Citation: Sanmugarajah v. Nordic Insurance Company of Canada, 2025 ONLAT 23-014666/AABS

Licence Appeal Tribunal File Number: 23-014666/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:

Ananth Sanmugarajah

Applicant

and

Nordic Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Timothy Porter

APPEARANCES:

For the Applicant:

Rizwana Fathima Nazar, Counsel

For the Respondent:

Darrell March, Counsel

HEARD: by Videoconference:

April 28 - May 7, 2025

OVERVIEW

1Ananth Sanmugarajah, the applicant, was involved in an automobile accident on November 9, 2006, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (the “Schedule”). The applicant was denied benefits by the respondent, Nordic Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2This case has been heard previously and the decision set aside, see 2019 ONFSCDRS 9.

ISSUES

3The issues in dispute are:

i. Has the applicant sustained a catastrophic impairment, according to s. 2(1.2)(f) or 2(1.2)(g) [i.e. criterion 7 or 8], as defined by the Schedule?

ii. Is the applicant entitled to $2,606.80 for an attendant care needs assessment, proposed by Rehab Generations in a treatment plan/OCF-18 (“plan”) submitted June 3, 2022?

iii. Is the applicant entitled to $22,116.25 for a catastrophic impairment (CAT) assessment, proposed by Excel Medical Diagnostics in a plan submitted December 6, 2022?

iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Rehab Generations in a plan submitted March 6, 2023?

v. Is the applicant entitled to $6,616.40 for occupational therapy services, proposed by Rehab Generations in a plan submitted March 17, 2023?

vi. Is the applicant entitled to attendant care benefits in the amount of $4,071.27 per month from November 2, 2022, to March 2, 2023?

vii. Is the applicant entitled to attendant care benefits in the amount of $3,022.61 per month from March 3, 2023, to date and ongoing?

viii. Is the applicant entitled to housekeeping and home maintenance benefits in the amount of $100.00 per week from January 7, 2023, to date and ongoing?

ix. Is the applicant entitled to $350.00 for interpretation services during a psychological assessment, proposed by Rehab Generations in a plan submitted December 6, 2023?

x. Is the applicant entitled to $2,550.00 for a home safety and accessibility assessment, proposed by Rehab Generations in a plan submitted December 6, 2023?

xi. Is the applicant entitled to $3,247.00 for a nutrition assessment and counselling, proposed by Rehab Generations in a plan submitted December 6, 2023?

xii. Is the applicant entitled to $6,920.86 for case management services, proposed by Rehab Generations in a plan submitted December 6, 2023?

xiii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

xiv. Is the applicant entitled to interest on any overdue payment of benefits?

xv. Is the respondent owed costs?

4Costs were added at the beginning of the hearing at the request of the respondent, pursuant to Rule 19.2 of the Licence Appeal Tribunal Rules, 2023.

RESULT

5The applicant has not met his onus to prove he suffered a catastrophic impairment as a result of the subject accident.

6The applicant is not entitled to the assessment plans in dispute.

7The applicant is not entitled to the attendant care benefits in dispute.

8The applicant is not entitled to the treatment plans for occupational therapy services, housekeeping services, interpretation services or case management services in dispute.

9The applicant is not entitled to a s. 10 award.

10As there are no benefits owing, the applicant is not entitled to interest.

11The respondent is not owed costs.

PROCEDURAL ISSUES

The applicant may not rely on three reports

12The applicant may not rely upon the reports of Dr. Basile, neurologist, Dr. Shahmalak, psychiatrist and Mr. De Feo, OT. The clinical notes and records (“CNRs”) from treating psychiatrist Dr. Gunaratnam will be subjected to weight as set out in this decision.

13The LAT is required to allow cross-examination in accordance with s. 10.1(b) of the SPPA. The refusal to allow cross-examination, where notice has been given that cross-examination is required and the subsequent acceptance of unchallenged evidence, is a denial of procedural fairness. While the LAT may have its own procedural rules that allow for the most expeditious and cost-effective hearing of a dispute, those rules do not allow for an unfair process by which an expert’s opinion can become unchallenged evidence – this is doubly so where there is a prima facie inconsistency of significance exposed in the expert’s report.

