Citation: Gill v. Pembridge Insurance, 2025 ONLAT 23-001416/AABS

Licence Appeal Tribunal File Number: 23-001416/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:

Parmjeet Gill

Applicant

and

Pembridge Insurance

Respondent

DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Howard R Blitstein, Counsel

For the Respondent:

Andrew McKague, Counsel

HEARD:

By way of written hearing

OVERVIEW

1Parmjeet Gill, the applicant, was involved in an automobile accident on December 17, 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, Pembridge Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The issues in dispute are:

1. Is the applicant entitled to $680.00 for assistive devices, proposed by Caring Rehabilitation Ltd. in a treatment plan/OCF-18 (“treatment plan”) submitted May 14, 2021?

2. Is the applicant entitled to $4,196.80 for chiropractic services, proposed by Caring Rehabilitation Ltd. in a treatment plan submitted May 14, 2021?

3. Is the applicant entitled to $299.22 for psychological services, proposed by Caring Rehabilitation Ltd. in a treatment plan submitted November 23, 2021?

4. Is the applicant entitled to $3,033.00 for chiropractic services, proposed by Caring Rehabilitation Ltd. in a treatment plan submitted March 10, 2021?

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

3The applicant withdrew two additional issues set out in the Case Conference Report and Order(CCRO): a treatment plan for attendant services and a Special Award.

RESULT

4I find that:

1. The applicant is entitled to $274.94 for assistive devices in a treatment plan submitted May 14, 2021.

2. The applicant is entitled to $3,033.00 for chiropractic services in a treatment plan submitted May 14, 2021.

3. The applicant is not entitled to the remaining $299.22 for psychological services in a treatment plan submitted November 23, 2021.

4. The applicant is entitled to $3,033.00 for chiropractic services in a treatment plan submitted March 10, 2021,

5. The applicant is entitled to interest on any outstanding payments, in accordance with s. 51 of the Schedule.

PROCEDURAL ISSUE

Motion to Strike Applicant’s Submissions

5The respondent submits that I should not consider the last three pages of the applicant’s submissions, because they were filed one day late and were two and a half pages over the 10-page limit set out in the CCRO.

6The applicant did not address the procedural issue in her reply submissions.

7The respondent relies on the Tribunal’s order in Ali v. The Co-operators General Insurance Company, 2023 CanLII 15047 (ON LAT), where the Tribunal struck additional pages from the applicant’s submissions because, as in this case, the applicant did not request to extend the page limit for submissions. While non-compliance with Tribunal orders is a serious matter, I am not bound by Tribunal decisions, and in my view, the excess pages in the present case appear to be a matter of formatting. The applicant’s submissions contain multiple screenshots of evidence which have also been submitted in her document brief, as well as photographs of the motor vehicle accident, which together account for a significant amount of the page count, which, together, take up a substantial number of pages. The final two-and-a-half pages of the submissions contain the applicant’s arguments.

8Further, the respondent did not explain how it would be prejudiced if I considered the applicant’s submissions in their entirety, or how it is prejudiced by the applicant filing their submissions one day late, and I find there would be significant prejudice to the applicant if her arguments are not considered.

9Additionally, I note that the respondent was able to file submissions in response which fully addressed the applicant’s submissions.

10For these reasons, I decline the respondent’s request, and I will consider the applicant’s submissions in their entirety.

ANALYSIS

11To receive payment for a treatment and assessment plan under s. 15 and s. 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

Is the applicant entitled to $3,033.00 for a treatment plan for chiropractic services dated March 10, 2021?

12I find that the applicant is entitled to the treatment plan dated March 10, 2021.

13The goals of the treatment plan, proposed by Dr. Rina Delon, chiropractor, of Caring Rehabilitation Ltd. are: pain reduction, increased range of motion, return to activities of daily living, and return to work. The treatment plan sets out a course of 20 sessions of chiropractic and physiotherapy treatment and administrative costs totalling $3,033.00.

14The applicant submits that she has experienced ongoing pain in her neck, shoulder, and back as a result of her accident-related soft tissue injuries and that the treatment is reasonable and necessary because therapy has been helpful in alleviating the applicant’s pain. The applicant relies on the clinical notes and records (“CNRs”) of her family physician, Dr. Jaskaran Singh, the CNRs of the William Osler Health Centre, the independent medicolegal physiatry report of Dr. Ali Ghouse, physiatrist, dated March 23, 2023, and the occupational therapy attendant care report of Mr. Thomas Moorthy, occupational therapist, dated January 12, 2021 in support of her claims.

15The respondent counters that the applicant’s complaints are the result of pre-existing lower back pain and a degenerative cervical spine condition. The respondent relies on the Insurer’s examination report (“s. 44 report”) of Dr. Ato Sekyi-Otu, orthopedic surgeon, dated August 4, 2021, and the s. 44 report of Dr. Sukhinder Bhangu, physiatrist, dated July 18, 2023.

