Citation: Singh v. Pembridge Insurance, 2023 ONLAT 20-011438/AABS

Licence Appeal Tribunal File Number: 20-011438/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:

Shrimati Singh

Applicant

and

Pembridge Insurance

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Ilona Agivaeva, Counsel

For the Respondent:

Yann Grand - Clement, Counsel

HEARD: By way of written submissions

OVERVIEW

1Shrimati Singh, (“the Applicant”), was involved in an automobile accident on July 3, 2018, and sought benefits from Pembridge Insurance, (“the Respondent”), pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016). The Applicant was denied non-earner benefits, (“NEBs”), and medical benefits by the Respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

ISSUES

2The issues to be decided in the hearing are:

1. Is the Applicant entitled to NEBs in the amount of $185.00 per week for the period from July 3, 2018 to date and ongoing?

2. Is the Applicant entitled to a medical benefit in the amount of $3,939.43 for chiropractic services, proposed by Complete Rehab Centre in a plan dated July 6, 2018?

3. Is the Applicant entitled to a medical benefit in the amount of $2,399.49 for chiropractic services, proposed by Complete Rehab Centre in a plan dated October 17, 2018?

4. Is the Applicant entitled to a medical benefit in the amount of $2,142.01 for chiropractic services, proposed by Complete Rehab Centre in a plan dated February 1, 2019?

5. Is the Applicant entitled to a medical benefit in the amount of $2,460.00, less $1,696.10 approved by the Respondent, for a psychological assessment proposed by Complete Rehab Centre in a plan dated November 1, 2018?

6. Is the Applicant entitled to a medical benefit in the amount of $3,243.04, less $2,345.32 approved by the Respondent, for psychological services proposed by Complete Rehab Centre in a plan dated February 1, 2019?

7. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3The Applicant is entitled to the chiropractic treatment plan dated October 17, 2018 and the full cost of the psychological assessment plan, dated November 1, 2018.

4The Applicant is not entitled to the remaining benefits in dispute, nor interest.

BACKGROUND

5The Applicant was the driver of a vehicle that was struck from behind while stopped at a suburban intersection. She required no immediate medical care following the accident but went to her regular walk-in clinic about three days later, on July 6, 2018, and presented with complaints of stiffness. The treating physician who saw her that day referred her for physiotherapy. On the same day, the Applicant commenced treatment pursuant to the Minor Injury Guideline, (“the MIG”).

6The Applicant returned to her family physician on July 16, 2018, again complaining of stiffness, and was referred to physiotherapy and prescription medication. Two days later, on July 18, 2018, the Applicant returned to her family physician and complained of severe right knee pain since the subject accident, as well as insomnia, headaches, and dizziness. This is the first time that her family physician documented an accident-related injury other than soreness, and it is the last mention of right knee pain. The next day, she returned to her family physician with an upper respiratory infection, but the accident or accident-related issues are not noted.

7The Applicant made additional complaints of neck and shoulder pain, and headaches, to her family physician. These complaints occurred on August 9, September 10, and November 8, 2018. Meanwhile, the Applicant continued to engage in rehabilitative therapy and was prescribed prescription pain medication.

8By January 9, 2019, the Applicant’s pain symptoms were considered stable by her family physician, who noted no new concerns. Despite this, the Applicant sought an increase in her pain medication, which the physician stated was for “no apparent reason.” No Accident-related complaints were made to her family physician’s office thereafter, though there is reference to it in her health history when summarized in other entries.

9The Applicant then developed left knee issues and fibromyalgia pain and regularly attended at her family physician’s office. She was diagnosed with chronic pain in October 2019, but it appears to be related to the Applicant’s left knee pain, which developed after the accident and appears to be unrelated to the accident.

10Later on in the claim, the Respondent determined that the Applicant sustained a psychological injury, which is not included in the minor injury definition. The result of this is that the Applicant is no longer subject to the MIG or the $3,500.00 funding limit for minor injuries.

ANALYSIS

11The onus is on the Applicant to demonstrate that she is entitled to NEBs and the disputed treatment and assessment plans. For NEBs, she must demonstrate that she suffers a complete inability to carry on a normal life as a result of the accident. For the disputed treatment and assessment plans, she must demonstrate that they are a reasonable and necessary medical expense as a result of the subject accident.

Non-Earner Benefits (NEBs)

12I find that the Applicant has failed to meet her burden to prove that she suffers a complete inability to carry on a normal life as a result of the accident.

