Kingra v. Intact Insurance Company, 2025 CanLII 1839

Kingra v. Intact Insurance Company

Citation: Kingra v. Intact Insurance Company, 2025 ONLAT 23-001165/AABS

Licence Appeal Tribunal File Number: 23-001165/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:

Karamvir Kingra

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Maria Bihnam, Paralegal

For the Respondent: Robbie Brar, Counsel

HEARD: By way of written submissions

Overview

1Karamvir Kingra, (the "applicant"), was involved in an automobile accident on November 1, 2019, 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 Intact Insurance Company (the "respondent") and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2The respondent in its submissions argued that the applicant exceeded the 10-page limit as set out in the Case Conference Report and Order, released on September 6, 2023. However, it did not address whether it is seeking relief with respect to this issue. As the respondent has not specified what relief it is seeking from the Tribunal, I have not made an order with respect to this issue.

Issues

3The 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 $1,667.10 for physiotherapy services, proposed by Physiocare & Wellness Clinic in a treatment plan/OCF-18 ("OCF-18") dated June 16, 2021?
3. Is the applicant entitled to $2,118.34 for physiotherapy services, proposed by Physiocare & Wellness Clinic in a OCF-18 dated February 3, 2021?
4. Is the applicant entitled to the assessments proposed by Medex Assessments Inc., as follows: (a) $2,632.90 for a driving re-integration assessment, in a OCF-18 dated January 23, 2020; (b) $2,632.90 for a psychological assessment, in a OCF-18 dated January 23, 2020; and (c) $2,880.37 for a chronic pain assessment, in a OCF-18 dated January 22, 2022?
5. Is the applicant entitled to interest on any overdue payment of benefits?

Result

4I find that:

i. The applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG. ii. The applicant is not entitled to the treatment plans in dispute nor interest. iii. The application is dismissed.

Analysis

The Minor Injury Guideline

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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."

6An 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 any accident-related 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.

7In all cases, the burden of proof lies with the applicant.

8The applicant submits that he should be removed from the MIG on the following three grounds:

i. He has been diagnosed with a concussion and post-concussion syndrome; ii. He has chronic pain and is functionally impaired; and iii. He has been diagnosed with psychological impairments such as insomnia, and post-traumatic stress disorder.

9Meanwhile, the respondent argues that the applicant sustained minor injuries. The respondent also argues that the applicant did not sustain chronic pain or psychological impairments as a result of the accident.

The applicant has not established that he has a concussion and post concussive syndrome

10I find that the applicant has not demonstrated on a balance of probabilities that he has a concussion or post-concussive syndrome as a result of the accident.

11Concussions and post-concussive syndrome, if established, fall outside the MIG because the MIG relates only to "minor injuries", as defined in section 3(1) of the Schedule and neither condition is in the definition. However, in order to be removed from the MIG, the applicant must present evidence that demonstrates that as a result of the accident, he suffered a concussion or post-concussive syndrome.

12The applicant argues that he was diagnosed with a concussion and post-concussion syndrome by Dr. Glynis Koponen, psychiatrist, and neurologist on April 10, 2020. The applicant further argues that his family physician, Dr. Amanpreet Swaich diagnosed him with chronic headaches on July 21, 2020, and referred him to another neurologist for a second opinion and that he has continued to complain of headaches on February 9, 2021, December 1, 2021, December 14, 2021, and December 17, 2021.

13The respondent did not provide any specific submissions in response and instead summarized the record of Dr. Koponen, dated April 10, 2020.

14The medical evidence most contemporaneous to the accident does not support that the applicant sustained a concussion or post-concussive syndrome. Both parties agree that the applicant attended the hospital the same day as the accident, however neither of them have tendered a copy of these records for Tribunal's review. As such, I am unable to determine whether the applicant reported any symptoms of a concussion while attending the hospital.

15Both parties in their submissions agree that the applicant briefly loss consciousness following the accident, however the applicant also referred me to the CNR entry of November 4, 2019. I note on November 4, 2019, (three days following the accident) the applicant met with Dr. G. Mand, his previous family physician. In his records, Dr. Mand noted "No LOC". While Dr. Mand did not indicate what the abbreviation of LOC stood for, it is a commonly known medical abbreviation for loss of consciousness. The remainder of the entry is largely illegible, however from what can be interpreted, there is no indication that the applicant reported any concussion symptoms, such as dizziness, memory difficulties, and headaches.

16Likewise, the applicant met with Dr. Mand on December 27, 2019, and once again he did not complain of any concussion type symptoms, was not prescribed medication or referred to a neurologist. As noted above, without the hospital records, I am unable to ascertain whether there is any indication of a concussion or post-concussive syndrome immediately following the accident. Thus, the evidence most contemporaneous, which is the record of Dr. Mand, dated November 4, 2019, indicates that the applicant did not sustain a concussion or post-concussive syndrome as no loss of consciousness was noted, and the applicant did not report any symptoms.

