Anantharajah v. Wawanesa Mutual Insurance Company, 2025 CanLII 28479

Licence Appeal Tribunal

Citation: Anantharajah v. Wawanesa Mutual Insurance Company, 2025 ONLAT 22-006564/AABS

Licence Appeal Tribunal File Number: 22-006564/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:

Thursaanth Anantharajah

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Gareth Neilson

APPEARANCES:

For the Applicant: Yalda Aslamzada, Counsel

For the Respondent: Nicholas M. Wine, Counsel

HEARD: By way of written submissions

OVERVIEW

1Thursaanth Anantharajah, the applicant, was involved in an automobile accident on June 18, 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 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 a non-earner benefit of $185.00 per week from July 16, 2020 to June 28, 2021?

iii. Is the applicant entitled to $1,995.33 for psychological services proposed by Alma Rehab in a treatment plan/OCF-18 (“treatment plan”) dated August 20, 2020?

iv. Is the applicant entitled to $2,630.74 ($2,838.79 less $208.05 approved) for chiropractic services proposed by Alma Rehab in a treatment plan dated November 13, 2020?

v. Is the applicant entitled to $2,416.63 for chiropractic services proposed by Alma Rehab in a treatment plan dated January 28, 2021?

vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

vii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s injuries are predominantly minor as defined in s.3 of the Schedule.

4The applicant is not entitled to non-earner benefits.

5The applicant is not entitled to the treatment plans in dispute.

6No award is granted.

7As there are no overdue payments, the applicant is not entitled to interest.

ANALYSIS

The deficient notice argument and the applicability of section 38.

8The applicant argues that the notices given to the applicant regarding the OCF-18s are deficient and therefore the applicant should be awarded the treatment plans in dispute. Furthermore, granting the applicant the treatment plans in dispute would warrant removal of the applicant from the MIG. The applicant relies on the rulings found in M.F.Z vs Aviva¹ and Taksali vs Aviva². The applicant argues that the notices given to the applicant by the respondent were not consistent with 38(8) under the Schedule and therefore the remedies found in section 38(11) of the Schedule are necessitated.

9The respondent argues that the denial letters are consistent with the Schedule and relies on Smith vs Co-operators (referenced as Smith v TD in the respondent submissions)³ . The respondent argues that the denial notices clearly meet the requirements set out in M.K vs TD⁴ as the denial letters provided valid reasonings as to why the treatment plans in dispute were being denied. The respondent also refutes the applicant’s reliance on M.F.Z vs Aviva as the denial letters in this case were not vague and were based on reliance on the medical evidence that was available. The respondent further argues that the applicant did not provide significant medical evidence that the plans in dispute are reasonable and necessary.

10I accept the respondent’s argument that the denial notices were not deficient. In relation to the OCF-18s submitted by the applicant, the respondent is very clear that they have reviewed the medical evidence given to them and that the applicant’s injuries fall within the MIG. The respondent defines the kind of injuries that the applicant sustained and furthermore articulates the kind of injuries that would remove the applicant from the MIG. The respondent also defines that there are no pre-existing medical conditions that would prevent the applicant from achieving maximal recovery under the MIG limits. The respondent also defines that the applicant can continue to submit OCF-18s from their medical practitioner for review, should they feel additional treatment is reasonable and necessary.

11Based on the reasons stated above on a balance of probabilities I conclude that the denial notices were compliant with the guidelines found in the Act.

Applicability of the Minor Injury Guideline (MIG)

12I find that the applicant’s injuries fall within the minor injury guideline. The applicant has not established on a balance of probabilities that their injuries sustained in the motor vehicle accident could not meet maximal recovery under the MIG limits.

13Section 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.”

14An 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.

15The applicant argues that they should be removed from the MIG for both psychological and physical reasons. The applicant relies on the psychological assessment by Psychologist Dr. Papazoglou, Chiropractor Dr. Braich and Chiropractor Dr. Singh. The applicant argues that Dr. Papazoglou diagnosed an Adjustment Disorder as a result of the accident is sufficient grounds to have them removed from the MIG. The applicant further argues that the assessment of Dr. Papazoglou shows that they suffer from significant psychological impairments as a result of the accident.