14Early in the hearing, I raised questions as to whether one of the respondent’s CAT assessors, Dr. Dost, was still practicing as a physician. In addition, at the conclusion of the applicant’s case, it was apparent the applicant could not produce four identified witnesses, and the respondent elected not to call any witnesses. I proactively raised the principles illuminated by Plante v. Economical Insurance Company, 2024 ONSC 7171 (“Plante”) and requested submissions on how to weigh untested evidence.

15The respondent submits that they have identified several specific reasons to cross-examine the applicant’s assessors and have regularly, throughout the dispute, identified that they would like to cross-examine the applicant’s assessors. The respondent submits that the reports of Dr. Basile, neurologist, Dr. Shahmalak, psychiatrist, Mr. De Feo, OT and Dr. Gunaratnam, psychiatrist should be completely excluded from evidence as the respondent has been denied the right to cross-examine the experts to test their evidence.

16The applicant submitted that the reports of Dr. Basile, Dr. Shahmalak and Mr. De Feo, OT are relevant, the most contemporaneous reports of the applicant’s function, and that the assessors are qualified experts. The applicant submits that the reports should be accepted as evidence and full weight given.

17The respondent wrote to the applicant on October 11, 2024, to inform them that the respondent wished to cross-examine all witnesses identified in their witness list. The respondent submits that the four doctors reports do not consider Dr. Chadda’s, psychiatrist, report of 2018 or the applicant’s insistence to Dr. Chadda in the 2018 assessment, for a January 2017 motor vehicle accident, that he was “100% healthy” prior to 2017; that the reports do not adequately explore the cause of their impairment findings and in fact there is no evidence or analysis that the alleged impairments were caused by the 2006 accident. The respondent wished to cross-examine the applicant’s assessors on these points. For these reasons, the respondent submits the applicant’s assessors’ reports should be completely excluded from the evidence of the hearing.

18I find that on October 9, 2024, the applicant’s counsel submitted their list of intended witnesses which included Dr. Senthuran Gunaratnam, treating psychiatrist, Dr. Vincenzo Basile, neurologist, Dr. Shahzad Shahmalak, psychiatrist and Mr. Luciano De Feo, OT. These witnesses were also identified in the case conference report and order of May 8, 2024.

19At the beginning of the hearing, the applicant reaffirmed verbally with me their intention to call the witnesses on their submitted list. By day 6 of the hearing, it was apparent that the applicant did not call Dr. Gunaratnam, Dr. Basile, Dr. Shahmalak nor Mr. De Feo to testify.

20I am excluding the reports of Dr. Basile, Dr. Shahmalak and Mr. De Feo. The respondent has identified on several occasions that they wished to cross-examine the witnesses of the applicant. These witnesses were on the applicant’s list of witnesses, and despite this, they were not called by the applicant. In addition, the respondent has identified a prima facie inconsistency in the reports. Therefore, in keeping with Plante, the applicant may not rely on these reports, and they are excluded as evidence in the hearing.

21I now turn to the clinical notes and records of Dr. Gunaratnam. I find that the notes of Dr. Gunaratnam, a treating psychiatrist, are distinguishable from the expert reports of Dr. Basile, Dr. Shahmalak, and Mr. De Feo. The evidence of Dr. Gunaratnam is as a result of treating physician relationship and is not an expert opinion. In my view, these records were created in the course of a treating relationship, CNRs are a record of patient complaints and the course of exploration or treatment; I will allow the fact-based record of care contained within the CNRs of Dr. Gunaratnam in as evidence, however, any opinion contained therein will be excluded as evidence.

ANALYSIS

The applicant has not met his onus under Criterion 8

22For the reasons that follow I find that the applicant has not met the legal test and is not determined to have suffered a catastrophic impairment, according to criterion 8, as a direct result of the November 9, 2006, accident.