17I acknowledge that a large part of the applicant's argument rests on the alleged diagnosis of a concussion and post-concussive syndrome in Dr. Koponen's record, dated April 10, 2020. Significantly, Dr. Koponen made no such diagnosis. Rather, Dr. Koponen opined that it sounded like the applicant had a concussion. I further acknowledge that the applicant reported being "out" for a brief second, headaches, poor concentration, and nausea to Dr. Koponen. I place little weight on this self-reporting by the applicant to Dr. Koponen because he has not addressed why he waited approximately five months to report concussion symptoms to a medical practitioner and as noted above, Dr. Mand's records do not support that he sustained a concussion.

18I also place little weight on the records of Dr. Swaich because they are not contemporaneous to the accident. From the records tendered, it appears that the applicant first sought medical attention from Dr. Swaich on July 21, 2020, (nearly eight months following the accident). I acknowledge that the applicant reported headaches to Dr. Swaich and that he used Elavil. Dr. Swaich also diagnosed the applicant with chronic headaches and to follow up with a neurologist. However, it is unclear whether Dr. Swaich was aware that the applicant did not report concussion symptoms immediately following the accident, and that Dr. Mand noted three days following the accident, that there was no loss of consciousness. Moreover, aside from complaining of headaches, the applicant did not report nausea and poor concentration like he did to Dr. Koponen, two months earlier.

19I further acknowledge that the applicant reported ongoing headaches, was prescribed Elavil and a further referral was made to another neurologist as noted in Dr. Swaich's records of February 9, 2021, December 1, 2021, December 14, 2021, and December 17, 2021. However, December 17, 2021, is the last entry that has been provided, as the applicant has not produced updated records, and from the records tendered, the applicant did not meet with the second neurologist because he missed the appointment.

20It is difficult to reconcile that the applicant sustained a concussion or post-concussive syndrome when no symptoms were reported until five months following the accident, no diagnosis has been made by a neurologist, and Dr. Mand noted three days following the accident, that the applicant did not lose consciousness.

21Accordingly, I find that the applicant has not met his evidentiary onus to establish that he sustained a concussion and post-concussive syndrome, and therefore is not removed from the MIG on this basis.

The applicant is not removed from the MIG on the basis of chronic pain

22I find that the applicant has not met his burden to prove that he suffers from a chronic pain condition, that would warrant removal from the MIG.

23The applicant argues that he continues to suffer from back pain, neck pain, and shoulder pain as a result of the accident. The applicant further argues that he was diagnosed with chronic back and shoulder pain by Dr. Swaich on May 21, 2021. To this end, he relies upon the records of Dr. Swaich.

24The respondent argues that the applicant sustained minor injuries from the accident, and that he returned to his normal duties at his intern position following the accident. It relies upon the s. 44 reports of Dr. Kruger, dated October 22, 2020, August 18, 2021, and February 18, 2022.

25A chronic pain diagnosis or ongoing pain by itself does not remove the applicant from the MIG. It must be accompanied by some functional impairment, see: 16-000438 v. The Personal Insurance Company, 2017 CanLII 59515 (ON LAT). A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person's function, or whether the pain is bearable without treatment will not meet the applicant's burden to show that chronic pain is more than mere sequelae of a minor injury. Unless the applicant provides evidence that the pain he experiences contains these elements, the pain is sequelae of a minor injury. In this regard, the applicant has fallen well short of meeting his onus to establish chronic pain with functional limitations.

26The applicant was diagnosed with chronic back and shoulder pain by Dr. Swaich on May 21, 2021. Dr. Swaich also completed a note, dated May 21, 2021, where he opined that the applicant's persistent shoulder and lower back pain were severe, and his condition was worsening without therapy.

27However, there is minimal evidence of a functional impairment or disability as a result of the applicant's chronic pain.

28First, Dr. Swaich has not opined that the applicant has functional limitations with his daily activities, school, and work as a result of his pain. Indeed, on February 18, 2021, Dr. Swaich conducted a physical examination of the applicant's shoulder which was normal. Likewise, Dr. Kruger conducted physical examinations on October 22, 2020, August 18, 2021, and February 18, 2022, which were also largely unremarkable.

29Second, the applicant returned to schooling and his part-time intern position following the accident. On April 10, 2020, the applicant reported to Dr. Koponen that he returned to his intern position following the accident and it was "going good". The applicant also reported to Dr. Koponen that he had returned to schooling, but his marks were low. However, I place little weight on this self-reporting because the applicant has not produced objective evidence like his school records and the applicant reported to Dr. Syed that he had no difficulty with his academia and had graduated in 2021. In a similar vein, the applicant reported to Dr. Kruger during three separate assessments that he had returned to his part time intern position, one and half weeks after the accident, and worked in that position until August of 2020, when the internship ended. The applicant further reported to Dr. Kruger that he was looking for new employment in the accounting industry. There was no indication that his pain from this accident prevented him from being able to find new employment, and he reported to Dr. Kruger in February of 2022 that he was actively looking for employment.

