Licence Appeal Tribunal File Number: 24-014104/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:
Ramanan Sivasuntharam
Applicant
and
Belair Insurance Company Inc.
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Thomas Dugas, Counsel
For the Respondent:
Ryan Jeffries, Paralegal
HEARD:
By way of written submissions
OVERVIEW
1Ramanan Sivasuntharam, the applicant, was involved in an automobile accident on October 10, 2022, 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, Belair Insurance Company Inc., 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 $2,269.24 for physiotherapy services, proposed by The Physio Clinic @ West Durham in a treatment plan dated January 24, 2023?
iii. Is the applicant entitled to $2,892.95 for psychological services, proposed by The Physio Clinic @ West Durham in a treatment plan dated January 31, 2023?
iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by The Physio Clinic @ West Durham in a treatment plan dated November 28, 2022?
v. Is the applicant entitled to $2,034.00 for an EEG assessment, proposed by The Physio Clinic @ West Durham in a treatment plan dated February 17, 2023?
vi. Is the applicant entitled to $2,486.00 for an occupational therapy assessment, proposed by The Physio Clinic @ West Durham in a treatment plan dated February 16, 2023?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is subject to the MIG.
4The applicant is not entitled to the treatment plans in dispute or interest.
5The respondent is not liable to pay an award.
PROCEDURAL ISSUE
6The respondent submits that the records from The Physio Clinic @ West Durham from February 1, 2023, to April 9, 2025, located at Tab 6 of the applicant’s submissions, had not previously been provided to the respondent. It requests that those records and any reference thereto be excluded from the hearing. It also requests that paragraph 9 of the applicant’s submissions, which refers to these records, be struck.
7The respondent submits that the applicant was ordered to produce the clinical notes and records of all treating clinics including all service providers from one year pre-accident to the date of the case conference. The deadline for these productions was March 26, 2025, but the productions in question were not provided prior to the applicant’s submissions being received. The respondent notes that the applicant had previously only provided the records from October 10, 2022, to February 8, 2023.
8The respondent argues that it suffered prejudice as a result of the applicant’s non-compliance with the Tribunal’s order. It submits that, had it been in possession of the records, further s. 44 addendums could have been arranged to address the applicant’s diagnosis and condition and evaluate whether the treatment received was appropriate. It argues that the admission of this evidence would be akin to trial by ambush, and is a severe violation of procedural fairness. The respondent submits that the applicant would not be prejudiced if the records were excluded, as the only reference to them in the applicant’s submissions is at paragraph 9(a).
9In response, the applicant submits that the respondent was made aware, or ought to have been aware, that certain records were pending and that any delay in production does not preclude their admission. He argues that the records are relevant to demonstrating the ongoing nature of treatment and complaints related to the accident, and excluding these records would prejudice the applicant and prevent the Tribunal from having a complete understanding of his condition. He submits that any prejudice to the respondent is minimal, as it has had ample opportunity to request additional s. 44 examinations or clarifications and has participated in the assessment process.
10It is difficult to determine which pages of Tab 6 the respondent is seeking to exclude. All of the records, including those the respondent submits were previously provided by the applicant, are located at Tab 6. Further, the date range the respondent seeks to exclude overlaps with the period of time it is not seeking to exclude. In addition, many of the documents located at Tab 6 are undated.
11The only documents at Tab 6 which are identifiably dated after February 1, 2023, are as follows:
i. An unsigned draft chart note from March 10, 2023;
ii. Handwritten notes from a treatment practitioner named Ryan from February 21, February 28, March 7, and March 14, 2023;
iii. Insurer’s examination report from Dr. Sharleen McDowall, psychologist, dated April 6, 2023; and
iv. An OCF-18 submitted to the respondent on February 10, 2023.
12The respondent is already in possession of the report from Dr. McDowall and the OCF-18, and in fact relies on Dr. McDowall’s report in its submissions, so there is no reason to strike those documents from Tab 6.
13As for the unsigned draft chart note and Ryan’s handwritten notes indicated above, I find that the respondent has not provided a compelling explanation as to why these records in particular would have necessitated a s. 44 addendum. I find that the applicant would suffer greater prejudice if these records were excluded from this hearing, as the evidentiary onus rests with him to demonstrate entitlement to the issues in dispute. I am accordingly not prepared to exclude the records, or any reference to them, from the hearing.
ANALYSIS
Minor Injury Guideline
14Section 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.”
15An 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.
16The applicant submits that he has suffered from neurological impairments, head injury symptoms, and clinically diagnosed post-traumatic stress disorder. He argues that these conditions exceed the definition of minor injuries under the MIG.
The applicant has not suffered a psychological condition such that he should be removed from the MIG
17The applicant relies on records from his family physicians, Dr. Bryce Burger and Dr. Sayema Parveen. On October 12, 2022, Dr. Burger recommended psychotherapy for “PTSD”. On October 24, 2022, Dr. Parveen noted that the applicant was experiencing emotional trauma, flashbacks, a fear of driving, low mood, and dysthymic and anxious affect. On November 1, 2022, Dr. Parveen indicated that the applicant was irritable, had a quick temper, and was tense and stressed. She noted that he was experiencing an adjustment reaction with depressed mood, anxiety, and irritability. The applicant again complained of irritability, sadness, anxiety, and flashbacks to Dr. Parveen on November 7, 2022. She noted: “adjustment disorder, PTSD?” and recommended psychotherapy. Finally, on December 12, 2022, Dr. Parveen stated that the applicant was still having flashbacks, a fear of driving, and anger. She again recommended psychotherapy.
