Citation: Perinpanayagam v. Belair Insurance Company Inc., 2025 ONLAT 23-013820/AABS

Licence Appeal Tribunal File Number: 23-013820/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:

Arulampalam Perinpanayagam

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Faranaz Siganporia, Counsel

For the Respondent:

Ryan Jefferies, Paralegal

Kristen Ogden, Counsel

HEARD:

By Way Of Written Submissions

OVERVIEW

1Arulampalam Perinpanayagam, the applicant, was involved in an automobile accident on December 6, 2018, 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 Insurance Company Inc., and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2Is the applicant barred from proceeding to a hearing for the following benefit: substantive issue #ii because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?

ISSUES

3The 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 (“MIG”)?

ii. Is the applicant entitled to $1,192.05 for physiotherapy services proposed by Spine Solutions Rehab in a treatment plan/OCF-18 (“plan”) dated August 24, 2023?

iii. Is the applicant entitled to $1,948.60 for physiotherapy services proposed by Spine Solutions Rehab in a plan dated December 6, 2022?

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

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

RESULT

4The applicant has not established on a balance of probabilities that his injuries are not predominantly minor, as defined in s. 3 of the Schedule. While there is $512.81 remaining under the MIG limit, it is not necessary to consider whether the plans seeking funding beyond the remaining MIG limit are reasonable and necessary. Due to finding that the applicant was subject to the MIG it is moot whether the applicant was barred from proceeding on substantive issue #ii. The applicant is not entitled to interest because there are no overdue payments of benefits, except for interest applicable to the award. The respondent is liable to pay an award of 5% for unreasonable delay relating to an invoiced plan to which the applicant is entitled. The application is granted in part.

ANALYSIS

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 MIG limit?

5I find, on a balance of probabilities, that the applicant’s injuries sustained in the accident are predominantly minor as defined by the Schedule.

6Section 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.”

7An 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), that they have a documented pre-existing medical condition combined with compelling medical evidence stating that the condition precludes 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 beyond clinically associated psychosocial sequelae, may warrant removal from the MIG. In all cases, the burden of proof is on the applicant. The parties have identified that $2,987.19 has been distributed in benefits with $512.81 remaining under the MIG limit, confirmed by a Standard Benefit Statement dated January 5, 2025.

8The applicant’s sole argument in submissions is that he should be removed from the MIG based on the chronic pain diagnosis by his family doctor, Dr. Gnanabaskaran and by Dr. Wilderman. The applicant argues he has 32 diagnoses because of the accident but did not refer me to the record establishing these diagnoses. Similarly, there is a list of 19 accident-related injuries or sequelae found in the OCF-3 Disability Certificate dated January 4, 2019, but no reference to corroborating evidence. To substantiate his position, the applicant refers me to the clinical notes and records (“CNRs”) of his family doctor, Dr. Sangarapillai Gnanabaskaran, between December 8, 2018 and March 7, 2024, a right knee ultrasound and x-ray report dated August 9, 2019, and a Chronic Pain Assessment Report by Dr. Igor Wilderman dated September 26, 2023 (“CP Report”).

Causation

9The respondent raises concerns that complaints relied on by Dr. Wilderman are not accident-related or are not established by the medical record outside of the applicant’s reporting to Dr. Wilderman. The applicant relies on the CP Report as support for his argument that the accident caused his impairments: “Dr. Wilderman found there is no evidence that [the applicant] would be in the exact condition he is now but for the subject accident.” There are no other submissions addressing causation by the applicant. I find it unnecessary to assess causation because the applicant has not provided reliable compelling medical evidence that he has chronic pain with a functional impairment that may warrant removal from the MIG. For this reason, my decision does not turn on causation.

Chronic pain with a functional impairment

10Approximately five and a half pages of the applicant’s submissions are dedicated to summarizing Dr. Gnanabaskaran’s CNRs. Despite this, the applicant does not refer me to evidence establishing Dr. Gnanabaskaran diagnosed the applicant with chronic pain. This remains unsubstantiated by the evidence I am referred to. The first CNR, dated December 8, 2018 notes the following.

i. the applicant was in the subject accident on December 6, 2018,

ii. was taken to the ER,

iii. ongoing back, neck and left arm and leg pain,

iv. not able to sleep,

v. advised to see a therapist for treatment.

