Senthilmany v. Economical Insurance, 2025 CanLII 129061

Senthilmany v. Economical Insurance

Citation: Senthilmany v. Economical Insurance, 2025 ONLAT 24-000981/AABS Licence Appeal Tribunal File Number: 24-000981/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:

Sabesan Senthilmany Applicant

and

Economical Insurance Respondent

DECISION

ADJUDICATOR: Amar Mohammed

APPEARANCES:

For the Applicant: Rakesh Sharma, Counsel Sareena Samra, Counsel

For the Respondent: Ainsley Shannon, Counsel

HEARD: By Way Of Written Submissions

OVERVIEW

1Sabesan Senthilmany, the applicant, was involved in an automobile accident on August 23, 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, Economical 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 (“MIG”) limit?

ii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment and assessment plan/OCF-18 (“plan“) dated January 19, 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?

3Withdrawn issues: The following issues in dispute were withdrawn in the applicant’s reply submissions. The applicant relies on the respondent’s confirmation that the MIG is exhausted as the reason for withdrawal. The applicant did not explain the connection between an exhausted MIG limit and withdrawal of the disputed plans in light of the issue of removal from the MIG being before me on this application. It is also apparent from the record that the MIG limit was exhausted in or around December 2022, and this is also relied upon in the denial letters both parties have referred me to through 2023. The applicant was already aware of this when the parties attended a case conference in June 2024 to frame the issues in dispute for this hearing. In any case, the denials of the following plans are no longer disputed by the applicant and the following issues are effectively withdrawn:

i. Is the applicant entitled to the plans proposed by Goodhealth Wellness Centre as follows:

a. $1,297.96 for physiotherapy services dated May 26, 2023; and

b. $1,884.57 for physiotherapy services dated June 16, 2023?

RESULT

4The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit. As the applicant is within the MIG, it is not necessary to consider if the plan proposing $2,200.00 for a psychological assessment is reasonable and necessary. The applicant is not entitled to payment of the proposed plan under s. 38(11) of the Schedule. The applicant is not entitled to interest. The respondent is not liable to pay an award. The application is dismissed.

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, may warrant removal from the MIG. In all cases, the burden of proof is on the applicant.

8The applicant makes no substantive submissions regarding removal from the MIG. The applicant has not addressed the definition of a minor injury in s. 3(1) of the Schedule or presented compelling or corroborating medical evidence in support of the position that the applicant’s injuries fall outside of that definition. The applicant places limits on his own submissions, including the arguing that submissions solely dealing with removal from the MIG are unnecessary and will not be made:

Therefore, MIG applicability gets disputed/ determined not in isolation of a substantive issue, but with respect to the substantive issues and in this case the following OCF-18 that were denied by the respondent as the MIG applies.

Thus, the applicant will not be making any submissions solely on the applicability of MIG, but will dispute applicability of the MIG with respect to the denied substantive issues.

9I find that the applicant’s submissions relying on s. 38(3) are not relevant to the legal test for removal from the MIG. The applicant argues that if a plan is submitted in compliance with s. 38(3) of the Schedule, then it is deemed reasonable and necessary because it contains a confirmation by a regulated health professional that it is reasonable and necessary, as prescribed by s. 38(3)(c). Based on this, the applicant argues that upon submission of a proposed plan in compliance with the Schedule, the onus should then shift to the respondent to defend its denial notice under s. 38 of the Schedule. I am not persuaded by the applicant that a plan submitted in compliance with the Schedule is deemed reasonable and necessary. I also find that the applicant’s argument shifts the onus away from the applicant to establish a entitlement and onto the respondent to defend its denial.

10In so far as the applicant argues the respondent should be required to defend its denial notice, the Schedule requires a respondent’s denial notice to be compliant with s. 38(8). The consequences of non-compliance include a prohibition on the respondent taking a position that the MIG applies. This prohibition is in relation to the specific plan in question and not a permanent or general prohibition that would remove the applicant from the MIG. For this reason, I will address whether the respondent’s denial notice is compliant with s. 38(8) of the Schedule when I am addressing the plan in dispute later in my decision. I note that any analysis of whether proposed plans are reasonable and necessary is unwarranted unless the applicant is removed from the MIG.

11I do not find it necessary to address every submission or argument made by the applicant and have instead focused on the legal test that applies to the issue in dispute. The applicant has not addressed in submissions the legal test for removal from the MIG or referred me to compelling or corroborating medical evidence addressing removal.

12For the reasons above, I find, on a balance of probabilities, that the applicant’s injuries sustained in the accident are predominantly minor as defined by the Schedule.

Does the psychological pre-screen report provide evidence of a psychological condition that may warrant removal from the MIG?

13For clarity, while the applicant has not made substantive submissions which could warrant removal from the MIG, the applicant has referred to psychological impairments in submissions. To ensure the resolution of this dispute on its merits, I considered whether the applicant can escape the MIG as a result of a psychological condition.

