Seelochand v. Co-operators General Insurance Company, 2025 CanLII 84246

Citation: Seelochand v. Co-operators General Insurance Company, 2025 ONLAT 23-010784/AABS

Licence Appeal Tribunal File Number: 23-010784/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:

Navin Seelochand

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Muniza Kabir, Counsel

For the Respondent:

Mai Nguyen, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Navin Seelochand (“the Applicant”) was involved in an automobile accident on September 23, 2021 and sought benefits from Co-operators General Insurance Company (“the Respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The 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

3The issues in dispute are:

i. Are the Applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury?

ii. Is the Applicant entitled to a medical benefit in the amount of $3,795.50 for physiotherapy services, proposed by Mackenzie Medical Rehabilitation Centre (“MMRC”) in a treatment plan/OCF-18 (“plan”), dated September 29, 2021?

iii. Is the Applicant entitled to a medical benefit in the amount of $2,026.55 for physiotherapy services, proposed by MMRC in a plan dated January 28, 2022?

iv. Is the Applicant entitled to a medical benefit in the amount of $1,417.70 for physiotherapy services, proposed by MMRC in a plan dated March 14, 2022?

v. Is the Applicant entitled to a medical benefit in the amount of $2,560.00 for psychological services, proposed by MMRC in a plan dated March 29, 2022?

vi. Is the Applicant entitled to a medical benefit in the amount of $2,460.00 for a psychological assessment, proposed by 101 Assessments in a plan dated December 20, 2021?

vii. Is the Applicant entitled to a medical benefit in the amount of $2,460.00 for a neurological assessment, proposed by 101 Assessments in a plan dated April 6, 2022?

viii. Is the Applicant entitled to income replacement benefits (“IRBs”) in the amount of $400.00 per week, for the period from December 14, 2021, to-date, and ongoing?

ix. Is the Respondent liable to pay an award to the Applicant under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the Applicant?

x. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

4The Applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.

5The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit.

6No IRBs are payable.

7No interest or award is payable.

BACKGROUND

8The Applicant was the driver of a vehicle which was struck from behind while stopped in traffic on a major highway. It appears that he was taken by ambulance to the hospital following the accident, but the ambulance records are not before me to confirm same. There are hospital records before me indicating that the Applicant was assessed in the emergency department but discharged the same day – no other details are provided.

9The Applicant followed up with the family physician, Dr. A. Ansari, about a week following the accident with complaints of back, neck, and shoulder pain since the accident. He reported the back pain radiates into his left leg. He denied a head injury or any loss of consciousness in the accident. Dr. Ansari diagnosed the Applicant with back, neck, and shoulder sprains and advised him to engage in daily exercise, continue physiotherapy which he was previously engaging in, and prescribed Celebrex, alti-cyclobenzaprine, Pennsaid, and Tylenol with codeine – prescriptions which Dr. Ansari had previously prescribed for the Applicant due to a workplace injury prior to the accident.

10The Applicant followed up with Dr. Ansari inconsistently following the accident, primarily with complaints of ongoing shoulder pain. The Applicant participated in an MRI of his right shoulder which was unremarkable. The MRI showed, at most, very mild supraspinatus insertional tendinosis with no focal tear, and some minor bursal fluid.

11The Applicant claims that his injuries are not a minor injury, and he should not be subject to the MIG and the $3,500.00 funding limit. To him, he suffers from chronic pain, which is not an injury included in the MIG. Additionally, the Applicant submitted a psychological assessment report, suggesting that he sustained psychological injuries as a result of the accident and should not be subject to the MIG as a result. Lastly, the Applicant refers to pre-existing back pain and a prior surgery to suggest that he suffers from pre-existing conditions which preclude his maximal recovery if subject to the MIG.

12To the Respondent, the Applicant has failed to submit adequate, persuasive medical evidence to support that he sustained a non-minor injury and is substantially disabled from completing the essential tasks of his employment.

ANALYSIS

Minor Injury Guideline (“MIG”)

13The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

14The onus is on the Applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.

