Licence Appeal Tribunal File Number: 23-012668/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:
Harishan Sivakumar
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Harouna Saley Sidibé
APPEARANCES:
For the Applicant: Renata Szady, Paralegal
For the Respondent: Nisaa Khan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Harishan Sivakumar, the applicant, was involved in an automobile accident on April 14, 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, Intact 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 $502.60 ($1,299.20 less $796.60 approved) for physiotherapy services, proposed by Wexford Wellness Care Inc. in a treatment plan/OCF-18 (“plan”) submitted September 22, 2021?
iii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Spine Solutions Rehab in a plan submitted September 12, 2022?
iv. Is the applicant entitled to $1,323.75 for physiotherapy services, proposed by Wexford Wellness Care Inc. in a plan submitted July 15, 2022?
v. Is the applicant entitled to $880.69 ($1,362.00 less $481.31 approved) for physiotherapy services, proposed by Wexford Wellness Care Inc. in a plan submitted April 26, 2023?
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
3For the reasons that follow, I find:
- The applicant’s injuries are predominantly minor, and thus, the MIG monetary limit applies.
- As the applicant is in the MIG, it is not necessary for me to consider whether the disputed treatment plans are reasonable and necessary.
- The applicant is not entitled to an interest or an award.
ANALYSIS
Are the applicant’s injuries subject to the MIG?
4I find that the applicant has not demonstrated, on a balance of probabilities, that his injuries fall outside the MIG.
5Section 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.”
6An 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.
7The applicant contends that chronic pain and psychological impairment remove him from the MIG.
8The applicant submits an OCF-3 form dated August 27, 2021, which outlines the diagnoses of WAD II, sprains in the thoracic and lumbar regions, dizziness, sleep disturbances, and a "complete inability to carry on a normal life.” He refers to records from his family doctors that highlight chronic pain, limitations on the left side, and psychological issues. Additionally, he mentions a psychological report advocating for a comprehensive assessment, along with psychiatry records that indicate diagnoses of depressive and anxiety disorders.
9The respondent argues that subjective pain, without functional impairment, does not establish grounds to remove the applicant from the MIG.
10The respondent notes limited visits to a family doctor, with normal findings, and an Insurer Examination (“IE”) psychological report concluding that no Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR) diagnosis, sub-clinical symptoms, or symptom exaggeration was found. The respondent emphasizes that the applicant continued to engage in work, social activities, and schooling following the accident, while psychological complaints arose 16 months post-accident.
11I find that the applicant’s injuries are primarily minor because he did not sustain a psychological impairment, nor did he experience chronic pain with a functional impairment that removes him from the MIG.
a) Has the applicant sustained a psychological impairment that warrants removal from the MIG?
12The Clinical Notes and Records (“CNRs”) dated April 17, 2021, from Dr. Shahbaz Jamal, the applicant’s family doctor, show that the applicant was referred to a psychiatric practitioner. However, no additional psychological concerns were reported to Dr. Jamal at that time. Later, on April 14 and August 24, 2022, the applicant reported experiencing general anxiety, low mood, and insomnia. As a result, Dr. Jamal referred the applicant to a psychiatrist for further assessment.
13The pre-screening report by Ms. Fahimeh Aghamohseni, a psychologist, dated September 7, 2022, stated that the applicant has presented himself as a person in need of psychological assistance, and his responses indicated that psychological symptoms may impede recovery. This opinion is based on the interview with the applicant.
14I place little weight on the pre-screening conducted by Dr. Aghamohseni, as it relies solely on the applicant’s self-reported symptoms and does not constitute a comprehensive psychological evaluation. Furthermore, Dr. Aghamohseni does not provide a formal diagnosis, and the pre-screening lacks the use of standardized diagnostic tools.
15On May 17, 2023, and June 10, 2023, the applicant had psychiatric consultations for depression, anxiety, and panic attacks with Dr. Syed Rizvi, a psychiatrist. Dr. Rizvi diagnosed the applicant with depression and anxiety stemming from the accident.
16I place little weight on Dr. Rizvi’s two psychiatry records because they heavily depend on self-reporting, with no standardized testing or functional-capacity evaluation to support the diagnosis.