23To determine whether an insured person is catastrophically impaired under Criterion 8, the Tribunal considers whether the accident caused a mental or behavioral disorder, the impact of the disorder to the person’s life, and the level of impairment as described in section 2(1.2)(g) (“Criterion 8”) of the Schedule. The applicant bears the onus to prove on a balance of probabilities that he is catastrophically impaired. The test to determine whether the applicant has sustained a catastrophic impairment is a legal test and not a medical test (see Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Ltd.), 2009 ONCA 571).

24Next, criterion 8 requires evidence of the insured person’s impairment levels due to a mental or behavioural disorder. Impairment levels are to be assessed in relation to four functional domains: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, and pace and (4) adaptation (deterioration or decomposition in work or work-like settings). To meet the Schedule’s threshold for a catastrophic impairment designation under Criterion 8, an individual must have one marked (class 4) or one extreme (class 5) impairment as a result of the accident due to a mental and behavioural disorder. These impairments are assessed under the 4th edition of the AMA Guides. Mental and behavioural impairments are rated according to how seriously they affect a person’s useful daily functioning. The spheres of functioning and the levels of impairment are outlined in the chart below:

Area or Aspect of Functioning

Class 1: NO Impairment

Class 2: MILD Impairment

Class 3: MODERATE Impairment

Class 4: MARKED Impairment

Class 5: EXTREME Impairment

Activities of Daily Living (“ADLs”)

No impairment is noted

Impairment levels are compatible with most useful functioning

Impairment levels are compatible with some, but not all useful functioning

Impairment Levels Significantly impede useful functioning

Impairment levels preclude useful functioning

Social Functioning

Concentration, Persistence and Pace (“CPP”)

Adaptation (In a work-like setting)

25The applicant has been in several automobile accidents after the subject accident; motor vehicle accidents occurred on February 2, 2007, April 25, 2008, January 17, 2017, and September 8, 2020. An additional burden exists in that the applicant must establish that it was the subject accident that is, on a balance of probabilities, a cause of any injuries.

26The applicant submits that he has been catastrophically impaired as a result of the subject accident, suffering major depressive disorder, posttraumatic stress disorder and chronic pain; and relies on the report by Dr. Rosenblatt, psychiatrist.

27The respondent submits that the applicant is not catastrophically impaired and is fully recovered from the subject accident.

28Dr. Rosenblatt issued his report April 14, 2010, and provided a diagnosis of major depressive disorder, partially treated, posttraumatic stress disorder and pain disorder associated with both psychological factors and general medical condition and provided the following ratings for the areas of functioning:

Area or Aspect of Functioning

Class 1: NO Impairment

Class 2: MILD Impairment

Class 3: MODERATE Impairment

Class 4: MARKED Impairment

Class 5: EXTREME Impairment

Activities of Daily Living

Moderate Impairment

Social Functioning

Moderate Impairment

Concentration, Persistence and Pace

Moderate Impairment

Adaption (In a work-like setting)

Marked Impairment

29The applicant is claiming a marked impairment of his adaptation sphere, and his claim is not based on marked or extreme impairment of ADLs, social function nor concentration, persistence and pace. Therefore, the analysis will focus on the adaptation sphere.

30I provide little weight to the report of Dr. Rosenblatt because he does not utilize the report of an OT or collateral interviews in the formulation of his opinion. Dr. Rosenblatt noted that the use of the translator limited the ability of the assessor to engage in formal cognitive testing which I infer to mean the assessment is less robust than Dr. Rosenblatt would like. This inference is another reason I assign a diminished weight.

Adaptation

31Deterioration or decompensation in work or work-like settings refers to repeated failure to adapt to stressful circumstances. In the face of such circumstances the individual may withdraw from the situation or experience exacerbation signs and symptoms. He or she may decompensate and have difficulty maintaining activities of daily living, continuing social relationships, and completing tasks. Stressors common to the environment include attendance, making decisions, scheduling, completing tasks and interacting with others.

32For the reasons that follow I find that, on a balance of probabilities, the applicant does not suffer a class 4 marked impairment of his adaptation function, as a direct result of the subject accident.

