Licence Appeal Tribunal File Number: 23-013101/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:
Akilan Kanagaratnam
Applicant
and
TD General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Robert Rock
APPEARANCES:
For the Applicant:
Masood Fariad, Counsel
For the Respondent:
Jagdeep Khela, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Akilan Kanagaratnam, the applicant, was involved in an automobile accident on April 1, 2022, 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, TD 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 an income replacement benefit in the amount of $255.54 per week for the period from May 1, 2023 to date and ongoing?
ii. Is the applicant entitled to medical benefits proposed by Mackenzie Medical Rehabilitation Centre as follows:
a) $3,622.31 for chiropractic treatment proposed in a treatment plan/OCF-18 (“plan”) dated April 11, 2022;
b) $2,023.03 for chiropractic treatment proposed in a plan dated August 22, 2022; and
c) $1,525.84 for chiropractic treatment proposed in a plan dated September 21, 2022?
iii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
3The respondent submits in their written submission, that they have approved the OCF-18 from August 22, 2022, and this is no longer an issue in dispute.
RESULT
4The applicant is not entitled to IRB from May 1, 2023, to date and ongoing.
5The applicant is not entitled to the outstanding balance for the OCF-18 dated April 11, 2022.
6The applicant is not entitled to the OCF-18 dated September 21, 2022.
7There is no interest or award owing.
ANALYSIS
Income Replacement Benefit (IRB)
Pre-104 Week IRB
8To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
9The applicant has not proven on a balance of probabilities that he is entitled to IRB from May 1, 2023, to date and ongoing.
10The applicant received IRB from April 9th to June 20th, 2022 as a lump sum payment, and was informed that future payments would be $511.08 on a bi-weekly basis. Based on a series of s. 44 insurer’s examinations (IE), the respondent sent a notice to the applicant indicating it would be discontinuing the IRB payments as of April 1, 2023, because the IE deemed that he was not unable to perform the essential tasks of his employment.
11The applicant argues that he meets the criteria for IRB due to the injuries sustained in the accident, which he identifies as chronic pain and psychological impairments that have left the applicant unable to resume pre-accident employment. The applicant relies on the clinical notes and records (CNRs) of his family doctor, Dr. Sun.
12I find that the CNRs of Dr. Sun do not support the applicant’s claim that he is entitled to IRB. While the CNRs do have ongoing reporting of pain, this reporting is not directly tied to the subject accident. An example of this is found on a May 15, 2023, visit that reports whiplash, and the applicant’s request for an increase in dosage for Naproxen. There is no attribution made in the CNRs that this reporting of whiplash is accident related. Similarly, in discussion of the SLAP tear, bursitis and tendinopathy on July 19, 2023, Dr. Sun does not make any attribution of these injuries to the subject accident. The CNRs discuss remote trauma found on an X-ray on September 19, 2023, related to an injury the applicant suffered 7 years ago. That entry also notes that the applicant’s pain is improving. The CNRs do not discuss any specifics about the applicant’s inability to perform the essential tasks of his employment.
13The respondent argues that the applicant has not proven that he suffers a substantial inability to perform the essential tasks of that employment. The respondent relies on a series of s. 44 IE’s by Dr. Yahmad, neurologist, completed on February 9, 2023, Dr. Mandel certified psychologist, completed on February 24, 2023, Dr. Holland, chiropractor, completed on January 4, 2023, and several reports from Dr. Tabloie, orthopaedic surgeon, completed on February 24, 2023, and July 25, 2023, May 7, 2024.
14I find that the neurology IE by Dr. Yahmad does not support the applicant’s claim that he is entitled to IRB. Dr. Yahmad’s clinical opinion is that from a strict physical neurological perspective the applicant does not suffer a substantial inability to perform the essential tasks of his pre-accident employment.
15I find that the psychological file review IE by Dr. Mandel does not support the applicant’s claim that he is entitled to IRB because Dr. Mandel’s clinical opinion is that the applicant has not suffered a substantial inability to perform his pre-accident employment activities.
16I find that the Functional Capacity IE by Dr. Holland, does not support the applicant’s claim that he is entitled to IRB because Dr. Holland concluded that the applicant showed a deficit compared to his pre-accident but did not assess if the applicant suffered a substantial inability to perform essential tasks of his pre-accident employment. Dr. Holland deferred to make a final determination regarding the applicant’s substantial inability to perform the essential tasks of that employment to the concurrent assessors.
17I find that the orthopaedic assessment IE by Dr. Tabloie does not support the applicant’s claim that he is entitled to IRB. Dr. Tabloie’s opinion was that the applicant suffered myofascial sprain/strain injuries from the subject accident. Further, Dr. Tabloie noted that the physical examination was severely guarded by pain focused behaviour and pain apprehension, but there was no detectable nerve root tension signs. Dr. Tabloie also noted that the applicant did not participate in any orthopaedic tests that were required to rule out any other abnormalities in the right shoulder girdle. Dr. Tabloie left his final clinical finding as deferred due to not being provided medical imaging and the CNRs of the applicant’s orthopaedic surgeon. This deferral was re-enforced in an addendum report, where Dr. Tabloie reiterated that he had still not been provided with imaging or the CNRs of the applicant’s orthopaedic surgeon.