16I agree with the respondent that Dr. Ghouse’s physiatry report sheds little light on whether the treatment plans in dispute are reasonable and necessary because it was conducted two years after the treatment plan was submitted., Accordingly, I have assigned it no weight. I because Dr. Ghouse’s report does not reflect the applicant’s physical condition at the relevant time. I assign Dr. Bhangu’s report no weight for the same reason.

17Additionally, I find that Mr. Moorthy’s report provides little probative value as his examination was conducted three weeks after the accident, and the evidence reveals that the applicant’s symptoms had improved in the months prior to the submission of the treatment plans in dispute.

18In her reply submissions, the applicant argues that the evidence does not support the respondent’s contention that the applicant’s symptoms are attributable to a pre-existing condition. I agree. Dr. Singh’s CNRs reveal that the applicant was diagnosed with a lumbar back strain in 2018 and complained of lower back pain on one further occasion in October 2019, which was more than a year before the accident. The applicant’s imaging reports from immediately following the accident on December 17, 2020 revealed mild degenerative disease in her cervical spine, but the respondent has not directed me to any evidence that the applicant had complained of cervical pain prior to the accident.

19Dr. Singh’s CNRs reveal that he diagnosed the applicant with soft-tissue injuries to her cervical and lumbar spine, shoulders, chest, leg and knee as a result of the accident, At the applicant’s December 20, 2021 appointment, Dr. Singh prescribed anti-inflammatory and pain medication and referred the applicant for chiropractic and physiotherapy treatment. The applicant complained of pain repeatedly. He continued to note the applicant’s progress, and recommended continued treatment and prescribed pain medication throughout the relevant time period, in addition to referring the applicant to a sports medicine specialist in January, 2021 and a pain specialist in June 2021.

20Dr. Sekyi-Otu conducted a s.44 examination of the applicant on July 28, 2021, which included an interview, a physical examination, and a review of the applicant’s medical records. He opined that the applicant had sustained uncomplicated soft tissue injuries to her neck, shoulders, back and leg as a result of the accident, which is consistent with the diagnoses of the applicant’s treating physicians. Dr. Sekyi-Otu further opined that there was no musculoskeletal impairment at the time of the examination. Additionally, Dr. Sekyi-Otu opined that the applicant was “self-limiting and pain-focussed,” and noted that the applicant had exaggerated responses at times during the examination that may suggest symptom magnification.

21I assign less weight to Dr. Sekyi-Otu’s report for the following reasons. Dr. Sekyi-Otu opined that the applicant’s prognosis for a full recovery was “fair,” which I find to be inconsistent with his conclusion that the treatment plans were not reasonable and necessary because the applicant’s myofascial sprains and strains would “typically resolve within 6-12 weeks,” Although the evidence reveals that the applicant had incurred most of the treatment set out in the treatment plans by the time of the s.44 examination, Dr. Sekyi-Otu did not opine on the efficacy of the facility-based treatment the applicant had received to date.

22Although Dr. Sekyi-Otu opined that the applicant’s reported pain was inconsistent with his assessment of her injuries on the date of examination, I place greater weight on the clinic notes and records of Dr. Singh, who has been the applicant’s family doctor since 2016. Dr. Singh was in a position to monitor the applicant’s recovery and pain from her accident-related injuries on an on-going basis in the eight months prior to Dr Sekyi-Otu’s s.44 examination, including at the time the treatment plan was submitted. Dr Singh noted the resolution of the applicant’s chest and leg pain in February, 2021 and April, 2021, respectively, but continued to treat the applicant’s neck, back, and shoulder pain. Additionally, Dr. Singh’s CNRs reveal a referral to a chronic pain specialist on June 28, 2021, five weeks before Dr. Sekyi-Otu’s assessment.

23I find that Dr. Singh’s CNRs reveal that at the applicant’s February 18, 2021 appointment, he noted that the applicant reported improvement, but exhibited reduced range of motion and pain in her cervical and lumbar spine on examination. He increased her pain medication, and recommended continued treatment, including “aggressive” physiotherapy.

24Based on the evidence before me, I find on a balance of probabilities that the treatment plan is reasonable and necessary. Accordingly, the applicant is entitled to $3,033.00 for the treatment plan dated March 10, 2021.

Is the applicant entitled to $4,196.80 for chiropractic services for a treatment plan dated May 14, 2021?

25The treatment plan was prepared by Dr. Delon, chiropractor, of Caring Rehabilitation Ltd. The goals of the treatment plan are: pain reduction, increased range of motion, increase in strength, and a return to activities of normal living, and return to pre-accident work and household activities. It sets out 20 treatment sessions iand an assessment for a total of $4,196.80.

