Kailasapillai v. Wawanesa Mutual Insurance Company, 2025 CanLII 97790

Licence Appeal Tribunal Decision

Citation: Kailasapillai v. Wawanesa Mutual Insurance Company, 2025 ONLAT 24-000408/AABS

Licence Appeal Tribunal File Number: 24-000408/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:

Rajanayagam Kailasapillai Applicant

and

Wawanesa Mutual Insurance Company Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Naman Nanda, Counsel

For the Respondent: Lyrica Roche, Counsel

HEARD: By way of written submissions

OVERVIEW

1Rajanayagam Kailasapillai, the applicant, was involved in an automobile accident on December 18, 2020, 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, Wawanesa 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:

1. 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?
2. Is the applicant entitled to the assessments proposed by Elite Specialist Group Inc., as follows: i. $2,460.00 for a neurological assessment, in a treatment plan dated August 24, 2023; and ii. $2,460.00 for an orthopaedic/physiatry assessment, in a treatment plan dated August 24, 2023?
3. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
4. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant has not established accident-related impairments that warrant removal from the MIG; ii. The applicant is not entitled to the treatment plans in dispute, or interest; and iii. The respondent is not liable to pay an award.

ANALYSIS

Minor Injury Guideline

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

5An insured person 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.

6The applicant submits that he should be removed from the MIG due to his accident-related psychological impairments and chronic pain.

Psychological impairments

7I find that the applicant has not established accident-related psychological impairments warranting removal from the MIG.

8In support of his claim, the applicant relies on his reports of psychological symptoms to two of the respondent’s s. 44 assessors. On October 30, 2023, he reported symptoms of anxiety to Dr. Patrick Tansey, the respondent’s orthopaedic assessor. On October 19, 2023 the applicant reported to Dr. David Kim, the s. 44 neurology assessor, that he had sleep difficulties, nightmares from the accident and driving anxiety. The applicant argues that both of these s. 44 reports were completed almost three years after the accident, and yet he still reported accident-related psychological symptoms.

9The respondent submits that the applicant should not be removed from the MIG on the basis of psychological impairment. It cites the Tribunal decision Nguyen v. Wawanesa Mutual Insurance Company, 2021 CanLII 96836 (ONLAT) to argue that some psychological symptoms are clinically associated sequelae of minor injuries and are therefore treatable within the MIG. The respondent submits that the applicant is relying solely on his self-reports to s. 44 assessors, but that he did not report any psychological symptoms to any treating physician in the years post-accident.

10The applicant has not met his onus of establishing, on a balance of probabilities, that he suffers from a psychological impairment warranting removal from the MIG.

11The applicant does not direct me to any diagnosis of a psychological impairment by a treating physician, or assessor. Although the applicant attended at his family physician’s office in the four years post-accident, he does not direct me to any clinical notes and records (“CNR”) entry where he reported psychological symptoms or was diagnosed with a psychological impairment by Dr. Lambotharan or any other treating physician. Although the applicant refers to his self-reports of psychological symptoms to the respondent’s assessors, these isolated reports are not corroborated by the objective medical record. Without medical evidence supporting a psychological impairment, I find that the applicant is not removed from the MIG on the grounds of psychological impairment.

Chronic pain

12The applicant argues that the medical record shows that he suffered from pain in his neck, lower back and left knee in the years post-accident. Diagnostic imaging also revealed degenerative changes in his left knee, cervical spine and lumbar spine. The applicant submits that he meets at least three out of the six criteria of the American Medical Association’s Guides (“Guides”) for establishing chronic pain, and that he should be removed from the MIG on this ground.

13I find that the applicant has not met his onus of establishing on a balance of probabilities that he suffers from chronic pain with functional impairment as a result of the accident.

14Although the applicant relies on the CNRs of his family physician Dr. Lambotharan, I do not find that they support a finding of accident-related chronic pain. The applicant does not direct me to any chronic pain diagnosis by Dr. Lambotharan or any treating physician. The applicant was not prescribed prescription pain medication, or referred to a pain specialist. Further, I agree with the respondent that the CNRs of Dr. Lambotharan reveal infrequent reports of accident-related pain. After the applicant completed physiotherapy in June 2021, he did not report experiencing pain again for more than a year afterward.

15I further find that the applicant has not satisfied three out of the six chronic pain diagnostic criteria as outlined in the Guides. Although the applicant points to the fact that his family doctor prescribed Tylenol on July 21, 2022 when he complained of accident-related pain, a single recommendation of Tylenol does not fulfill the Guides criteria of a dependence on prescription pain medication. In terms of excessive dependence on health care providers, spouse or family, the applicant’s only evidence was his self-report to Dr. Tansey that since the accident, his wife did the housekeeping activities. However, I note that the applicant had also reported to Dr. Tansey that he did not perform housekeeping duties before the accident.

16In terms of the Guides criteria of secondary physical deconditioning, withdrawal from social milieu/recreation and failure to restore pre-injury function, the applicant relies on his self-reports to Dr. Tansey of not participating in housekeeping and that he walks less since the accident, something that he had previously enjoyed. However, other than this report to the s. 44 assessor, the applicant does not point to any other report or evidence of such withdrawal or functional impairment. More is required to establish to what extent a chronic pain condition affects functionality. This opinion must be supported by medical evidence that establishes an applicant’s functionality is impaired and that the chronic pain is the cause of the disability. I do not find that the singular report to the assessor, without corroborating medical evidence, fulfills these Guides criteria.

17As such, I find that the applicant has not proven, on a balance of probabilities, that he should be removed from the MIG on the ground of chronic pain.

18As I have found the applicant’s injuries fall within the MIG, it is unnecessary for me to determine whether the claimed treatment plans are reasonable and necessary.

Interest

19Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable.

Award

20The 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. Since no benefits were unreasonably withheld or delayed, the applicant is not entitled to an award.

ORDER

21For the above reasons, I find:

i. The applicant has not established accident-related impairments that warrant removal from the MIG; ii. The applicant is not entitled to the treatment plans in dispute, or interest; and iii. The respondent is not liable to pay an award.