11The CNRs of Dr. Gnanabaskaran between December 2018 and May 2019 largely refer to the same complaints and refer to the left arm, left shoulder or left leg. In July and August 2019, there are notes of knee pain. In February 2020, the complaints of lower back and right knee pain are referred to as being a result of the accident and then in July and August 2020 the CNRs refer to right shoulder complaints related to the subject accident. However, it is not clear why the applicant’s original complaints on his left side shifted or expanded to the right side of his body. The complaints continue to be the right arm and right leg in November 2020 and in January 2021, referred to as being ongoing since the accident although they were not the original complaints post-accident. This makes it more difficult to parse out the complaints related to this accident in light of Dr. Wilderman’s report suggesting significant pre-existing motor vehicle accident injuries from a previous accident.

12Dr. Wilderman opines the applicant suffers from chronic pain syndrome as a result of the accident, which is listed as the first of 15 diagnoses in the CP Report. Eleven out of the fifteen diagnoses are noted to be pre-existing but were purportedly aggravated as a result of the accident. I note that the referenced notes of the family doctor begin post accident and do not refer to aggravation of pre-accident injuries.

13I find that Dr. Wilderman’s report is inconsistent because it states that the applicant’s impaired functioning interferes with his employment even though the applicant is retired. Dr. Wilderman opines that: “The degree of his functional limitations is considered serious as it interferes with a substantial amount of his pre-accident activities of daily living, particularly employment.” The applicant’s submissions do not address his employment or employment-related functional impairment except as a reference to Dr. Gnanabaskaran’s CNRs dated February 11, 2019. The February 11, 2019 CNR notes the applicant’s inability to go to work. Dr. Wilderman notes the applicant had retired approximately two years prior to his assessment. Since the applicant’s retirement is not meaningfully addressed while his employment is being referred to as being particularly important, in my view, the CP Report is weakened.

14Dr. Wilderman also notes the applicant’s self reporting that he was independent in all housekeeping, home maintenance, self-care tasks, and engaged in recreational activities including gardening. The report states that after the accident the applicant does not garden anymore, relies on family members for housekeeping and home maintenance and is also limited in certain self-care tasks. The respondent argues this is solely based on self-reporting and there is no objective evidence to support this. The applicant has not referred me to evidence outside of his self-reporting to Dr. Wilderman. As such, I find that these findings are of limited persuasive value.

15I find that there is internal inconsistency in the CP Report because eleven of the fifteen diagnoses referred to by Dr. Wilderman are noted to be pre-existing, the applicant’s pre-existing condition is referred to as being significant, but the applicant is reported to have been independent and unaffected by any of them pre-accident. In his conclusion, Dr. Wilderman states that he discussed with the applicant “his pre-existing condition, which is essential to a valid and reliable diagnosis of chronic pain.” The applicant’s pre-existing conditions are not addressed in submissions, including diabetes, hypertension, high cholesterol and allegedly significant previous motor vehicle injuries.

16I find that the applicant has not established his position that prescribed medications are for accident-related injuries or impairments. The applicant points me to a list of medication in support of Dr. Wilderman’s chronic pain diagnosis, but the respondent argues they are unrelated to the accident. Comments from Dr. Sabrina Ming-Wai Tu, General Practitioner and IE assessor provide that the medications are for type 2 diabetes and hyperlipidemia or high cholesterol. In my view, this further weakens the report.

