Licence Appeal Tribunal File Number: 24-008756/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:
Arvind Ramnaraine
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: John Mazzilli
APPEARANCES:
For the Applicant: Joshua Gautreau, Counsel
For the Respondent: Kateryna Borodenko, Counsel
HEARD: By way of written submissions
OVERVIEW
1Arvind Ramnaraine, (“the applicant”), was involved in an automobile accident on December 23, 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 Wawanesa Mutual Insurance Company (“the respondent”) 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 and there is $39.48 remaining on the day of the case conference.
ii. Is the applicant entitled to $1,300.00 for chiropractic services, proposed by Harwood Wellness in a treatment plan/OCF-18 (“plan”) dated July 15,2022?
iii. Is the applicant entitled to $2,200.00 for psychological assessment, proposed by Harwood Wellness in a treatment plan dated August 23,2022?
iv. Is the applicant entitled to $2,579.78 for chiropractic services, proposed by Neurosync Physiotherapy and Rehab in a treatment plan dated September 23, 2022?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant remains in the MIG and is not entitled to payment for any of the costs of the disputed treatment and assessment plans as he has not demonstrated that they are reasonable and necessary.
4The respondent’s denial letters are in accordance with s.38(8) of the Schedule.
5As no benefits are owing, interest is not owing.
6The application is dismissed.
PROCEDURAL ISSUES
7I find that the applicant may rely upon the disputed evidence.
8The respondent argues that it did not receive some documents in accordance with the Case Conference Report and Order dated November 5, 2024. It argues that the clinical notes and records (“CNRs”) of the applicant’s family physician Dr. Kramer were not disclosed until it received the applicant’s hearing submissions and document brief and that the CNRs of Malvern Medical include 37 pages of records of which only 8 of 37 had been disclosed to the respondent prior to the hearing, however the remaining pages form part of the applicant’s hearing brief.
9The applicant did not provide the Tribunal with reply to submissions.
10Upon review of the Case Conference Report and Order dated November 5, 2024, I note that the respondent did not request any documents from the applicant, however the applicant is in breach of Licence Appeal Tribunal Rule 9, which states that the parties are required to exchange all documents, witness lists and anything else they intend to rely on as evidence at the hearing. The requirement for document exchange begins as soon as the application is filed with the Tribunal.
11I have considered the respondent’s position and its lesser ability if any to respond to the documents in questions which the applicant failed to produce to the respondent, and in accordance with LAT Rule 9.3, I will assign lesser weight if any to this evidence so that the respondent is not prejudiced by its inability to respond to this evidence.
ANALYSIS
MIG-Chronic pain with a functional impairment
12I find on a balance of probabilities that the applicant has not demonstrated that he suffers from chronic pain with a functional impairment that warrants removal from the MIG.
13Section 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.”
14An 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 a functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
15The applicant submits that as a result of the accident he has persistent pain in his right shoulder, neck and ongoing headaches and that his condition has become chronic over time because of the insufficient treatment received under the MIG limits. He submits that the impairments have caused substantial functional difficulties and physical limitation with his activities of daily living and employment.
16The applicant submits that based on the American Medical Association, Guides to the Evaluation of Permanent Impairment, 6th Edition (“the Guides”) he meets the criteria for chronic pain. The applicant relies on the CNRs of his family physician, Dr. Kramer, the CNRs of Dr. Gawel, neurologist, an X-ray dated January 6, 2024, from Rossland Diagnostics and an MRI of the Cervical spine dated February 5, 2024.
17Under the AMA Guides 3 or more of the following characteristic must be met for a diagnosis of chronic pain.
a) Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances.
b) Excessive dependence on healthcare provider, spouse or family.
c) Secondary physical deconditioning due to disuse and or fear-avoidance of physical activity due to pain.
d) Withdraw from social milieu, including work, recreation, or other social contacts.
e) Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs.
f) Development of psychosocial sequalae after the initial incident, including anxiety, fear-avoidance, depression, or nonorganic illness behaviors.
18The respondent argues that an assertion of chronic pain does not automatically warrant removal from the MIG, and that the applicant suffered soft tissue injuries as a result of the accident. It argues that the applicant does not substantiate how he meets the criteria under the AMA Guides 6th edition for chronic pain. The respondent argues that applicant returned to work as a plant manager one week following the accident and that no medical reports demonstrate that his injuries are affecting his activities of daily living or home maintenance abilities, and that the applicant did not fill any pain medication prescriptions until two years post accident. The respondent relies on the prescription summary of Shoppers Drug Mart.
19The applicant has failed to demonstrate that he should be removed from the MIG because the contemporaneous medical evidence does not suggest that the applicant suffers from chronic pain with a functional impairment that warrants removal from the MIG. In addition, the applicant has failed to demonstrate that he suffers from chronic pain under the AMA Guides 6th edition.
20On April 28, 2022, approximately four months post accident the applicant attended an appointment with his family physician. At this appointment the applicant complained of pain in his back and right shoulder and on May 6, 2022, in a follow up appointment the applicant also complained of headaches that he advises started following the accident.
21While the evidence shows that the applicant does suffer from headaches, I was not pointed to a functional impairment arising from the headaches. In addition, the imaging shows that the applicant’s headaches arise from sinus issues that are not accident related.
22Furthermore, the evidence shows that his shoulder and back injuries are soft tissue in nature and degenerative. This is confirmed by an X-ray on Jan 6, 2024, by Rossland Diagnostics as the findings note degenerative change at the A/C joint and mild osteoarthritis at the A/C joint. The only mentions of chronic pain are self reports from the applicant to his treatment providers. I was not pointed to an objective medical diagnosis or evidence from his family physician or a qualified professional that opines that the applicant suffers from chronic pain.