14The applicant refers me to a pre-screen report that is included in the additional comments section of the proposed plan. I find that this report is based on the applicant’s self-reporting at the pre-screen interview. The applicant argues that there is no statutory requirement under s. 38 of the Schedule to attach any medical records in establishing entitlement to benefits. It seems, for this reason, I do not have medical evidence to corroborate the applicant’s position.

15It is well settled that a treatment and assessment plan is not medical evidence. In any case, I have reviewed the plan and find that the plan does not confirm a psychological condition warranting removal from the MIG.

16The pre-screen report notes as a clinical opinion:

[The applicant] was involved in a motor vehicle accident on August 23, 2022. He continues to experience pain in bis back, neck, waist, and knees, along with numbness in his hands. Additionally, [the applicant] reported being emotionally distressed and said he struggled with fear. anxiety. depression. frustration, irritation, and fatigue. [The applicant] had no pre-existing psychological difficulties, and his current mental health issues are a direct result of the accident. His clinical presentation provides evidence he is experiencing many of the symptoms commonly found in individuals suffering from post-accident psychological impairment. Furthermore, his pain and psychological challenges are affecting his daily activities and work performances.

17The pre-screen report then makes recommendations:

Given the severe and acute nature of the client's ongoing pain and psychological impairment as a direct result of the motor vehicle accident, this client should NOT fall under the Minor Injury Guidelines (MIG) category. The accident bas materially contributed to the client's impairment, and the motor vehicle accident-related disabilities constitute a significant barrier to recovery and return to pre-accident levels of functioning. Because the client's psychological impairment is acute, [the applicant] needs to undergo a full psychological assessment battery including psychometric testing and a thorough, in-depth clinical interview to determine his clinical diagnosis and psychological treatment needs.

18The respondent argues this report is merely a pre-screen interview report and deserves no evidentiary weight for several reasons. I give the pre-screen report no weight for the following reasons:

i. it is undated,

ii. it is not signed by anyone,

iii. it does not clearly confirm the author of the report. Although it states that it is based on an interview of the applicant conducted September 15, 2022 by Sherry Jiang, MA., R.P (Qualifying) and supervised by Dr. Sharleen McDowall, C. Psych., it is unclear from the report who provided the clinical opinion or recommendations,

iv. it does not mention a review of any records, completion of any objective testing, and seems to be solely based on the applicant’s self-reporting at the interview,

v. It is written in the voice of an advocate rather than a neutral medical assessor. For example:

a. It refers to the applicant as a client rather than a patient,

b. It advocates by using language such as “this client should NOT fall under the Minor Injury Guidelines (MIG) category.”

c. It simultaneously recommends a full psychological assessment battery including psychometric testing and a thorough, in-depth clinical interview while also advocating by confirming severe and acute psychological impairment in addition to causation being as a direct result of the subject accident prior to completion of the assessment.

19For the reasons above, I find, on a balance of probabilities, that the applicant does not suffer from a psychological condition that warrants removal from the MIG.

Is the applicant entitled to $2,200.00 for a psychological assessment?

20I find, on a balance of probabilities, that the applicant is not entitled to payment under s. 38(11) for a psychological assessment.

21Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies, in relation to the treatment plan.

22The applicant refers me to the proposed plan and the denial letter. The applicant argues that the respondent’s denial dated February 1, 2023, does not contain meaningful reasons that would permit the applicant to decide whether to challenge the denial. In this context, the applicant refers me to Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318.

23The respondent’s notice provides the following summary of reasons for denying the $2,200.00 plan proposing a psychological assessment:

i. After review of the plan, the file, including clinical notes and records from Southlake Regional Hospital from the date of the accident confirm soft tissue injuries.

ii. There are no clinical notes and records from treating practitioners documenting psychological concerns., so the plan is not reasonable and necessary.

iii. The applicant’s injuries fall within the definition of a minor injury under the MIG and the $3,500.00 limit applies.

24I agree with the respondent that the notice provided sufficient reasons to allow the applicant to decide whether to challenge the denial. I also find that citing the MIG is a valid medical reason because minor injury is defined in the Schedule using medical terms. Further, noting the applicant has not provided any clinical notes and records documenting accident-related injuries is a valid reason that meets the requirements of s. 38(8).I find that the respondent’s reasons engage the specific details about the applicant’s condition forming the basis for the respondent’s decision and are adequate to allow an unsophisticated person to understand them and make an informed decision to either accept or dispute the denial.

25For the reasons above, I find, on a balance of probabilities, that the applicant is not entitled to payment for the proposed assessment under s. 38(11).

Interest

26The applicant is not entitled to interest because there are no overdue benefits to which interest would apply pursuant to s. 51 of the Schedule.

Award

27The 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. Since there are no benefits that were unreasonably withheld or delayed, no award is payable.

ORDER

28For the reasons above, I make the following orders:

i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule. It is not necessary to assess whether any plans in dispute are reasonable and necessary.

ii. The applicant is not entitled to payment for a plan proposing $2,200.00 for a psychological assessment under s. 38(11) of the Schedule, or to interest.

iii. The respondent is not liable to pay an award.

iv. The application is dismissed.