Citation: Saravanamuthu v. Certas Direct Insurance Company, 2026 ONLAT 24-011086/AABS

Licence Appeal Tribunal File Number: 24-011086/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:

Kirushnakumar Saravanamuthu

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Ognjen Miketic, Counsel

For the Respondent: John Justin, Counsel

HEARD: By way of written submissions

OVERVIEW

1Kirushnakumar Saravanamuthu, the applicant, was involved in an automobile accident on September 23, 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, Certas Direct 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:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from October 21, 2022, to September 23, 2024?

ii. Is the applicant entitled to $22,076.80 for the cost of examinations for catastrophic impairment assessments, proposed by Meditecs Independent Medical Examinations in a treatment plan dated September 16, 2024?

iii. Is the applicant entitled to $334.52 ($2,800.04 less $2,465.52 approved) for physiotherapy services, proposed by Healing Touch – Ajax Inc., in a treatment plan submitted on March 16, 2023?

iv. Is the applicant entitled to $143.68 ($1,300.00 less $1,156.32 approved) for physiotherapy services, proposed by Healing Touch – Ajax Inc., in a treatment plan submitted on December 17, 2022?

v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant is not entitled to a non-earner benefit, the treatment plans in dispute, or interest.

4The respondent is not liable to pay an award.

PROCEDURAL ISSUES

5When the applicant’s document brief was initially filed, the Tribunal inadvertently did not save it properly. As the document was no longer recoverable due to the passage of time, the Tribunal requested on March 31, 2026, that the applicant re-file his document brief. That same day, the respondent advised the Tribunal that it had never received the applicant’s document brief. I note that, despite the applicant referring to his document brief throughout his submissions, the respondent did not mention that it did not receive the brief until March 31, 2026. In any event, the applicant has not provided a Certificate of Service indicating that the respondent was ever served with the document brief, and it appears that the respondent was not included on the applicant’s email to the Tribunal when the brief was initially filed.

6On April 1, 2026, the applicant re-filed his document brief. However, it is unclear whether the applicant provided a copy to the respondent, as no Certificate of Service was filed alongside it.

7Ultimately, the applicant bears the onus in proving that he is entitled to the benefits in dispute. As indicated below, he has not done so. As such, I find that it is not necessary to take further steps to remedy the applicant’s failure to serve the respondent with his document brief.

ANALYSIS

Non-Earner Benefit

8I find that the applicant has not met his onus to prove, on a balance of probabilities, that he is entitled to a non-earner benefit (“NEB”).

9Section 12(1) provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

10Section 36(2) of the Schedule requires an applicant claiming a specified benefit such as NEB to “submit a completed disability certificate with his or her application.” Section 36(3) holds that an applicant “who fails to submit a completed disability certificate is not entitled to a specified benefit for any period before the completed disability certificate is submitted.”

11The respondent submits that the OCF-3 was received via email on December 23, 2024, well beyond the statutory deadline. The fax confirmation indicates that the OCF-3 was submitted on April 16, 2024. However, the respondent submits that the fax confirmation lists an address not affiliated with the respondent or its affiliate companies. Further, the respondent submits that the fax was sent to a number not associated with the accident benefits department. It also indicates that it advised the applicant on May 1, 2024, that it had not received the OCF-3. The respondent argues that the applicant’s claim for NEBs is statute-barred and must be dismissed.

12Despite being provided the opportunity to reply to the respondent’s submissions, the applicant chose not to do so. No explanation has been provided by the applicant as to who he initially sent the fax to, or why he did not provide the OCF-3 after being advised on May 1, 2024, that it had not been received.

13Based on my review of the correspondence provided by the respondent, and in the absence of any explanation from the applicant, I find that the applicant failed to provide the respondent with the OCF-3 until December 23, 2024. As NEBs are only payable for 104 weeks, and the OCF-3 was submitted after the applicant’s entitlement period ended, I find that he is accordingly not entitled to a NEB.

14In addition, for the following reasons, I find that the applicant has not met his onus to prove, on a balance of probabilities, that he is entitled to a NEB.

