Mohan v. Pembridge Insurance Company, 2024 CanLII 145

Mohan v. Pembridge Insurance Company, 2024 CanLII 145

Citation: Mohan v. Pembridge Insurance Company, 2024 ONLAT 21-015057/AABS

Licence Appeal Tribunal File Number: 21-015057/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:

Kenneth Mohan

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR: Ludmilla Jarda

APPEARANCES:

For the Applicant: Kameliya Stancheva, Paralegal

For the Respondent: Colleen Mackeigan, Counsel

HEARD: By Written Submissions

OVERVIEW

1Kenneth Mohan (the “applicant”) was involved in an automobile accident on January 11, 2020 and sought benefits pursuant to the Statutory Accident Benefit Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Pembridge Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE

2In its written hearing submissions, the respondent raises the following preliminary issue:

1. Is the applicant barred from proceeding to a hearing for all of the benefits claimed in this application because the applicant failed to attend an insurer’s examination under s. 44 of the Schedule?

3The respondent argues that it wrote to the applicant on December 29, 2021 and requested that he attend an in-person psychological assessment with Dr. Debra Mandel, psychologist, scheduled to proceed on February 7, 2022. The applicant did not attend the assessment. As a result, on February 9, 2022, the respondent advised the applicant that he was non-compliant with the Schedule and requested that he provide an explanation for his non-attendance. The applicant did not respond, nor did he address this issue in his written hearing submissions. The respondent requests that the Tribunal dismiss the application pursuant to s. 55(1)2 of the Schedule.

4The applicant did not file reply submissions, despite having the opportunity to do so. As such, the applicant’s position is unknown.

5I find that the preliminary issue raised by the respondent is not properly before the Tribunal. If other issues are to be added to this application, parties must follow the appropriate procedure, such as raising a preliminary issue at the case conference stage or filing a motion to add any additional issues. Neither have been done in this case. In my view, the issue that the respondent seeks a determination on is not properly before the Tribunal; and therefore, it will not be considered.

ISSUES

6The issues in dispute are:

1. 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 (“MIG”) limit?
2. Is the applicant entitled to $2,542.17 for chiropractic services, proposed by Alma Rehab in a treatment plan/OCF-18 (“treatment plan”) that was denied on December 3, 2020?
3. Is the applicant entitled to $1,564.20 for chiropractic services, proposed by Alma Rehab in a treatment plan that was denied on December 15, 2020?
4. Is the applicant entitled to $2,829.37 for chiropractic services, proposed by Alma Rehab in a treatment plan that was denied on December 15, 2020?
5. Is the applicant entitled to $2,245.55 for other goods and services proposed by Alma Rehab in a treatment plan that was denied on September 28, 2021?
6. Is the applicant entitled to $1,995.33 for a psychological assessment proposed by Alma Rehab in a treatment plan that was denied on April 30, 2020?
7. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
8. Is the applicant entitled to interest on any overdue payments of benefits?

RELIEF

7For the reasons that follow, I find that:

1. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
2. The applicant is not entitled to the disputed treatment plans as they propose goods and services outside the MIG and the $3,500.00 funding limit.
3. As there are no overdue benefits, the applicant is not entitled to interest or an award.

ANALYSIS

The Minor Injury Guideline (“MIG”)

8Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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.”

9An insured person 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 from their minor injury 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 his physical impairments warrant his removal from the MIG. He relies on two Disability Certificates (“OCF-3”) dated January 21, 2020 and February 5, 2020 respectively, both completed by Dr. Mandeep Braich, chiropractor.

11In response, the respondent submits that the applicant sustained soft tissue injuries as a result of the accident that meet the Schedule’s definition of minor injury and should be treated within the MIG. The respondent relies on an insurer examination physiatry assessment report dated December 3, 2020 completed by Dr. Deborah Rabinovitch, physiatrist.

The applicant did not sustain injuries that warrant removal from the MIG

12I find that the applicant has failed to prove, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, he remains within the MIG and its $3,500.00 limit on treatment.

13I find that the applicant’s medical evidence is insufficient to support that his injuries warrant treatment outside the MIG. According to the OCF-3s, Dr. Braich determined that the applicant sustained the following injuries as a result of the accident: tension-type headache, headache, sprain and strain of cervical spine, sprain and strain of thoracic spine, sprain and strain of lumbar spine, other problems related to lifestyle, disorders of initiating and maintaining sleep (insomnia), acute stress reaction, nervousness, acute pain, sprain and strain of shoulder joint, low back pain, and malaise and fatigue. However, aside from the OCF-3s, there is no objective evidence to support Dr. Braich’s findings. Indeed, the applicant has not included in the evidentiary record any clinical notes and records of treating practitioners or assessment reports.

14I further find that the respondent’s evidence indicates that the applicant sustained soft tissue injuries within the minor injury definition under s. 3 of the Schedule. Dr. Rabinovitch found that the applicant sustained mechanical neck pain, with soft tissue injury to the right shoulder, and mechanical back pain as a result of the accident and that he had achieved maximal medical recovery of his minor injuries.

15Finally, the applicant did not provide any medical evidence or submissions to support that he was unable to achieve maximal medical recovery within the MIG as a result of a pre-existing condition. Likewise, the applicant did not provide any medical evidence or submissions to support that he had developed chronic pain with functional impairment or a psychological condition and that he was precluded from treatment under the MIG.

16Accordingly, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.

The Treatment Plans

17Having determined that the applicant remains within the MIG, it is unnecessary for me to consider the reasonable and necessary nature of the treatment plans in dispute as they propose goods and services outside the MIG. The applicant is not entitled to treatment beyond the $3,500.00 funding limit for a minor injury.

Interest

18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.

Award

19Pursuant to s. 10 of Regulation 664, the respondent may be liable to pay an award if the Tribunal finds that it unreasonably withheld or delayed the payment of a benefit. As I have concluded that the applicant remains in the MIG and is not entitled to treatment outside of the MIG, it follows that no benefits were unreasonably withheld or delayed. Accordingly, the respondent is not liable to pay an award.

ORDER

20For the reasons outlined above, I find that:

1. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
2. The applicant is not entitled to the disputed treatment plans as they propose goods and services outside the MIG and the $3,500.00 funding limit.
3. As there are no overdue benefits, the applicant is not entitled to interest or an award.

21The application is dismissed.