Citation: Chopra v. Economical Mutual Insurance Company, 2025 ONLAT 23-011097/AABS

Licence Appeal Tribunal File Number: 23-011097/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:

Jayant Chopra

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Robert Rock

APPEARANCES:

For the Applicant:

Adriano Pranzitelli, Counsel

For the Respondent:

Maia Abbas, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Jayant Chopra, the applicant, was involved in an automobile accident on June 17, 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, Economical Mutual 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? Note: The parties agree the MIG limits have not been exhausted with $20.01 remaining at the date of the case conference.

ii. Is the applicant entitled to $247.12 ($1,347.12 less $1,100.00 approved) for physiotherapy services, proposed by Activa Kitchener in a treatment plan/OCF-18 (“plan”) submitted September 22, 2021?

iii. Is the applicant entitled to $2,631.40 for physiotherapy services, proposed by Activa Kitchener in a plan submitted December 1, 2021?

iv. Is the applicant entitled to $250.00 for chiropractic services, submitted on a claim form (OCF-6) submitted August 17, 2023?

Procedural ISSUE

3The April 19, 2024, Case Conference Report and Order for this hearing states that the production deadlines for this hearing as July 15, 2024. The production of the clinical notes and records (CNRs) for Physio Treats were not requested until well after the production deadline on November 4, 2024 and not served on the respondent until November 15, 2024.

4The respondent argues that the late service of the clinical notes and records of Physio Treats, just three business days prior to the submission deadlines provided insufficient time for the respondent to review and respond to the new Physio Treat CNRs.

5The applicant argues that the records were received six business days after his last session and are necessary to establish the medical treatments and associated costs from the injuries sustained from the subject accident.

6LAT Rules 9.3 stats, “If a party fails to comply with any Rule, direction or order with respect to disclosure, exchange, production, or inspection of documents or things, that party may not rely on the document or thing as evidence without the permission of the Tribunal.”

7I agree with the respondent and disregard the Applicant’s submissions pertaining CNRs of Physio Treats. The applicant in their argument acknowledges the timeline of when these CNRs would be available but did not seek permission or consent from the Respondent, or the Tribunal, to admit these late productions.

RESULT

8The applicant remains in MIG.

9As the applicant remains in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The applicant is also not entitled to the OCF-6 for chiropractic services.

10The application is dismissed.

ANALYSIS

Minor Injury Guideline (MIG)

11Section 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.”

12An 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.

Chronic Pain with a functional impairment

13The applicant has not proven on a balance of probabilities that he suffers from chronic pain with a functional impairment as a result of the accident.

14The applicant argues that he suffers from chronic pain due to ongoing pain complaints since the subject accident, and therefore he should be removed from the MIG.

15The applicant has not provided any objective medical evidence to substantiate the claim of ongoing pain complaints since the accident outside of the clinical notes and records (CNRs) of treatment providers. While I note that the CNRs of the provider notes ongoing reporting of pain, I have not been provided the CNRs of the applicant’s family doctor, or any specialists to provided context for the pain complaints outside of the treatment providers.

16The applicant also argues that although he did not express his complaints of pain and injuries often to his family doctor during visits, his case is similar to Raja-Mohamad v The Personal Insurance Company, 2022 CanLII 33191 (ON LAT), in that his consistent complaints to treatment providers regarding back and neck pain is sufficient to justify ongoing treatment. I disagree with the applicant in this instance. All cases must be decided on the evidence provided. In Raja-Mohamad, that applicant relied on evidence from a chronic pain physician who determined that that applicant suffered from chronic pain. I have not been provided any similar evidence in the applicant’s case.

17The respondent argues that the applicant has not met his onus on proving on a balance of probabilities that he suffers from chronic pain with a functional impairment. The respondent relies on a physiatry examination by Dr. Ballard, physiatrist, completed on January 29, 2024.

18The physiatry examination by Dr. Ballard does not support the applicant’s claim that he suffers from chronic pain with a functional impairment. The examination does note pain complaints by the applicant, but the diagnosis by Dr. Ballard is that the applicant’s injuries are minor. Further, from a functional perspective, Dr. Ballard’s examination also notes that the applicant is independent with his personal care, has returned to his activities of daily living, and is working as both an Uber driver and a real estate agent.

19The applicant has not proven on a balance of probabilities that he suffers from chronic pain with a functional impairment. The applicant has not provided medical evidence that would substantiate his claim of chronic pain with a functional impairment. The respondent conversely has provided a physiatry examination that does not support the claim of chronic pain and shows no issues with functional impairment by the applicant.

20The applicant remains in MIG.

21As the applicant has been found to remain in the MIG, there is no need to conduct the reasonable and necessary analysis of the disputed treatment plans or the OCF-6 claim form

ORDER

22I find that:

i. The applicant remains in MIG.

ii. As the applicant remains in the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The applicant is also not entitled to the OCF-6.

iii. The application is dismissed.