13Pursuant to section 12 of the Schedule, the Applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEBs. The test for NEBs involves a consideration of the Applicant’s activities and life circumstances pre-accident and compares them to their activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the Applicant to NEBs. Rather, according to Heath v. Economical Mutual Insurance Company, 2009 ONCA 391, she must demonstrate that her life circumstances have changed and that the change must be significant enough to continuously prevent her from substantially engaging in all the activities that she engaged in before the accident.

14The Applicant claims entitlement to NEBs on the basis that she meets the disability test for the benefit based on her reports to various assessors. In the alternative, she submits that she is entitled to NEBs on account of the Respondent’s failure to properly adjust her claim. The Respondent disagrees and submits that the Applicant does not meet the disability test and is not entitled to NEBs on account of it’s adjusting of her claim.

15I agree with the Respondent and find that the Applicant does not meet the disability test for NEBs.

16The Applicant provides little information about her day-to-day activities both before and after the accident, making it difficult to identify a change in her circumstances. She relies primarily on the psychological assessment report of Dr. J. Mills, dated January 25, 2019, and the Activities of Daily Living Checklist she completed on January 4, 2019, (“ADLs Checklist”). She reported to Dr. Mills such things as having ongoing pain that is 8/10 during the day and gets to 10/10 by nighttime, no longer cooks or cleans and relies on her sister-in-law to help, is unable to sit or stand for prolonged periods due to stiffness, stopped going for walks and recreational swimming, is unable to bend to clean lower extremities and raise arms to wash hair, and a limited interest in social and recreational activities. The checklist endorses that, following the accident, the Applicant is unable to bend, cook, wash dishes, clean floors, do laundry, clean the bathroom, perform grocery shopping, and drive. The document also states that the Applicant needs help standing and sitting, climbing stairs, bathing, toileting, and dressing following the accident. It is important to note here that the report by Dr. Mills makes no reference to any document or medical history review as part of the assessment. This suggests that Dr. Mills relied entirely on the Applicant’s reports and failed to cross-reference those reports with other records or consider the opinions of other medical provides.

17The restrictions reported by the Applicant to Dr. Mills and in the Activities of Daily Living Checklist are not supported by the other evidence. For example, the walk-in clinic’s clinical notes and records (“CNRs”) fail to mention any of the litany of impairments the Applicant reported in the ADLs checklist. It would be very abnormal for a person to experience a complete inability to bend and do any household chores but never have those impairments mentioned in her family physician records, despite multiple visits during that time. Similarly, in the report of Dr. A. Chan, psychologist, dated April 23, 2019, the Applicant reports that she tries to do light household chores and cooking during the day, occasionally goes to temple, and typically drops her daughter off at school. The Applicant denied any cognitive issues in the ADLs Checklist, but reported cognitive issues during an insurer’s examination, (“IE”), assessment, as documented in the report by A. Kaplun, occupational therapist, dated July 22, 2019, (“the Kaplun report”). In the same report, it notes that the Applicant is able to bend but unable to kneel or squat.

18The medical evidence indicates that the Applicant is generally functional. The Kaplun report concluded that, following the examination, there was no objective evidence to substantiate a disability or impairment. Objective testing showed some reduced range of motion, (“ROM”), in the neck with some limited functionality, but it could be overcome but compensating with range in the lower back. The same testing also showed some minor ROM reductions in the back, hips, and shoulders, but that the Applicant was functional, overall. Informal testing and observations during the occupational therapy assessment revealed that the Applicant was able to sit continuously for 45 minutes and stand for more than 20 minutes. She was able to use appliances, access dishes, prepare food, operate a vacuum, and wipe the bathroom mirror clean. Similarly, the report by Dr. Sekyl-Otu, orthopaedic surgeon, dated December 24, 2018, found that the Applicant demonstrated greater ROM during informal testing compared to formal testing. Dr. Sekyl-Otu concluded that the Applicant demonstrated no ongoing signs of a musculoskeletal impairment attributable to the accident. Dr. Sekyl-Otu maintained the same opinion in an addendum report dated August 12, 2019. For that report, Dr. Sekyl-Otu reviewed the various CNRs provided, include those of the family physician’s office, and concluded that the Applicant sustained uncomplicated soft-tissue injuries.

19I find that the Respondent complied with its obligations outlined in the Schedule and the Applicant is not entitled to NEBs due to non-compliance.

20To the Applicant, she is also entitled to NEBs because the Respondent’s letter dated August 15, 2018 fails to comply with the timelines provided by the Schedule. She further submits that the Respondent’s letter dated August 27, 2019 fails to provide reference to the complete inability test and a clear and unequivocal denial of NEBs. The Respondent submits that it responded to the application for NEBs within the timeline set out in the Schedule. It further submits that the Applicant mischaracterizes the contents of the letter dated August 27, 2019 and submits it complies with the Schedule. I agree with the Respondent.

