Licence Appeal Tribunal File Number: 24-004011/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:
Suthersana Kananathan
Applicant
and
Definity Insurance Company
Respondent
DECISION
ADJUDICATOR:
Caley Howard
APPEARANCES:
For the Applicant:
Lori Minervini, Paralegal
For the Respondent:
Yuliya Yarema, Paralegal
HEARD:
By way of written submissions
OVERVIEW
1Suthersana Kananathan, the applicant, was involved in an automobile accident on November 30, 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, Definity 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 $1,753.83 for chiropractic treatment services, proposed by Trillium Rehabilitation Therapy in an OCF-18/treatment plan (“plan”) dated March 22, 2022?
iii. Is the applicant entitled to $1,728.32 for chiropractic treatment services, proposed by Trillium Rehabilitation Therapy in a plan dated May 12, 2022?
iv. Is the applicant entitled to $1,812.03 for chiropractic treatment services, proposed by Trillium Rehabilitation Therapy in a plan dated July 7, 2022?
v. Is the applicant entitled to $1,986.63 for chiropractic treatment services, proposed by Trillium Rehabilitation Therapy in a plan dated September 29, 2022?
vi. Is the applicant entitled to $1,648.20 for chiropractic treatment services, proposed by Trillium Rehabilitation Therapy in a plan dated March 16, 2023?
vii. Is the applicant entitled to $2,410.00 in a plan proposed by Princeton Hill Medical Centre dated July 9, 2024?
viii. Is the applicant entitled to $2,350.00 in a plan proposed by Princeton Hill Medical Centre dated July 9, 2024?
ix. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
x. Is the applicant entitled to interest on any overdue payment of benefits?
3Issues vii. and viii. above were added pursuant to the Motion Order dated September 13, 2024.
RESULT
4I find that:
i. The applicant is out of the MIG;
ii. The applicant is not entitled to the five treatment plans for chiropractic treatment;
iii. The applicant is not entitled to the treatment plan for a psychological assessment; and
iv. The applicant is entitled to the treatment plan for a chronic pain assessment;
v. The applicant is entitled to interest on the overdue payment of benefits; and
vi. The respondent is not liable to pay an award under s. 10 of Reg. 664.
ANALYSIS
The applicant is removed from the MIG
5I find that the applicant has proven that she has a psychological condition due to the accident, which warrants her removal from the MIG.
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.
The applicant has a psychological condition
8The applicant submits that she has a psychological condition as a result of the accident and that this warrants her removal from the MIG. She relies on the note from her family doctor, Dr. Manjula Jeyapragasan, dated January 12, 2022 and the psychological report of Dr. Leon Steiner, psychologist, dated September 19, 2024.
9The respondent submits that the applicant has not sustained a psychological condition as a result of the accident. It relies on the report of Dr. Janet Clewes, psychologist, dated December 5, 2024. It further submits that there is no medical evidence to support the opinion of Dr. Steiner.
10Dr. Steiner’s report diagnosed the applicant with: somatic symptoms disorder with predominant pain, intermittent, moderate; other specified trauma- and stressor-related disorder; and specific phobia, situational type (driving and travelling as a passenger). Dr. Steiner’s diagnosis was based on a clinical interview with the applicant, the results of seven psychometric tests, one of which included a validity scale, and a review of supporting medical documents. I give significant weight to Dr. Steiner’s opinion because the results of the validity scale indicated that the applicant’s test results were valid. In addition, he found that the results of the objective testing were consistent with the symptoms reported by the applicant and those observed during the clinical interview. I further find that Dr. Steiner’s opinion is supported by the note of Dr. Jeyapragasan, dated January 12, 2022, in which Dr. Jeyapragasan diagnosed the applicant with post-traumatic stress disorder due to the accident and recommended counselling. The CNRs of Dr. Jeyapragasan further support Dr. Steiner’s opinion with respect to somatic symptom disorder because they confirm that the applicant continued to report back pain to Dr. Jeyapragasan until at least November 2023.
11I give less weight to the report of Dr. Clewes, in which she opined that the applicant had sustained no accident-related psychological diagnoses, because Dr. Clewes based her opinion on a clinical interview, the results of one psychometric test and her review of the medical documents. Dr. Clewes had the applicant complete two psychometric tests, but determined that the results of one of the tests were invalid. She therefore did not consider them. I find that the results of the one test that Dr. Clewes did consider, the Pain Patient Profile (P-3), were similar to the results that the P-3 test conducted by Dr. Steiner. I find that Dr. Clewes had fewer objective test results to consider when forming her opinion and therefore placed more weight on the clinical interview, including the applicant’s subjective reports.
12Therefore, I prefer the report of Dr. Steiner over that of Dr. Clewes because Dr. Steiner’s opinion relied more heavily on objective psychometric test results and because Dr. Steiner’s opinion is consistent with the family doctor records.
13I find that the applicant has proven, on a balance of probabilities, that she sustained a psychological condition as a result of the accident, which warrants her removal from the MIG.
The applicant is not entitled to the treatment plans for chiropractic services
14I find that the applicant has not proven, on a balance of probabilities, that she is entitled to the five treatment plans for chiropractic services.