18The respondent relies on a s. 44 report from Dr. Sharleen McDowall, psychologist, dated April 6, 2023. Dr. McDowall reported that, on the Beck Depression Inventory-II, the applicant had a severe degree of depressive symptoms. On the Beck Anxiety Inventory, the applicant had a moderate degree of anxiety. Dr. McDowall noted that, despite these elevated scores, the applicant generally denied having struggled with symptoms which may substantially impact his daily, social, or occupational functioning. She also opined that many of his subjective complaints appear to be primarily related to his pain and physical functioning. Dr. McDowall’s opinion was that the applicant did not meet the clinical criteria for an accident-related psychological injury and that any reported symptoms fell largely within the subclinical range of functioning.
19The applicant indicates that the notation of “PTSD” and “adjustment disorder” in Dr. Burger and Dr. Parveen’s notes reflect legitimate professional concerns. However, I agree with the respondent that there is no indication within the clinical notes as to what, if any, tests were administered, or what information the physicians relied upon to formulate the diagnoses. In contrast, Dr. McDowall conducted a clinical interview and psychometric testing, and provided an explanation as to why her opinion was that the applicant did not meet the clinical criteria for an accident-related psychological injury. I accordingly place less weight on the diagnoses indicated by Dr. Burger and Dr. Parveen, and prefer Dr. McDowall’s findings.
20The respondent submits that the applicant’s psychological complaints should, at best, be considered to be “clinically associated sequelae” from his minor injuries. In reply, the applicant stated: “Dr. McDowall’s assessment does not negate the presence of clinically associated sequelae. The Applicant experienced psychological effects arising from the motor vehicle collision, consistent with the transient but real life impact of injuries on functioning and daily life.” Based on this statement, it appears to me that the applicant agrees that his psychological symptoms are clinically associated sequelae stemming from his other injuries. In any event, the applicant has the onus of proving that his psychological difficulties are not “clinically associated sequelae” to minor injuries. Aside from relying on Dr. Burger’s and Dr. Parveen’s notes, the applicant has not pointed to evidence that his difficulties are independent from clinically associated sequelae of his injuries.
21For those reasons, I find that the applicant has not proven, on a balance of probabilities, that he should be removed from the MIG as a result of a psychological condition.
The applicant is not removed from the MIG due to neurological impairments or head injury
22The applicant submits that his documented head strike and tinnitus is consistent with neurological involvement, which extends beyond the type of injuries contemplated by the MIG.
23The applicant attended the emergency department of Lakeridge Health after the accident on October 10, 2022. The notes from that visit indicate that he hit his head on the window, and was experiencing left ear tinnitus. Otherwise, the notes indicate that the applicant did not experience a loss of consciousness, confusion, or vomiting. A CT scan was completed out of precaution, and no acute intracranial findings were found.
24The applicant notes that the CT scan also found “mild parenchymal volume loss and chronic microangiopathic changes”. However, the applicant has not provided any evidence indicating that this was caused by the accident.
25The applicant also notes that he had a “possible loss of consciousness”, but he does not point to evidence of this. In fact, the records from Lakeridge Health, Dr. Burger, and Dr. Parveen state that the applicant did not experience a loss of consciousness. Further, he submits that, on November 1, 2022, Dr. Parveen noted complaints of memory impairment and concentration difficulties. However, Dr. Parveen’s note from this date does not refer to memory impairments or concentration difficulties. Additionally, the applicant’s submission that he reported symptoms of confusion and dizziness during his visit at Lakeridge Health is not supported by the evidence before me. Instead, the records state “no confusion”, and the applicant has not pointed to any indication of dizziness.
26The applicant has not pointed to evidence indicating that his tinnitus was caused by a neurological injury, or any other injury which lies outside of the MIG. Further, I am not satisfied that the mere act of striking one’s head necessitates removal from the MIG, nor does the applicant explain why that would be the case.
27The applicant also relies on Oliveira v. Aviva General Insurance, 2025 CanLII 8014, arguing that the Tribunal accepted a concussion diagnosis and removed the applicant from the MIG, and emphasized that the MIG does not cover brain injuries. However, the applicant has not provided evidence that he sustained a brain injury or concussion as a result of the accident. In fact, Dr. Parveen’s note from October 24, 2022, states that there were no symptoms of concussion.
28I accordingly find that the applicant has not proven, on a balance of probabilities, that he sustained a neurological impairment or injury to his head which would necessitate his removal from the MIG.
The applicant is not entitled to the treatment plans in dispute
29Having found that the applicant has not proven that he sustained an injury that would remove him from the MIG, I need not consider whether the treatment plans in dispute are reasonable and necessary.
The applicant is not entitled to interest
30Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefit is overdue, interest is not payable.
The respondent is not liable to pay an award
31The 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. The applicant submits that the respondent unreasonably maintained that the applicant’s injuries fell under the MIG, and thus an award is warranted. As the applicant is subject to the MIG and is not entitled to the treatment plans in dispute, I find that the respondent did not withhold or delay the payment of any benefit and is therefore not liable to pay an award.
ORDER
32The applicant is subject to the MIG.
33The applicant is not entitled to the treatment plans in dispute or interest.
34The respondent is not liable to pay an award.
Released: April 2, 2026
Rachel Levitsky
Adjudicator