Licence Appeal Tribunal File Number: 24-001700/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:
Abhiskek Kumar
Applicant
and
Belair Direct Insurance
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Bianca Crocetti, Paralegal
For the Respondent:
Jenna Ng, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Abhiskek Kumar, the applicant, was involved in an automobile accident on September 28, 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, Belair Direct Insurance, 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 limit?
ii. Is the applicant entitled to the treatment plans proposed by Complete Rehab Centre, as follows:
a) $1,533.01 for chiropractic services, in a treatment plan dated May 7, 2022;
b) $1,461.56 for chiropractic services, in a treatment plan dated October 22, 2022;
c) $1,072.01 for physiotherapy services, in a treatment plan dated May 10, 2023?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore he is subject to treatment within the $3,500.00 MIG limit.
4I find that the applicant is not entitled to the treatment plans in dispute, interest or an award.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
5The applicant sustained predominantly minor injuries as defined under the Schedule.
6I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.
7Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
8An insured 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical recovery if they are 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.
9Chronic pain conditions are not included in the minor injury definition. In order to establish that the applicant has a chronic pain condition, he must demonstrate that his pain causes a functional impairment which adversely affects his well-being. The Tribunal has found that the criteria for a chronic pain condition outlined by the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“AMA Guides”) to be a useful interpretive tool. A diagnosis of chronic pain, absent evidence of an ongoing functional impairment due to pain, is insufficient to establish a non-minor injury.
10The applicant submits that his injuries are not predominantly minor. He claims that he suffers ongoing pain to his neck and back as a result of the accident which results in difficulties with prolonged sitting and lifting objects. He claims that his pain affects his ability to drive as a truck driver. The applicant relies upon the Clinical Notes and Records (“CNRs”) of Dr. Vishal Singh Thakur of Howden Medical Clinic; Dr. Yagneshkumar Parekh of Ultra Care Medical Centre and the physiotherapy records of Complete Rehab, which support his complaints of neck and back pain.
11The applicant further relies upon the Disability Certificate, completed by Dr. Rahim Jessa, chiropractor, at Complete Rehab Centre, dated October 7, 2021, which lists his injuries as: sprain/strain of cervical spine; sprain/strain of thoracic spine; sprain/strain of lumbar spine; sprain and strain of other parts of shoulder gridle; headache; stress; and disorders of initiating and maintaining sleep.
12The applicant also claims that he suffers anxiety as a result of the accident and relies upon a referral made by Dr. Parekh, dated August 29, 2023, for a psychological assessment.
13The respondent submits that the objective medical evidence indicates that the applicant sustained predominantly minor injuries as a result of the accident. Further, it submits that the applicant has not been diagnosed with chronic pain that causes functional impairment or demonstrated that he sustained a psychological impairment as a result of the accident.
14The respondent submits that chronic pain is not merely ongoing or recurrent pain, but a severe debilitating condition. The respondent argues that there is no evidence that the applicant’s ongoing pain impairs his level of functionality, but rather he appears highly functional. The respondent submits that the applicant continues to work full-time as a truck driver, continues to perform his activities of daily living, and there is no evidence of inhibition of daily activities. The respondent submits that the applicant has failed to establish that his subjective, self-reported complaints rise to the level of a chronic pain diagnosis. The respondent argues that the CNRs relied upon by the applicant are void of a chronic pain diagnosis and the applicant’s submissions do not address any of the six criteria for chronic pain under the AMA Guides.
15The respondent submits that the applicant’s medical intervention has been limited to his family doctor. There has been one diagnostic image performed with no abnormality found and no specialist referrals have been made for his neck or back. It submits that any regular medication intake appears limited.
16With respect to the applicant’s psychological complaints, the respondent submits that the applicant first mentioned anxiety issues when driving to his doctor during his January 28, 2023 visit, one year and three months after the accident. The respondent further submits that the applicant failed to report any psychological issues post-accident at the time of his April 4, 2022 and August 29, 2023 Insurer Examination (“IE”) assessments.
17The respondent’s denial was based on two s. 44 IE assessments of Dr. Ahmed Mian, physician, dated April 4, 2022 and August 29, 2023, both of which determined that the applicant sustained impairments that are treatable within the MIG as his physical impairments were minor.
18I find that the applicant has not demonstrated that he suffers from a chronic pain condition or a psychological impairment as a result of the accident. My reasoning is based on the following findings.
19I find that the applicant has not made any submissions that he suffered a chronic pain condition as a result of the accident which would warrant removal from the MIG. I find that his claim that his injuries are outside of the MIG is based on his submissions that his pain was ongoing, and he was limited in sitting and lifting following the accident.
20I find that ongoing pain alone is insufficient to remove the applicant from the MIG, as the pain must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. I find that the applicant has not proved on a balance of probabilities that his ongoing pain was of a significant level or was accompanied by some functional impairment or disability. I find that the applicant’s pain was merely sequelae or a symptom of his minor injuries. I find that there is minimal evidence provided by the applicant to demonstrate that his pain prevented him from pursuing work, family or recreational needs or that he developed psychosocial sequelae.
21I find that the evidence supports that the applicant was able to work full time as a truck driver as of April 6, 2022, and the IE reports of Dr. Mian support that he continued to perform his activities of daily living independently, other than some meal preparation help from his brother, and there is no evidence of any inhibition of daily activities.