15For the following reasons, I find that the Applicant has not demonstrated that he sustained an injury in the accident that is not included in the minor injury definition.

No preexisting medical condition precludes the Applicant’s recovery

16I find that the Applicant has not demonstrated that he suffers from a pre-existing medical condition which precludes his maximal recovery if subject to the MIG and the $3,500.00 funding limit for a minor injury.

17The Applicant’s submissions highlight that he suffered from pre-existing medical conditions prior to the accident, suggesting that they preclude his recovery within the MIG. He notes that he had a back injury 7-8 years ago, as well as a cancer-related surgery in 2018.

18I find that these pre-existing conditions do not preclude the Applicant’s maximal recovery if subject to the MIG. Indeed, the Applicant’s medical records note that he had suffered from back pain and had a cancer-related surgery in 2018. However, there is no information in the medical records to indicate that the ailments continued to impair the Applicant at the time of the accident or thereafter. Dr. Ansari’s CNRs following the accident do not mention that his recovery may be impaired due to any pre-existing medical conditions and there are no notes connecting a prolonged recovery with his pre-existing condition. The Applicant’s oncology records, which include follow-up visits after the accident, note that as recent as August 5, 2021 that the Applicant was doing very well and showing no signs of disease relapse. There are no post-accident oncology records indicating that the accident had any impact on the Applicant’s recovery from a cancer-related surgery, or that his recovery from that procedure impacted his recovery from accident-related injuries.

19Accordingly, I find that the Applicant has not demonstrated that he has a pre-existing medical condition which precludes his maximal recovery if subject to the MIG.

No compelling evidence of a psychological injury

20I find that the Applicant has not demonstrated that he sustained a psychological injury as a result of the accident.

21I give no weight to the psychological assessment report completed by Dr. K. Papazoglou, dated February 24, 2022. Dr. Papazoglou assessed the Applicant virtually and concluded that he suffers from an Adjustment Disorder with Mixed Anxiety and Depressed Mood, driver/passenger phobia, and Somatic Symptom Disorder with Predominant Pain. Dr. Papazoglou concluded that the Applicant’s psychological impairments prevent him from engaging in most of the activities which he ordinarily engaged in prior to the accident. This report holds no weight because it is based entirely on the Applicant’s self-reported issues and has no consideration for the balance of the Applicant’s medical records. Particularly, Dr. Papazoglou never reviewed Dr. Ansari’s CNRs, which include no complaints of a psychological nature, whether related to the accident or otherwise. I am not persuaded that the Applicant’s psychological impairments rise to the level that they disable him from engaging in his ordinary activities as there is zero indication in Dr. Ansari’s CNRs that the Applicant suffers from any psychological impairment, let alone one that precludes him from completing his pre-accident activities.

22Moreover, the self-reports documented in Dr. Papazoglou’s report are contradicted or absent in other contemporaneous records. For example, the Applicant reported to Dr. Papazoglou that he had dizzy spells following the accident, but never reported such issues to his family doctor during the various visits following the accident. The Applicant complained to Dr. Papazoglou of non-restorative sleep following the accident, but the report does not discuss that the Applicant suffered from sleep apnea prior to the accident and was recommended to use a CPAP machine at night.

23Overall, the report by Dr. Papazoglou lacks meaningful insight into the Applicant’s medical condition at the time of the accident and is too anomalous with the balance of the Applicant’s medical records to hold any weight. Thus, there is no compelling evidence demonstrating that the Applicant suffers from an accident-related psychological injury.

No evidence of accident related chronic pain

24I find that the Applicant has not demonstrated that he suffers from a chronic pain condition as a result of the accident.

25The Applicant claims that he suffers from chronic shoulder pain as a result of the accident. He highlights that he was referred for an MRI of his right shoulder due to chronic pain and that his pain has persisted beyond the typical healing time, suggestive that he suffers from a chronic pain condition. The Respondent disagrees and submits that the Applicant’s ongoing pain is not a chronic pain condition because it does not cause suffering and distress accompanied by functional impairment or disability. It adds that the Applicant also fails to meet the criteria for a chronic pain condition as outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (the “AMA Guides”).

