Khatri v. Economical Insurance
Licence Appeal Tribunal File Number: 22-013236/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:
Kanika Khatri
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR: Aric Bhargava
APPEARANCES:
For the Applicant: Linda M Spurrell, Paralegal
For the Respondent: Ainsley Shannon, Counsel
HEARD: By way of written hearing
OVERVIEW
1Kanika Khatri, the applicant, was involved in an automobile accident on September 14, 2020, 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, Economical Insurance, 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 $2,200.00 for psychological services, proposed by Medex Assessments in a treatment plan/OCF-18 (“plan”) submitted November 26, 2020?
iii. Is the applicant entitled to $4,176.50 for physiotherapy services, proposed by 9221018 Canada Inc. in a treatment plan submitted February 2, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find the applicant’s injuries are predominantly minor injuries that can be treated within the limits of the MIG. As a result, I find the applicant is not entitled to the disputed treatment plans and no interest for overdue benefits is payable.
ANALYSIS
Are the applicant’s injuries predominantly minor injuries as defined by the Schedule and therefore subject to treatment within the MIG?
4Section 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.”
5An 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.
6In the decision of Scarlett v. Belair Insurance, 2015 ONSC 3635, the Divisional Court found that the onus of establishing entitlement beyond the MIG limits rests with the claimant. Applying Scarlett, the applicant must establish her entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
7The applicant submits that the injuries sustained in the accident are not minor injuries. The applicant submits that she was diagnosed with a concussion as a result of the motor vehicle accident. She relies on her family doctor’s clinical notes and records and notes from specialists. She contends that she has been suffering in pain since the accident and without further treatment, she is unlikely to achieve maximal recovery.
8The respondent submits that the applicant’s injuries fall within the MIG on the basis that the injuries from the accident are minor. The applicant’s injuries are fully resolved, and she has demonstrated that she is able to function without impairment and is able to perform her activities of daily living.
Does the applicant have a concussion that would remove her from the MIG?
9I find on a balance of probabilities that the applicant has not suffered a concussion as a result of the accident and has not met the onus to show that her injuries remove her from the MIG.
10The applicant relies on clinical notes and records (CNRs) from her family doctor, Dr. Mandeep Wadhwa, general physician, on the basis that Dr. Wadhwa diagnosed a concussion and makes references to the applicant’s concussion symptoms in the CNRs of September 14, 2020.
11The applicant submits the insurer’s examination dated July 13, 2021, completed by Dr. Alfonse Marchie, MD physical medicine and rehabilitation. Dr. Marchie’s report did not include a review of Dr. Wadhwa’s CNRs therefore the assessor did not account for the concussion noted in the CNRs.
12The applicant makes the argument that the insurer’s examination report dated March 30, 2023, prepared by Ms. Cheryl Miller did not have the family doctor’s records and the applicant continued to suffer from her injuries and the CNRs were not reviewed.
13The respondent relies on the CNRs of Dr. Wadhwa and questions the diagnosis on the basis of the absence of concussion testing, related symptoms and follow ups from Dr. Wadhwa. The respondent also argues the applicant’s pain was mostly in the neck and shoulder as detailed in the CNRs of Alpha Physio.
14The respondent also relies on the insurer’s examination dated July 13, 2021, completed by Dr. Marchie. Dr. Marchie noted the applicant suffered from soft tissue injury to the neck, shoulder, forearm, however, no reference was made to a concussion or concussion symptoms.
15I find the applicant did not have a concussion. The applicant was seen by her family physician, Dr. Wadhwa, on September 14, 2020. Dr. Wadhwa noted the accident and “concussion”. The applicant visited the Emergency Room on September 15, 2020, and the notes state “MVC on Monday – left neck and shoulder stiffness” and “headache continuous”. The diagnosis from the Emergency visit was “mvc/sprained muscle”. The applicant also visited the family doctor on October 13, 2020, and October 31, 2020, and Dr. Wadhwa noted she was “in clinic for form for accommodation in university” and “had been doing rehab for ? whiplash / concussion”. The applicant visited the doctor eight times between January 5, 2021, and July 16, 2021, and a concussion was not noted on any of the visits. On November 16, 2021, and November 19, 2021, Dr. Wadhwa noted “dizzy” and “? vertigo”, however there was no mention of the accident on these visits. The applicant’s visit to the Emergency Room the following day does not validate Dr. Wadhwa’s initial observation and Dr. Wadhwa also included a question mark and “whiplash” in his notation when the applicant visited the doctor six weeks after the accident.