21Pursuant to section 36(2) of the Schedule, an Applicant for NEBs shall submit a completed disability certificate with their application. Pursuant to section 36(3), the Applicant is not entitled to NEBs prior to submitting a disability certificate.

22Pursuant to section 36(4) of the Schedule, the Respondent shall, within 10 business days after receipt of an application for NEBs and a completed disability certificate, pay NEBs, give notice explaining the medical and any other reasons why it does not believe the Applicant is entitled to NEBs, or send a request to the Applicant pursuant to section 33(1) or 33(2). If the Respondent chooses the third option, and the Applicant complies, it must either pay the Applicant NEBs or give the Applicant the medical and other reasons why it believes she is not entitled to the benefits.

23Pursuant to section 33(6) of the Schedule, the Respondent is not liable to pay NEBs for the period the Applicant is not compliant with the request made pursuant to section 33.

24Pursuant to section 36(6) of the Schedule, the Applicant is entitled to NEBs for the period of non-compliance if she can demonstrate that the Respondent failed to comply with its obligations in section 36 of the Schedule.

25Here, the Applicant completed her application for NEBs when she submitted a completed disability certificate on August 8, 2018. The Respondent replied within the requisite 10 business days, on August 15, 2018. In that letter, the Respondent denied NEBs and sought additional information, pursuant to section 33(1) of the Schedule. It advised the Applicant of the definition of a “complete inability” and requested CNRs from the Applicant’s family physician, a completed Activities of Daily Living checklist, a non-earner benefit questionnaire to be completed by a healthcare provider, and an OHIP summary. The letter also included a copy of section 33 of the Schedule for the Applicant’s review. The Respondent chose the option of requesting additional information, which is compliant with section 36(4) of the Schedule.

26In turn, the Applicant was required to comply with the August 15, 2018 request within 10 business days. Yet, the request for the ADLS checklist went unanswered, further entitling the Respondent to withhold payment of NEBs, due to noncompliance with a request made pursuant to section 33 of the Schedule. The Respondent issued another request, dated October 24, 2018, and submits that another request was made in November 2018, but the date of the letter is omitted, and the document includes no fax confirmation like the other letters. I have omitted consideration of the November 2018 letter due to the missing information.

27Nevertheless, the Applicant finally replied to the Respondent’s letters on January 11, 2019, and provided an ADLs Checklist, completed by the Applicant on January 4, 2019, described earlier. In response, the Respondent sought IEs to determine if the Applicant is eligible for NEBs. The Applicant attended at the IEs and, as discussed earlier in this decision, the assessors concluded that the Applicant does not suffer a complete inability to carry on a normal life as a result of the accident. Contrary to the Applicant’s submissions, the denial letter provided a clear and unequivocal denial of NEBs, which also included excerpts from the IEs as well as reference to the complete inability test.

28The onus is on the Applicant to demonstrate that the plans in dispute are reasonable and necessary as a result of the accident. To the Applicant, the plans are reasonable and necessary due to her ongoing pain complaints, diagnosis of chronic pain, and because she benefits from pain relief from the treatment.

Chiropractic treatment plan in the amount of $3,939.43

29This treatment plan is not reasonable and necessary as it is a duplication of services provided pursuant to the MIG.

30Pursuant to section 38(5) of the Schedule, an insurer may refuse to accept a treatment and assessment plan if the plan describes goods or services to be received or an assessment or examination to be conducted in respect of any period during which the insured person is entitled to receive goods or services under the MIG. Section 38(6) states that an insurer’s refusal in section 38(6) is final and not subject to review.

31This plan was created on July 6, 2018, the same day that an OCF-23 treatment confirmation form was submitted. The Applicant initially presented with a minor injury and provided no evidence demonstrating that she suffered from a pre-existing condition that was documented by a healthcare professional that will preclude her recovery if subject to the MIG, and the $3,500.00 funding limit on treatment for minor injuries. Thus, it was incumbent on her to engage in treatment pursuant to the MIG until she met her onus demonstrating that she sustained injuries that fall outside the minor injury definition. Therefore, I find that this plan is not subject to review pursuant to section 38(6) of the Schedule.

Chiropractic treatment plan in the amount of $2,399.49

32I find that this plan is reasonable and necessary as a result of the accident. This plan proposed various physical treatments to address the Applicant’s ongoing sprain and strain injuries to her neck and shoulders.

