Licence Appeal Tribunal File Number: 24-008862/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:
Sandeep Manni
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Bianca Marinescu, Counsel
For the Respondent:
Cassandra Kleinman, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Sandeep Manni, the applicant, was involved in an automobile accident on February 26, 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, Certas Home and Auto 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 limit?
ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from June 23, 2023 to ongoing?
iii. Is the applicant entitled to services proposed by Mackenzie Medical Rehabilitation Centre Inc. as follows:
(a) $2,023.03 for chiropractic services, in a treatment plan dated May 8, 2023; and
(b) $1,525.84 for chiropractic services, in a treatment plan dated September 1, 2023?
iv. Is the applicant entitled to assessments proposed by A & B Medical Assessments, as follows:
(a) $2,486.00 for a functional abilities evaluation, in a treatment plan dated August 16, 2023; and
(b) $2,486.00 for a psychological assessment, in a treatment plan dated August 28, 2023?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that 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.
4I find that the applicant is not entitled to the treatment plans in dispute.
5I find that the applicant is not entitled to an IRB in the amount of $400.00 per week from June 23, 2023 to ongoing.
6I find that the applicant is not entitled to interest.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
7I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.
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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.
10The applicant submits that as a result of the subject accident, he suffers from permanent and serious impairments of important physical and psychological function, accompanied by functionally disabling pain, limited range of motion, headaches, driving anxiety and insomnia. He submits that he should be removed from the MIG based on his psychological impairment and relies upon the Psychological Assessment report of Dr. Mandeep Kaur Singh, dated June 1, 2024 in support.
11The respondent submits that the applicant has not provided any submissions as to how his accident-related physical injuries fall outside of the MIG. The respondent argues that the applicant has provided limited records from his family physician post-accident to support any accident-related physical impairment and has not visited his family physician for accident-related complaints since April 26, 2023. It relies upon the s. 44 Physician Assessment report by Dr. Charanjit Sandhu, dated June 14, 2023, which found that the applicant’s injuries fall squarely within the definition of minor injury.
12I agree with the respondent that the applicant has not provided any submissions as to how his accident-related physical injuries fall outside of the MIG. I further agree with the respondent that there are limited records from the applicant’s family physician post-accident which support any accident-related physical impairment. The applicant was seen by Dr. Harpeet Ghotra, family physician, following the accident on three occasions with the last clinical note and record (“CNR”) reporting any accident-related issues dated April 26, 2023. I find that despite the applicant subsequently seeing Dr. Ghotra again in 2024, none of these visits were for any accident-related injuries. I find that the applicant has not made any specific submissions that he suffers from a chronic pain condition as a result of the accident. Therefore, I conclude that the applicant is not removed from the MIG on the basis of any physical impairments or a chronic pain condition.
13With respect to the applicant’s argument that he should be removed from the MIG based on his psychological impairment, I find that he has not proved removal from the MIG on this basis for the following reasons.
14I find that the applicant has not pointed the Tribunal to any CNRs from his treating practitioners that document his psychological impairments. While he admits in his submissions that he did not vocalize his psychological symptoms to his family physician, no explanation is provided as to why he did not do so. The applicant relies on the decision in Elbahja v. Wawanesa Mutual Insurance Company, 2023 CanLII 116485 (ON LAT) (“Elbahja”), that the mere absence of complaints to treating practitioners does not undermine the validity of the diagnosis or assessment. I am not bound by previous Tribunal decisions, and I do not agree with the findings in Elbahja. I find that the absence of psychological complaints to a treating practitioner should be considered as a factor when considering the validity of a s. 25 report.
15The applicant relies exclusively on the Psychological Assessment report dated June 1, 2024, in support of his removal from the MIG. He submits that he reported the following psychological symptoms subsequent to the subject accident which include low mood, loss of interest in previously enjoyed activities, impaired sleep and anxiety. He was diagnosed with post-traumatic stress disorder; major depressive disorder, single episode, moderate; somatic symptom disorder, with predominant pain, persistent, moderate; specific phobia, situational type, travelling in a motor vehicle.
16With respect to the Psychological Assessment report, the respondent notes that this report was prepared by Stacy Yong, registered psychotherapist, who was supervised by Dr. Singh. I agree with the respondent that Ms. Yong is a psychotherapist and therefore is not qualified to offer a psychological diagnosis. I further agree with the respondent that the psychological report offers no indication of what level of involvement Dr. Singh had in the assessment or diagnosis of the applicant. I find the cases relied upon by the respondent in Subramaniam v. Aviva General Insurance, 2022 CanLII 20126 (ON LAT) and Azarov v. Certas Direct Insurance Company, 2023 CanLII 84397 (ON LAT), persuasive, where the Tribunal gave limited weight to the psychological reports where the level of involvement of the supervising psychologist are unclear, which renders the reports unreliable. I find that the applicant has not replied to the respondent’s submissions in this regard, and it is not clear from the report of the involvement of Dr. Singh in performing the assessment and making a diagnosis. I therefore give limited weight to the report dated June 1, 2024, on this basis.
