Citation: Murugan v. Definity Insurance Company, 2026 ONLAT 24-011402/AABS

Licence Appeal Tribunal File Number: 24-011402/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:

Arjunen Murugan

Applicant

and

Definity Insurance Company

Respondent

DECISION

VICE-CHAIR:

Robert Maich

APPEARANCES:

For the Applicant:

Ilia Estrah, Counsel

For the Respondent:

Matthew Murphy, Counsel

HEARD: In Writing

OVERVIEW

1Arjunen Murugan, the applicant, was involved in an automobile accident on January 5, 2023, 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, Definity Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was travelling as the driver of a 2023 Ford Explorer near Highway 404, Exit ramp 53 and Steels Ave. E. when the accident occurred.

ISSUES

3The 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?

ii. Is the applicant entitled to $3,589.89 for chiropractic services, proposed by North Toronto Rehabilitation & Physiotherapy Clinic in an OCF-18/treatment plan (plan) dated January 25, 2023?

iii. Is the applicant entitled to $2,486.00 for psychological services, proposed by A&B Medical Assessments Inc. in a plan dated May 13, 2024?

iv. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

5The applicant is not entitled to $3,589.89 for chiropractic services, proposed by North Toronto Rehabilitation & Physiotherapy Clinic.

6The applicant is not entitled to $2,486.00 for psychological services, proposed by A&B Medical Assessments Inc.

7The applicant is not entitled to interest on any overdue payment of benefits.

PROCEDURAL ISSUES

8The respondent submitted the applicant should not be permitted to late-file its materials with the Tribunal and that the hearing adjudicator has the discretion to refuse to consider his submissions and dismiss the claim.

9The respondent submitted the applicant filed his written submissions on August 18, 2025, five days late. The Notice of Written Hearing informed the parties that the written hearing is to take place on September 12, 2025. The Case Conference Report and Order, (CCRO) prescribed the applicant was to deliver their written submissions 30 days prior to the hearing, specifically, August 13, 2025.

10The respondent submitted that by way of correspondence to the Tribunal registrar dated August 14, 2025, the applicant claimed that he had not received the CCRO. The respondent submitted the Tribunal’s records demonstrated that the applicant was emailed the CCRO from the Tribunal on January 30, 2025.

11The applicant submitted his submissions were served just past midnight on August 14, 2025; the brief delay was inadvertent and did not cause prejudice to any party.

12The applicant denies any intention to mislead the Tribunal and requested the CCRO from the Tribunal registrar because the applicant discovered he was not in possession of the CCRO.

13The Licence Appeal Tribunal Rules, 2023 (Rules) provides that if a party fails to comply with and Rule or order, that party may not rely upon it without the Tribunal’s permission. When making its determination the Tribunal may consider the following factors according to Rule 9.3:

a. the reasons for non-compliance;

b. whether a party will be prejudiced by the admission or exclusion of the evidence and the extent to which that prejudice can be mitigated by any other order;

c. the extent to which the substance of the information or testimony lies within the knowledge of the other party;

d. whether the other party opposes the admission of the evidence or testimony; and

e. the relevance of the document, thing, or testimony to an issue in dispute in the proceeding.

14I find the reason for the non-compliance is inadvertence by the applicant. The materials were served on the respondent after midnight on the following day and no prejudice was demonstrated or claimed by either party. The evidence in the applicant’s written materials was ordered disclosed to the respondent some months prior to the hearing, having heard no complaint in this regard from the respondent, the Tribunal is satisfied the materials were within the knowledge of the respondent for an appropriate period of time in compliance with the CCRO. Although the respondent opposes admission of the applicant’s materials, I find it is of high relevance and its exclusion would be fatal to the applicant’s case.

15I also find that the applicant did not purposefully attempt to mislead the Tribunal.

16I deny the respondent’s request to exclude the late-filed materials and dismiss the application.

ANALYSIS

MIG

17The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

18The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

19An 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.