33The CNRs from the walk-in clinic demonstrate that the Applicant had regular and ongoing neck and shoulder pain complaints in the summer and fall of 2018, due to the subject accident. She made these consistent complaints of neck and shoulder pain on August 9, September 10, and November 8, 2018.

34I appreciate and agree with Dr. Sekyl-Otu’s opinion in the December 24, 2018 report that the Applicant’s neck and shoulder strains are predominantly soft-tissue injuries. However, it was determined that the Applicant sustained an injury that is not included in the minor injury definition and should not be subject to the MIG and the $3,500.00 funding limit. Thus, the MIG and the funding limit ought not be a barrier to the Applicant’s access to treatment. Consider, the Applicant continued to report accident-related neck and shoulder pain in the fall of 2018 that is relieved by treatment and medication. I conclude that she benefited from this treatment in the form of pain relief and increased mobility. As a result, I find this plan reasonable and necessary.

Chiropractic treatment plan in the amount of $2,142.01

35I find insufficient evidence demonstrating that this plan is reasonable and necessary as a result of the accident because the Applicant had mostly recovered from physical injuries by the time this plan was submitted.

36CNRs from the walk-in clinic demonstrate that the Applicant exhibited no accident-related pain complaints after November 2018. The records note that by January 9, 2019, her pain symptoms were stable, no new concerns were depicted, and her pain was attributed to fibromyalgia. Similarly, the report of Dr. Sekyl-Otu, dated December 24, 2018, noted that the Applicant exhibited self-limiting behaviour and greater ROM during informal testing. This evidence suggests that the Applicant had primarily recovered from her soft-tissue injures despite dealing with some ongoing psychological issues.

Psychological assessment plan in the amount of $2,460.00

37I find that the Applicant is entitled to the full cost of the psychological assessment.

38The Respondent’s position on this assessment lacks evidence to support it. The Respondent approved this plan in the amount of $1,696.10 on the basis that Dr. Chan, in the April 23, 2019 IE report, stated that the assessment could be completed in 10 hours. While I appreciate Dr. Chan’s opinion that the assessment could be done in 10 hours, I am also aware that it could take longer.

39The Schedule is consumer protection legislation and should be read in favour of the Applicant. Superintendent’s Guideline No. 03/14 (“the PSG”) states that its purpose is to establish the maximum expenses payable by an insurer under the Schedule. The maximum fee for conducting an examination under subsection 25(1)3 of the Schedule is $2,000.00 according to section 25(5)(a). No other fee limits are described in section 25. As a result, I conclude that the fee limits discussed in the PSG refers to the $2,000.00 fee limit on a single assessment and the production of a report. If the intention of the legislation was to impose a fee that is the lesser of the hourly rate or the $2,000.00 cap, the schedule would say so and not simply put a cap on the total assessment fee.

40Further, section 25(3) of the Schedule states that “the insurer is not liable under subsection (1) for expenses related to professional services rendered to an insured person that exceed the maximum rate or amount of expenses established under the Guidelines.” The use of the word “or” suggests that the Respondent is not liable to pay for services rendered that exceed the maximum hourly rate for medical and rehabilitation benefits, or the $2,000.00 maximum amount for an assessment. If the intention of legislators was for assessors to charge for services at the lesser of the hourly rate or $2,000.00, the Schedule would say so.

41Additionally, the PSG permits healthcare providers to charge HST and a form fee. The PSG states that HST is payable by an insurer in addition to the fees set out in the guideline. It also notes that healthcare providers may charge a maximum fee of $200.00 for the completion of a treatment and assessment plan. As a result, I find that the $2,460.00 proposed for the psychological assessment is a reasonable and necessary expense.

Psychological treatment plan in the amount of $3,243.04, less $2,345.32 approved

42I find that the Applicant has not met her onus to demonstrate that she is entitled to the unapproved amounts of the psychological treatment plan.

43The Respondent approved the psychological treatment plan at one-hour sessions, instead of one-and-a-half-hour sessions as proposed. The Applicant made no submissions addressing why longer treatment sessions are reasonable and necessary. Having made no submissions on the core of the issue, the Applicant has failed to meet her onus to demonstrate she is entitled to the benefits claimed.

Interest

44Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having found that the Applicant is entitled to the October 17, 2018 chiropractic treatment plan and the unapproved balance of the psychological treatment plan, it follows that she is entitled to interest, pursuant to section 51 of the Schedule.

CONCLUSION

45The Applicant is entitled to the chiropractic treatment plan dated October 17, 2018 and the unapproved balance of the psychological assessment plan dated November 1, 2018, plus interest pursuant to section 51 of the Schedule.

46The Applicant is not entitled to the remaining benefits claimed.