Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-002122/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:
Balpreet Dharni Applicant
and
Intact Insurance Company Respondent
DECISION
ADJUDICATOR: Aric Bhargava
APPEARANCES:
For the Applicant: Hudson Chalmers, Counsel
For the Respondent: Patricia Dimakos, Counsel
HEARD: By way of written submissions
OVERVIEW
1Balpreet Dharni, the applicant, was involved in an automobile accident on September 18, 2021, 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, Intact Insurance Company, 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 (“MIG”) limit?
ii. Is the applicant entitled to receive a medical benefit of $2,045.38 for occupational therapy in a treatment plan/OCF-18 (“plan”) dated December 21, 2021?
iii. 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 do not need to consider whether the disputed treatment plan is reasonable and necessary and no interest for overdue benefits is payable.
PROCEDURAL ISSUES
4In its written hearing submissions, the respondent asked for the applicant’s submissions to be excluded as they were not provided in accordance with the timeline set in the Case Conference Report and Order (“CCRO”). The respondent states the applicant served her submissions late. The respondent argues the late filing prejudiced the respondent by depriving the respondent of its allotted time to prepare submissions.
5The applicant’s submissions were due May 8, 2024. The applicant filed her submissions nine days late on May 17, 2024. The respondent filed in a timely manner on May 24, 2024. I find the respondent was able to respond fulsomely despite the late filing by the applicant.
6Despite the respondent’s request, I find the applicant would suffer greater prejudice if the submissions were excluded from this hearing, as the onus rests with her to demonstrate entitlement to the issues in dispute. I accordingly decline the respondent’s request to exclude the submission from the hearing.
ANALYSIS
Are the applicant’s injuries predominantly minor injuries as defined by the Schedule and therefore subject to treatment within the MIG?
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 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.
9To demonstrate she should be removed from the MIG, the applicant must show she sustained chronic pain with functional impairment that is more than sequalae from her accident-related injuries. The Tribunal has held that chronic pain syndrome, or pain that is a severe, debilitating condition distinct from ongoing recurring pain, qualifies as chronic pain.
10The applicant submits 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 accident. She relies on the walk-in clinic doctor’s diagnosis and clinical notes and records (“CNRs”) from her family doctor. She contends that she has been suffering post-concussion symptoms including chronic neck and back pain and requires treatment outside of the MIG.
Does the applicant have a concussion that would remove her from the MIG?
11I 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 on this basis.
12The applicant submits the CNRs of Dr. Amir Khakshaee from a walk-in clinic visit dated September 19, 2021. Dr. Khakshaee noted “whiplash injury and mild concussion”. At the time the doctor also noted “balance ok” and “vomited [once] last night”.
13The applicant submits the CNRs of Dr. Satinder Saroya, family physician, at McLaughlin Village Medical Clinic. The applicant visited the doctor on September 21, 2021, October 4, 2021, October 29, 2021 and September 26, 2022. On each visit, Dr. Saroya noted the accident, and the assessment was “sustained a whiplash associated disorder-2”. There is no reference to a concussion in Dr. Saroya’s CNRs. Dr. Saroya prescribed analgesics, rest, and physiotherapy. On October 12, 2021 the applicant attended Queen West X-Ray & Ultrasound and the report show there was no evidence of ligamentous instability, bony alignment as well as vertebral bodies, disc spaces and posterior elements “appear normal”. The report also states thoracic spine, disk spaces and the remainder of the exam was normal.
14The applicant submits the CNRs of The Sports Medicine Specialists. On September 20, 2021 it states “Dr – minor concussion, whiplash”. The notes from The Sports Medicine Specialists do not include whether any test for a concussion were administered or whether this was a conclusion formulated by the physiotherapist.
15The respondent submits that the CNRs of Dr. Saroya indicate that the applicant was diagnosed by her family doctor on multiple visits with whiplash only. The respondent submits a neurological exam report dated September 12, 2022 states the applicant showed no evidence of neuropathy.
