Licence Appeal Tribunal File Number: 25-001603/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:
Raveendran Atchuthampillai
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jeff Chatterton
APPEARANCES:
For the Applicant:
Nav Krishnan, Counsel
For the Respondent:
Paras Gogna, Counsel
HEARD:
In Writing
OVERVIEW
1Raveendran Atchuthampillai, the applicant, was involved in an automobile accident on December 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, Intact 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. 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 (the “MIG”) limit?
ii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Scarborough Physiotherapy and Rehabilitation Center in a an OCF-18/treatment plan (“plan”) dated May 5, 2023?
iii. Is the applicant entitled to $2,715.00 for physiotherapy services, proposed by Scarborough Physiotherapy and Rehabilitation Center in a plan dated June 19, 2023?
iv. Is the applicant entitled to $2,200.00 for a chromic pain assessment, proposed by Scarborough Physiotherapy and Rehabilitation Center in a treatment plan dated September 20, 2023?
v. Is the applicant entitled to $3,182.00 for physiotherapy services, proposed by Scarborough Physiotherapy and Rehabilitation Center in a treatment plan dated July 29,2024?
RESULT
3The applicant has not met his onus to demonstrate he should be removed from the MIG, and is therefore subject to the $3,500 treatment limit.
4As I have ruled that the applicant is being held to the MIG, it is not necessary for me to analyze the treatment plans in dispute to determine if they are reasonable and necessary.
5The application is dismissed.
ANALYSIS
Should the applicant be removed from the MIG?
6The applicant has not met his onus to demonstrate he should be removed from the MIG.
7Section 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.”
8An 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.
9Despite the MIG being a live issue in dispute, the applicant has not offered a clear submission to demonstrate why he should be removed from the MIG. Indeed, his submissions are confined to a discussion of the treatment plans in dispute, despite the Case Conference Report and Order and the initial application indicating that the MIG was in dispute.
10It is well settled that the applicant bears the onus of proof when seeking treatment beyond the MIG. The applicant was further silent as to what basis he was seeking removal from the MIG in his reply submission. Based on his submissions, while there is no engagement with the MIG, it appears that his position for removal from the MIG, or at least entitlement to the treatment plan in dispute, is based on a combination of chronic pain and psychological condition, but again, no clear submissions were provided.
Chronic Pain
11The Tribunal has determined that an applicant may escape the MIG if they suffer from chronic pain that causes functional impairment or if they meet three of the six criteria for chronic pain as provided by the AMA Guides. However, here, the Tribunal was not directed to a diagnosis of chronic pain or chronic pain syndrome and the applicant did not engage with any of the criteria under the AMA Guides.
12Furthermore, it is well established that ongoing pain alone is insufficient to remove the applicant from the MIG, as the pain must be accompanied by functional impairment or disability. I find that the applicant has not proven on a balance of probabilities that his ongoing pain was of a significant level or was accompanied by some functional impairment or disability. I find that the applicant’s pain was merely sequelae or a symptom of his minor injuries.
13I find that there is minimal evidence provided by the applicant to demonstrate that his pain prevented him from pursuing work, family or recreational needs or that he developed psychosocial sequelae.
Pre-existing Condition
14Although the onus is on the applicant to demonstrate entitlement, I have not been led to medical evidence which meets the test under s. 18(2) of the Schedule and indicates that he has a pre