided compelling documented medical evidence to show that his pre-existing conditions prevent him from achieving maximum medical recovery within the MIG. To support this position, the respondent relies upon the s. 44 reports of Dr. Yuri Marchuk, physiatrist, dated May 9, 2021, and Dr. David Berbrayer, physiatrist, dated April 6, 2023.

9It is well settled law that once an applicant is removed from the MIG, the onus shifts to whether the treatment sought is reasonable and necessary. There is no partial removal from the MIG, regardless of whether it was as a result of physical or psychological impairments. The Schedule does not establish two separate funding amounts for insurance benefits, i.e., one for physical injuries and one for psychological impairments. Once an insurer has removed the applicant from the MIG, whether due to a pre-existing condition, non-minor physical injuries, chronic pain, psychological injuries, or any other such impairment that is not captured by the definition of a minor injury, the insured has access to a second tier of funding.

10Therefore, contrary to the respondent’s submissions, the applicant does not need to establish that he has chronic pain or pre-existing conditions that would warrant removal from the MIG. Instead, he must establish that the proposed chronic pain assessment is reasonable and necessary, which I find he has done so.

11Next, the medical evidence proffered by the applicant shows that he has complained of ongoing pain from the accident to Dr. Matta, which resulted in a referral to an OHIP funded physiatrist, Dr. Kachooie.

12For instance, the applicant has produced entries ranging from February 24, 2020 to January 27, 2023, which document the applicant’s ongoing complaints of mid- lower back pain, upper back pain, and neck pain to Dr. Matta. Moreover, on April 9, 2020, October 9, 2020, February 6, 2021, and February 3, 2022, Dr. Matta noted that the applicant had limitations with prolonged walking, standing, and sitting tolerance.

13Consequently, on September 29, 2020, Dr. Matta diagnosed the applicant with chronic pain, and in several subsequent entries, he maintained this diagnosis. Also, on January 27, 2023, Dr. Matta recommended that the applicant continue with his medication and physiotherapy.

14Ultimately, Dr. Matta referred the applicant to Dr. Kachooie due to the applicant’s ongoing pain, who found several positive results on functional testing, and diagnosed the applicant with: whiplash with right C6 cervical radiculopathy, discogenic back pain- left sciatica, and traumatic arthropathy- left knee joint.

15To summarize, given the longstanding nature of the applicant’s pain, his continued reports of pain, I find that it is reasonable and necessary for the applicant to undergo a chronic pain assessment to identify any further investigations or treatments that may be required to alleviate his symptoms.

16Finally, I am not persuaded by the s. 44 reports of both Dr. Marchuk and Dr. Berbrayer.

17First, both assessors reviewed the records of Dr. Matta, yet they did not provide an opinion as to whether they agree or not with his diagnosis of chronic pain. Nor did they summarize these records and provide an opinion with respect to same.

18Second, while Dr. Marchuk, concluded that the applicant’s physical injuries were within the MIG, he did not address whether the proposed assessment is reasonable and necessary. As noted above, the applicant has been removed from the MIG, and has established that he has chronic pain based on the evidence above. Therefore, I place little weight on Dr. Marchuk’s report as he did not even provide an opinion with respect to the proposed assessment.

19Third, Dr. Berbrayer’s opinion that the applicant has reached maximum medical recovery, and therefore a “further assessment” is not required, is inconsistent with the records of Dr. Matta. Three months before this assessment, on January 27, 2023, Dr. Matta recommended that the applicant continue with his medication and physiotherapy treatment. In my view, Dr. Matta would not make these recommendations if the applicant had reached maximum medical recovery.

20Even if the applicant had reached maximum medical recovery as suggested, then, in my opinion, a chronic pain assessment would be more crucial so the applicant can be assessed by a pain specialist, who would be in the best position to determine if there is other available treatment.

21As the respondent has not raised issues with the proposed costs associated with the assessment, I have no reason to think that the costs associated with the treatment are unreasonable.

22Accordingly, and for the reasons outlined above, the applicant has demonstrated on a balance of probabilities that this OCF-18 is reasonable and necessary.

The applicant is not entitled to an OCF-6 in the amount of $359.34 for a standing desk, submitted on May 14, 2020

23I find that the OCF-6 is not payable, in accordance with s. 38(2) of the Schedule.

24Pursuant to s. 38(2)(c) of the Schedule, the respondent is not liable to pay an expense in respect to a medical benefit that was incurred before the insured person submits a compliant treatment and assessment plan unless the expense is reasonable and necessary as a result of the impairment sustained by the insured person for (i) drugs prescribed by a regulated health professional, or (ii) goods referred to in clauses 15(1)(d) to (f) and 16(3)(h) to (j) with a cost of $250 or less per item.

25Instead of addressing s. 38(2) of the Schedule or providing clarification of whether the standing desk was incurred, the applicant only made submissions on why the standing desk is reasonable and necessary.

26The respondent argues that under s. 38(2), it is not liable to pay for an expense that is incurred before an OCF-18 is submitted. Its position is that since the applicant did not discuss buying a standing desk with it, and no treatment plan was provided, it is not liable to pay for same.

27The applicant did not provide reply submissions to address s. 38(2).

28It is unclear from the submissions whether the applicant incurred the standing desk. However, I note that on April 6, 2023, the applicant reported to Dr. Berbrayer that his employer provided him with a stand-up desk. The applicant has also not produced a copy of the submitted OCF-18, or provided submissions of whether one has been submitted to date. As such, I find that the cost of the standing desk was incurred prior to an OCF-18 being submitted, as none has been submitted to date.

29The applicant did not make any submissions whether the exceptions listed in s. 38(2) apply. Moreover, I note under s. 38(2)(c)(ii), the costs of workplace modifications and devices are to be the cost of $250.00 or less per item, which is not the case here. While I am sympathetic to the applicant, I find that the requirements set out in s. 38(2) are clear, as such the OCF-6 is not payable.

The applicant is entitled to interest for the chronic pain assessment

30Pursuant to section 51 of the Schedule, the applicant is entitled to interest for the chronic pain assessment only.

ORDER

31For the reasons outlined above, I find that:

i. The applicant is entitled to the OCF-18 for a chronic pain assessment, in the amount of $2,401.25, submitted on December 14, 2020, plus interest, in accordance with s. 51 of the Schedule.

ii. The applicant is not entitled to an OCF-6 for a standing desk, in the amount of $359.34, submitted on May 14, 2020.