33I am not persuaded that the applicant was fully functional and employed prior to the subject accident. Dr. Rosenblatt’s impairment rating in this domain is inextricably linked to his belief that the applicant was employed and fully functional prior to the subject accident. Dr. Rosenblatt opines that the applicant has a marked, class 4, impairment of his adaptation function. Dr. Rosenblatt continues that the applicant has not returned to any work following the subject accident, is involved in little productive behaviour and does not perform chores at home and has no strategies for dealing with stress. In my mind, Dr. Rosenblatt’s report provides insufficient analysis for this finding.

34There is no supporting evidence of the applicant’s testimony. The applicant testified that he was working full-time as a cook and was also self-employed with a catering business at the time of the accident. However, the applicant did not comply with the Tribunal’s case conference report and order of May 8, 2024, wherein the applicant agreed to provide the respondent with income tax returns, employment insurance files, Canada pension plan files, and employment files, covering the period just prior to and after the subject accident. None of these materials were exchanged or included in any briefs, which was raised several times as causing prejudice to the respondent. As these materials have been agreed to be exchanged and have not, and such materials would have been beneficial to the Tribunal in its determination, I am drawing an adverse inference that, because they have not been exchanged and submitted, their content would not have been favourable to the applicant’s case. In contrast, I point to the report of Ms. Lynn Rutledge, OT who attempted to conduct a job site analysis on March 19, 2007, but was unable to establish contact with the employer. On a balance of probabilities, I find the applicant was not working full-time nor self-employed, prior to the subject accident.

35On a balance of probabilities, I find that the applicant was suffering from depression before the subject accident. Dr. Sooriabalan, psychiatrist provided a report to the family physician on February 1, 2006, which is 9 months prior to the subject accident. The doctor agrees to undertake cognitive behaviour therapy in conjunction with continued daily pharmacological intervention. Dr. Sooriabalan notes that the applicant had not been working for 1 year prior to this visit and appears not motivated to do anything, he is easily angered and not tolerant of noises. Dr. Sooriabalan also notes that the applicant has not changed much since their last interaction 3 years prior wherein the Doctor states that the applicant “has not changed much; he is still not motivated to do anything with his life…”. Pharmacy records from Wadland Pharmacy in Scarborough indicate a prescription was prepared on the date of the subject accident. On a balance of probabilities, the applicant had just picked up his latest prescription for mental health support just prior to the subject accident. And finally, the clinical notes and records of Dr. Jeyapragasan, family physician from December 14, 2006, also highlight in a referral for service “His depressive symptoms have worsened after his recent motor vehicle accident.” Taken together I am persuaded that the applicant was not fully functional at the time of the subject accident.

36As I found the applicant was, on a balance of probabilities, not employed or self-employed and not fully functional prior to the subject accident, I find Dr. Rosenblatt’s analysis is undermined and I do not find it persuasive that the applicant has suffered a marked class 4 impairment of his adaptation function, as a result of the subject accident.

37For the reasons above I find that the applicant has not met the legal test and is not determined to have suffered a catastrophic impairment, according to criterion 8, as a direct result of the November 9, 2006, accident.

The applicant has not met his onus under Criterion 7

38For the reasons that follow I find that the applicant has not met the legal test and is not determined to have suffered a catastrophic impairment, according to criterion 7, as a direct result of the November 9, 2006, subject accident.

39To meet the threshold of catastrophic impairment under Criterion 7, the applicant must prove that he has a combination of physical and psychological impairment ratings from medical professionals that meet the 55% whole person impairment (“WPI”) threshold. The psychological impairment rating is determined in accordance with the methodology in the AMA Guides 4th edition. The psychological WPI impairment rating is combined with the physical WPI rating from the Guides, 4th Edition using the Combined Values Table. An impairment percentage derived by means of the Guides, 4th Edition is intended to represent an informed estimate of the degree to which an individual’s capacity to carry out daily activities has been diminished due to injuries sustain in the accident that results in a WPI of 55% or more. WPI ratings are rounded up or down to the nearest 5% (e.g. a 52% is rounded down to 50, while a 53% is rounded up to 55).

