Licence Appeal Tribunal File Number: 23-015211/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:
Ajae Krishnan
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
ADJUDICATOR:
Kathleen Wells
APPEARANCES:
For the Applicant:
Lori Minervini, Paralegal
For the Respondent:
Simran Walia, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ajae Krishnan, the applicant, was involved in an automobile accident on December 13, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant filed a Notice of Motion on September 10, 2024 requesting that two treatment plans be added to the issues in dispute set out in the July 8, 2024 Case Conference Report and Order (“CCRO”). The applicant’s motion was granted on September 25, 2024, and as a result issues number 5 and 6 were added below.
ISSUES
3The issues in dispute are:
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? Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from March 25, 2022, to March 25, 2024?
Is the applicant entitled to $2,188.76 for chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre in a plan submitted on August 26, 2023?
Is the applicant entitled to $2,217.00 for a chronic pain assessment, proposed by Polyclinic Rehabilitation Institute in a plan submitted on March 14, 2024?
Is the applicant entitled to $2,520.00 for an orthopaedic assessment, proposed by Princeton Hills Medical Assessments Inc. in a plan dated July 19, 2024?
Is the applicant entitled to $2,520.00 for a physiatry assessment, proposed by Princeton Hills Medical Assessments Inc in a plan dated July 19, 2024?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that:
The applicant’s injuries are predominantly minor, and as such the applicant is subject to the MIG and its $3,500.00 funding limit.
The applicant is not entitled to an NEB.
As the applicant remains within the MIG, it is not necessary for me to consider whether the treatment plans in dispute are reasonable and necessary.
As no payments are owing, no interest is due.
The application is dismissed.
ANALYSIS
The applicant is subject to the MIG
5I find that the applicant’s injuries are predominantly minor, and the applicant remains subject to the MIG and its $3,500.00 funding limit.
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 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.
Chronic Pain
8I find that the applicant has not established on a balance of probabilities that he suffers from chronic pain with functional impairment.
9The applicant submits that he has experienced intermittent chronic back and neck pain as a result of his accident-related injuries and has been diagnosed with chronic pain by his family doctor, Dr. Panchasheila Sivakumar, in a June 7, 2024 medical letter, and Dr. Michael West, orthopedic surgeon, in his orthopedic assessment report on August 13, 2024.
10The respondent argues that the applicant has not met his onus to prove that he has chronic pain with functional impairment, and relies on the s.44 insurer examination (“IE”) reports of Jeff Ferrier, occupational therapist, and Dr. Rajka Soric, physiatrist, both dated May 9, 2022.
11I accept that the applicant experienced ongoing pain as a result of the accident, however I am not persuaded that the applicant was suffering from chronic pain with functional impairment due to his accident-related injuries. Dr. Sivakumar’s CNRs reveal that the applicant first complained of back and neck pain on April 13, 2022, four months after the accident, and complained of intermittent back and neck pain to his family doctor on 11 subsequent occasions between May 2022 and May 2024.
12I assign little weight to Dr. Sivakumar’s medical letter dated June 6, 2024, in which she opined that the applicant suffered from chronic neck and back pain and headaches, in addition to numbness and dizziness, which caused him anxiety and stress and required him to take frequent breaks from his studies and work duties, because it is inconsistent with the rest of her CNRs. Dr. Sivakumar’s appointment summaries do not contain any reference to the applicant’s functional abilities, nor do they reflect any complaints of psychological symptoms. Additionally, the applicant had not complained of headaches for over a year prior to the date of the letter, and Dr. Sivakumar’s most recent appointment summaries in March and April 2024 referred to the applicant’s back and neck pain as “mild” or “very mild” and occurring between two to three times a week.
13I also assign little weight to the s.25 orthopedic assessment of Dr. Michael West, orthopaedic surgeon, dated August 12, 2024, because, as the respondent notes, his physical and functional assessment of the applicant is not corroborated by the other medical evidence submitted for this hearing, and it is unclear what medical records he reviewed in preparing his assessment. In addition to a diagnosis of soft tissue injuries to the applicant’s spine, Dr. West diagnosed the applicant with chronic pain and post traumatic anxiety and stress, which he opined should remove the applicant from the MIG. However, the applicant did not complain about psychological symptoms to his family doctor, and no evidence was led to suggest that the applicant had been referred to or received any psychological treatment. Additionally, as Dr. West himself noted, the psychological diagnosis is outside the scope of his specialty.