17The respondent further submits that the report of Ms. Yong has errors with respect to how the accident happened and the physical injuries sustained in the accident are misstated. The report indicates that the applicant was rear-ended in the subject accident, when in fact the accident occurred when he was making a left-hand turn and was t-boned by an oncoming vehicle. In addition, the report refers to a right shoulder injury when the applicant’s complaints were to the left side of his body and the right shoulder imaging referred to was pre-accident in February 2022. I find that while these errors in the report do not deal with the applicant’s psychological impairments, they do question the reliability of the information relayed within the report.
18In terms of the testing performed by Ms. Yong, the respondent argues that she relied solely on self-report measures to form the basis of the psychological testing, which is problematic because the applicant’s self-reporting does not align with the medical evidence. The respondent submits that the applicant made no psychological complaints to his family physician and his report to Ms. Yong that he is no longer able to engage in cricket and basketball as he did pre-accident is contradicted by the CNRs in September 2024, where he reports injuring his ankle while playing cricket. I agree that there are no contemporaneous records relied on by Ms. Yong to support the applicant’s psychological complaints. I further find that her findings are based solely on the self-reporting of the applicant both in her assessment and the psychometric testing. I further find that the applicant’s report to Ms. Yong about his ability to perform his pre-accident activities is contradicted by the CNRs which indicate he is able to engage in cricket. As a whole, this goes to the credibility of the self-reports made by the applicant and undermines the validity of the conclusions and diagnoses made.
19I therefore give limited weight to the Psychological Assessment report relied upon by the applicant and find that he has not pointed the Tribunal to further evidence to support a psychological impairment as a result of the accident.
20For the reasons outlined above, I find that the applicant has not met his burden of proving on a balance of probabilities that he should be removed from the MIG.
Medical and Rehabilitation Benefits
21As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
Entitlement to an IRB
22I find that the applicant is not entitled to an IRB from June 23, 2023 and ongoing.
23Section 5(1) of the Schedule provides that an insurer shall pay an IRB to an insured person who sustains an impairment as a result of an accident if they were employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment.
24At the time of the accident, the applicant was employed full-time as a Chef for Punjabi by Nature. The essential tasks of his employment involved supervision of kitchen staff, planning menus, managing inventory, food preparation and cooking. Following the accident, the respondent paid the applicant an IRB at the rate of $400.00 per week from March 2, 2023 to June 23, 2023. IRBs were terminated as of June 24, 2023, based on the Physician Assessment IE report of Dr. Charanjit Sandhu and the Functional Abilities Evaluation IE report of Micheal Drinkwater, physiotherapist, dated June 14, 2023.
25The applicant submits that the medical evidence supports that he suffers ongoing pain to his neck, back, left shoulder, left arm and headaches. He argues that his pain continues to impact his ability to work as he finds it difficult to do any kind of pushing, pulling, lifting, holding, standing, and walking. I find that the CNRs of the applicant’s family physician note three visits following the accident on February 27, 2022, March 8, 2023, and April 26, 2023, where the applicant complained of ongoing pain from his accident-related injuries. I find that there is no mention within these records of the applicant not being able to work or a recommendation that he remain off of work. I further find that while the applicant subsequently saw his family physician in 2024 on multiple occasions, there were no accident-related complaints made by the applicant. I do not agree with the applicant’s submission that the CNR dated June 18, 2024, which notes “pain left leg, from 1 day, mild pain in calf” is accident related. I further find that the CNR from the fracture clinic, dated September 25, 2024, notes that, “He is otherwise health and works as a chef”. I find that the applicant has not provided any submissions with respect to the date he returned to work as a chef. I therefore find that from a physical perspective, the applicant has provided insufficient evidence to support that he suffers a substantial inability to perform the essential tasks of his pre-accident employment.
26I further find the IE reports of Dr. Sandhu and Mr. Drinkwater both concluded that the applicant did not suffer a substantial inability to perform the essential tasks of his pre-accident employment after a complete physical assessment of the applicant. Neither assessor found any accident-related impairment preventing the applicant from engaging in his pre-accident tasks of employment. While the applicant submits that the assessors did not ask the applicant any questions in relation to what his essential work tasks are, both concluded that the applicant had no physical impairments and therefore an analysis of the specific tasks that the applicant performed pre-accident would not be necessary in their analysis in concluding that no impairment existed.
27With respect to the applicant’s submission that as a result of his psychological injuries he suffers a substantial inability to perform the essential tasks of his pre-accident employment, I find that other than the Psychological Assessment report which I have found has limited weight, no further evidence has been submitted to support any psychological impairment. In addition, while the Psychological Assessment report states that the applicant suffers a substantial inability to perform the tasks of his employment, no rationale is provided in the report as to why or how the applicant’s psychological impairments affect his ability to work. It was recommended that the applicant attend a psycho-vocational assessment to determine his ability to engage in the necessary duties associated with his role. The applicant has not provided any submissions as to whether this assessment ever took place.
28For the reasons outlined above, I find that the applicant has not proved on a balance of probabilities that he is entitled to an IRB from June 23, 2023 and ongoing.
Interest
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that no benefits are overdue, no interest is payable.
ORDER
30For the reasons outlined above, I find:
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 MIG limit;
ii. The applicant is not entitled to the treatment plans in dispute;
iii. The applicant is not entitled to an IRB in the amount of $400.00 per week from June 23, 2023 to ongoing;
iv. The applicant is not entitled to interest; and
v. The application is dismissed.
Released: February 3, 2026
Melanie Malach
Adjudicator