30Finally, I acknowledge that the applicant relies upon his self-reporting contained in Dr. Kruger's reports and an undated pre-screen report, conducted by an unknown assessor to support that he has a functional impairment. I acknowledge that the undated pre-screen report notes that the applicant reported pain with sitting, standing, reaching, walking, climbing, bending, and lifting. However, as noted above, the applicant returned both to his schooling and work following the accident.

31In a similar vein, I acknowledge that the applicant reported to Dr. Kruger that he has trouble performing several of his housekeeping duties, and that he occasionally relies upon his family members for support. However, the applicant also reported to Dr. Kruger that he returned to work, graduated from business school, and was going to the gym (albeit not to the same frequency, although in subsequent reports, the applicant reported that this was due to the COVID-19 pandemic). Given the applicant's described level of function, he has not demonstrated that his overall functionality has been impacted by his ongoing pain.

32Considering the above, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that his chronic pain warrants removal from the MIG.

The applicant is not removed from the MIG on the basis of psychological impairments

33The applicant has failed to prove on a balance of probabilities that he suffers from a psychological impairment, thus he remains within the MIG.

34An applicant can be removed from the MIG if he demonstrates a psychological impairment. A psychological impairment must be more than mere clinically related sequelae of a minor injury. Psychological impairments, if established, fall outside the MIG because the MIG only governs "minor injuries", and the definition does not include psychological impairments.

35The applicant argues that he was diagnosed with post-traumatic stress disorder by Dr. Koponen on April 10, 2020. He further argues that he has repeatably complained of anxiety and sleep disturbances to his family physician. The applicant does not specify in his submissions, whether he is referring to Dr. Mand or Dr. Swaich. Finally, he argues that he reported his psychological symptoms to Dr. Syed, yet she opined that his injuries fell within the MIG.

36Meanwhile, the respondent summarized the s. 44 report of Dr. Syed, dated November 29, 2021, who opined that the applicant was suffering from an adjustment disorder with mixed anxiety and depressed mood. However, Dr. Syed also noted that a previous assessor, Dr. Jason Bacchiochi, in his report, dated March 2, 2020, opined that the applicant did not have a psychological diagnosis as a result of the accident. Dr. Syed concluded that the hiatus of symptomatology cannot be reconciled, and she was unable to substantiate whether the current diagnosis was as a result of the accident or due to the current pandemic or his idle state.

37First, the applicant was not diagnosed with post-traumatic stress disorder. On April 10, 2020, Dr. Koponen noted that it sounded like the applicant had insomnia and that his anxiety from posttraumatic stress is also contributing. While, posttraumatic stress is noted by Dr. Koponen, there is no diagnosis of post-traumatic stress disorder as argued. Dr. Koponen also recommended counselling for the applicant's flashbacks; however, the applicant has not referred me to evidence to support that he has done so.

38While the applicant argues that he has regularly complained of anxiety and sleep disturbances to his family physician, I see no such complaints in Dr. Mand's records despite attending in November and December of 2019. Upon review of Dr. Swaich's records, the first time the applicant complained of psychological symptoms was two years after the accident (December 14, 2021). On December 14, 2021, the applicant reported that his headaches were worst with stress and that his sleep had improved with Elavil but there was still insufficient relief. However, Dr. Swaich did not diagnose the applicant with a psychological impairment or refer him to a psychiatrist or psychologist.

39Finally, the applicant argues that he complained of a number of psychological symptoms and that he felt 70% disabled from a psychological perspective to Dr. Syed. The onus is on the applicant to prove he has a psychological impairment that warrants removal from the MIG, and not on the respondent to disprove. Dr. Syed opined that she was unable to substantiate whether the current diagnosis of an adjustment disorder with mixed anxiety and depressed mood was as a result of the accident. The applicant has not referred me to a medical opinion that rebuts this opinion by Dr. Syed. As noted above, Dr. Koponen did not diagnose the applicant with a psychological impairment, and the first time the applicant complained of psychological symptoms to a family physician was two years after the accident.

40In short, I find that the applicant has not demonstrated on a balance of probabilities, that he sustained a psychological impairment; he remains in the MIG.

41In its submissions the respondent confirmed that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been approved. As I have found that the applicant has not met his evidentiary onus to establish that his accident-related impairments warrant treatment beyond the MIG limits, it is not necessary for me to consider the reasonableness and necessity of the disputed treatment plans.

42Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, no interest is payable under s. 51.

Order

43For the reasons outlined above, I find that:

i. The applicant's injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG. ii. The applicant is not entitled to the treatment plans in dispute nor interest. iii. The application is dismissed.