Sharon v. Pembridge, 2025 CanLII 28464

Sharon v. Pembridge

Citation: Sharon v. Pembridge, 2025 ONLAT 23-006003/AABS Licence Appeal Tribunal File Number: 23-006003/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:

Egidjia Sharon

Applicant

and

Pembridge

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Julia Logoutova, Paralegal

For the Respondent: Aleah Thomas, Counsel

HEARD: By way of written submissions

OVERVIEW

1Egidjia Sharon, the applicant, was involved in an automobile accident on February 16, 2022, 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, Pembridge, 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 the assessments proposed by 24030307 Ont. Ltd., as follows: a. $2,100.00 for a psychological assessment, in a treatment plan dated March 2, 2022; b. $2,000.00 for an orthopaedic assessment, in a treatment plan dated May 18, 2022; and c. $2,000.00 for a chronic pain assessment, in a treatment plan, dated August 31, 2022?

iii. Is the applicant entitled to the treatment proposed by 24030307 Ont. Ltd., as follows: a. $1,050.56 for self-directed exercise, in a treatment plan dated May 18, 2022; b. $3,068.81 for physiotherapy services, in a treatment plan dated June 29, 2022; and c. $2,641.62 for aqua therapy services, in a treatment plan dated June 27, 2022?

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

RESULT

3The applicant’s injuries are predominantly minor, and as such, she is subject to the MIG.

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

5The applicant is not entitled to interest.

ANALYSIS

The Minor Injury Guideline

6I find that the applicant sustained a minor injury as a result of the accident and is therefore subject to the $3,500.00 MIG funding limit on treatment.

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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.

9I find that the applicant’s submissions do not address whether she sustained a minor injury. I find that although listed as an issue in dispute in the Case Conference Report and Order, the issue of whether the applicant should be removed from the MIG is not addressed by the applicant in her submissions nor did the applicant provide any medical evidence to support her removal from the MIG.

10For these reasons, I find that the applicant has not proven on a balance of probabilities that she should be removed from the MIG.

Entitlement to Treatment Plans in Dispute

11The applicant is not entitled to the treatment plans in dispute.

12The applicant’s submissions do not address whether the treatment plans in dispute are reasonable and necessary. Instead, she claims entitlement to them under s. 38(8) and s. 44(5) of the Schedule.

13Sections 38(8) and 38(11) of the Schedule, set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply.

14Under s. 38(8), an insurer has the obligation to, within 10 business days after it receives a treatment plan, provide an insured person with a notice identifying the medical and all other reasons why the insurer finds the treatment plan not to be reasonable and necessary. There should be clear and sufficient information for an unsophisticated person to make an informed decision to either accept or dispute the denial.

15If the insurer fails to give a notice in accordance with s. 38(8) in connection with a treatment and assessment plan, the following rules found in s. 38(11) apply: (a) the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies; and (b) the insurer must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice as described in subsection (8).

16Additionally, under sections 38(10) and 44(1), an insurer may notify an insured person that they are required to be examined by a regulated health professional. Section 44(5) requires an insurer to provide a Notice of Examination which sets out “the medical and any other reasons for the examination.” The medical and any other reason should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the insurer’s request to attend the assessment.

The Respondent’s Denials are Compliant with s. 38(8) of the Schedule

17The applicant submits that the respondent failed to comply with the notice requirements pursuant to s. 38(8) of the Schedule, in denying the treatment plans in dispute. The applicant submits that the respondent did not provide meaningful and adequate reasons for the denial of the multiple treatment plans, which made the respondent non-compliant with s. 38(8) of the Schedule and triggers the consequences in s. 38(11) of the Schedule. The applicant relies on the Tribunal decision in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) to argue that the notice of denial must provide a valid medical and any other reasons for the denial. She further relies on the Tribunal decision in Longboat v. Gore Mutual Insurance Company, 2023 CanLII 67925 (ON LAT), in support of her position. The applicant submits that as a result of the respondent’s non-compliance, the treatment plans in dispute are fully payable.