23In addition, the evidence shows that the applicant visited his family physician approximately 8 times in the two years following the accident, and approximately half of those visits relate to injuries from the subject accident, which does not suggest that the applicant has an excessive dependence on healthcare providers.
24While the applicant infers dependence on medication due to pain, the evidence shows that the applicant’s main treatment for headaches and shoulder/back pain have been Tylenol. While he was prescribed anti-inflammatory pain medication in May 2022, the applicant’s prescription summary shows that this prescription was not filled by the applicant. Therefore, I find that the applicant does not excessively rely on medications as a result of the accident.
25The evidence shows that the applicant is a married father of two, continued to work as a plant manager following the accident, he does not abuse/depend on prescription drugs or other substances, he does not have an excessive dependence on healthcare providers, spouse or family. I was not pointed to objective corroborating evidence that would suggest he has withdrawn from social milieu, work, recreation, or social contacts; therefore, the applicant has not met his onus to prove that he suffers from accident-related chronic pain in accordance with the AMA Guides, or chronic pain that results in a functional impairment from his accident-related injuries.
26I find on a balance of probabilities that the applicant has not demonstrated that he suffers from chronic pain with a functional impairment that warrants removal from the MIG.
MIG-Psychological injuries
27I find on a balance of probabilities that the applicant does not suffer from a psychological injury that warrants removal from the MIG.
28The applicant submits that his accident related back, and shoulder pains have caused him to experience ongoing psychological disorders that created barriers to his maximum recovery The applicant relies on an OCF-18 dated August 23, 2022, completed by Leon Steiner, psychologist.
29The respondent argues that the applicant’s family physician notes do not support a finding that the applicant has an ongoing psychological or cognitive complaint and that the failure to report any ongoing psychological and cognitive symptomology to his primary care physician further supports a finding that the applicant does not suffer from an accident-related psychological injury.
30The OCF-18 completed by Dr. Steiner, follows a pre-screen. Dr. Steiner lists the applicant’s complaints as fear and anxiety of being in a vehicle, flashbacks of the accident, intrusive thoughts of the accident, hypervigilance and avoidance of being in a vehicle. The applicant reports sleep initiation and sleep maintenance problems due to pain and nightmares, poor appetite, anger, frustration and lack of motivation. He feels depressed and reports concentration and memory difficulties. He no longer has the urge to socialize and has become withdrawn.
31I am not persuaded by Dr. Steiner’s pre-screen report because the contemporaneous evidence does not support the applicant’s self reported psychological symptoms to Dr. Steiner.
32On August 12, 2022, approximately eight months post accident the applicant’s only psychological complaint to Dr. Kramer is that he feels like the pain has affected him mentally because he is less active. At this time Dr. Kramer did not recommend any treatment for the applicant’s accident-related psychological complaint. Finally, the psychological pre-screen was conducted approximately one year and eight months post accident based on self reports from the applicant with no objective corroborating medical evidence to support his claim.
33I find on a balance of probabilities that the applicant does not suffer from a psychological injury that warrants removal from the MIG.
Section 3(8)
34The applicant submits that s.38(11) and s.3(8) of the Schedule apply, for any amounts not incurred, since the payment has been unreasonably withheld by the respondent and accordingly it should be payable, because he submits that the plans are reasonable and necessary.
35Section 3(8) states that if the Tribunal finds that an expense was not incurred because the insurer unreasonably withheld or delayed payment of a benefit, the Tribunal may, for the purpose of determining an insured persons entitlement to the benefit, deem the expenses to have been incurred.
36The applicant outlined the findings in each of the three OCF-18’s that were denied by the respondent, however he does not provide an analysis that explains why each assessment is reasonable and necessary for his specific impairment. It is the applicant’s burden to prove that the costs of each assessment and treatment are reasonable and necessary. It is not sufficient to list the findings of each OCF-18 without a discussion as to why the treatment and assessment plans themselves are reasonable and necessary. As established above, I found a lack of corroborating contemporaneous medical evidence supportive of chronic pain with a functional impairment or a psychological injury that would lead me to conclude that a psychological assessment or chiropractic treatment is reasonable and necessary.
37Accordingly, I find on a balance of probabilities that the applicant is not entitled to payment for any of the costs of the treatment plans or the assessment in dispute because he has not demonstrated that they are reasonable and necessary under s.3(8). As no benefits are overdue, follows that interest is not owing.
Section 38
38Section 38 of the Schedule provides a provision for claims of medical and rehabilitation benefits and for approval of assessments. Section 38(8) reads that within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.
39Section 38(11) is operative if the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan. Section 38(11) states that the insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies. Further, the insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).
40The applicant did not provide any reasons as to why the respondent is in breach of s.38(8) the Schedule, but rather provided a blanket statement as outlined above. It is not the Adjudicator’s role to build the applicant’s case for him, as no submissions are made as to why the denial letters are in breach of s.38(8). It follows that the remedies in s. 38(11) do not apply.
41I find on a balance of probabilities that the applicant has failed in his onus to prove entitlement to the treatment plans because the respondent did not breach s.38(8) of the Schedule.
Interest
42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, interest is not owing.
ORDER
43It is ordered that:
i. The applicant remains in the MIG and is not entitled to payment for any of the costs of the disputed treatment and assessment plans as he has not demonstrated that they are reasonable and necessary.
ii. The respondent’s denial letters are in accordance with s.38(8) of the Schedule.
iii. Since no benefits are owing, interest is not payable.
iv. The application is dismissed.
Released: February 17, 2026
John Mazzilli
Adjudicator