Citation: Tirulokan v. Economical Mutual Insurance Company, 2026 ONLAT 24-008189/AABS

Licence Appeal Tribunal File Number: 24-008189/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:

Shajeraj Tirulokan

Applicant

and

Economical Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Ilona Agivaeva, Counsel

For the Respondent:

Yuliya Yarema, Paralegal

HEARD: In Writing

OVERVIEW

1Shajeraj Tirulokan, the applicant, was involved in an automobile accident on December 11, 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 the respondent, Economical 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 $2,597.87 for a psychological assessment, proposed by Medex Assessments Inc. in a treatment plan/OCF-18 ("plan") submitted September 12, 2022?
3. Is the applicant entitled to physiotherapy services, proposed by Midland Wellness Centre in plans as follows: (i) $3,122.48, submitted January 9, 2023? (ii) $2,797.76, submitted December 17, 2023?
4. Is the applicant entitled to $2,164.00 for a chronic pain assessment, proposed by Midland Wellness Centre in a plan submitted February 23, 2023?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant has not met his onus to prove that he has not suffered a minor injury and should be removed from the $3,500.00 treatment limit of the Minor Injury Guideline.

4As the applicant is being held to the MIG, it is not necessary to determine if the treatment plans are reasonable and necessary.

5No interest is owing.

ANALYSIS

Should the applicant be removed from the MIG due to psychological injury?

6The applicant has not met his onus to prove he should be removed from the MIG due to psychological injury.

7Section 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."

8An 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 functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

9The applicant submits he should be removed from the MIG due to psychological injury. To support his submission, he is relying upon the Clinical Notes and Records from the applicant's family physician, Dr. Chan. Dr. Chan administered the Patient Health Questionnaire (PHQ-9) test on March 10, 2023, and diagnosed the applicant with depression and recommended a referral to a psychiatrist.

10Although the applicant's submissions make reference to a pre-screening with psychiatrist Dr. Shapiro, no clinical notes and records or medical reports from a psychiatrist were included with the applicant's evidence. I further note there are no reported complaints or psychological concerns expressed to Dr. Chan in the 15 months between the accident and when Dr. Chan made his diagnosis.

11The respondent submits that the applicant has not met his onus, because he has not proven an actual psychological impairment, versus mere symptoms or the sequelae from minor injuries.

12Although the onus is on the applicant to prove entitlement, I have not been led to medical evidence that supports a finding that the applicant has suffered a psychological injury as a result of the accident. I say this for three reasons.

i. In the absence of any documented psychological concerns reported to the family physician in the fifteen months since the accident, I am unclear as to whether the psychological symptoms can be related to the motor vehicle accident. The medical evidence of Dr. Chan does not address this question. ii. In the absence of expert psychiatric or psychological reports, I have only been presented with a diagnosis from a family physician. The evidence does not reference the accident. iii. I have not been led to evidence which establishes that the applicant has an accident-related psychological impairment, rather than psychological sequelae from minor physical injuries.

13For these reasons, I find, on the balance of probabilities, that the applicant has not met his onus to establish he should be removed from the MIG on the basis of psychological injury or impairment.

Should the applicant be removed from the MIG on the basis of chronic pain?

14The applicant has not met his onus to prove he should be removed from the MIG on the basis of chronic pain.

15The applicant submits he suffers from accident-induced chronic pain, and submits the aforementioned clinical notes and records from his family physician to support his claim. I note that Dr. Chan reported pain and tenderness in the applicant's back, shoulder, lumbar spine and knees in July 2022 and March 2023.

16The respondent argues that the applicant has again, not met his onus. It points to the fact there is no formal diagnosis of chronic pain, and points out that the applicant did not visit his physician until seven months after the subject accident.

17The onus remains with the applicant, and in this regard, I find the two incidents of reporting of pain complaints to a family physician in July 2022 and March 2023 are not sufficient to meet the test for removing an insured party from the MIG due to chronic pain.

18While the applicant may have reported pain on two occasions, what is required for removal from the MIG is evidence of chronic pain, with a functional impairment. The applicant has not established he has chronic pain, and I have not been led to supportive medical evidence which indicates a functional impairment.