17The applicant’s position is that he has developed a psychological component to his chronic pain condition. I find that this is not supported by corroborating evidence. As an example of complaints captured in the CP Report that are not established by the record, the respondent refers me to Dr. Wilderman’s diagnosis of anxiety, depression, and PTSD. These are not supported by the family doctor’s CNRs and are based on self-reporting at the assessment. The applicant’s family doctor’s CNRs refer to sleep complaints and stress. The CNRs do not specify if these are related to the accident and I have not been referred to pre-accident CNRs to be able to contrast the applicant’s new complaints or the aggravation of his pre-accident complaints. There are no contemporaneous records of psychological symptoms, a psychological diagnosis, no relevant psychological referrals, and no prescriptions for psychotropic medication. Under the circumstances, the self-reporting to Dr. Wilderman does not suggest anything more than being associated psychosocial symptoms of his minor injury. The respondent refers me to the analysis regarding psychological impairments in the context of a minor injury in Nguyen v Wawanesa Mutual Insurance Company, 2021 CanLII 96836. Another example is the reference to the applicant suffering from dizziness with no corresponding complaints found in the applicant’s references to the family doctor’s CNRs.

18Further, the respondent refers me to the applicant’s right knee complaint captured by the CP Report. The applicant’s right knee pain complaint was first recorded on July 10, 2019 in the family doctor’s CNRs. The respondent’s position, that the right knee joint effusion complaints are a result of mild osteoarthritis and that there is no evidence of injury, is supported by the report resulting from a right knee x-ray and ultrasound completed August 9, 2019. Despite having this report for review, Dr. Wilderman did not address this and included bilateral knee complaints as a consideration in the CP Report.

19For these reasons, I find Dr. Wilderman’s CP report to be of limited persuasive value in establishing that the applicant suffers from chronic pain with a functional impairment as a result of the accident.

20For the reasons above, on a balance of probabilities, I find that the applicant’s accident-related injuries are predominantly minor as defined in s. 3 of the Schedule and are subject to treatment within the $3,500.00 MIG limit.

Is the applicant entitled to $1,192.05 and $1,948.60 for physiotherapy services proposed by Spine Solutions Rehab plans dated August 24, 2023 and December 6, 2022?

21Since the applicant has not demonstrated that his accident-related injuries warrant removal from the MIG, it is not necessary to consider whether the plans are reasonable and necessary because they propose treatment in excess of the amount remaining under the MIG limit. For the reasons above, it is not necessary to address whether the applicant should be barred from proceeding to a hearing on the entitlement of the plan for $1,192.05 dated December 6, 2022, because nothing turns on this at this hearing.

Interest

22The applicant is not entitled to interest pursuant to s. 51 of the Schedule other than interest relating to an award as reviewed below.

Award

23The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. There are no benefits payable on this application, however the applicant is seeking an award for benefits unreasonably delayed or withheld that were not sought on this application but that the applicant is entitled to. Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198 (“Vivekanantham”), at paras 43-51, recognizes the Court of Appeal’s finding that the Tribunal’s jurisdiction to grant an award is a broad power. The Divisional Court found the Tribunal has jurisdiction to consider an award on benefits that are settled or paid prior to a final determination by the Tribunal. For this reason, I will review the parties’ positions.

24The applicant submits that the respondent sent a letter dated October 25, 2019 that the applicant was removed from the MIG and that three plans were approved, for a total of $7,541.51. The letter also contains a reminder that any approved goods and services must be invoiced, which is in line with the requirements of the Schedule. The letter outlines that the following proposed plans had been approved:

i. Chiro, $3168.64 (HCAI 19061801440)

ii. Chiro, $2,373.02 (HCAI 19092603060)

iii. Chiro, $1,999.85 (HCAI 19100102013)

25The respondent submits that the October 25, 2019 letter was issued due to a technical error. The respondent refers me to a s. 44 physician assessment report by Dr. Sabrina Ming-Wai Tu which seemed to keep the MIG issue alive as she concluded the applicant’s injuries were within the definition of a minor injury in March 2020. The respondent states that the October 25, 2019 error was not discovered until just prior to a May 2021 case conference. In any case, the respondent confirms that it agreed to fund the three plans upon receiving particulars of the plans being incurred after the error came to its attention. I note that this agreement did not extend to the applicant’s removal from the MIG.

