Kang v. Pembridge Insurance Company

Citation: Kang v. Pembridge Insurance Company, 2024 ONLAT 23-000036/AABS

Licence Appeal Tribunal File Number: 23-000036/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:

Karanpreet Kang

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

VICE-CHAIR: Neil Levine

APPEARANCES:

For the Applicant: Davide Cortinovis, Counsel

For the Respondent: Simran Walia, Counsel

HEARD: By way of written submissions

OVERVIEW

1Karanpreet Kang, the applicant, was involved in an automobile accident on April 3, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by the respondent, Pembridge Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“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 limit and in the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $2,632.81 for physiotherapy services (including acupuncture and chiropractic therapy), proposed by Physiomed Nobleton, in a treatment plan/OCF-18 (“plan”) dated December 23, 2020?

iii. Is the applicant entitled to $2,200.00 for a physiatry assessment, proposed by Verity Medical Assessments, in a plant dated November 28, 2022?

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

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

RESULT

3The applicant has demonstrated on a balance of probabilities that they should be removed from the MIG.

4The applicant is not entitled to the treatment plans in dispute and interest.

5The applicant is not entitled to an award.

ANALYSIS

Minor Injury Guideline

6The applicant has proven based on the balance of probabilities that her injuries were not minor injuries as defined by the Schedule.

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 exceed the definition of a minor injury under the Schedule,” or under s. 18(2), that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes recovery if the insured person is 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.

9The applicant submits that they should be removed from the MIG because of a concussion and because of chronic pain.

Concussion

10I find that the applicant has proven on a balance of probabilities that she has a diagnosed concussion, and that she should be removed from the MIG.

11That applicant claimed that she suffered a concussion in addition to back and neck pain as a result of the accident. She submitted CNRs from her family doctor, Dr. Inderjit Kaur, of Fandor Medical Centre. These CNRs from April 6, 2020, April 23, 2020, and July 22, 2020, noted a concussion, headaches once or twice a week, upper back and neck pain and hip pain. They also noted an incident on April 23, 2020, in which the applicant lost consciousness. So, Dr. Kaur diagnosed a mild concussion at an initial consultation immediately following the accident on April 6, 2020, noted a concussion on April 23rd and also noted a concussion (and headaches twice a week) at a later visit on July 22, 2020.

12The applicant continued to complain of ongoing pain and concussion symptoms, as corroborated by records from the applicant’s physiotherapist and chiropractors at PhysioCare and Wellness Clinic and PhysioMed Nobleton which stated that the applicant’s pain and concussion symptoms (including sleep issues) persisted at appointments once or twice a week as late as December 2020 and January 2021.

13A CT scan on June 8, 2020, showed no “acute intracranial pathology”. However, the applicant did report neck, upper back, dizziness, headaches, and other focus/concentration issues at physiotherapy appointments through June and July 2020. Clinical notes and records from September 11, 2020, note the presence of concussion-related symptoms.

14It is important to note that a concussion removes an applicant from the MIG. See, for example, Gavey v Wawanesa Insurance, (2024) CanLII 77430 (ON LAT), HS v Aviva Insurance Canada (2019) CanLII 83893 (ON LAT) and Tambyah v Economical, (2022) CanLII 14960. The applicant has shown symptoms of a concussion, and the family physician has diagnosed it as such.

15A pre-screen report by Dr. Andrew Shaul, a psychologist, dated May 12, 2020, noted the applicant suffered from pain and potentially related psychological issues. He recommended a psychological assessment and evaluation.

16The respondent submitted a s. 44 report by physiatrist Dr. Michael Devlin, dated November 9, 2020, which examined the applicant’s physical injuries but did not reference or examine the applicant’s potential concussion. The s. 44 report by Dr. Devlin concluded that the applicant suffered from sprain and strain soft-tissue injuries and that she had reached maximal recovery after six months.

17The respondent submits that the applicant has submitted no clinical notes and records past July 22, 2020, and was not referred to a neurologist by her family doctor.

18Nevertheless, I find notes from the applicant’s physiotherapy visits that reported her headaches and related symptoms persisted as long as nine months post-accident and beyond.

19In addition, the respondent’s own adjuster’s notes refer to the fact that the applicant’s injuries “may be more serious than they look” and mention a concussion. Adjusters’ log notes on May 14, 2020, say there are barriers to recovery including “multiple injury sites, significant symptom severity at an initial assessment – possible concussion.”

20In addition, there is a consistent pattern of post-accident headaches, sleep issues, etc., that are at the very least concussion-related symptoms that require additional treatment outside of the MIG to reach a maximal recovery.

21If the respondent had misgivings about the applicant’s condition and potential concussion, it could have initiated a s. 44 examination to uncover more information about this issue. The respondent did not.

22The applicant has proven on a balance of probabilities that they should be removed from the MIG based on a concussion. Having found that the applicant sustained a concussion as a result of the accident, it is unnecessary to address the other exclusion criteria (e.g., chronic pain) that she is claiming.

23I find that the applicant is not entitled to $2,632.81 for physiotherapy services, proposed by Physiomed Nobleton, in a treatment plan/OCF-18 dated December 23, 2020.

24The applicant bears the burden of demonstrating that on a balance of probabilities the treatment plan is reasonable and necessary as a result of the accident. The applicant needs to identify the goals of the treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

25The OCF-18 was completed by Dr. Ma, a chiropractor, and sought funding for physical rehabilitation, acupuncture, exercise, and back muscle release treatments. The goals of the treatment plan included pain reduction, an increase in strength, an increased range of motion, a return to activities of normal living and return-to-work activities.

26The applicant submits that because her injuries persisted six months past the date of the accident, she was entitled to this treatment plan which included physical rehabilitation, acupuncture, exercise, and muscle release. The applicant argues that this was prima facie evidence of chronic pain and thus she should be entitled to this treatment plan. However, the applicant submitted no concurrent or corresponding evidence about the necessity or reasonability of the treatment plan.

27I am not convinced that this treatment plan is reasonable or necessary. This treatment plan is denied.

28I find that the applicant is not entitled to $2,200.00 for a physiatry assessment, proposed by Verity Medical Assessments, in a treatment plan submitted November 28, 2022.

29The OCF-18 was submitted by Ali Ghouse, a physiotherapist, and sought funding for a physiatry assessment. The stated goals of the assessment were pain reduction, increased strength, and an increased range of motion. The functional goal of the assessment was to return to activities of normal living.

30A treatment plan on its own is not compelling evidence in support of treatment. There must be compelling contemporaneous evidence in support of the treatment plan which, in my opinion, has not been submitted in this matter.

31There are no doctor’s notes or records submitted seeking this kind of assessment, and no other evidence submitted to show that this treatment plan is reasonable and necessary.

32The applicant has not offered compelling contemporaneous evidence about the reasonability or goals of this treatment plan, nor has she submitted how any goals of the plan would be met to a reasonable degree. Therefore, this treatment plan is denied.

Interest

33Because the applicant has not proven that any of the treatment plans in dispute are reasonable and necessary, the applicant is not entitled to interest.

Award

34Because the applicant has not proven that any of the treatment plans in dispute are reasonable and necessary, the applicant is not entitled to an award.

ORDER

35The applicant:

i. Has proven on a balance of probabilities that she should be removed from the MIG.

ii. Shall not be entitled to the treatment plan for physiotherapy.

iii. Shall not be entitled to the treatment plan for a physiatry assessment.

iv. Shall not be entitled to an award nor interest.