20The applicant submitted both the applicant’s and respondent’s psychological assessors diagnosed the applicant with DSM-5 impairments. The psychological assessment by M. Singh, psychologist, dated September 14, 2024 denotes the applicant’s self-reported symptoms since the accident including depressed mood, anxiety, irritability, anger, difficulty with sleep, a loss of interest of pre-accident activities, decrease in motivation and interest in daily activities, low energy, mood disturbances, decreased memory, concentration, and comprehension, struggles with decision-making and modified driving behaviour. In respect to physical symptoms the applicant complains of pain in his upper and lower back, left shoulder, left arm and left elbow as a result of the accident; pain has limited lifting, sitting, bending, and climbing which affect his ability to perform tasks of daily living like cooking, washing dishes, cleaning and travelling.

21Further, the applicant submitted that M. Singh administered psychological testing. In respect to the Beck Depression Inventory (BDI-II), the applicant scored 23, a moderate level of depression; the Beck Anxiety Inventory (BAI) his score was within severe levels of anxiety; the PCL-5 (PTSD) his score of 41 is indicative of PTSD (the threshold score of 33); the Accident Fear Questionnaire (AFQ), he demonstrated symptoms of driving-related nervousness, nightmares, and curtailed driving; and the Pain Catastrophizing (PCS), his scores were clinically elevated, indicating a high risk for the development of a pain disability.

22The applicant submitted M. Singh concluded that the applicant diagnostically meets the criteria for the DSM-5 diagnosis of: F43.1 Post-Traumatic Stress Disorder (PTSD), F32.1 Major Depressive Disorder (MDD), single episode, moderate, F45.1 Somatic Symptom Disorder (SSD), with predominant pain, persistent, moderate.

23The applicant submitted he reported similar accident related impairments as detailed in the insurer’s psychological assessment by Dr. Pojhan, psychologist, dated March 14, 2025. Dr. Pojhan’s psychometric testing of the applicant included Test of Memory Malingering (TOMM); moderate clinical symptoms of depression on the Reynolds Depression Screening Inventory (RDSI) (score 24) with positive validity scoring; within the average range for pain patients on the Depression subscale of the Pain Patient Profile (P-3); within the upper stratum upon the Pain Catastrophizing Scale (PCS) (score 36), indicating the Applicant catastrophizes his pain problems and within the upper distribution of chronic pain patients and in the highest stratum for individuals who ruminate about pain, magnify its severity, and have feelings of helplessness; and, a score of 36 for the PTSD Checklist-Civilian Form (PCL-5), which surpasses the diagnosable threshold of a score of 30.

24The applicant noted Dr. Pojhan diagnosed the applicant with adjustment disorder but qualified the accident as a contributing cause to his condition and that it is not practically possible to clearly delineate the specific impact of each factor on his current condition. Dr. Pojhan opined other significant stressors such as the loss of his long-term job, difficulty securing new employment, and uncertainty about his future appear to be primary contributors to his clinical presentation.

25The applicant submitted Dr. Pojhan provided no analysis or rationale why the alternate stressors referred to in his report are either significant or primary in explaining the applicant’s symptomology or why he assigned considerable weight to these factors when forming his conclusions. Further, the applicant submitted that the psychometric testing does not support Dr. Pojhan’s conclusions, nor does the current complaints and function section of his report support his conclusions as it ties the applicant’s complaints to the accident; accordingly, the applicant submitted Dr. Pojhan’s evidence should be assigned less weight.

26I note that the applicant expanded significantly on how his limitations have impacted his marketability in the job market particularly with areas of work similar to his previous employment.

27The respondent submitted the applicant has significant pre-accident left sided Sciatica since 2018, suffers from type 2 diabetes as well as a previous work related shoulder injury that was not disclosed to his assessor.

28The respondent further submitted the applicant claimed after the accident he immediately experienced pain in his left shoulder, back, and left arm; however, he provided a different account to Dr. Pojhan, stating he had immediate pain in his back and neck.

29The respondent also submitted the applicant attended his primary care physician two days after the accident and received a referral for physical therapy but attended it irregularly, nevertheless by August 2023, the applicant had already reported 70% improvement in pain symptoms. The respondent also noted there is no record of the applicant’s psychological complaints at his first attendance with his primary care physician.