18In a further addendum, Dr. Tabloie notes that the applicant’s right shoulder complaints were not explainable with the findings of the right shoulder MRI from July 18. 2023. In Dr. Tabloie’s review of Dr. Sun’s CNRs he mentions a note indicating that the applicant suffered a right sternoclavicular joint dislocation, however, Dr. Tabloie notes that he was not provided with any medical imaging to support that diagnosis, and that he had still not received the CNRs of the applicant’s orthopaedic surgeon. Dr. Tabloie once again stated that due to the medical information he was provided, he is unable to comment on the applicant’s inability to preform essential tasks.
19I find that the applicant has not proven on a balance of probabilities that he is entitled to IRB from May 1, 2023 to-date and ongoing. The applicant relies predominately on self reporting evidence from the CNRs of his family doctor and excerpts from the s. 44 IEs. I have not been presented with medical evidence indicating the applicant’s claim that he suffers substantial inability to perform the essential tasks of his employment. As such, the applicant has not met his onus, on proving on a balance of probabilities that he suffers a complete inability to perform the essential tasks of his employment. Conversely, the respondent has provided multiple s. 44 reports that find that the applicant does not suffer substantial inability to perform the essential tasks of that employment. In both Dr. Holland’s and Dr. Tabloie’s report, while they did not make a final clinical diagnosis that was based partially on the applicant’s refusal of some of the testing, and in Dr. Tabloie’s s. 44 consistently not being provided CNRs and medical imagine. Taken together, I was more persuaded by the s. 44 reports due to all of them consistently not finding that the applicant suffered substantial inability to perform the essential tasks of that employment and the lack of medical evidence from the applicant that would argue those findings.
20The applicant is not entitled to IRB from May 1, 2023 to-date and ongoing. Due to my finding that the applicant is not entitled to IRB during the pre-104 period, I have not reviewed the post-104 period.
21To 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.
Chiropractic Treatment Plan for $3,622.31
22I find that the applicant has not proven on a balance of probabilities that he is entitled to the outstanding balance for the chiropractic treatment plan.
23The goals of the treatment plan are pain reduction, increased range of motion, increase in strength, return to activities of normal living and to modified work activities.
24The treatment plan includes 21 treatment sessions, 18 massage treatments, and other single sessions of various treatments.
25The respondent submits that it partially approved this treatment plan up to the guideline limit of $2,200.00 for a treatment plan. This amends the amount in dispute to $1,422.31 ($3,622.31-$2,200.00). The respondent provided a copy of correspondence sent to the applicant indicating partial approval of this treatment plan. This partial approval conforms with s. 25(5) of the Schedule which sets out a maximum of up to $2,000.00 for any one assessment proposed in an OCF-18.
26The applicant has made no submissions regarding the outstanding balance or their entitlement to the outstanding balance for this treatment plan.
Chiropractic Treatment Plan for $1,525.84
27I find that the applicant is not entitled to payment for this treatment plan.
28The goals of the treatment plan are pain reduction, increased range of motion, increase in strength, return to activities of normal living and to modified work activities.
29The treatment plan includes 8 treatment sessions, 8 massage treatments, and other single sessions of various treatments.
30The applicant made no specific argument concerning this treatment plan but only made a generic argument that all three treatment plans were reasonable and necessary. The applicant did not adduce any new evidence regarding his claim that this treatment plan was reasonable and necessary beyond the evidence introduced above.
31The respondent argues that the applicant has not proven that this treatment plan is reasonable and necessary, relying on a s. 44 IE from Dr. Tabloie, orthopaedic surgeon, completed on June 6, 2024.
32I find that the IE from Dr. Tabloie does not support the applicant’s claim that the treatment plan is reasonable and necessary because Dr. Tabloie found that based on his clinical examination, medical imaging, and other approved treatment plans for similar chiropractic treatments that this treatment plan is not reasonable and necessary.
33I find that the chiropractic treatment plan is not reasonable and necessary. The applicant has not shown how the treatment goals of this treatment plan would be reasonably met. Conversely, I was persuaded by the IE from Dr. Tabloie on the basis that similar treatment plans have been approved for the applicant, and as such this additional treatment plan would not be considered reasonable and necessary.
34I find that the applicant has not proven on a balance of probabilities that the chiropractic treatment plan is reasonable and necessary.
Interest
35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No interest is owing.
Award
36The 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. No award is owing because no benefits are overdue.
ORDER
37I find that:
i. The applicant is not entitled to IRB from May 1, 2023 to date and ongoing.
ii. The applicant is not entitled to the outstanding balance for the OCF-18 from April 11, 2022.
iii. The applicant has not proven that the OCF-18 from September 21, 2022 is reasonable and necessary.
iv. There is no interest or award owing.
Released: September 12, 2025
Robert Rock
Adjudicator