Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-006682/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:
Brandon Vethanayagam
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATOR: Roderick Walker
APPEARANCES:
For the Applicant: Ramona Pimentel, Counsel
For the Respondent: Simran Walia, Counsel
HEARD: By Way Of Written Submissions
OVERVIEW
1Brandon Vethanayagam, the applicant, was involved in an automobile accident on January 31, 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 Sonnet Insurance Company, the respondent, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES
2The respondent filed a Notice of Motion to request an order to increase the page numbers permitted for this hearing from 10 pages to 11. After receipt and review of Applicant’s submissions, the respondent discovered notes and reports from at least three different medical professionals it had not been served before this hearing. These documents include the applicant cites Dr. Leon Steiner’s (Psychologist) interview report dated July 29, 2022; at paragraph 9, the Applicant refers to Ms. Vera Sukhoveyeva’s Psychotherapist notes; and at paragraph 10, the Applicant relies on Dr. Grigory Karmy’s note dated January 21, 2023. These were not served on the respondent and were not attached as evidence in the applicants’ submissions. The respondent requests an order to allow just on an additional page for the respondent to reply to the above notes.
3The applicant’s counsel responded by an email dated, August 21, 2024, indicating that she consents to the one additional page for the respondents’ submissions.
4As the applicant has consented to the additional page limit for the respondent, I have no need to order this request.
ISSUES
5The issue(s) 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 $2,460.00 for a Chronic Pain Assessment, proposed by Hydrohealth Evaluations Inc. in a treatment plan/OCF-18 (“plan”) dated January 21, 2023?
iii. Is the applicant entitled to $3,203.50 for Acutherapy, proposed by Hydroactive Aquatherapy and Rehabilitation in a plan dated June 18, 2022?
iv. Is the applicant entitled to $2,460.00 for a Psychological Assessment, proposed by Hydrohealth Evaluations Inc. in a plan dated June 29, 2022?
v. Is the applicant entitled to $2,833.52 for Acutherapy, proposed by Hydroactive Aquatherapy and Rehabilitation in a plan dated April 29, 2023?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6The applicant’s injuries are predominately minor in nature and therefore subject to the treatment within the monetary limits of the MIG. Accordingly, the applicant is entitled to the $20.18 left within the MIG limit.
7No Interest applies as no benefits are owning.
8The application is dismissed.
ANALYSIS
Does the applicant have a chronic pain impairment that warranted removal of the MIG?
9I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain because of the accident, and he can be treated within the MIG.
10Section 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.”
11An 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.
12After the accident the applicant went to Markham Stouffville Hospital as he had developed physical symptoms of severe pain to his neck, shoulder and back, as well as psychological issues such as somatic issues, fatigue, anxiety, and nervousness The applicant was encouraged to participate in physiotherapy and advised to visit his family physician for further instructions. The applicant developed post-accident pains a few hours after the motor vehicle accident.
13The applicant submits that he suffers from a chronic pain in his neck, shoulder and back. The applicant relies on CNRs of his family doctor Richard Jeyaranjan. Also, he relies on the CNRs of at Hydroactive Aquatherapy & Rehabilitation Center in Vaughan, the CNRs of Dr. Leon Steiner Also, the applicant relies on chiropractic Dr. David Huang. The applicant has submitted several cases that support his position that his pain is of a chronic nature.
14The respondent relies on CNRs of the family doctor, Dr. Richard Jeyaranjan, who referred the applicant to chiropractic treatment, not acutherapy. The respondent also relies on the CNRs of Hydroactive Aquatherapy & Rehabilitation Center.
15The applicant alleges he suffered from severe pain because of the accident, but this is not corroborated by the medical evidence. The applicant was diagnosed with a minor injury thoracic strain at the hospital and discharged the same day. The applicant’s family doctor, Richard Jeyaranjan’s CNRs revealed a finding of minor injuries. Over the span of two years, the applicant complained to his family doctor of soft-tissue injuries three times with multiple gaps in treatment. The applicant on those visits complained about the soft tissue injuries, musculoskeletal and functional examinations.