26While it is not part of the Schedule, the Tribunal has generally accepted the AMA Guides when assessing whether a person suffers from a chronic pain condition. To meet the criteria, the person must demonstrate that they likely meet three of the following six criteria: withdrawal from social milieu (including work, recreation, or other social contracts); use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription dugs or other substances; development of psycho-social sequalae after the initial incident; excessive dependence on healthcare providers, spouse, or family; secondary physical deconditioning due to disuse; and a failure to restore pre-injury function after a period of disability. Alternatively, the Tribunal has accepted that chronic pain is not a minor injury when the pain causes an ongoing functional impairment.

27I find that the Applicant has not demonstrated that he suffers from a functional impairment due to pain. As noted previously, the Applicant returned to work in a physical role as a service and sales representative. His role involved loading and unloading heavy equipment, such as commercial floor mats, and there is no indication that he required any accident-related accommodations following his return to work. Returning to work in a physical role indicates that the Applicant does not suffer from a chronic pain condition as a result of the accident.

28Although the Applicant reports an inability to complete his pre-accident activities and chores, the evidence does not support this. The Applicant met with Dr. Ansari on a semi-regular basis following the accident, yet he never reported that pain was limiting his ability to complete any tasks. Moreover, Dr. Ansari’s examinations of the Applicant did not reveal any impairments due to pain. At most, Dr. Ansari noted that the Applicant exhibited a slight decrease in the range of motion (“ROM”) in his back, but there is no report that the slight decrease in ROM is causing the Applicant to experience a functional impairment due to pain. Accordingly, I find that this is not evidence of a chronic pain condition.

29The Applicant has not demonstrated that he suffers from a chronic pain condition in accordance with the AMA Guides. The Applicant returned to full-time work in a physical role, suggesting that he has not suffers from withdrawal from social milieu. The Applicant is not using or abusing prescription or other medication. The CNRs from Dr. Ansari indicate that the Applicant gets prescribed four medications – Celebrex, Pennsaid, alti-cyclobenzaprine, and Tylenol with codeine – on an as-needed basis when he experiences physical injuries, and none of the prescriptions include refills. It cannot be said that the Applicant is dependent on, or abusing medication when it is being prescribed by his family physician in a rational manner and there is no evidence of abuse or dependency. As outlined previously, there is no compelling evidence indicating that the Applicant suffers from psycho-social sequalae as a result of the accident. I find no evidence of dependence on healthcare providers or family. The evidence shows that the Applicant discusses his health with his family physician on an irregular and as-needed basis, and no treatment records are before me to indicate a dependence on those healthcare providers. The Applicant has not directed me to examples of deconditioning due to disuse or a failure to restore pre-accident function following a period of disability and I find nothing in the medical records before me to indicate that the Applicant experienced such issues.

30Overall, it appears that the Applicant suffered from periodic pains following the accident, but I find no evidence demonstrating that he suffers from a chronic pain condition as a result of the accident. Having found no evidence of a non-minor injury, it follows that I find that the Applicant sustained a minor injury as result of the accident and is subject to the MIG and the $3,500.00 funding limit for a minor injury.

The Applicant is not entitled to the treatment and assessment plans in dispute

31The plans in dispute propose goods and services that fall outside the MIG. Having found that the Applicant is subject to the MIG, it follows that he is not entitled to the plans in dispute.

Income replacement benefits (“IRBs”)

32I find that the Applicant has not demonstrated that he is entitled to IRBs for the period claimed.

33To qualify for IRBs, the Applicant must demonstrate that he suffers a substantial inability to complete the essential tasks of his employment as a service and sales representative for a large commercial uniform and cleaning company. For the following reasons, I find that he has not met his onus to demonstrate entitlement to IRBs.