17On October 25, 2022, the applicant underwent a section 44 psychology assessment with Dr. Arpita Biswas, a psychologist. Dr. Biswas administered a semi-structured diagnostic clinical interview to the applicant, which examines the common DSM-5 TR disorders associated with injury and trauma. The report indicated that the applicant’s psychological symptoms are subclinical in nature and there is no evidence of any significant psychological impairments that can fulfill any clinical diagnosis. He concluded that the applicant has not sustained any significant psychological impairments as a direct result of the accident, and his presentation does not fulfill any DSM-5 TR diagnostic condition.
18I place significant weight on Dr. Biswas’ IE report because it involved psychometric testing and a clinical interview. Dr. Biswas identified sub-clinical symptoms, observed inconsistencies between testing and presentation, and reported no DSM-5 condition. The report directly addresses the psychological dimension and remains unchallenged by any equally thorough contemporary assessment.
19Accordingly, I conclude on a balance of probabilities that the applicant has not demonstrated a psychological impairment that warrants removal from the MIG.
b) Has the applicant sustained chronic pain with a functional impairment that warrants removal from the MIG?
20The CNRs from Dr. Shahbaz Jamal, the applicant’s family doctor, dated April 18, 2021, indicate that the applicant’s musculoskeletal system was normal; both the left shoulder and left elbow exhibited a full range of motion (ROM), with no gross abnormalities diagnosed. The same range of motion was noted in the neck and lower back.
21The applicant had an examination on November 10, 2021, at Alton Towers for X-rays. The spine, left shoulder, and left elbow were normal. The fracture of the proximal phalanx of the fourth finger occurred under different circumstances and was not as a result of the accident (See: CNRs dated October 21, 2021).
22According to the CNRs dated February 9, 2023, from Dr. Mohamed Abounaja, a family doctor, the applicant reported experiencing low back pain for several days. It was also noted that there had been no recent trauma or fall, and no mention was made of the accident.
23While the applicant asserts that he suffers from chronic pain, the evidence presented does not support this claim. The medical records cited, primarily notes from the family doctor, reflect only intermittent and subjective reports of pain, accompanied by full ranges of motion and otherwise normal clinical findings. Notably, the CNRs do not contain a diagnosis of chronic pain. In light of this, the record does not reveal any specific or substantiated impairments linked to chronic pain. Therefore, I find that the applicant has not demonstrated a functional impairment attributable to chronic pain.
24Accordingly, I find on a balance of probabilities that the applicant has not demonstrated that he has sustained chronic pain with a functional impairment that warrants removal from the MIG.
Is the applicant entitled to the disputed treatment plans?
25Since I have determined that the applicant has not shown that his accident-related impairments require treatment beyond the MIG limits, it is unnecessary for me to assess the reasonableness and necessity of the disputed treatment plans.
Interest
26Since no benefits are awarded, the issue of interest under s. 51 of the Schedule does not arise.
Award
27The 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.
28The applicant argued that the respondent is liable to pay an award because it failed to consider its primary care physician’s records, referrals, and psychiatry consultation reports. He added that the respondent continued to deny the claims, despite consistently receiving medical evidence supporting the applicant’s entitlement to the treatment plans.
29The respondent asserts that it fulfilled its duty of good faith by reviewing all documentation provided by the applicant, adjusting the claim as necessary, and denying the disputed OCF-18s based on the records received.
30The applicant must prove, on a balance of probabilities, that the respondent’s conduct was “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate to justify an award” under s. 10. I acknowledge the applicant’s position but find that the applicant is not entitled to the treatment plans in dispute and agree with the respondent that the denials were supported by medical evidence. The respondent has not unreasonably withheld or delayed payment.
31Consequently, the applicant is not entitled to an award.
ORDER
32For the reasons above, it is ordered that:
- The applicant’s injuries are predominantly minor, and thus, the MIG monetary limit applies.
- As the applicant is in the MIG, it is not necessary for me to consider whether the disputed treatment plans are reasonable and necessary.
- The applicant is not entitled to an interest or an award.
Released: June 19, 2025
Harouna Saley Sidibé Adjudicator