40The applicant has the burden of proving on a balance of probabilities that they are catastrophically impaired, under criterion 7, as a result of the accident.

41The applicant submits that he is catastrophically impaired as a direct result of the November 9, 2006, accident, suffers functional limitations from chronic myofascial strains of the cervical, thoracic, and lumbosacral spine, chronic pain syndrome and major depressive disorder. The applicant relies on the clinical notes and records (“CNRs”) of the report and testimony of Dr. Getahun, orthopedic surgeon, and the report of Dr. Rosenblatt, psychiatrist.

42The respondent submits that the subject accident was a relatively minor collision, and that the applicant has been in several subsequent collisions which are more likely the cause of any functional limitations the applicant suffers.

43As outlined in the procedural issues above, Dr. Shahmalak, Dr. Basile and Mr. De Feo’s reports were excluded from evidence and therefore ratings from these reports are not incorporated into my analysis. As a result, the applicant’s assessors are drawn from the April 14, 2010, psychiatric report of Dr. Rosenblatt and the physical assessment of Dr. Getahun from August 1, 2023.

44As the applicant’s reports come from 2 different assessments conducted at two different time periods there is no executive summary to provide a cohesive WPI rating. The rating by these two independent assessors is being inferred from the Guides, 4th Edition using the Combined Values Table.

45Dr. Getahun provides a physical impairment rating from an orthopaedic perspective of spinal impairment of 15% WPI and chronicity of symptomatology of 3% WPI resulting in a combined 18% WPI from a physical perspective. The applicant is diagnosed with Chronic myofascial strain of the cervical spine, thoracic spine, lumbosacral spine, and chronic pain syndrome.

46I provide a diminished weight to the report of Dr. Getahun because his diagnosis of chronic pain is not supported with a fulsome analysis of the six diagnostic criteria established by the American Medical Association Guides, 6th edition. In particular Dr. Getahun lists each diagnostic criteria and states that the applicant meets the criteria, with no further analysis of evidence presented. Finally, Dr. Getahun, in my view, does not inquire sufficiently regarding the applicant’s pre-accident health, relying heavily on the applicant’s memory as opposed to medical records. Similarly, Dr. Getahun does not make inquiries as to the impact of the multiple subsequent accidents the applicant has been involved in.

47I am not persuaded by Dr. Getahun’s report and testimony because causation is not sufficiently correlated or established. The subject accident occurred November 9, 2006, and this report was issued August 1, 2023, more than 16 years post-accident with multiple motor vehicle accidents and falls having occurred in the intervening period. Dr. Getahun reviewed a December 7, 2020, MRI of the cervical and lumbar spine which notes degenerative changes along with disc protrusion at the right L4-L5; these degenerative changes are noted as compressing the L4 nerve root. This is not addressed by Dr. Getahun. I turn to a report from early in the claim history in which Dr. H. Platnick, physician, assessed the applicant September 9, 2009, and issued a report September 24, 2009. Dr. Platnick concluded the applicant had sustained uncomplicated soft tissue injuries that arose from the subject MVA and that these soft-tissue injuries had completely resolved, and no accident-related injury or impairment exists. This report was not provided to Dr. Getahun for his review. Dr. Getahun did review the report of Dr. Nesterenko and does not account for these findings in his analysis. Dr. Maria Nesterenko assessed the applicant March 26, 2013, and issued a report April 22, 2013. Dr. Nesterenko highlighted that the applicant walked with a normal gait without any limp and did not appear to be in any distress due to pain. Upon examination for range of motion it was noted that the cervical, thoracic, and lumbar spine, shoulders, knees, and lower legs moved within normal ranges and muscle tone and bulk in each of these areas was noted as normal with no noted atrophy. Dr. Nesterenko concluded that the applicant did not demonstrate any ongoing objective musculoskeletal impairment attributable to the subject accident. I cannot accept Dr. Getahun’s findings, 16 years post accident, when they do not account for findings that are so explicitly contrary 6 years post accident.