26I find that the treatment plan is supported by contemporaneous medical evidence. Dr. Singh’s CNRs reveal that at the applicant’s May 13, 2021 appointment, Dr. Singh noted that the applicant had chronic pain in her neck, back, and shoulder and observed a reduced range of motion in her cervical and lumbar spine and pain on examination. Dr. Singh noted that the applicant was attending therapy twice a week which improved her pain for 2-3 days. He recommended continued therapy and that the applicant discuss home exercise with her treatment provider.

27However, the treatment plan does not indicate why the applicant requires an additional hour of treatment, which represents an increase of 20 hours or $1163.80 over the previous treatment plan. over the March 10, 2021 treatment plan, nor is it addressed in the applicant’s submissions. In my view, the applicant has established that a continuation of the previous treatment plan is reasonable and necessary, because pain relief is a legitimate goal for treatment, and further treatment was recommended by Dr. Singh.. Accordingly, the applicant is entitled to $3,033.00 for the treatment plan for chiropractic services dated May 14, 2021.

Is the applicant entitled to $680.00 for assistive devices in a treatment plan dated May 14, 2021?

28I find that the applicant has established that she is entitled to the treatment plan dated May 14, 2021.

29The goals of the treatment plan, prepared by Dr. Delon and dated May 14, 2021, are: reduced pain, increased range of motion, increased strength and a return to the activities of normal life. The treatment plan includes $300.00 for a TENS unit and $180.00 for a heating pad, and $200.00 in documentation/support activity fees for the preparation of the treatment plan.

30The applicant argues that the devices are reasonable and necessary to assist the applicant in treating her back and shoulder pain at home, and that the applicant has incurred the costs. The applicant relies on the CNRs of Dr. Singh.

31The respondent argues that the applicant has not proved that the cost of the devices is reasonable and relies on the s. 44 report of Dr. Sekyi-Otu, as well as advertisements for a TENS unit for a retail cost of $44.95, and a heating pad at a retail cost of $29.99. The applicant did not address this issue in her reply submissions.

32I find that the treatment plan is supported by contemporaneous medical evidence. Dr. Singh’s CNRs reveal that he advised the applicant to pursue home exercise in addition to her facility-based care on May 13, 2021, which I find is consistent with the use of a TENS machine at home. Additionally, Dr. Singh repeatedly recommended that the applicant use heat packs, which I find supports the purchase of a heating pad.

33However, the Cost of Goods Guideline (the “Guideline”) sets out the maximum expense payable by an insurer for an item of goods as the retail price, or the price actually paid, whichever is lower. The Guideline places the onus on the insurer to supply reasonable evidence of an item’s retail price when a dispute arises. Reasonable evidence, according to the Guideline Includes an advertisement.

34I accept the respondent’s evidence as the maximum price payable by the respondent for a TENS unit ($44.95) and a heating pad ($29.99). Therefore, I find that the applicant is entitled to $274.94 for the treatment plan in dispute, which reflects the reduced cost of $44.95 for the TENS unit, and $29.99 for the heating pad and $200.00 for the preparation of the treatment plan, which I find is reasonable because the treatment plan above for chiropractic services was submitted the same day and did not contain an amount for the preparation of the treatment plan.

Is the applicant entitled to the remaining $299.22 for psychological services in a treatment plan dated November 23, 2021?

35I find that the applicant has not established that she is entitled to the remaining amount of $299.22 in the treatment plan dated November 23, 2021.

36The treatment plan for psychological services was prepared by Dr. Dragica Fink, psychologist, of Caring Rehabilitation Ltd. The respondent partially approved the treatment plan for psychological treatments totalling $2,693.04 and documentation and support activities totalling $648.95. The remaining amount in dispute consists of $149.61 for a mental health assessment and $149.61 in an additional line item for documentation and support activity.

37I agree with the respondent that the applicant has not provided sufficient clarifying information to support a finding that the remaining amount is reasonable and necessary. The applicant submits that the amounts are for time spent preparing for the applicant’s pre-screening assessment and for the preparation of an assessment and report. The respondent submits that a treatment plan for a psychological assessment had been approved previously, and that the amount for a mental health assessment was duplicative. Further, the respondent notes that there is no mental health assessment or report proposed in the treatment plan.

38Therefore, I find that the applicant has not met her onus to prove that the treatment plan is reasonable and necessary. Accordingly, the applicant is not entitled to the remaining $299.22 for the treatment plan dated November 23, 2021.

Interest

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.

ORDER

40I find that:

1. The applicant is entitled to $274.94 for assistive devices in a treatment plan submitted May 14, 2021.

2. The applicant is entitled to $3,033.00 for chiropractic services in a treatment plan submitted May 14, 2021.

3. The applicant is not entitled to the remaining $299.22 for psychological services in a treatment plan submitted November 23, 2021.

4. The applicant is entitled to $3,033.00 for chiropractic services in a treatment plan submitted March 10, 2021.

5. The applicant is entitled to Interest on any outstanding payments in accordance with s. 51 of the Schedule.