16I find that the applicant visited his family doctor several times until October 19, 2022, where he reported fatigue, neck pain and stiffness, and pain to upper back and shoulder. His family doctor referred him to chiropractic treatment, not aqua therapy. Between October 19, 2022, to January 10, 2023, the applicant made no complaints about injuries sustained because of the accident. His family doctor continually recommended lifestyle changes and exercise for his recovery. I confirm from April 27, 2023, to December 14, 2023, he visited his family doctor 5 times, but made only a singular reference to the accident because at the advice of his lawyer to receive proper forms to submit to his insurance company.
17Further, the applicant underwent massage therapy and hydrotherapy at Hydroactive Aquatherapy Rehabilitation Centre from April 2022 to October 2023. The records from this clinic, like the family doctor’s records reveal minor injuries. On May 28, 2022, the applicant reported feeling okay with just a little tension in his neck. During the applicant’s October 29, 2022, visit, he reported no pain. During a reassessment on April 29, 2023, the applicant was in good health. There were no concerns from the applicant n this visit.
18The applicant saw Dr Leon Steiner of Hydrohealth Evaluations Inc.; however, the applicant did not serve the respondent with and notes or CNRs of Dr. Steiner. I will put no weight on Dr. Steiner’s evidence in this matter.
19I find that Dr. David Huang recommended that a chronic pain assessment was needed for further rehabilitation to restore functional tolerance and endurance, however I find that Dr. Huang gave no reasons why this assessment was necessary.
20I agree with the respondent that the applicant doesn’t suffer from chronic pain with a functional impairment. The CNRs from the family doctor Richard Jeyaranjan that on all the applicant’s visits, there was no pain medication given or a referral to a pain management physician for further examination of the applicant’s pain. His family doctor continually supports lifestyle changes and exercise for his recover. Further, over the span of two years, the applicant complained to his family doctor of soft-tissue injuries three times with multiple gaps in treatment.
21For these reasons, I find the applicant has not established that he suffers from chronic pain with a functional limitation which would merit his removal from the MIG.
Does the applicant have a psychological impairment that warranted removal of from the MIG?
22I find that the applicant has not proven on a balance of probabilities that he suffers from a psychological impairment because of the accident and so he can be treated within the MIG.
23The applicant relies on psychotherapist, Vera Sukhoveyeva of Hydrohealth Evaluations Inc., who prepared an OCF-18 dated June 29, 2022, where she noted that the applicant had adjustment disorders which affected his activities of normal life and recommended CBT for mood and pain management.
24The respondent relies on a s. 44 Insurer’s Examination report prepared by Dr. Ahmad Belfon, physician, who examined the applicant’s overall physical and psychological health on June 2, 2023. Dr. Belfon states that the applicant’s injuries are minor in nature with no psychological impairments. Further, the respondent relies on the applicant’s family doctor CNR’S of Richard Jeyaranjan with respect to his psychological injury that the applicant makes to complaints of anxiety.
25I agree with the respondent’s position. In respect to the applicant’s psychological injury. Vera Sukhoveyeva of Hydrohealth Evaluations Inc. prepared an OCF-18 dated June 29, 2022, which indicates that the applicant would benefit from Cognitive Behavior Therapy for his mood, however there is no corroborating evidence to support the OCF-18 prepared by Ms. Sukhoveyeva that would suggest this treatment is reasonable and necessary. Further, I find that there is no referral to a psychologist or treating professional for his ongoing psychological injuries. While I support the applicant’s goals for a complete recovery, I find there is no contemporaneous medical evidence before me that would warrant a removal from the MIG based on a psychological impairment.
26For these reasons, the applicant is not removed from the MIG based on a psychological impairment.
27As a result, the applicant remains in the MIG and is subject to the $3,500.00 limit.
28As I have found that the applicant is not removed from the MIG, the applicant is also not entitled to any of the disputed treatment plans.
Interest
29No treatment plans are awarded, no interest applies.
ORDER
30I find on the totality of the evidence:
i. The applicant’s injuries are predominately minor and therefore subject to the treatment within the monetary limits of the MIG. Accordingly, there is $20.18 left in the MIG. The applicant is entitled to this amount.
ii. No Interest applies as no benefits are owning.
iii. The application is dismissed.
Released: March 27, 2025
Roderick Walker
Adjudicator