Licence Appeal Tribunal File Number: 22-013194/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:
Thajeep Thirunamam
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Waqas Amjad, Paralegal
For the Respondent:
Emily Schatzker, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Thajeep Thirunamam, the applicant, was involved in an automobile accident on November 9, 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, Cooperators 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:
- 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 (the “MIG”) limit?
- Is the applicant entitled to $1,861.00 for physiotherapy services, proposed by HealthPlus Rehab Centre in a treatment plan/OCF-18 (the “plan”) dated October 26, 2022?
- Is the applicant entitled to $1,635.00 for physiotherapy services, proposed by HealthPlus Rehab Centre in a plan dated December 8, 2022?
- Is the applicant entitled to $2,400.00 for a psychological assessment, proposed by HealthPlus Rehab Centre in a plan dated May 25, 2022?
- Is the applicant entitled to interest on any overdue payment of benefits?
- Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3The applicant has suffered a minor injury and is subject to treatment within the MIG. As a result, the applicant is entitled to treatment up to the MIG limits plus interest.
4As no benefits were unreasonably withheld or delayed, the respondent is not liable to pay an award.
ANALYSIS
Has the applicant suffered a minor injury?
5I find that the applicant has suffered a minor injury, and his physical injuries are not enough to remove him 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 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.
8The applicant alleges that he should be removed from the MIG because he sustained a psychological condition as a result of the accident. In the alternative, the applicant submits that he has sustained a physical injury outside the definition of a minor injury.
The applicant did not sustain a psychological condition
9I find that the applicant has not proven on a balance of probabilities that he has sustained a psychological impairment that would warrant his removal from the MIG.
10To support his position that he sustained a psychological condition as a result of the accident, the applicant produced a psychological report from Psychologist Dr. Madhu Bhardwaj, indicating that the applicant was suffering from unhappiness, non-organic sleep disorder, and nervousness.
11In this report, Dr. Bhardwaj reports that he conducted multiple tests on June 24, 2022, including the Beck Depression Inventory and Beck Anxiety Inventory. Dr. Bhardwaj used those and other tests to diagnose the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Moods.
12The respondent submits that Dr. Bhardwaj’s diagnosis has been inflated in order to show the applicant has suffered a psychological injury. The respondent points to two areas where Dr. Bhardwaj’s report appears to be inflated:
a. On page 8, Dr. Bhardwaj concludes the applicant suffered ‘severe’ anxiety, yet the Beck Anxiety Inventory score of 26 places him on the low end of the moderate level of anxiety; and
b. On page 9, Dr. Bhardwaj concludes the applicant suffers from moderate to severe depression, yet the Beck Depression Inventory (BDI-II) score of 27 indicate he would be placed in the moderate level of anxiety.
13While I do not find that these discrepancies are an indication that Dr. Bhardwaj inflated their diagnosis, I acknowledge that the results of the tests are not consistent with the severity of the diagnosis. Therefore, I have placed less weight on the diagnosis Dr. Bhardwaj offers.
14I must decide if that injury rises above the level of a minor injury, or is a clinically associated sequelae of the applicant’s physical injuries. In reviewing the submissions by the applicant, I note the applicant did not complain about any psychological injuries or submit any concerns to his family doctor.
15I have not been directed to any evidence to corroborate the psychological assessment from the applicant’s family physician or any other treating practitioner. There were no notes regarding any psychological symptoms that would either warrant a referral or the need of treatment.
16In light of the discrepancy related to Dr. Bhardwaj’s diagnosis, and without any further evidence to consider, I find that the applicant has not satisfied his onus on a balance of probabilities that he has a psychological impairment that would warrant his removal from the MIG.
The applicant’s physical injuries are minor
17I find the applicant’s physical injuries are minor and fall under the MIG.
18The applicant submitted clinical notes and records from his family physician, Dr. Tharmaratnam, detailing repeated complaints of pain in his right shoulder, right elbow, and lower back.
19The applicant also submitted clinical notes and records from Health Plus Rehab Centre.
20I find that the clinical notes and records of Dr. Tharmaratnam and those of Health Plus Rehab Centre all note sprain and strain type injuries, which all fall under the definition of the MIG.
21The applicant submitted he suffers ongoing pain and tenderness. Submissions are not evidence; further, in my view, ongoing pain and tenderness are not sufficient to be removed from the MIG. The applicant’s injuries must be outside of the definition and in this case, I find that the evidence does not suggest that his injuries fall outside the definition of the MIG.
22For all these reasons, the applicant has not proven on a balance of probabilities that he should be removed from the MIG on the basis of a psychological condition or, in the alternative, a physical injury.
Is the applicant entitled to the treatment plans in dispute?
23As I have found the applicant is not removed from the MIG, and the July 20, 2023 Case Conference Report and Order states that the MIG limits have not been exhausted, the applicant is entitled to treatment up to the MIG limit.
Interest
24In general, interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. In this case, as there are no overdue benefits, the applicant is not entitled to interest.
Award
25The applicant sought an award under s. 10 of Reg. 664.
26Under 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.
27As no benefits have been unreasonably withheld, no award is granted.
ORDER
28I find that the applicant is not removed from the MIG. As a result, the applicant is entitled to treatment up to the MIG limits plus interest. The applicant is not entitled to an award.
Released: January 10, 2025
Jeff Chatterton
Adjudicator