48I find that the applicant was suffering from degenerative disc disease prior to the subject accident. The x-ray report of Dr. Adamo, on March 6, 2003, diagnoses mild degenerative changes lower lumbar facet joints and points to L5-S1 area of the spine. In addition, Dr. Bellisimo, general physician and pain specialist, assessed the applicant August 17, 2007 (6 months after the applicant’s second accident of April 25, 2008). Dr. Bellisimo notes that x-rays of the cervical spine, lumbar spine, sacrum, sacroiliac joints, and right wrist were essentially normal with the exception of the L5 S1 area of the spine which show mild degeneration.

49Dr. Rosenblatt describes impairments such as difficulties with self care and personal hygiene, problems with communication, suffering from insomnia, irritability, decreased social contact, lack of motivation, psychomotor retardation, and poor concentration. Dr. Rosenblatt provides a GAF score of 48-50 and finds the corresponding WPI to be 30-34%.

50I am not persuaded by the report of Dr. Rosenblatt because causation is not sufficiently correlated or established by Dr. Rosenblatt. He begins his causation analysis with the faulty premise that the applicant was fully functional and working 7 days a week immediately prior to the subject accident. I have determined that the applicant was not working and was not fully functional prior to the subject accident, as set out above. Dr. Rosenblatt also concludes that the applicant was not taking his depression medications immediately prior to the subject accident which is not supported by the prescription summary from Health Watch pharmacy records which demonstrate the applicant picked up a prescription for these medications the day of the accident.

51I give diminished weight to the report of Dr. Rosenblatt because his assessment is not supported by an OT assessment or any collateral interviews. Dr. Rosenblatt’s findings are based on his clinical interview and a review of records, which leaves the assessor without valuable corroborating information, in my opinion.

52Finally, the combined scores of the two assessors, if taken at face value, do not reach the required 55% WPI.

53The applicant has not met his onus to prove on a balance of probabilities that he is catastrophically impaired according to criterion 7, as a direct result of the subject accident.

The applicant is not entitled to the treatment and/or assessment plans in dispute

54To 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.

55According to s. 18(1)(a) of the Schedule, no medical or rehabilitation benefit is payable for expenses incurred more than 10 years after the accident. The date of the subject accident is November 9, 2006, and the 10-year mark was November 9, 2016.

56I find that all treatment and assessment plans in dispute were submitted more than 10 years after the subject accident. As applicant had not been found to have sustained a catastrophic injury as a result of the subject accident, the treatment plans in dispute are not payable as they are not eligible as per s. 18(1)(a).

Interest

57As no benefits are owing, no interest is due.

Award

58The 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 there are no benefits which have been unreasonably withheld or delayed, no award is due.

Costs

59Rule 19.1 of the Licence Appeal Tribunal Rules, 2023, provides that a party may request costs of the proceeding, if they believe that the other party has acted unreasonably, frivolously, vexatiously, or in bad faith during the proceedings. Rule 19.2 provides that a request for costs may be made to the Tribunal in writing or orally at a case conference or hearing, at any time before the decision or order is released. Rule 19.4 further sets out the requirements for that request, which must include the reasons for the request and the particulars of the alleged conduct.

60At the beginning of the hearing the respondent submitted that costs should be awarded as the applicant has proceeded in bad faith.

61I find that the applicant’s behaviour was not unreasonable, frivolous, vexatious or in bad faith at the hearing. The applicant was engaged and attended throughout. I do not award costs.

ORDER

62The applicant has not met his onus to prove he suffered a catastrophic impairment as a result of the subject accident.

63The applicant is not entitled to the assessment plans in dispute.

64The applicant is not entitled to the attendant care benefits in dispute.

65The applicant is not entitled to the treatment plans for occupational therapy services, housekeeping services, interpretation services or case management services in dispute.

66The applicant is not entitled to a s. 10 award.

67As there are no benefits owing, the applicant is not entitled to interest.

68The respondent is not owed costs.