16The applicant attended Alpha Physio from September 22, 2020, to February 2, 2021. I have reviewed the Alpha Physio’s CNRs, and each treatment was for her upper back, left shoulder, neck, lower back. On November 17, 2020, the report states “prolong sitting while studying increases her pain”. This is consistent with Dr. Wadhwa’s note on October 31, 2020, “had been having headache and neck pain on cont screen time”. The CNRs from the Emergency Room visit and Alpha Physio do not bear out Dr. Wadhwa’s initial diagnosis or treatment for a concussion.
17I find Dr. Marchie’s physiatry evaluation dated July 13, 2021, took place ten months after the accident. Dr. Marchie’s report was thorough and undertook the appropriate review of supporting documents. Dr. Marchie’s report is consistent with Dr. Wadhwa’s notes with no mention of a concussion. Dr. Marchie noted a complaint of “dizziness” and stated, “I cannot comment further on her dizziness since that is typically outside the scope of my practice” and her injuries are “soft tissue injuries consistent with the Minor Injury Guideline.” Dr. Marchie’s report establishes the applicant “sustained soft tissue injuries to her left neck, left shoulder, left forearm, left knee and lower back.”
18I find the applicant’s dizziness presented without connection to the accident and subsequent notes by Dr. Wadhwa were focussed on the shoulder and neck pains. I acknowledge Dr. Wadhwa’s diagnosis of a concussion, however, no symptomology or further assessment regarding the concussion was presented to corroborate this diagnosis or how this diagnosis was reached.
19I find on a balance of probabilities that the applicant has not met the onus of establishing a concussion occurred due to the accident and as a result she should not be removed from the MIG for treatment.
Does the applicant have chronic pain that would remove her from the MIG?
20I am not persuaded that the applicant has demonstrated she suffers from a chronic impairment with a functional limitation that warrants removal from the MIG.
21The applicant relies on the CNRs of Dr. Wadhwa and states the concerns of pain have persisted since the accident. In her reply, the applicant states that prescriptions may have been filled by other pharmacies but submitted no evidence in support of this. I find the applicant has not provided sufficient or compelling evidence to support this claim.
22The respondent states the applicant has not attended her family doctor since January 2021 with complaints of ongoing or persistent pain that amounts to a functional limitation. The applicant also discontinued physiotherapy as of February 2021.
23I find the evidence does not support a finding that she should be removed from the MIG because she has not demonstrated that she suffers from chronic pain.
24I find on a balance of probabilities that the applicant has not met the onus of establishing removal from the MIG on the basis of chronic pain.
Does the applicant have a psychological impairment that would remove her from the MIG?
25I find the applicant did not meet the onus of establishing psychological impairments that warrant removal from the MIG.
26Psychological impairments, if established, fall outside of the MIG, because the MIG only covers “minor injuries”, the definition of which does not include psychological impairments. The onus is on the applicant to establish that her condition would remove her from the MIG.
27The applicant relies on the OCF-18 dated December 8, 2020 completed by Sylvia Tenenbaum which states the applicant has adjustment disorders, generalized anxiety disorders, depressive episode, malaise, fatigue and nightmares.
28I find Ms. Miller’s psychology evaluation report dated March 30, 2023, was sufficiently in-depth and there was no mention of the applicant suffering from or being diagnosed with a concussion. Ms. Miller’s report states “From a psychological perspective [the applicant] has not sustained any accident-related injuries.”.
29I find that the OCF is not supported by corroborating evidence and on its own is not sufficient to establish that the applicant has a psychological condition that warrants removal from the MIG. Without further supportive or compelling evidence I am not persuaded the applicant suffered a psychological impairment due to the accident that warrants removal from the MIG.
30I find on a balance of probabilities that the applicant has not established that she has a psychological impairment warranting removal from the MIG.
Are the treatment plans reasonable and necessary?
31I find the treatment plan for psychological services or physiotherapy services is not payable as the applicant did not provide sufficient objective medical evidence or explanation why she should be removed from the MIG.
Interest
32As no benefits are owing, it follows that no interest applies.
ORDER
33The applicant is subject to the MIG.
34As the applicant is subject to the MIG, she is entitled to treatment up to the MIG limits.
35As there are no overdue benefits, the applicant is not entitled to interest.
36The application is dismissed.
Released: March 3, 2025
Aric Bhargava
Adjudicator