15The applicant submits that, since the accident, he is only able to walk for five minutes before experiencing severe back pain. He submits that he cannot drive on highways due to fear and anxiety, and limits himself to short, local trips. He submits that he relies on public transit or relatives for longer travel, and he relies on his wife for showering, washing his hair, and applying soap. He submits that he lost the use of his dominant right hand for brushing his teeth due to shoulder pain. He submits that he experiences anxiety, disturbed sleep, and palpitations. He also submits that he has made errors in managing household finances due to cognitive impairment following the accident, and he reported episodes of anger and irritability which has strained his family relationships. Further, the applicant submits that he now requires pain injections every two weeks for his spine and has been prescribed cannabis oil by a specialist.

16The applicant sustained an injury in 2013 that resulted in fractures to his spine at the T10 and T12 level requiring surgery. Despite this injury, the applicant submits that, prior to the 2022 accident, he was independent in his daily activities and could prepare meals, walk for up to half an hour, drive confidently on highways, and participate in weddings, family gatherings, and vacations with his children every two years. He submits that these activities were important to him and formed part of his normal life.

17Firstly, for the following reasons, I am not persuaded that all of the applicant’s impairments indicated above are a result of the 2022 accident.

18The applicant has not pointed to evidence or provided an explanation as to how the 2022 accident worsened his back pain or impacted his walking tolerance. In fact, on April 18, 2023, the applicant visited Dr. Yasothara Mathurangan, family physician at Orton Park Medical Centre, and Dr. Mathurangan stated: “He has ongoing lower back pain following fracture in T10 and T12, had surgery done. Taking medical MJ. This pain not aggravated by the recent accident.”

19Further, on March 31, 2022, Dr. Mary Chacko, family physician, indicated that the applicant had disturbed sleep, increased arguments with his wife, and irritability. She indicated that he had chronic back pain which was constant, and was able to drive short distances. Dr. Chacko also noted that the applicant received pain injections until 2020. A further note from Dr. Chacko on June 29, 2022, a few months prior to the accident, indicates that the applicant was already taking cannabis oil.

20In addition, aside from relying on his own testimony at an Examination Under Oath (“EUO”) on May 8, 2025, the applicant has not pointed to corroborating evidence of cognitive difficulties which resulted from the accident. The applicant’s document brief contains over 1600 pages. It is not the Tribunal’s role to sort through the applicant’s medical evidence or to search for support for the applicant’s position in the evidence provided (see Dooman v. TD Insurance Co., 2025 ONSC 184, at para. 50).

21Secondly, I am not satisfied that the applicant has been continuously prevented from engaging in substantially all of the activities in which he ordinarily engaged before the accident. According to his EUO testimony, the applicant still attends weddings and birthday parties, and went on vacation with his family to Montreal. He has not pointed to evidence indicating that these activities, which he submits are important to him and formed part of his normal life, have been restricted as a result of the 2022 accident. Although he is reportedly unable to drive on highways, he is still able to drive locally. Given Dr. Chacko’s note from March 2022 regarding the applicant’s ability to drive short distances, it is unclear to me whether the accident has materially impacted the distance he is able to drive. Further, the applicant testified at the EUO that he is able to shower independently without applying soap, and is able to dress himself. While some of the applicant’s pre-accident activities may have been restricted by his reported injuries, I find that the applicant has not provided compelling evidence that substantially all of his pre-accident activities are restricted.

22For the reasons above, I find that the applicant is not entitled to an NEB.

Catastrophic Impairment Assessments

23I find that the applicant has not proven, on a balance of probabilities, that the treatment plan for the proposed catastrophic impairment assessments is reasonable and necessary.

24To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

25Even considering that, by their nature, catastrophic assessments are speculative, there must be compelling evidence that it is reasonable to investigate whether the applicant sustained a catastrophic impairment. The applicant must also prove, on a balance of probabilities, that each constituent element of the multidisciplinary catastrophic assessments is reasonable and necessary.

26The treatment plan, which totals $22,076.80, proposes the submission of an OCF-18 and OCF-19, an orthopaedic assessment, a summary/impairment rating, occupational therapy situational and in-home assessments, a neurosurgeon examination, a psychiatry assessment, psychiatric scoring, a medical file review, transportation, interpretation, and travel time for the occupational therapist. The treatment plan indicates that the applicant would be assessed under criteria 6, 7, and 8 under s. 3.1(1) of the Schedule.

27The applicant submits that the respondent is obligated, under s. 25(1) and 25(3) of the Schedule, to fund assessments that are reasonable and necessary, including those intended to determine whether an insured person meets the threshold for catastrophic impairment. He submits that, where significant impairments exist across multiple functional domains, an insurer must defer to the judgment of treating professionals advocating for a catastrophic assessment. He argues that his condition is highly complex and spans physical, cognitive, and emotional domains.

28For the following reasons, I find that the applicant has not provided persuasive medical evidence to justify the need for further investigations into whether he sustained a catastrophic impairment.

29It is well-established that a treatment plan itself is insufficient to justify the recommendations set out in the plan. There must also be compelling corroborative evidence to justify that the proposed treatment plan is reasonable and necessary.

30Aside from the applicant’s EUO testimony, he has not pointed to corroborative evidence of a mental or behavioural impairment or disorder. I am not satisfied that the applicant’s self-reporting of his mental condition is compelling evidence on its own which would justify an investigation into whether he is catastrophically impaired under criteria 7 or 8.

31While the applicant refers generally at the end of his submissions to an excerpt from the medical records of Dr. J. Chen of the Scarborough Pain Clinic from April 16, 2024, these records simply list a number of injuries, only some of which were indicated as being related to the accident. The record does not elaborate with respect to any impairments the applicant may experience due to his accident-related injuries. Another excerpt included at the end of the applicant’s submissions is from an ultrasound report of his shoulders. The ultrasound report does not speak to any impairments he may have as a result of the findings. I am not satisfied that the existence of injuries or pain, without further elaboration as to whether the injuries or pain result in impairments, justifies an investigation into whether the applicant is catastrophically impaired.

32The applicant also provided a brief excerpt from an unknown author and unknown date, which was apparently taken from the records of Orton Park Medical Centre at Tab 18 of the applicant’s document brief. The record refers generally to left-sided chest pain, as well as pain in the applicant’s elbows and back of his neck since the accident. I have reviewed the entirety of Tab 18, and this record was not included. As the entirety of this record, its author, and its date are not before me, I am not compelled by it.

33Aside from arguing that the entire treatment plan is reasonable and necessary, the applicant has not explained why each of the proposed assessments included in the treatment plan are reasonable and necessary. In addition, the applicant does not explain why he believes it is reasonable to be assessed under each of criteria 6, 7, or 8, in particular. There is also no further explanation in the treatment plan itself as to why each of the items are required. I agree with the respondent that the treatment plan merely enumerates the types of assessments sought, without articulating any clinical rationale or establishing a nexus between the proposed assessments and the applicant’s impairments. The applicant cannot simply submit evidence and leave it up to the Tribunal to connect the dots and make his case.

34The respondent relies on a s. 44 assessment authored by Dr. Howard Platnick, general practitioner, dated July 23, 2024. Dr. Platnick’s opinion was that the applicant sustained uncomplicated soft tissue injuries to his neck and back as a result of the accident, and stated that there were no accident-related impairments identified on physical examination. He also opined that the applicant’s pre-existing back injury was not significantly affected by the accident. Despite having the opportunity to do so, the applicant did not file reply submissions or address Dr. Platnick’s report. In my view, Dr. Platnick’s findings, particularly regarding whether the applicant sustained accident-related impairments, weigh against the reasonableness and necessity of catastrophic impairment assessments.

35The applicant submits that a catastrophic impairment assessment is essential for the Tribunal to accurately determine his long-term care needs, attendant care hours, home care modifications, and rehabilitative strategies required under the Schedule. However, according to the treatment plan, the goal of the proposed assessments is to determine whether the applicant is catastrophically impaired. The applicant has not explained why the proposed assessments would also achieve these other goals which are not indicated in the treatment plan.

36The applicant also relies on Oliveira v. Aviva General Insurance, 2025 CanLII 8014 [“Oliveira”], where an applicant was entitled to a treatment plan for catastrophic assessments. I am not bound by Oliveira, and the facts, including the type of injuries sustained and the medical evidence provided, are quite different from the facts before me. Importantly, the applicant in Oliveira provided evidence to justify each of the proposed catastrophic impairment assessments. As indicated above, the applicant has not done so here.

