Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-006192/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:
Sivashankar Balakumar
Applicant
and
Pembridge Insurance Company
Respondent
DECISION
ADJUDICATOR: Roderick Walker
APPEARANCES:
For the Applicant: Thomas Zwiebel, Counsel
For the Respondent: Diana M. Oliveira, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Sivashankar Balakumar, the applicant, was involved in an automobile accident on July 4, 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 Pembridge 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 limit?
ii. Is the applicant entitled to $2,484.59 for occupational therapy services, proposed by Jalpa Bode in a treatment plan submitted October 13, 2022?
iii. Is the applicant entitled to the assessments proposed by Darren Hylton, $3,238.58 for chiropractic services, in a treatment plan submitted July 27, 2022?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominately minor in nature and the applicant is subject to the MIG.
4The applicant is not entitled to any of the treatment plans or interest.
PROCEDURAL ISSUE
5I find that the Case Conference Report and Order dated September 11, 2024, required the applicant to serve the clinical notes and records of Dr. Tharmaratnam within 60 days, by November 11, 2024. The applicant served these records on May 5 and May 6, 2025, 175 days beyond the deadline. The applicant has provided no explanation or justification for this delay. The relief sought by the respondent is to exclude the CNR’s of Dr.Tharmaratnam at tabs B,C and D.
6Pursuant to Rule 9 of the Licence Appeal Tribunal Rules, 2023, the Tribunal has discretion to exclude evidence filed late where the delay is significant and unjustified, and where its admission would prejudice the other party or undermine the fairness of the proceeding. In this case, the delay is substantial, and the respondent has objected to the inclusion of these records. The applicant has not responded to this issue.
7Accordingly, I find without any explanation from the applicant for the 175-day delay, that the clinic notes and records of Dr. Tharmaratnam at Tabs B, C, and D of the applicant’s submissions are excluded from evidence in this hearing.
ANALYSIS
MIG
8Section 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.”
9An 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. In this case, the applicant is relying on a chronic pain impairment to be removed from the MIG.
10Here, the applicant asserts that removal from the MIG is warranted on the basis of their chronic pain.
The applicant does not suffer from a chronic pain impairment
11The applicant relies on an OCF-3 Disability Certificate prepared by Dr. Y. Tharmaratnam, family doctor, dated September 3, 2020, where the injuries to the applicant are stated as: right shoulder pain and low back pain. Dr. Tharmaratnam also opined that the applicant is substantially disabled from performing the essential tasks of his pre-accident employment, but that he can return to work on a modified basis. The doctor also opined that suffers a complete inability to carry on a normal life. Dr. Tharmaratnam recommends medication and physiotherapy. Also, the applicant relies on the clinical notes and records, (CNRs) from York Wellness Centre and the Spine Health Care Clinic, the disputed treatment plans from Dr. Darren Hylton for chiropractic services dated July 27, 2024, and a treatment plan for occupational therapy services proposed by Jalpa Bode, dated October 13, 2022.
12The applicant relies on the medical report of Dr. S. Kobrossi dated May 5, 2025, and the Treatment Plan prepared by Dr. Darren Hylton dated July 27, 2022. Dr. Hylton confirms under section 4 of his plan that the applicant’s injuries are not predominantly minor and recommends treatment for both the shoulder and the thoracic and lumbar spine. He further notes that the treatment is intended to assist with employment tasks and activities of normal life, consistent with the OCF-3 completed by the family doctor.
13Further, the applicant relies on the disputed treatment plan for occupational therapy services as well the treatment plan for chiropractic services to argue that he has sustained non-minor injuries. The listed impairments include chronic post-traumatic headache, post-traumatic stress disorder, reaction to severe stress, and adjustment disorders, adjustment disorders, somatoform disorders, nonorganic disorder of the sleep-wake schedule, sprain and strain of thoracic spine, sprain and strain of lumbar spine, sprain and strain of shoulder joint, rotator cuff pain and injury of muscle and tendon at neck level and mixed anxiety and depressive disorder.
14The respondent relies on Dr. A. Marchie’s February 24, 2021, s. 44 assessment report, in which the physiatrist concluded that based on imaging results, his clinical experience, and current guidelines that the applicant’s injuries are mainly minor and should remain classified under the MIG.
15The respondent states that based on the s. 44 reports noted above that the applicant’s injuries are minor, and he should remain in the MIG. I concur with the respondent.
16I find without the CNR’s of Dr. Tharmaratnam in tabs B,C and D of the applicant’s materials that are barred from this hearing, the above-mentioned injuries of the applicant includes, chronic post-traumatic headaches, post-traumatic stress disorder, reaction to severe stress, adjustment disorders, somatoform disorders and mixed anxiety and depressive disorders should be diagnosed by a medical doctor or a psychologist and that an occupational therapist or a chiropractor cannot diagnose psychological injuries as they are out of their areas of practice. With respect to the other physical injuries, the applicant has not submitted any contemporaneous evidence that would meet the burden of proof that the applicant has sustained non-minor injuries.
17Therefore, for these reasons, and on a balance of probabilities, the applicant remains in the MIG.
18Since I have found that the applicant’s injuries are predominantly minor and can be treated within the MIG, it is not necessary for me to consider whether the disputed treatment plans are reasonable and necessary.
Interest
19Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is not entitled to any interest because no benefits are payable.
ORDER
20On the totality of the evidence, I order that:
i. The applicant’s injuries are predominately minor, and the applicant remains in the MIG.
ii. The applicant is not entitled to the treatment plans in dispute or interest.
iii. The application is dismissed.
Released: January 13, 2026
Roderick Walker
Adjudicator