Citation: Kamaraj v. TD General Insurance Company, 2026 ONLAT 24-009042/AABS

Licence Appeal Tribunal File Number: 24-009042/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:

Sajieth Kamaraj

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Serena Rhyman, Paralegal

For the Respondent: Kateryna Borodenko, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sajieth Kamaraj ("the Applicant") was involved in an automobile accident on October 15, 2020, and sought benefits from TD General Insurance Company ("the Respondent") 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 and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. Is the Applicant entitled to a medical benefit in the amount of $4,011.20 for physiotherapy proposed by Aqua Wellness Centre in a treatment plan/OCF-18 ("plan"), dated June 4, 2024?

2. Is the Applicant entitled to the services proposed by Midland Wellness Centre as follows:

   i. $2,164.00 for a chronic pain assessment, proposed in a plan dated January 4, 2024;

   ii. $4,096.64 for chiropractic and massage therapy, proposed in a plan dated January 4, 2024;

   iii. $1,822.01 for an attendant care assessment, proposed in a plan dated October 18, 2024;

   iv. $1,079.92 for assistive devices, proposed in a plan dated October 25, 2024; and

   v. $3,451.82 for chiropractic services, proposed in a plan dated September 20, 2024?

3. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3The Applicant is not entitled to the plans in dispute because he has not demonstrated on a balance of probabilities that the goods and services proposed in them are reasonable and necessary as a result of the accident.

4No interest is payable because no payments were overdue.

BACKGROUND

5The Applicant was the driver of a vehicle which was struck from behind by another vehicle while stopped a major urban intersection. Police and ambulance attended at the scene of the accident, but the Applicant sought no medical attention that day. Instead, the Applicant was taken by tow truck to a collision reporting centre, and then a rental car business, after which he drove himself home.

6The Applicant met with Dr. P. Thalayasingam, family physician, about two weeks following the accident, on November 2, 2020, and complained of neck and back pain. Dr. Thalayasingam prescribed pain medication for the Applicant and referred him to physiotherapy. The Applicant's next accident-related visit with Dr. Thalayasingam was a phone consultation on January 20, 2021. During that meeting, the Applicant complained of neck and back pain and was advised to continue physiotherapy. The pain medication prescription was renewed during this visit.

7The Applicant made no pain complaints to Dr. Thalayasingam between January 20, 2021 and November 6, 2023. On November 6, 2023, the Applicant complained of neck and back pain. Dr. Thalayasingam noted that the Applicant has a history of lifting weights but did not refer to the subject accident. A prescription for pain medication was given, as well as advice to avoid strenuous activities. A similar visit occurred on November 20, 2023, with Dr. Thalayasingam. During that visit the Applicant complained of low back pain, was given pain medication samples, and advised to engage in physiotherapy. The subject accident is noted in the November 20, 2023 record.

8The Applicant did not see his family physician for any accident-related issues between November 20, 2023 and August 29, 2024. There are no records from Dr. Thalayasingam for the period following August 29, 2024 and there are no treatment records before me for any period after August 30, 2021.

ANALYSIS

9The onus is on the Applicant to demonstrate that the plans in dispute are reasonable and necessary as a result of the accident. To meet his onus the Applicant should identify the goods and services proposed in the plan and demonstrate through his medical evidence that the goods and services proposed are a reasonable and necessary component of his recovery, and that the fees associated with the goods and services are reasonable and necessary.

10For the following reasons, I find that the Applicant has not met his onus to demonstrate entitlement to the plans in dispute.

11The Applicant's claims are predicated on the notion that he suffers from ongoing accident-related pain, and that his pain is controlled while he is engaging in treatment with his service provider. To him, the plans have the goal of reducing or managing his accident-related pain and that the Respondent's denial of treatment has caused his pain to increase.

12The Respondent relies on insurer's examination's ("IEs") reports, and submits that the Applicant has failed to discharge his onus to demonstrate that the plans in dispute are reasonable and necessary as a result of the accident.

Chronic pain and ACB assessments, dated January 4, 2024 & October 18, 2024

13I find that the Applicant has not demonstrated on a balance of probabilities that the chronic pain and attendant care assessments are reasonable and necessary as a result of the accident.

14The Applicant has not demonstrated that he may suffer from a chronic pain condition which warrants a chronic pain assessment. The Applicant's family physician's CNR's include only four complaints of accident-related pain, and no accident-related complaints after November 20, 2023. His treatment records end August 30, 2021. None of this evidence demonstrates, or suggests, that he suffers from an ongoing functional impairment due to pain. At most, the two visits in November 2023 indicate that the Applicant had some back pain and was advised to reduce his heavy activity. There is no evidence that the Applicant continues to suffer from back pain or a functional impairment due to pain. The Applicant's minimal complaints to his family physician suggest that his pain is not at a threshold to warrant a chronic pain assessment.

15The Applicant has not demonstrated on a balance of probabilities that an assessment of attendant care needs is reasonable and necessary on a balance of probabilities. The Applicant's evidence, at most, suggests that he may have had some restrictions with heavy activities, but it does not indicate that he requires an attendant care assessment. The CNRs from Dr. Thalayasingam indicate some pain in the months immediately following the accident, and then pain again in the fall of 2023, for which Dr. Thalayasingam advised the Applicant to avoid heavy activity. To me, avoiding heavy activity and prolonged activities does not demonstrate on a balance of probabilities that the Applicant may need an assessment of his attendant care needs. Further, the fact that the Applicant has led no evidence after these visits to indicate any ongoing pain-complaints suggests that his issues are at a level such that they are subclinical, and do not require any further assessment.

16The IE reports indicate that ongoing chronic pain and attendant care assessments are not reasonable and necessary as a result of the accident. The IE report by Dr. Y.- K. M. Ko, physiatrist, dated September 27, 2021, noted that low back range of motion ("ROM") testing was declined by the Applicant, but he exhibited full active ROM in his neck and bilateral shoulders. Dr. Ko concluded that the Applicant exhibited no structural musculoskeletal injury or nerve impingement, and that he sustained an exacerbation of his pre-existing sprain and strain injuries in the accident, but that further facility-based treatment was unwarranted. Dr. S. M. - W. Tu, physician, in a report dated May 13, 2024, noted that the Applicant is independent with all his activities of daily living, and completes light housework. Dr. Tu concluded that the Applicant exhibited non-organic findings on examination and that the Applicant's clinical presentation was attributable to non-organic pain-focused behaviour. The IE by Dr. C. Bradbury, psychologist, dated September 27, 2021, noted that the Applicant remained independent with his self-care, was able to maintain his own room within the familial home and continues to do light housework. Dr. Bradbury concluded that the Applicant exhibited no significant substantial psychological impairment that would significantly preclude him from resuming his pre-accident vocational activities.

17The Applicant has led very little contemporaneous evidence to support his claim for these assessments. As noted, the Applicant's family physician's CNR's include only four pain-complaints. The CNRs indicate no accident-related complaints for the period between January 2021 and November 2023, and none after November 2023. His treatment records end August 30, 2021. The functionality depicted in the IEs and the minimal encounters with healthcare providers suggests that the Applicant does not suffer from a pain-related functional impairment that warrants ongoing investigation in the form of a chronic pain assessment or an attendant care assessment. Accordingly, on a balance of probabilities, I find that these assessments are not reasonable and necessary as a result of the accident.

Plans dated January 4, June 4, September 20, & October 25, 2024

18I find that the Applicant has not demonstrated that the plans in dispute are reasonable and necessary as a result of the accident.

19I note that in his submissions, the Applicant characterized the plan, dated January 4, 2024, as a psychological assessment. This is incorrect. The plan proposes chiropractic treatment and massage therapy. In fact, none of the plans in dispute propose any psychological services.

20I must also highlight that none of the plans in dispute include services provided by a physiotherapist, as recommended by Dr. Thalayasingam. Indeed, Dr. Thalayasingam recommended physiotherapy to address lingering back pain immediately following the accident and into 2021, and again two years later in November 2023, yet none of the plans in dispute propose goods or services provided by a physiotherapist and the hourly fees associated with the services are akin to that of a chiropractor or a massage therapist.

21I find that the CNRs from Dr. Thalayasingam do not support the goods and services proposed in the plans in dispute. Dr. Thalayasingam noted a history of weightlifting in the record on November 6, 2023, and omitted reference to the subject accident. To me, this indicates that the accident is likely a minor contributor to any physical impairment that the Applicant suffers to-date. Moreover, Dr. Thalayasingam never referred the Applicant to any specialist for ongoing pain and never documented any functional impairment due to pain. Dr. Thalayasingam's CNRs simply note that the Applicant had two accident-related pain complaints in the months immediately following the accident, and then two complaints of back pain two years later. To me, this indicates that the Applicant accident-related pain is not at a level to require ongoing therapy, such as that proposed in the plans, more than two years following the accident.

22There are no contemporaneous treatment records to indicate that the Applicant's pain is reduced through ongoing chiropractic treatment and massage therapy. As noted, the Applicant's treatment records end in 2021. Thus, he went for a period of over two years without facility-based treatment, and without any pain complains to Dr. Thalayasingam. This indicates that the Applicant can manage his accident-related pain without facility-based intervention.

23Lastly, there is no indication that the Applicant suffers from a functional impairment to warrant the assistive devices proposed. The plan dated October 25, 2024 seeks funding for a back support, sleep roll, cervical pillow, ergonomic mat, long-handled reacher, long-handled shoe horn, and a lightweight vacuum cleaner. The IE report of Dr. Tu, dated May 13, 2024, suggests that the Applicant is not as impaired as he reports to health practitioners. Dr. Tu concluded that the Applicant described subjective functional limitations much greater than informal observation. It was noted that the Applicant exhibited increased ROM, fluidity, and strength on informal observation compared to formal testing. This is consistent with the lack of functional limitations noted in Dr. Thalayasingam's CNRs. To me, the evidence indicates that the Applicant does not suffer from a functional impairment to warrant the devices proposed in the plan. Accordingly, I find the plan to be not reasonable and necessary as a result of the accident.

24Having concluded that the Applicant has not met his onus to demonstrate on a balance of probabilities that assistive devices and ongoing therapy are reasonable and necessary to reduce his pain and improve his function, it follows that I conclude that the Applicant is not entitled to the plans in dispute.

Interest

25Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found no benefits payable, it follows that no payments went overdue, and no interest is payable.

CONCLUSION AND ORDER

26The Applicant has not demonstrated on a balance of probabilities that the plans in dispute are reasonable and necessary as a result of the accident.

27No interest is payable because no payments were overdue.

28The application is dismissed.