16The applicant also argues that Chiropractor Braich diagnosed the applicant as suffering from 19 injuries as a direct result of the accident and Chiropractor Singh recommended chiropractic treatments to treat the injuries that were sustained as a direct result of the accident. The applicant argues that both chiropractors opined that the treatments that the applicant needed as a direct result of the motor vehicle accident, were not able to be treated under the MIG.

17The respondent argues that the applicant has not met their burden showing that their injuries fall outside of the minor injury guideline. The respondent argues that the applicant’s family doctor has not diagnosed that applicant with an injury that isn’t soft tissue in nature. The respondent argues that the applicant has failed to prove that their soft tissue injuries are “atypical” in nature or have caused any functional impairments. The respondent points to the fact that the applicant has normal activities of daily living, is independent in personal care and has returned to going to the gym.

18The respondent refutes the finding from Psychologist Papazoglou as the diagnosis of Adjustment Disorder stems entirely from the applicant’s self reporting. The respondent further argues that Dr. Papazoglou does not opine that the applicant’s psychological impairments warrant removal from the MIG. The respondent further argues that the applicant has not substantiated that any psychological impairments sustained could not reach maximal recovery under the MIG limits.

19I agree with the respondent’s position as the applicant has not proven that the injuries sustained in the motor vehicle accident could not reach maximal recovery under the MIG limits. I agree with the respondent that the applicant’s medical evidence does not prove that based on the balance of probabilities and injuries sustained as a result of the motor vehicle accident cannot be treated under the MIG limits. I also agree with the respondent that the diagnosis of Dr. Papazoglou of Adjustment Disorder should be given little weight. The diagnosis was primarily based on the applicant’s self report and did not define that the applicant needed treatment outside of the MIG limits.

20I find on a balance of probabilities that the applicant’s injuries are minor injury in nature and as such, the applicant shall remain in the minor injury guideline.

The applicant is not entitled to Non-Earner Benefits (NEBs)

21The applicant has not met their burden of proof that they are entitled to NEBs.

22Section 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 the applicant’s pre- and post-accident activities.

23The applicant relies upon the diagnosis of chiropractor Dr. Braich whose OCF-3 offered the medical opinion that the applicant suffered a complete inability to carry on a normal life as a result of the accident.

24The respondent argues that the applicant has not met the test found in Heath as they have failed to show what pre-accident activities of daily living they have an inability to perform. The respondent also argues that the OCF-3 filed by Dr. Braich is vague as it fails to address how the applicant’s accident related injuries have affected their activities of daily living.

25I agree with the respondent that the applicant has not met the test found in Heath. The OCF-3 stating that the applicant suffered a complete inability to carry on a normal life without compelling medical evidence proving what activities of daily living have been affected is not sufficient enough to meet the test. To meet the test, it is incumbent upon the applicant to provide sufficient medical evidence that proves a complete inability to carry on pre-accident activities of daily living. The applicant has not provided the sufficient medical evidence needed to qualify for NEBs.

26The applicant is not entitled to non-earner benefits.

27As the applicant’s injuries confine them to the MIG limits and those limits are exhausted, the applicant is not entitled to the treatment plans in dispute.

Interest

28Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, the applicant is not entitled to interest.

Award

29The 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. As no benefits were withheld or delayed the applicant is not entitled to an award.

ORDER

30I order the following:

i. The applicant will remain within the minor injury guideline.

ii. The applicant is not entitled to non-earner benefits.

iii. The applicant is not entitled to the treatment plans in dispute.

iv. The applicant is not entitled to any interest as there are no overdue payments.

v. The applicant is not entitled to an award.

Footnotes

1. 12017 CanLII 63632 (ON LAT)
2. 22023 CanLII 96347 (ON LAT)
3. 3Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 SCR 129
4. 42020 CanLII 34500 (ON LAT)```