Citation: Kashinshetty v. Belair Insurance Company Inc., 2025 ONLAT 24-002394/AABS

Licence Appeal Tribunal File Number: 24-002394/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:

Pavan Kumar Kashinshetty

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Yalda Aslamzada, Counsel

For the Respondent:

Theomarcus Giannou, Counsel

HEARD:

By way of written submissions

1Pavan Kumar Kashinshetty, the applicant, was involved in an automobile accident on January 24, 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 the respondent, Belair Insurance Company Inc., 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 $4,912.08 for psychological services, proposed by Reddy’s Physio Rehab in a treatment plan/OCF-18 dated October 21, 2020?

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:

i. The applicant has not established that his accident-related impairments warrant removal from the MIG;

ii. The applicant is not entitled to the treatment plan in dispute or interest; and

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

PROCEDURAL ISSUES

Respondent’s request to exclude portion of applicant’s submissions

4The respondent requests that the evidence contained in Tab R and Exhibit A of the applicant’s submissions be excluded. It argues that the applicant has provided additional submissions under Tab R and Exhibit A, and when these additional submissions are added to the applicant’s formal written hearing submissions, the page number contravenes the 10-page limit set out in the Case Conference Report and Order (“CCRO”). The respondent argues that by providing additional submissions in Tab R and Exhibit A, the applicant appears to be attempting to circumvent the 10-page limit.

5While I agree with the respondent that the CCRO limits submissions to 10 pages, I note the applicant’s argument that the submissions contained in Exhibit A do not contain any new content. Rather, it is the same information as contained in the chart in Tab R, but reformatted to comply with the submission format. From my review of the information in Tab R and Exhibit A, I agree that it is the same information, just in a different format. These additional submissions total 5 pages. The applicant’s formal written submissions were also 5 pages.

6As such, I agree with the applicant that the substantive submissions in Tab R and Exhibit A, when added together with the applicant’s formal written hearing submissions did not exceed 10 pages. Accordingly, I will consider Tab R and Exhibit A of the applicant’s submissions and deny the respondent’s request to exclude them.

ANALYSIS

Minor Injury Guideline (“MIG”)

7Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

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), that they have a documented pre-existing injury or 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 lies with the applicant.

9The applicant has not provided substantive submissions on his accident-related impairments or on which ground he should be removed from the MIG. Nor does he direct me to medical evidence in support of his claim. Rather, in his submissions the applicant states that his analysis is focused on the notice requirements of s. 38(8) and s. 44(5) of the Schedule and the remedies contained in s. 38(11). He argues that the respondent’s denial notices were non-compliant with s. 38(8) and accordingly, under s. 38(11), the respondent is no longer entitled to argue that the MIG applies.

10However, MIG determination is a separate issue from that of non-compliance with s. 38. The failure to provide a denial notice in accordance with s. 38(8) triggers the consequences of s. 38(11) which mandate that an insurer is prohibited from taking the position that an “insured person has an impairment to which the MIG applies” and that the insurer “shall pay for all goods, services and assessments described in the treatment and assessment plan.” But this provision applies only to the treatment plans themselves. Section 38(11) means that an insurer cannot use the MIG as a position for denying such a specific, improperly denied treatment plan. It does not mean that the applicant is permanently removed from the MIG.

11Rather, to establish removal from the MIG, the burden of proof lies with the applicant to establish that he suffers from an impairment that falls outside of the definition of a “minor injury”. In his initial hearing submissions, the applicant did not provide any submissions or point me to medical evidence on his accident-related impairments or on which ground he sought removal from the MIG. In his reply submissions, the applicant appended at Tab 11 “all medical records previously provided to the Respondent”, but did not provide any submissions on the medical record, diagnoses or impairments or direct me to specific medical evidence in support of his claim.