37The applicant also submits that, in addition to determining whether the treatment plan is reasonable and necessary, the Tribunal must determine whether the respondent’s denial letter of October 2, 2024, should be set aside. He argues that the respondent’s denial was unreasonable, as it did not have a clear medical or factual basis to contradict the severity or pervasiveness of the applicant’s impairments.

38The applicant has not indicated which legal principle or section of the Schedule he is relying on which would enable me to “set aside” the denial letter, or what outcome would ensue from it being “set aside”. It is possible that the applicant is referring to the shall-pay provision under s. 38(11) of the Schedule, however that provision is only triggered if the respondent failed to provide notice in accordance with s. 38(8).

39Despite the lack of elaboration from the applicant, I have reviewed the respondent’s denial letter. It explains that, based on a s. 44 report from July 2024, the applicant’s injuries had resolved, there was no indication of concussion, and no ongoing impairment. The respondent also noted that the applicant was approved for mental health counselling which was incurred, but no progress report or ongoing recommendations were provided. The respondent indicated that the catastrophic assessments were not reasonable or necessary, and noted that the total amount proposed in the treatment plan was not approved. In my view, the respondent provided a clear denial letter along with medical reasons as to why it found the assessments not to be reasonable or necessary, in accordance with s. 38(8). I accordingly do not accept the applicant’s argument that the denial letter should be “set aside”.

40For the reasons above, I find that the applicant is not entitled to the treatment plan for catastrophic impairment assessments.

Physiotherapy Treatment Plans

41I find that the applicant has not met his burden of proving, on a balance of probabilities, that he is entitled to the denied portions of the treatment plans for physiotherapy.

42The applicant submits that the treatment plans in dispute, dated March 16, 2023, and December 17, 2022, propose physiotherapy assessments. The applicant submits that the assessments are reasonable and necessary, and that without these assessments, his condition cannot properly be evaluated.

43The respondent submits that the treatment plans were partially approved in accordance with the rates for treatment providers set out in the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“PSG”). It submits that it approved the services of a massage therapist and acupuncturist at the PSG-prescribed rate of $58.19 per hour, and not the $100.00 per hour proposed in the treatment plans. It notes that the applicant erroneously refers to the denial of assessments, but the issues in dispute do not concern assessments.

44Given the stark contrast in the parties’ arguments, I must first determine which treatment plans are in dispute and what was actually denied. The applicant did not include a copy of the treatment plans in his document brief, but the respondent did. Although submitted on different dates, the treatment plans provided by the respondent were prepared by the treatment providers on March 16, 2023, and December 17, 2022, which are the dates referred to by the applicant in his submissions. Further, the value of the treatment plans as indicated in the Case Conference Report and Order are the same as the treatment plans provided by the respondent. The applicant did not file reply submissions to dispute the respondent’s position on this matter or provide alternate treatment plans. I am accordingly satisfied that the treatment plans in dispute are the ones provided in the respondent’s document brief.

45The treatment plan prepared on December 17, 2022, proposed physiotherapy, a physiotherapy assessment, and massage therapy. According to the denial letter for this treatment plan, the respondent approved the physiotherapy and physiotherapy assessment in full. The respondent partially approved the massage therapy based on the maximum rate for the provider. The amount denied was $143.68.

46The treatment plan prepared on March 16, 2023, proposed a physiotherapy assessment, physiotherapy, massage therapy, and acupuncture. According to the denial letter, the respondent again approved the physiotherapy and physiotherapy assessment in full. The respondent partially approved the massage therapy and acupuncture based on the maximum rate for each provider. The amount denied was $334.52.

47The applicant bears the burden of proving that he is entitled to the denied portions of the treatment plans. The physiotherapy assessments proposed in the treatment plans, which the applicant’s submissions are focused on, are not in dispute. The applicant did not make any submissions regarding the acupuncturist and massage therapist’s rates. As the applicant failed to make submissions with respect to the parts of the treatment plans that are in dispute, I find that he has not met his burden and is accordingly not entitled to the denied portions of the treatment plans.

Interest

48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, I find that interest is not applicable.

Award

49The 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.

50Having found that the applicant is not entitled to a non-earner benefit, and that none of the treatment plans in dispute are payable, it follows that no benefits have been unreasonably withheld or delayed. No award is payable as a result.

ORDER

51The applicant is not entitled to a non-earner benefit, the treatment plans in dispute, or interest.

52The respondent is not liable to pay an award.