19For this reason, I find that the applicant has not, on a balance of probabilities, met his onus to prove he should be removed from the MIG on the basis of chronic pain.

Should the applicant be removed from the MIG due to physical injuries?

20The applicant has not met the onus to prove he should be removed from the MIG on the basis of his physical injuries alone.

21The applicant argues he should be removed from the MIG because he suffered a broken bone. To support his claim, he has submitted an X-Ray report indicating he has suffered a broken rib, dated July 15, 2022.

22The applicant also points to the disability certificate / OCF-3 filed by Chiropractor Dr. Andrew McCutcheon in December 2022, where Dr. McCutcheon diagnosed radiculopathy. The applicant claims that radiculopathy falls outside of the MIG.

23I am not convinced by the applicant's evidence. I say this because, while a fractured rib would automatically remove an applicant from the MIG, the X-Ray supporting that claim was not created until July 2022. This is seven months after the subject accident. The X-Ray report does not make any reference to 'partially healed' or 'older' fracture that would indicate the fracture has been in place since the accident. I have not been led to any clinical notes and records indicating rib pain in the seven months between the accident and the X-Ray, and have not been led to any evidence which can tie the broken rib to the subject accident seven months prior.

24Turning to the issue of radiculopathy: the applicant argues that 'radiculopathy' is not defined in the MIG, and should automatically qualify an injured party to be removed from the MIG. The applicant has not included an authority on which he bases this argument. However, even if that were the case, I have not been led to evidence which indicates the radiculopathy has been incurred as a result of the accident.

25For these reasons, I find on a balance of probabilities that the applicant has not met his onus to prove he should be removed from the MIG on the basis of his physical injuries.

Is the applicant entitled to treatment plans for an improper denial?

26The applicant argues he should be entitled to the treatment plans from Midland Wellness Centre (Issues 3a and 3b) because the respondent has failed to comply with s.38(8) of the Schedule.

27Section 38(8) of the Schedule says the insurer must provide 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.

28The consequences of failing to adhere to s.38(8) are captured in s.38(11), which provides that "The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies."

29The applicant argues that the insurer has made an error of fact when it identified radiculopathy as a minor injury. They further claim the insurer violated the Schedule when they wrote in a denial letter dated March 7, 2023 that "Upon receipt of your medical records, if the information warrants it, we will review our decision regarding the above-mentioned treatment plan as well as if insurer's examinations would be necessary at this juncture", but upon receipt of further medical records, the respondent did not change its position.

30I have reviewed the two denial letters included in the applicant's evidence, dated March 7, 2023 and September 23, 2022. I find the letters are compliant with s. 38(8) of the Schedule.

31The letter of March 7 clearly identifies the treatment plan in dispute, and identify the medical reason for the denial of benefits. In this case, the insurer writes "since the injuries listed in this treatment plan fall within the minor injury guideline, and we have not been provided with any evidence of pre-existing injuries that will prevent you from achieving maximal recovery." They also state "It is our believe that the injuries you sustained are now resolved."

32The letter of September 23, 2022 stated that the injuries listed on the OCF-23 are Whiplash associated disorder, neck pain, radiculopathy and lumbar sprain and strain, which were all within the Minor Injury Guideline. I find both of these letters clearly contain a medical reason for the denial. The fact that the applicant's injuries are contained to the Minor Injury Guideline is a valid medical reason.

33The applicant argues that radiculopathy is not a minor injury, which renders this denial letter non-compliant. I have already ruled on the radiculopathy issue in paragraph 30, above. Furthermore, an insurer could be factually incorrect, but that does not render the denial letter non-compliant.

34While the applicant may not agree with the respondent's decision, I find that the respondent is compliant with s.38(8) in it's handling of this claim.

35Therefore, I find the applicant has not, on the balance of probabilities, met their onus to prove he should be entitled to any of the treatment plans for an improper denial.

36As the applicant is being held to the MIG, it is not necessary to do a reasonable and necessary analysis on the treatment plans in dispute.

Interest

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is owing.

ORDER

38The application is dismissed.

i. The applicant is being held to the Minor Injury Guideline. ii. The applicant is not entitled to the treatment plans in dispute. iii. No interest is owing.