12The medical evidence appended to the applicant’s reply submissions will not be considered for the purposes of MIG determination. The right of reply is a limited one. The purpose of reply is for the party bearing the onus in the dispute to respond to any issues that were raised in the other party’s submissions which could not have been reasonably raised in their initial submissions. Parties are expected to make the entirety of their case in their main submission and new evidence as part of a reply is generally not permitted because the respondent does not have the opportunity to respond to new evidence tendered as part of a reply. Further, in his reply submissions, the applicant did not direct me to any portion of the medical record which would establish non-minor injuries. In my view, it is not the Tribunal’s role to sort through the applicant’s medical evidence, or to search for support for the applicant’s position in the medical record provided: see Dooman v. TD Insurance Co. 2025 ONSC 184 at para. 50.

13Given the lack of submissions as to the issue of MIG determination, I find that the applicant has not met his burden to prove accident-related impairments warranting removal from the MIG.

14As 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 OCF-18 dated October 21, 2020 for psychological services.

15The applicant further argues that the treatment plan is payable pursuant to s. 38(11) of the Schedule, as the respondent did not comply with the notice requirements of s. 38(8). He submits that the denial letters dated November 4, 2020 and March 11, 2022 failed to provide specific details about the applicant’s medical condition and failed to explain why the respondent did not accept the diagnoses and determination that the OCF-18 was reasonable and necessary by the qualified health practitioner who had submitted the treatment plan. The applicant further argues that the medical evidence supported the reasonableness and necessity of the treatment plan. As such, the applicant argues that the denials were unprincipled and categorically unfair.

16Finally, the applicant submits that the two insurer’s examination (IE) reports which were the basis for the November 4, 2020 and March 11, 2022 denials were improperly procured, and as a result, void ab initio (void from the beginning). As a result, the applicant argues that the respondent is barred from relying on the corresponding IE reports, citing Tribunal decision Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ONLAT).

17I find that the denial letters were compliant with s. 38(8) of the Schedule.

18With respect to the applicant’s argument that the IEs underlying the denials were improperly procured and therefore void, while I note the applicant’s reference to Tribunal decision Taksali, I note that I am not bound by it. I further do not agree that if an insurer’s notice is non-compliant with the Schedule, then the resulting IEs become void.

19I further find that both the November 4, 2020 and March 11, 2022 denial letters provided medical and any other reasons for the denial and complied with s. 38(8) of the Schedule. The November 4, 2020 letter stated that the OCF-18 for $4,912.80 of psychological counselling was denied, as the respondent had determined that the applicant’s impairments were “minor injuries” and that the Minor Injury Guideline applied. The letter further stated that there was insufficient medical documentation to support psychological treatment, and that the s. 44 report dated August 14, 2020 of Dr. Marc Mandel indicated that the applicant’s psychological issues were not accident related. The denial letter also noted that the applicant’s family doctor had referred the applicant to a psychiatrist but no clinical notes and records from the psychiatrist had been received or any other medical records to support a need for psychological treatment as a result of the accident. The letter noted that a s. 44 paper review of the treatment plan would be conducted.

20The March 11, 2022 denial letter summarized the findings of Dr. Mandel in his s. 44 paper review, and included a copy of the report. The letter stated that Dr. Mandel had determined that there was a lack of objective information to support DSM-V diagnosis or a psychological impairment as a result of the accident and that the psychological diagnoses listed in the OCF-18 were not objectively supported. It was determined that the applicant’s injuries were “minor injuries” as defined in the Schedule and he remained within the MIG. The respondent also stated that the proposed treatment plan was not reasonable and necessary.

21I find that both denials were compliant with s. 38(8) and were based on a principled rationale. The respondent provided medical reasons why it considered the OCF-18 not to be reasonable and necessary, in that it explained the basis for the denial with specific reference to the findings of the respondent’s IE assessor. The reasons were clear, transparent, and unequivocal, and engaged in the specific details about the applicant’s condition forming the basis for the respondent’s decision. Although the applicant argued that the respondent did not explain why it did not accept the applicant’s evidence in support of the OCF-18, there is nothing in the Schedule that requires a respondent to provide reasons as to why it preferred its own assessor’s opinion over that of the applicant’s within the denial notice.

22Given that I found both denial notices to be compliant with s. 38(8) of the Schedule, I find that s. 38(11) is not triggered, and the applicant is not entitled to payment of the treatment plan on that basis.

Interest

23Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

Award

24The 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. I find that the applicant has not established that any benefits have been unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.

ORDER

25I find that: