Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-011051/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:
Sathiyan Subramanian Applicant
and
Co-operators General Insurance Company Respondent
DECISION
ADJUDICATOR: Robert Rock
APPEARANCES:
For the Applicant: Jono Schneider, Counsel
For the Respondent: Sonya Reid, Counsel
HEARD: By way of written hearing
OVERVIEW
1Sathiyan Subramanian, the applicant, was involved in an automobile accident on June 11, 2023, 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, Co-Operators 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:
i. Is the applicant entitled to medical benefits proposed by Aqua Wellness as follows: a) $2,200.00 for an in-home assessment plan, dated August 11, 2023; b) $4,011.20 for a chiropractic treatment plan, dated September 8, 2023; c) $3,801.20 for a chiropractic treatment plan, dated October 20, 2023; d) $3,636.20 for a chiropractic treatment plan, dated November 22, 2023; e) $3,546.20 for a chiropractic treatment plan, dated January 10, 2024; and f) $3,396.20 for a chiropractic treatment plan, dated February 27, 2024?
ii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
3In the respondent's submissions, it indicated that subsequent to the Case Conference Report and Order (CCRO) being issued, it removed the applicant from the Minor Injury Guideline (MIG) based on additional medical evidence being provided. Therefore, this issue is not in dispute. Additionally, the parties agree that the July 14, 2023 treatment plan has been fully funded and is no longer an issue in dispute. These changes are reflected in the issues set out above.
PROCEDURAL ISSUES
4The respondent submits that the applicant has failed to abide by the submission page limits set out in the CCRO of 12 pages and has submitted 18 pages. The respondent asks that the Tribunal exclude the six excess pages.
5The applicant did not submit a response to this request.
6I am denying the respondent's request because it has not demonstrated it is prejudiced by the additional submissions. It had an opportunity to consider and respond to them in its responding submissions. While it falls within my discretion to exclude these submissions, the fact that I have not done so in this case should be not be viewed as a tacit acceptance of the applicant's breach of the CCRO.
RESULT
7The applicant has not proven on a balance of probabilities that the treatment plans in dispute are reasonable and necessary.
8As no benefit payments have been unreasonably withheld or delayed, no award is owing.
9As there are no overdue benefit payment, no interest is owing.
ANALYSIS
10To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.
In-home assessment treatment plan
11The applicant has not proven on a balance of probabilities that the In-home assessment treatment plan is reasonable and necessary.
12The goals of the treatment plan are pain reduction, increased range of motion and strength, return to activities of normal living, return to pre-accident work activities and modified work activities.
13The treatment plan includes an attendant care benefit determination and completion of supporting documentation.
14The applicant argues that the assessment is reasonable and necessary in order to address what assistance the applicant may need. The applicant also argues that as the MIG no longer applies, the benefits are available.
15I find that the applicant has not proven on a balance of probabilities that the treatment plan for an in-home assessment is reasonable or necessary. The applicant has not directed me to any evidence that this treatment plan is necessary as a result of the accident. The applicant states in their written submissions that "it is possible that the assessor would put the amount a $0", however I find that this submission is not helpful to my determination because it does not speak to a specific reason that this treatment plan is necessary, only that the funds are available to pay for it. The applicant bears the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment. The applicant does not address in their written submissions what conditions exist that warrant further investigation.
16I find on a balance of probabilities that the applicant is not entitled to the in-home assessment treatment plan.
Five chiropractic treatment plans
17The applicant has not proven on a balance of probabilities that the five chiropractic treatment plans are reasonable and necessary.
18The five chiropractic treatment plans all had the same goals of pain reduction, increased range of motion and strength, return to activities of normal living, return to pre-accident work activities and modified work activities.
19The five chiropractic treatment plans all included 15 sessions of exercise multiple body sites, 15 sessions of hyperthermy and hypothermy at multiple body sites, 15 sessions of stimulation of back muscles, 15 sessions of manipulation, mobilization, and therapy at multiple body sites, and documentation.
20The applicant argues that the treatment plans are reasonable and necessary as he continues to be determined unemployable by his employer. The applicant relies on an orthopaedic assessment from Dr. Getahun, orthopaedic surgeon, completed on April 8, 2024 and an independent orthopaedic assessment by Dr. Urovitz, orthopaedic surgeon, completed on March 7, 2024. In addition, the applicant argues that now that the applicant has been removed from the MIG, funds are available for these treatments.
21I find that the orthopaedic assessment from Dr. Getahun does not support the applicant's claim that the five chiropractic treatment plans are reasonable and necessary. Dr. Getahun does diagnose the applicant with non-minor injuries and suggests that the applicant should be removed from the MIG. In the assessment Dr. Getahun also opines that as the applicant has been removed from the MIG that the treatment plans in question are reasonable and necessary. However, I find that Dr. Getahun does not address specifically how or why five separate chiropractic treatment plans are reasonable and necessary, or address that all five share the exact same goals, and treatments. The assessment does not address specifically why any chiropractic treatment plan was reasonable or necessary beyond the physiotherapy treatment plan that has been approved by the respondent.
22Similarly, I find that the independent orthopaedic assessment does not support the applicant's claim that the five chiropractic treatment plans are reasonable and necessary. Dr. Urovitz concluded that "the claimant's ongoing subjective report of continuing symptomatology notwithstanding, results of today's physical examination fails to demonstrate any major residual objective signs of accident related orthopedic impairment of a consistent nature." Dr. Urovitz states in his assessment that his opinion is that the applicant's injuries are minor in nature and maximum recovery from them could happen within the MIG.
23I place significant weight on Dr. Urovitz's independent orthopaedic assessment addendum as Dr. Urovitz's updates his original diagnosis, and removes the applicant from the MIG on the basis of his left elbow injury. However, Dr. Urovitz does not change his opinion on the reasonableness or necessity of the treatment plans in question, stating: "I would not feel that these treatment and assessment plans would result in any substantial further improvement and thus would not be considered to be medically necessary and/or reasonable".
24I find that the applicant has not proven on a balance of probabilities that the five chiropractic treatment plans are reasonable and necessary. The applicant states in their written submissions that "the applicant is supposed to have $65,000 in coverage to be utilized over the course of five years." While this statement is true, the applicant still needs to prove on a balance of probabilities that the treatment plans are reasonable and necessary. Dr. Getahun in the orthopaedic assessment states "....does not fall within the MIG. In my opinion the OCF-18s in question are reasonable and necessary." Neither of these arguments address the legal test the applicant must meet, that is demonstrating why these treatment plans are reasonable and necessary and explaining why duplicative treatment plans are reasonable and necessary. In this vein, the applicant's submissions do not address how these treatment plans will achieve the stated goals of the treatment plans or provide rationale for why the cost and duration is reasonable.
25On a balance of probabilities, the applicant is not entitled to the five chiropractic treatment plans at issue.
Interest
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no overdue benefit payments, no interest is owning.
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. As no benefit payments have been unreasonably withheld or delayed, no award is owing.
ORDER
28I find that:
i. The applicant has not proven on a balance of probabilities that the various treatment plans in dispute are reasonable and necessary.
ii. As there are no overdue benefit payments, no interest is owning.
iii. As no benefit payments have been unreasonably withheld or delayed, no award is owing.
iv. The application is dismissed.
Released: June 18, 2025
Robert Rock Adjudicator