30The respondent further submitted that during the insurer’s psychological assessment with Dr. Pojhan in March 2025, the applicant reported significant improvement with respect to his physical complaints and that the remaining pain did not prevent him from enjoying his work. Dr. Pojhan noted the applicant had achieved significant recovery since the accident, does not take any specific pain medication for residual symptoms, and is actively seeking warehouse labour employment.

31The respondent also submitted Dr. Pojhan found the applicant denied experiencing any flashbacks of the accident and denied experiencing any of the core symptoms of PTSD; the P-3 results also indicated the applicant is not significantly worried about his pain. Dr. Pojhan opined the applicant presented symptoms consistent with Adjustment Disorder but qualified that his presentation is mainly influenced by other stressors, such as the loss of his long-term job, difficulty securing new employment and concerns about his future.

32The respondent submitted the applicant provided inconsistent evidence with respect to his return to work following the accident. The applicant expressed during his s.25 assessment that he stopped working for a few weeks after the accident and later returned on light duties. In contrast, the applicant stated during the s.44 assessment that he stopped working for a few days but returned to full-time work with full duties, without any modified work hours or responsibilities. The respondent submitted that the inconsistent evidence of the applicant casts doubt on his credibility and the results of the assessments.

33In addition, the respondent submitted that the applicant’s assessor relied extensively on the applicant’s self-reporting, further expert opinion evidence based upon a review of the treatment records should be given more credence. Further, there is no contemporaneous reference to any psychological or emotional symptoms in the notes and records of the applicant’s primary care physician or other medical practitioner post-accident that would provide objective confirmation of the applicant’s psychological complaints.

34I find the respondent’s submissions persuasive in that I find that the applicant has made inconsistent statements between assessors and failed to disclose relevant detail with respect to his pre-accident circumstances and post accident activities. In particular the applicant failed to disclose his pre-accident health issues, most notably left sided Sciatica and pre-existing shoulder injury and reported inconsistent post-accident pain and work activity as detailed in paragraphs [29] and [33] herein. I find this diminishes the reliability of the applicant’s self-reporting as these inconsistencies appear to be more than a mere lapse in memory of specific details. This inconsistency in self-reporting has the consequential effect of negatively impacting the reliability of the assessor reports.

35I also find the applicant reported that he had made important gains in his physical recovery as documented in the report of Dr. Pojhan; in particular, I note the applicant reported that his physical injuries from the accident had improved to 70% of his pre-accident condition by March 2025, although I question the reliability of this self-report for the reasons outlined in the previous paragraph of this decision.

36The applicant submitted Dr. Pojhan’s report should be given less weight because he did not express what weight he assigned the factors that contributed to his opinion. I disagree, it is the function of expert opinion evidence to assemble various factors in consideration to form an expert opinion, however I find it is not necessary to assign specific weight or value to each factor unless a specific methodology requires it for a specified test.

37I find the applicant’s inconsistencies and unreliable self reporting diminished the weight of both the expert opinions of M. Singh and Dr. Pojhan; although the inconsistences do not invalidate the reports, it raises the importance of independent medical evidence to corroborate both expert opinions contained in the reports. I find that in the absence of corroborative independent medical evidence, I am compelled to assign both the expert reports of M. Singh and Dr. Pojhan little weight due to the inconsistent reporting of the applicant.

38With respect to the burden of the applicant, I find, given the diminished reliability of the reports of M. Singh or Dr. Pojhan and resulting assignment of little weight to the expert opinions relied upon by the applicant, I find there is insufficient evidence to assist the applicant to meet his burden of proof for psychological injury. I find the applicant has not met his burden of proof.

39I find the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

Is the applicant entitled to the treatment plans in dispute?

40I find as the applicant remains within the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary. The applicant is entitled to treatment up to the MIG limits.

ORDER

41The Tribunal’s final Orders:

i. The applicant’s injuries are 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. The applicant is not entitled to $3,589.89 for chiropractic services, proposed by North Toronto Rehabilitation & Physiotherapy Clinic.

iii. The applicant is not entitled to $2,486.00 for psychological services, proposed by A&B Medical Assessments Inc.

iv. The applicant is not entitled to interest on any overdue payment of benefits.