14I assign more weight to the IE reports of Mr. Perrier and Dr. Soric, because they both reviewed and listed the applicant’s medical records. Mr. Perrier conducted an in-home occupational therapy assessment of the applicant, including a physical examination, interview with the applicant, and observations of his function in his home environment. Dr. Soric conducted a physical examination, clinical interview and review of the applicant’s medical records. While he did not include a detailed review of all of the tests conducted, Dr. Soric opined that the applicant’s physical assessment was entirely within normal limits, and that she did not find “any tender or trigger points or muscle spasm,” which I find is consistent with Dr. Sivakumar’s CNRs and with the applicant’s submissions that his pain is intermittent.
15With respect to the applicant’s function, the applicant consistently reported that he did not miss any time at school as a result of his accident-related injuries, and while he experienced occasional difficulties with concentration due to his accident- related injuries, he was able to manage all of his responsibilities at his “desk job” in 2024. He also reported that he was independent in his personal care. However, the applicant’s reports to his assessors about his participation in household chores and recreational activities are inconsistent. He told Mr. Ferrier and Dr. Soric in May, 2022 that he continued to perform his household chores, and while he reported to Dr. West that he had been unable to assist his mother with chores, or play basketball or video games since the accident in August 2024, Dr. Soric opined that the sole functional limitation reported by the applicant was that he had to get up and stretch periodically while seated for long periods of time.
16Overall, I find that the evidence does not support a finding that the applicant suffers from functional impairment as a result of his accident-related injuries.
17For these reasons, I find that the applicant has not met his onus to prove on a balance of probabilities that he suffers from chronic pain with functional impairment that warrants his removal from the MIG.
Psychological Impairment
18I find that the applicant has not established that he has a psychological impairment that warrants his removal from the MIG.
19The applicant has not made submissions or submitted evidence to support Dr. West’s assertion in his August 12, 2024 s.25 orthopaedic assessment that the applicant should be removed from the MIG due to a psychological impairment. As noted, above, psychological diagnoses are outside of Dr. West’s area of specialty, and the applicant has not submitted any evidence that he complained of psychological symptoms to his family doctor, or was referred for psychological investigation or treatment.
20The applicant referred to two Tribunal precedents, 17-005791 v Aviva Insurance Canada, 2018 CanLII 112107 (ON LAT) and 16-000143 v Aviva Canada Inc., 2016 CanLII 96167 (ON LAT), in which the applicants were removed from the MIG due to psychological impairments. I am not bound by Tribunal decisions, and find the cited cases are not helpful to my analysis because in both cases the applicants provided evidence of psychological assessments and diagnoses, while no such evidence was submitted in the present case.
21For the reasons above, I find that the applicant has not met his onus to prove on a balance of probabilities that he has a psychological impairment that warrants his removal from the MIG.
22The applicant remains within the MIG.
Is the applicant entitled to an NEB?
23I find that the applicant has not established on a balance of probabilities that he is entitled to an NEB.
24Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of an applicant’s pre- and post-accident activities.
25The applicant submits that he is entitled to an NEB because he was not working at the time of the accident. The applicant did not make any submissions or lead any evidence to suggest that the applicant has a complete inability to carry out a normal life to meet the test set out in s.12(1).
26The respondent argued that the applicant has not met his burden to prove that he is eligible for an NEB, and that both Mr. Ferrier and Dr. Soric opined that the applicant did not have a complete inability to carry on a normal life in their respective IE reports.
27As noted above, the applicant returned to school after the accident, and was able to manage his job responsibilities while in a co-op placement in 2024.
28As a result, I find that the applicant has not met his burden to prove on a balance of probabilities that he has a complete inability to carry out a normal life. Accordingly, the applicant is not entitled to an NEB.
29As I have found that the applicant remains subject to the MIG and its $3,500.00 funding limit, it is not necessary for me to consider whether the treatment plans in dispute are reasonable and necessary.
Interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.
ORDER
31I find that:
The applicant’s injuries are predominantly minor, and as such the applicant is subject to the MIG and its $3,500.00 funding limit.
The applicant is not entitled to an NEB.
As the applicant remains within the MIG, it is not necessary for me to consider whether the treatment plans in dispute are reasonable and necessary.
As no payments are owing, no interest is due.
The application is dismissed.
Released: December 15, 2025
Kathleen Wells
Adjudicator