Citation: Mathichandr v. The Dominion of Canada General Insurance Company, 2025 ONLAT 23-015718/AABS

Licence Appeal Tribunal File Number: 23-015718/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:

Thamayanthi T. Mathichandr

Applicant

and

The Dominion of Canada General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Matthew Frontini

APPEARANCES:

For the Applicant:

Kim Mohammed Sieudhan, Paralegal

For the Respondent:

Shirline Apiou, Counsel

HEARD:

By way of written submissions

1Thamayanthi Mathirchandr, the applicant, was involved in an automobile accident on June 10, 2022, 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, The Dominion of Canada General Insurance Company, 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?

ii. Is the applicant entitled to an income replacement benefit ("IRB") in the amount of $400.00 per week from June 17, 2022 to November 1, 2023?

iii. Is the applicant entitled to $3,404.88 for physiotherapy, proposed by 101 Physio Scarborough in a treatment plan/OCF-18 ("plan") dated November 22, 2022?

iv. Is the applicant entitled to $3,156.31 for physiotherapy, proposed by 101 Physio Scarborough in a treatment plan dated February 2, 2023?

v. Is the applicant entitled to $200.00 for disability certificate, submitted on an Auto Insurance Standard Invoice/OCF-21?

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

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

RESULT

3I find that:

i. The applicant's injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 limit of the MIG

ii. The applicant is not entitled to an IRB;

iii. As the applicant is in the MIG, it is not necessary to consider if the disputed treatment plans are reasonable and necessary;

iv. The applicant is not to interest pursuant to s. 51 of the Schedule;

v. The applicant is not entitled to an award under s. 10 of O. Reg 664 ; and

vi. The application is dismissed.

ANALYSIS

The applicant is not removed from the MIG

4The applicant is not removed from the MIG. She has not established on a balance of probabilities that she has suffered more than a minor injury because of the accident.

5Section 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."

6An 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 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 a functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

7In this case, the applicant submits she that because her injuries have not resolved within the time course expected for uncomplicated soft tissue injuries, her injuries are not minor. As a result, the applicant claims entitlement to medical benefits beyond the MIG funding limit.

8In support of her position, the applicant refers to the medical evidence generally, referencing ongoing complaints persistent neck, back, shoulder, and knee pain, and insomnia in her submissions. The applicant also places emphasis on unparticularized recommendations to seek physical therapy and further assessment.

9A review of the evidence does not support the applicant's submissions. The applicant appended the clinical notes and records of her family doctor, Dr. Rana, spanning July 11, 2019 to May 12, 2023. Notably, the applicant saw Dr. Rana on June 12, 2022, two days after the accident, as well as on June 18, 2022 and October 8, 2022 and did not mention the accident at these visits. There is nothing in Dr. Rana's notes during this five-month period that would suggest the applicant sustained an accident-related injury, minor or otherwise. It was not until a visit on November 19, 2022, over five months after that accident, that the applicant first described accident-related complaints to Dr. Rana.

10The applicant's submissions also state that the clinical notes of 101 Physio demonstrate ongoing reports of neck pain, shoulder pain and lower back pain. A review of these clinical notes, dating from November 24, 2022 to February 21, 2023, do not support the applicant's submissions. These notes refer to modalities of therapy applied to the applicant via checkboxes. They do not, however, correspond to, or substantiate, the complaints set out in the applicant's submissions.

11The applicant also relies on a disability certificate (an "OCF-3"), dated November 24, 2022, completed by Dr. Nilav Bhowmk, chiropractor. The OCF-3 lists numerous impairments, including sleep and stress disorders and indicates that the applicant is substantially unable to perform the essential tasks of her employment. I note however that the applicant's submissions in connection with her claim for an IRB, state that she returned to work on August 10, 2022, three months before Dr. Bhowmk completed the OCF-3. As a result, the applicant's own submissions indicate that she did not meet the eligibility test for an IRB at the date of the OCF-3.

12The respondent submits that the applicant has sustained an injury that is predominantly minor. The respondent highlights that the applicant has not provided compelling medical evidence that she suffered anything other than a minor injury as a result of the accident.

13I agree with the respondent. The evidence tendered does not establish that the applicant has suffered injuries that warrant removal from the MIG. The clinical notes of her family doctor and 101 Physio do not substantiate the applicant's submissions and do not establish that applicant suffered non-minor injuries. Further, it is well-established that OCF-3s and OCF-18s do not constitute objective medical evidence on their own. The impairments listed in the OCF-3 are not corroborated by contemporaneous evidence and I give it little weight.

14I find that the applicant has not established that she has suffered from anything other than a minor injury as a result of the accident. The applicant's persistent reports of pain at their highest constitute the clinically associated sequelae of a minor injury and do not warrant removal from the MIG.

The applicant is not entitled to an IRB

15The applicant has not established that she is entitled to an income replacement benefit for the period of June 17, 2022, to August 10, 2022. As described in paragraph 11 above, the OCF-3, dated November 24, 2022, was not created until after the disputed period. Section 36(3) of the Schedule provides that an insured is not entitled to a specified benefit for any period before the OFC-3 was submitted to the insurer. Therefore, the applicant is ineligible for an IRB for the disputed period.

16Given this threshold finding on the applicant's ineligibility for an IRB for the period sought, I do not need to address the parties' submissions on whether the applicant has established on a balance of probabilities that she the requisite level of disability to qualify for an IRB or whether she has established that she is entitled to the quantum of IRB sought in this application.

The applicant is not entitled to the treatment plans in dispute

17As I have found that the applicant is not removed from the MIG, I do not need to consider whether the disputed treatment plans are reasonable and necessary. The respondent's submissions indicate that the MIG limits have been exhausted.

Interest

18As I have found that the applicant is not entitled to any overdue payments, she is not entitled to interest.

Award

19The 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.

20Given that there are no benefits owing (and by extension, no benefits were unreasonably withheld or delayed) to the applicant, there is no basis for an award.

ORDER

21I find that: