Licence Appeal Tribunal File Number: 20-010201/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:
Rasaratnam Ratnarajah
Applicant
and
Belair
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Alexei Antonov, Counsel
For the Respondent:
Nicole A Dowling, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Rasaratnam Ratnarajah, the applicant, was involved in an automobile accident on September 17, 2018, 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, Belair Direct 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 limit?
ii. Is the applicant entitled to the assessments proposed by Toronto Healthcare Clinic Inc., as follows:
i. $120.19 ($1,305.10 less $1,184.91 approved) for chiropractic services, in a treatment plan dated November 5, 2018;
ii. $115.09 ($1,465.10 less $1,350.01 approved) for chiropractic services, in a treatment plan dated November 28, 2018;
iii. $1,585.10 for chiropractic services, in a treatment plan dated January 9. 2019;
iv. $1,265.10 for chiropractic services in a treatment plan dated February 28, 2019;
v. $2,000.00 for psychological services in a treatment plan dated March 5, 2019?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has not met his onus of proving that his injuries are not predominantly minor as defined in s.3 of the Schedule and he is therefore subject to treatment within the $3,500.00 Minor Injury Guideline (MIG) limit.
4As the applicant remains within the MIG, and there is no entitlement to the medical benefits at issue beyond the MIG limit.
5As no benefits were unreasonably withheld or delayed, the respondent is not liable to pay a s.10 award.
6As there are no overdue benefits, no interest is payable.
ANALYSIS
The Minor Injury Guideline (“MIG”)
7I find that the applicant has not met his onus of proving on a balance of probabilities that his injuries are not predominantly minor as defined in s. 3 of the Schedule and he is therefore subject to the $3,500.00 MIG limit.
8Section 18(1) provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly minor injuries. 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.”
9An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s.18(2) of the Schedule. The Tribunal has determined that chronic pain with a functional impairment or a psychological condition may warrant MIG removal.
10The burden is on the applicant to demonstrate, on a balance of probabilities, that his injuries fall outside of the MIG. The applicant argues he suffers from chronic pain with a functional impairment and a psychological condition that warrants removal from MIG.
a. The applicant does not suffer from chronic pain with a functional impairment.
11I find that the applicant has not established on a balance of probabilities that he suffers from chronic pain with a functional impairment that warrants removal from the MIG.
12The applicant relies on the CNRs of his Dr. Mah, the applicant’s family doctor.
13I find that the CNRs of Dr. Mah do not support the applicant’s claim of chronic pain. The CNRs do not show that the applicant ever reported the accident to Dr. Mah and show no evidence of any pain reporting.
14The applicant also relies on Semih v Aviva Ins. Co., 2022 CanLII 27252 (ON LAT). I place little weight on the relevancy of this case to the applicant’s claim. The applicant argues that similar to the Semih case, he should be removed from the MIG without any doctor diagnosing him with chronic pain. The facts between the two cases differ significantly. The adjudicator in the Semih case relied on a physiatry report which did not diagnose the applicant but indicated that the applicant’s impairments fall outside of the MIG and displayed features of a chronic pain syndrome. The adjudicator also noted in the decision that the applicant’s complaints of pain were consistent over a two-year period post-accident.
15The applicant has not supplied any evidence to substantiate a medical professional diagnosing any pain symptoms or impairments. As stated above, the CNRs of Dr. Mah don’t note that the applicant reported the accident or record any complaints of pain.
16I find that the applicant has failed to provide consistent evidence that warrants removal from the MIG based on chronic pain. There is no evidence of chronic pain that could be considered more than a sequela of the soft tissue injuries, and there is no evidence that such pain is accompanied by functional impairment, which is the requirement for removal from the MIG under this ground.
b. The applicant does not suffer from a psychological condition.
17I find that the applicant has not established on a balance of probabilities that he suffers from a psychological condition that warrants removal from the MIG.
18The applicant relies on the CNRs of his Dr. Mah, the applicant’s family doctor.
19I find that the CNRs of Dr. Mah do not support the applicant’s claim of a psychological condition. The CNRs do not show that the applicant ever reported the accident to Dr. Mah, and show no evidence of any pain reporting.
20The applicant also relies on Semih v Aviva Ins. Co., 2022 CanLII 27252 (ON LAT). I place little weight on the relevancy of this case to the applicant’s claim. The applicant argues that similar to the Semih case to substantiate a psychological assessment. The facts between the two cases are significantly different. The adjudicator in the Semih case relied on recommendations by a healthcare professional for a psychological assessment in association with the applicant’s chronic pain condition. In this case there is no recommendation by a healthcare professional for a psychological assessment.
21The applicant has not supplied any evidence to substantiate a medical professional diagnosing any pain symptoms or impairments. As stated above, the CNRs of Dr. Mah don’t note that the applicant reported the accident or record any psychological complaints.
22I find that the applicant has failed to provide consistent or compelling evidence that warrants removal from the MIG based on a psychological condition. There is no reports or evidence of a psychological condition which is the requirement for removal from the MIG under this ground.
23As I have not found on balance of probabilities that the applicant should be removed from MIG, he is not entitled to funding beyond the MIG limit. Therefore, it is not necessary for me to analyze the reasonableness and necessity of the treatment plans.
Award
24The applicant sought an award under s. 10 of Reg. 664. Under s. 10. As no benefits were unreasonably withheld or delayed, there is no award owing.
Interest
25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefits, no interest is owing.
PROCEDURAL ISSUE
26The respondent submits that the applicant failed to comply with the timelines set out in the Tribunal’s Case Conference Report and Order (CCRO) dated August 21, 2023. The CCRO ordered production of additional documentation to the respondent within 60 days from the Case Conference. Among the documents requested were an updated OHIP Summary and updated clinical notes and records (CNRs) of the applicant’s family physician, Dr. Mah.
27These two documents appear as Tab 5 and Tab 7 in the applicant’s written submission.
28The respondent argues that these documents were not submitted in accordance with the CCRO, but also the respondent first saw them in review of the applicant’s written submission.
29The respondent argues that the failure to provide these documents in a timely manner results in prejudice, and that these documents should be stricken from evidence.
30The applicant made no reply submission.
31I agree with the respondent that the applicant did not comply with the CCRO timelines, failed to request any relief when it failed to meet the CCRO timelines, and did not bring any motion to extend the time to deliver the documents. Despite these findings, I am not persuaded by the respondent’s argument that by allowing the evidence to be reviewed would lead to prejudice of their case.
32As a result, I am denying the relief sought by the respondent. I will allow the OHIP Summary and the updated CNRs of Dr. Mah into evidence.
ORDER
33I find that the applicant:
i. The applicant remains within the MIG and is subject to the $3,500.00 funding limit.
ii. The applicant is not entitled to payments for treatment plans beyond the MIG funding limit.
iii. As no benefits were unreasonably withheld or delayed, the respondent is not liable to pay a s. 10 award.
iv.
v. As no benefits are overdue, no interest is owing.
vi. The application is dismissed.
Released: January 23, 2025
Robert Rock
Adjudicator