26In an email dated May 17, 2024, the respondent confirmed it had received an invoice on November 10, 2022 in the amount of $1,999.85 for one of the three plans (“Invoiced Plan”). The respondent’s email states the reason it had not been paid when received in November 2022 is because the archived state of the plan may have caused its payment team some confusion. The respondent also states: “I confirm that payment will be issued as agreed upon, with applicable interest, directly to the clinic.”

27I was not referred to evidence that invoices relating to the other two plans had been provided to the respondent in order to process a payment. Since they have not been invoiced, it cannot be said that there is an unreasonable delay or withholding of those payments. However, relating to the Invoiced Plan, the applicant alleges that despite the May 17, 2024 confirmation that a payment was finally being issued, no payment had been issued at the time of submissions. The respondent has confirmed in submissions it is investigating the missing payment to resolve the issue and still awaits the other two invoices.

28In my view, there is no dispute whether the applicant is entitled to the three plans. On this basis, I must focus on whether there was an unreasonable withholding or delay of these benefits to which the applicant is entitled. In support of this framework, I refer to a recent decision by the Divisional Court, Gutierrez v. Security National Insurance Company, 2025 ONSC 5174. The Court states:

A special award under the relevant legislation must be connected to an unreasonable withholding or delay of a disputed benefit to which the applicant is entitled: Insurance Act, RSO 1990, c I.8, Section 10 of Ontario Regulation 664. As a result of the Tribunal determining that the applicant was not entitled to benefits, it appropriately concluded that no special award was payable.

29Further, as discussed in Vivekanantham, the applicant had a right to receive the benefits proposed in the three plans that the respondent agreed to pay for as of October 2019. Although originally this was as a result of an error, the respondent has confirmed it is honouring the entitlement. The Vivekanantham decision states:

The key words that are relevant to this determination are “entitled at the time of the award.” As the Court of Appeal found in Stegenga at para. 44, “‘entitlement’ is a term of wide meaning, referring to ‘a right to do or receive something.’” In this case the Appellant had a right to receive the SABS that the insurer agreed to pay her prior to and during the course of the hearing before the LAT. The fact that those benefits may have been paid by the insurer does not detract from the fact that at the time of the award the insured had a right to receive those benefits.

30The applicant has delivered an invoice for one of the three plans, the Invoiced Plan, on November 10, 2022 which had not been paid as of the date of the respondent’s submissions on January 30, 2025. I find that there is a delay for payment of the benefits relating to the Invoice Plan in the amount of $1,999.85 from November 10, 2022.

31To attract a section 10 award, the insurer’s conduct must be “excessive, imprudent, stubborn, inflexible, unyielding or immoderate”. The respondent argues that the delay in receiving the invoice contributed to the delay. Further, that there was a lack of follow-up from the clinic and the applicant after the invoice was submitted which is a factor contributing to the delay. Another factor was that the invoice was received for a plan that was in an archived state because it was invoiced three years after the plan had been approved.

32While these factors may have contributed to the delay, the delay would not have occurred if the respondent had acted prudently in tracking its October 2019 error and everything that flowed from it. I find that the respondent was imprudent in the handling of the payment for the Invoiced Plan, in the amount of $1,995.85, but that it is not solely responsible for the delay.

33For these reasons, I grant the applicant an award of 5% as follows, expressed in an equation, the formula is: 5% x (A + B + C). Where “A” is the amount of benefits unreasonably withheld or delayed, “B” is the interest on these benefits pursuant to section 51 of the Schedule, and “C” is the compound interest under s. 10 of Regulation 664.

ORDER

34For the reasons above, I make the following orders:

i. The applicant’s injuries are predominantly minor, as defined in s. 3 of the Schedule.

ii. As the applicant is subject to the MIG, it is not necessary to assess whether the plans in dispute are reasonable and necessary. By extension, it is also not necessary to assess whether the applicant is barred from proceeding to a hearing to dispute entitlemet to the plan dated December 6, 2022.

iii. The respondent is liable to pay an award of 5%, under s. 10 of Reg. 664, on benefits in the amount of $1,995.85, subject to interest under s. 51 of the Schedule and compound interest.