15To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
16The applicant submits that she is entitled to five treatment plans for chiropractic treatment services, all proposed by Trillium Rehabilitation Therapy, seeking funding for treatment as follows: $1,753.83 submitted on March 22, 2022; $1,728.32 submitted on May 12, 2022; $1,812.03 submitted July 7, 2022; $1,986.63 submitted on September 29, 2022; and $1,648.20 submitted on March 16, 2023.
17The respondent submits that the applicant has not met her burden of proving that the treatment plans are reasonable and necessary.
18I find that the applicant has neither made any submissions nor directed me to evidence respecting the goals of the chiropractic treatment plans or how those goals would be met to a reasonable degree. I therefore find that she has not proven on a balance of probabilities that the treatment plans for chiropractic services are reasonable and necessary as a result of the accident.
19To receive payment for an assessment proposed in a plan, the applicant has the onus to prove there are reasonable grounds to believe that a condition exists that would warrant further investigation.
20The applicant submits that she is entitled to two treatment plans proposed by Princeton Hill Medical Centre on July 9, 2024. The treatment plans seek funding in the amounts of $2,401.00 and $2,350.00 for a chronic pain assessment and a psychological assessment. It is not clear from the parties’ submissions which amount relates to the treatment plan for a chronic pain assessment and which relates to the treatment plan for the psychological assessment.
21The respondent submits that the applicant has not proven that the treatment plans are reasonable and necessary as a result of the accident.
The applicant is not entitled to the treatment plan for a psychological assessment
22I find that the applicant is not entitled to the treatment plan for a psychological assessment.
23The applicant relies on the note from Dr. Jeyapragasan dated January 12, 2022, which in Dr. Jeyapragasan recommends counselling for the applicant’s post-traumatic stress disorder and the report of Dr. Steiner dated September 19, 2024.
24I give little weight to Dr. Jeyapragasan’s note as it was dated over two years before the submission of the treatment plan. Similarly, I give little weight to the report of Dr. Steiner as it did not exist at the time the treatment plan was submitted.
25I find that the applicant has directed me to no medical evidence contemporaneous with the submission of the treatment plan to support her claim that she had a psychological condition that warranted further investigation in July 2024.
26Therefore, I find that the applicant has not proven, on a balance of probabilities, that she is entitled to the treatment plan for a psychological assessment.
The applicant is entitled to the treatment plan for a chronic pain assessment
27I find that the applicant is entitled to the treatment plan for a chronic pain assessment.
28The applicant relies on the CNRs of Dr. Jeyapragasan dated May 11, 2022, May 21, 2022, August 17, 2022, August 22, 2022, August 2, 2023 and November 6, 2023, as well as the CNRs of Soft Touch Physio and Rehab dated March to December 2024.
29The respondent referred me to the CNRs of Dr. Jeyapragasan dated April 3, 2024, which refer to an unrelated diagnosis and state that the doctor discussed the effect of this unrelated diagnosis on the applicant’s back ligaments. The respondent also relies on the June 2, 2022 note of Dr. Jeyapragasan, which indicates that the applicant reported suffering a workplace injury that resulted in back pain with muscle strain
30The CNRs of Dr. Jeyapragasan show that the applicant reported pain in her shoulders, back and neck due to the accident between May 2022 and November 2023. They also confirm that the applicant suffered a workplace injury in June 2022 and an unrelated diagnosis in April 2024, both of which may have contributed to her back pain. The CNRs of Soft Touch Physio and Rehab show that the applicant reported pain in her shoulder, due to the accident, in March of 2024 and was receiving treatment for the shoulder and back pain in August 2024.
31I find that the medical evidence establishes reasonable grounds to believe that the applicant suffered from a chronic pain condition that warranted further investigation at the time the treatment plan was submitted. While I acknowledge the existence of two intervening diagnoses that may have contributed to the applicant’s back pain, neither of these diagnoses was linked to the applicant’s shoulder pain in the CNRs of Dr. Jeyapragasan. I therefore find that the medical evidence support’s the applicant’s claim.
32I find that the applicant’s continued reports of pain to her family doctor and efforts to seek additional treatment in March 2024 establish reasonable grounds to believe that the applicant had a chronic pain condition that warranted further investigation in July 2024.
33As a result, I find that the applicant has proven that she is entitled to the treatment plan for the chronic pain assessment. As indicated above, it is unclear from the parties’ submissions whether the amount for this treatment plan is $2,401.00 or $2,350.00.
Interest
34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the overdue benefits, as set out above.
Award
35The 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this criteria.
36The applicant has neither made submissions nor directed me to evidence relating to unreasonable conduct on the part of the respondent. Therefore, I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.
ORDER
37I find that:
i. The applicant is out of the MIG;
ii. The applicant is not entitled to the five treatment plans for chiropractic treatment;
iii. The applicant is not entitled to the treatment plan for a psychological assessment; and
iv. The applicant is entitled to the treatment plan for a chronic pain assessment;
v. The applicant is entitled to interest on the overdue payment of benefits; and
vi. The respondent is not liable to pay an award under s. 10 of Reg. 664.
Released: December 15, 2025
Caley Howard
Adjudicator