18The respondent submits that its denial notices complied with s. 38(8) of the Schedule. The respondent submits that its denial notices advise the applicant of the respondent’s determination that her injuries fall within the MIG. The respondent relies upon the Tribunal decisions in 17-001670 v. The Dominion of Canada General Insurance Company, 2017 CanLII 69445 (ON LAT) and Zeitoun v. Royal & Sun Alliance, 2020 CanLII 103701 (ON LAT). The decisions support its position that denying a treatment plan based on a belief that the MIG applies constitutes sufficient medical or other reasons. The respondent further submits that despite the respondent’s numerous requests for medical documentation pursuant to s. 33 of the Schedule, to assist with its determination of the applicant’s entitlement to medical and rehabilitation benefits, the applicant consistently failed to provide same.

19I have reviewed the denial notices and find that they are in compliance with s. 38(8) of the Schedule. In each of the explanations, the respondent indicated that it was unable to approve the goods, services and/or assessments on the basis that the applicant sustained a minor injury as a result of the accident. The explanation notes that based on the medical documentation on file and the injuries listed on the treatment plans, the applicant’s injuries are predominantly soft tissue injuries that can be treated within the MIG. The respondent asks for supporting medical documentation relied upon to determine that the injury is excluded from the MIG. I find that the explanations provide clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denials. I find that standing within the MIG is a medical reason because it indicates that the applicant’s impairments are minor, which is a medical definition in the Schedule.

20For these reasons, I find that the applicant’s claim that the treatment plans are payable as a result of the respondent’s non-compliance with s. 38(8) of the Schedule is denied.

The Respondent’s Denials are Compliant with s. 44(5) of the Schedule

21The applicant further submits that the notice of examination, dated August 29, 2022 provided by the respondent, did not meet the requirements of s. 44(5) of the Schedule, as the respondent failed to provide any specifics of the applicant’s medical condition. The applicant submits that the fact that the applicant attended the Insurer’s Examinations (“IE’s) does not cure the deficient denial notices. The applicant submits that as a result of the non-compliance, the results of the IE reports should not be considered in determining whether his injuries fall within the MIG. The applicant relies on the Tribunal decision in Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ON LAT) (“Taksali”).

22The respondent submits that the notice of examination letter is compliant with s. 44(5) of the Schedule. The respondent submits that its medical and any other reasons for the IEs indicated that there was no compelling medical evidence to support that the applicant sustained anything other than minor injuries as a result of the accident. It submits that the notice states that the examinations were being scheduled pursuant to s.44 of the Schedule, to determine if her injuries are predominantly minor, as defined in the MIG. The respondent submits that it provided the names, professions/designations, and specialties of the assessors as well as the date, time and location of the examinations. The respondent relies on the Tribunal decision in Khan v. Allstate Insurance, 2023 CanLII 44305 (ON LAT), where the insurer’s medical reasons indicated that there was insufficient medical evidence to support a finding that the applicant suffers from a physical or psychological impairment that prevents her from full recovery within the MIG. The notices further indicated that the applicant was subject to an IE pursuant to s.44 of the Schedule. The Tribunal found these to be adequate medical reasons that were compliant with the Schedule.

23I find that the notice of examination provides a clear and sufficient reason to allow the applicant to make an informed decision whether to attend the IE examinations. The respondent advised the applicant that it had no compelling medical evidence to support that the applicant sustained injuries which are not predominantly minor and required IEs to determine whether her impairment is predominantly a minor injury. As stated above, I find that standing within the MIG is a medical reason because it indicates that the applicant’s impairments are minor, which is a medical definition in the Schedule. I do not accept the applicant’s submission that the respondent failed to provide any specifics about the applicant’s medical condition as the respondent noted that the applicant’s injuries were minor. I further find that the respondent provided the names, professions/designations, and specialities of the assessors as well as the date, time and location of the examinations.

24For these reasons, I find that the notice of examination was compliant with s. 44(5) of the Schedule and the respondent is entitled to rely on the findings in the IE reports.

Interest

25Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no overdue payment of benefits is owing to the applicant, no interest is owed.

ORDER

26For the reasons outlined above, I find:

i. The applicant’s injuries are “minor injuries” as defined in the Schedule.

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The applicant is not entitled to interest; and

iv. The application is dismissed.