16The respondent submits the applicant was assessed by Dr. Michael Hanna, physician, on September 12, 2022, October 12, 2022, and December 14, 2022. The musculoskeletal MIG Assessment report dated September 12, 2022 stated the applicant “sustained no more than sprain/strain type of injury affecting her cervical, thoracic, and lumbar regions”. Dr. Hanna’s report goes on to state there was no evidence of neuropathy and her injuries would be considered a “minor injury”.
17I have read through the CNRs and the medical evidence, however, the only diagnosis of the applicant suffering a concussion was provided by the walk-in clinic and noted by the Sports Medicine Specialists as “Dr minor concussion, whiplash”. I do not find the single reference to concussion in the other medical records establishes she has a concussion or that warrants removal from the MIG as it is not supported by consistent reporting. I find no symptomology, no detailed assessment, no corroborating referrals, or supportive imaging notes to support this diagnosis. I place greater weight on the assessments made by the applicant’s family doctor, who on multiple visits over an extended period of time made no reference to a concussion and did not note post-concussive symptoms in any of the visits. I also find Dr. Hanna’s multiple evaluations are consistent with Dr. Saroya’s CNRs with no mention of a concussion.
18I find on a balance of probabilities that the applicant has not met the onus of establishing a concussion occurred due to the accident or that she should be removed from the MIG on this basis.
Does the applicant have chronic pain with functional impairment that would remove her from the MIG?
19I find the applicant does not have chronic pain with a functional impairment that would remove her from the MIG.
20The applicant states her ongoing pain, difficulties falling asleep, concentrating in school and on her schoolwork sufficiently demonstrate a diagnosis of chronic pain. The applicant relies on the CNRs from Sports Medicine Specialists and Dr. Saroya’s CNRs however, the applicant does not point to a specific record or notation in the CNRs.
21The respondent submits the applicant suffered uncomplicated soft tissue injury and is treatable within the MIG and the treatment plan is not reasonable or necessary. The respondent relies on the family doctor CNRs, the insurer’s examination reports, and x-rays of the applicant’s injuries. The respondent states the applicant does not suffer from chronic pain with a functional impairment.
22I have reviewed the CNRs of Dr. Saroya and on four visits it is noted that the applicant sustained “whiplash associated disorder” and makes reference to the accident. On September 19, 2021, October 4, 2021, October 19, 2021, and November 23, 2021 it is noted that the applicant is experiencing pain in the neck, shoulders, lower and upper back, experiencing tenderness and a decrease in range of motion in the upper and lower back. During these visits the doctor prescribed naproxen, Flexeril and over the counter Advil and Tylenol for the pain with no repeat instructions. On October 19, 2021 Dr. Saroya noted “neuro: normal” and “reflexes: normal” and “difficulty concentrating in school”, however, there was no note of the accident on this visit. On February 8, 2022 the applicant complained of back and neck pains and the doctor requested the applicant to attend the office in person for an assessment. Dr. Saroya noted the applicant “refused, said she is busy in university”.
23Based on the review of the CNRs and the notes from The Sports Medicine Specialists the applicant does not have a dependence on a provider or family member for activities of daily living. I have reviewed the notes from The Sports Medicine Specialists where the applicant attended 18 sessions from September 2021 to November 2021. The record notes whiplash and a “mild anxiety to drive”. On October 6, 2021 the record notes the applicant was “feeling better and less stiff”. On November 5, 2021 it notes “better than before”. A mild anxiety of driving was noted shortly after the accident, however, there were no subsequent notes of this or notes of social withdrawal, fear or anxiety. On balance I am not persuaded the applicant was diagnosed with chronic pain with a functional impairment.
24I find on a balance of probabilities that the applicant does not have chronic pain with a functional impairment that occurred as a result of the accident, or that she should be removed from the MIG on this basis.
Is the treatment plan reasonable and necessary?
25As the applicant is within the MIG, I do not need to consider if the treatment plan for occupational therapy services is reasonable and necessary.
Interest
26As no benefits are owing, it follows that no interest applies.
ORDER
27The applicant is subject to the MIG.
28As the applicant is subject to the MIG, she is entitled to treatment up to the MIG limits.
29As there are no overdue benefits, the applicant is not entitled to interest.
Released: March 31, 2025
Aric Bhargava Adjudicator