22I find that the applicant’s accident-related impairments fall squarely within the definition of minor injuries under the Schedule, as they are all listed as sprain and strain injuries in his Disability Certificate. I find limited medical evidence to support the applicant’s submission that his accident-related impairments are significant, or really, what specific impairments he believes fall outside of the scope of the MIG. Further, while I accept the applicant’s claims that he had ongoing pain and has regularly attended for treatment, I agree with the respondent that he has not provided a medical opinion or other medical evidence that states he would be prevented from reaching maximal medical recovery if he is kept within the MIG as required by s. 18(2) of the Schedule. As the respondent submits, there are no accident-related referrals to any specialists. I further find that despite multiple references in the CNRs for the applicant to attend an MRI, there is no evidence that one was ever received.
23I further find that there is no actual diagnosis of chronic pain or chronic pain syndrome in the CNRs, and the applicant’s submissions do not engage with any of the six criteria under the AMA Guides. Indeed, while the applicant may have ongoing pain, I do not find that his pain causes the type of functional impairment that would warrant removal from the MIG, as his accident-related prescription history has not been provided, he has not been referred to any specialists, he identifies limited functional issues with his daily activities and he returned to work at his job post-accident on April 6, 2022. In his IE reports, Dr. Mian confirmed that the applicant sustained primarily soft tissue injuries that would not prevent maximal medical recovery under the MIG. On the evidence, I see no reason to interfere with Dr. Milan’s opinion and it is not rebutted by any other medical opinion.
24The applicant also submits that he has a psychological impairment that justifies removal from the MIG. However, the Tribunal was not directed to an actual diagnosis of an accident-related psychological impairment that would warrant removal from the MIG. I find that other than the CNR of Dr. Parekh, dated January 28, 2023, noting the applicant’s complaints of anxiety, the applicant has not pointed the Tribunal to any other evidence of psychological complaints.
25For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that his accident-related impairments warrant removal from the MIG.
Entitlement to the treatment plans in dispute
26The respondent submits that the applicant has not yet incurred or invoiced all approved treatment to date. The respondent submits that it previously approved an OCF-23 dated October 7, 2021, in the amount of $2,200.00, and a treatment plan dated March 30, 2022, in the amount of $1,302.51. It submits that $2,049.46 in medical benefits have been paid to date. I therefore find that the applicant is entitled to the approved treatment that has not yet been incurred or invoiced up to the $3,500.00 MIG limits.
27However, as I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
28As an alternative argument, the applicant submits that the treatment plans in dispute are payable pursuant to s. 38(11) of the Schedule, as the respondent did not comply with the notice requirements of s. 38(8) of the Schedule.
29Section 38(8) of the Schedule requires an insurer to provide its medical and all other reasons for a denial within 10 business days after receipt of a treatment plan. If an insurer fails to provide the requisite denial, under s. 38(11)2 it is required to pay for all goods and services described in the treatment plan that relate to the period incurred from the 11th business day after the treatment plan was submitted until the proper denial is given.
30The respondent’s denial notices were compliant with s. 38(8) of the Schedule.
31The applicant submits that all of the respondent’s denial letters are non-compliant with s. 38(8) of the Schedule. The applicant submits that the respondent’s denials state that based on the medical evidence provided, it believes that the injuries will not fall outside of the MIG. The applicant argues that the denials do not provide a proper medical reason as to why it does not agree to pay for the treatment plans in dispute. It submits that the respondent’s statements are merely boiler plate responses and provide an opinion of the injuries from the adjuster’s perspective rather than from a medical one.
32I find upon review of the denial letter dated October 25, 2022, that the treatment plan dated May 7, 2022, was denied based on the IE report of Dr. Mian, dated October 7, 2022, which confirmed that the applicant’s injuries qualify him for treatment under the MIG. The details of the treatment plan and the reasons for the denial are set out. A copy of the treatment plan and Dr. Mian’s report is attached.
33I find upon review of the denial letter dated January 9, 2024, that the treatment plans dated October 22, 2022 and May 10, 2023, are denied based on the IE report of Dr. Mian, dated October 11, 2023, which confirmed that the applicant’s injuries qualify him for treatment under the MIG. The details of the treatment plan and the reasons for the denial are set out. A copy of Dr. Mian’s report is attached.
34I find that the respondent’s denial letters dated October 25, 2022 and January 9, 2024, are compliant with s. 38(8) of the Schedule. I do not agree that the notices were boilerplate denials and did not provide a proper medical reason. I find that each of the letters identify the treatment plan in dispute and specify that the respondent is not approving the recommended services or physical treatment based on the specific IE report of Dr. Mian. In each letter, the respondent refers to the specific IE report that it is relying on to deny entitlement to the treatment plan and sets out the findings of Dr. Mian. A copy of the IE report is attached to the denial letter.
35I find that these were clear and unequivocal denials, compliant with s. 38(8) of the Schedule. The correspondence contains straightforward and clear language, sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
36For the reasons set out above, I find that the applicant has not demonstrated on a balance of probabilities that the treatment plans in dispute are payable due to non-compliance with s. 38(8) of the Schedule.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are outstanding, the applicant is not entitled to interest.
Award
38The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.
ORDER
39For the reasons outlined above, I find:
i. The applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. No interest or an award is payable;
iv. The application is dismissed.
Released: October 3, 2025
Melanie Malach
Adjudicator