34The Applicant does not dispute the quantum of IRBs paid to him for the period from the date of the accident until December 13, 2021. On January 5, 2022, the Respondent paid $3,884.00 in IRBs to the Applicant, following receipt of his Employer’s Confirmation Form and Disability certificate. The Applicant does not dispute this fact, nor does he indicate that the amounts paid are incorrect. Instead, he limits his claim for the period from December 14, 2021, to-date and ongoing, at the rate of $400.00 per week.

35According to the Applicant’s submissions, he is unable to work, do his chores, or move around as a result of the accident. His various submissions state that he could not go back to work immediately, attempted to resume work but found he was physically unable to perform at his usual level, missed work for a week after the accident, and experiences difficulty in his daily functioning. For these reasons, according to the Applicant, he is entitled to IRBs at the rate of $400.00 per week for the period from December 14, 2021 to-date and ongoing.

36The Respondent submits that the Applicant returned to work as a sales service representative, no later than December 13, 2021. To the Respondent, he no longer met the test for IRBs following that date, because he did not suffer a substantial inability to perform the essential tasks of his employment.

37I find that the Applicant returned to work following the accident, negating his claim for IRBs. His return to work occurred as early as one week following the accident, and as late as December 13, 2021. In the psychological assessment report, by Dr. Papazoglou, dated February 24, 2022, the Applicant reported that he returned to work within a week of the accident. In the alternative, the Applicant returned to work on or before December 13, 2021, as indicated in the Employer’s Confirmation Form, completed by the human resources manage at his employer. His tax returns show that he had reduced income in 2021, the year of the accident in which he received IRBs, but his income in 2022 was greater than his 2020 income. This suggests that he missed no time from work in 2022. Overall, I find that the Applicant has not led any evidence otherwise to suggest that he missed work or lost income after December 13, 2021, as a result of the accident.

38The disability certificates proffered by the Applicant hold little weight. The Applicant submitted two disability certificates. The first one, completed by Dr. C. Jakeer, chiropractor, dated September 27, 2021, finds that the Applicant sustained sprain and strain injuries to his neck, back, and hips, and is suffering from anxiety and sleep disorders, and irritability. Dr. Jakeer suspected that the Applicant would be disabled for a period of 9-12 weeks but noted that he returned to work on modified duties. The other disability certificate, completed by Dr. Ansari, the Applicant’s family physician, dated September 30, 2021, identifies sprain and strain injuries to the back, neck, and shoulder, and no other injuries. Dr. Ansari opined that the Applicant could not return to work on modified duties but felt the disability would last only one to four weeks. These disability certificates indicate that the Applicant’s healthcare providers felt that he could work prior to the termination of his IRBs on December 13, 2021. No other disability certificate has been submitted to support ongoing entitlement to IRBs.

39Dr. Ansari’s CNRs do not indicate that the Applicant is disabled from working as a service and sales representative for a large commercial uniform and cleaning company. The Applicant has not directed me to any instances in Dr. Ansari’s CNRs to indicate that he is unable to perform any of the essential tasks of his employment, and my review of the records suggest the same. In fact, according to the CNRs, Dr. Ansari completed “fitness for work” forms for the Applicant on January 6, and March 1, 2022, but never indicated any disability or that the Applicant was not fit for work.

40Accordingly, I find that the Applicant had not demonstrated that he suffers a substantial inability to complete his essential tasks of a service and sales representative for a large commercial uniform and cleaning company.

Interest

41Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no interest is payable.

Award

42The applicant sought an award under section 10 of Regulation 664. Under section 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.

43The Applicant claimed entitlement to an award on the grounds that, according to him, the Respondent failed to pay the benefits within the time required. He does not specify which benefits were not paid on time, nor does he specify when the benefits were due. The Respondent denies that it unreasonably withheld or delayed payments and submits that it has acted in accordance with the Schedule.

44I find no basis for an award. The Applicant has not identified any behaviour which can be characterized as stubborn, imprudent, inflexible, or immoderate. Thus, no award is payable.

CONCLUSION AND ORDER

45The Applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.

46The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services that fall outside the MIG and the $3,500.00 funding limit.

47No IRBs are payable.

48No interest or award is payable.