Brar v. TD General Insurance Company, 2025 CanLII 8007

Citation: Brar v. TD General Insurance Company, 2025 ONLAT 23-005801/AABS

Licence Appeal Tribunal File Number: 23-005801/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:

Sarabjit Brar

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Maria Bihnam, Paralegal

For the Respondent:

Harkamal Hehar, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Sarabjit Brar, the applicant, was involved in an automobile accident on April 12, 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, TD General 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:

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 a non-earner benefit (“NEB”) of $185.00 per week from August 21, 2021 to April 12, 2023?
3. Is the applicant entitled to the treatment proposed by Physiocare as follows: i. $2,193.00 for physiotherapy services in a treatment plan dated October 4, 2021; and ii. $2,208.00 for physiotherapy services in a treatment plan, dated June 3, 2023?
4. Is the applicant entitled to the assessments proposed by Medex Assessments Inc. as follows: i. $2,486.00 for a psychological assessment in a treatment plan dated August 13, 2021; ii. $2,768.50 for an orthopaedic assessment in a treatment plan, dated September 13, 2021; iii. $2,768.50 for a functional abilities evaluation in a treatment plan, dated October 1, 2021; and iv. $2,712.00 for an attendant care assessment in a treatment plan, dated August 23, 2021?
5. 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 a NEB.

5The applicant is not entitled to the treatment plans in dispute.

6The applicant is not entitled to interest.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

7I find that the applicant sustained a minor injury as a result of the accident and, therefore is subject to the $3,500.00 MIG funding limit on treatment, which the parties agree has been exhausted.

8Section 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.”

9An 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.

10In this matter, the applicant submitted that she should be removed from the MIG because she sustained chronic pain and/or a psychological impairment as a result of the accident.

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

11I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain with functional impairments such that she should be removed from the MIG.

12I find that the applicant has provided insufficient medical evidence to support that she suffers from ongoing pain or chronic pain or that she has a corresponding functional impairment as a result of the accident. There is insufficient evidence post-accident of a significant decrease in the applicant’s physical abilities and insufficient evidence that she suffers a functional impairment. My reasoning is based upon the following findings.

13The applicant submits that she should be removed from the MIG because she suffers from chronic pain as a result of the accident; specifically, she submits that she continues to have neck, back and bilateral shoulder pain.

14To support her position, the applicant relies upon the clinical notes and records (“CNRs”) of Dr. Fariha Khan, family physician. The applicant initially had a virtual visit with Dr. Khan on April 14, 2021, at which time she was diagnosed with whiplash/cervical strain and physiotherapy was recommended. On May 11, 2021, the applicant had a phone call with Dr. Khan and again reported complaints of neck pain with tightness extending to the back of her head.

15The applicant did not return to see Dr. Khan until March 3, 2022, at which point she complained of ongoing pain in her shoulder and lower back. She reported that she was having a hard time with her activities of daily living due to pain, and she can only do activities for 15 minutes at a time. The CNR notes that the applicant requested a referral to a pain clinic. On September 6, 2022, the applicant was seen again by Dr. Khan who noted “continues to have chronic pain due to mva. Is awaiting pain clinic referral. Coverage for physio has run out.” On September 14, 2022, Dr. Kwan makes a referral to NeuPath Pain Clinic for possible injections. The applicant is subsequently seen by Dr. Khan on multiple occasions, but she makes no complaints with respect to the injuries she suffered in the motor vehicle accident. It is not until March 30, 2024, when the applicant is seen for thyroid medication concerns that Dr. Khan notes “h/o chronic neck and shoulder pain since MVA on April 12, 2021, neck and shoulders feel stiff”.

16I find that aside from the initial mention on March 3, 2022 that she was having a hard time with her activities of daily living due to pain, Dr. Khan’s CNRs do not mention the applicant’s functional abilities or whether any of her activities of daily living were curtailed as a result of pain. In addition, I find that there is a lack of pain complaints made to Dr. Khan after September 14, 2022, despite the applicant seeing Dr. Khan on multiple occasions thereafter. I therefore find that the CNRs of Dr. Khan do not support her removal from the MIG on the basis of chronic pain.

17The applicant also relies upon the CNRs and the October 14, 2022 Consultation Summary of Dr. Sandeep Dhillon, of NeuPath Pain Clinic. Dr. Dhillon diagnosed the applicant with mechanical lower back pain without radicular features, lumbar strain and zygapophyseal joint pain. With respect to the effect on function, Dr. Dhillon noted that she can complete her Activities of Daily Living (eating, bathing, dressing, transferring, toileting, moving around) but it takes about 2-3 times longer to complete basic tasks. With respect to her Instrumental Activities of Daily Living (phone, shopping, cooking, cleaning, laundry, driving, finances, medications), she is independent but with difficulty. Dr. Dhillon recommended home yoga, aqua therapy and aerobic exercises as well as nerve blocks weekly for 4-12 weeks. In a letter to Dr. Khan, dated November 2, 2023, Dr. Dhillon notes that the applicant continues to experience bilateral shoulder pain for which she attends the pain clinic for injections every two weeks. She also continues to have lower back pain which is also followed by the pain clinic where she occasionally receives injections. The last CNR provided is dated May 25, 2023, and there is no explanation as to why the injections or treatment ended. I find upon review of the records of Dr. Dhillon, that the applicant reported ongoing, consistent and generally sustained reduction in pain and discomfort. Despite noting that she has ongoing tenderness in her muscular/tendinous joint areas, there is no mention in the CNRs of the applicant’s ongoing functional limitations or difficulties in completing her activities of daily living which would remove her from the MIG.

18The applicant further relies upon the Disability Certificate, prepared by Dr. Sundeep Sandher, Chiropractor, dated May 5, 2021, which lists the applicant’s injuries as WAD 2 with complaint of neck pain with musculoskeletal signs, sprain and strain of cervical spine, sprain and strain of thoracic spine, sprain and strain of lumbar spine, sprain and strain of sacroiliac joints, headaches and other sleep disorders. The injuries listed are all injuries that fall within the Schedule’s definition of minor. There is no mention of chronic pain. While Dr. Sandher indicates that the applicant suffers a complete inability to carry on a normal life and a substantial inability to perform her pre-accident housekeeping duties, I find that there are no particulars provided about the applicant’s functional limitations with respect to her pre-accident activities of daily living which would remove her from the MIG.

19Finally, the applicant relies upon the treatment plan, prepared by Michael Sabayle, occupational therapist, dated July 28, 2021, where he recommended a chronic pain assessment based on the applicant’s pain persisting longer than the temporal course of natural healing. While the plan indicates that a medical pre-screening was completed, there are no particulars as to whether this consisted of a telephone pre-screening or a physical examination or the medical documentation reviewed by Mr. Sabayle. No chronic pain assessment report has been provided in the applicant’s submissions. Therefore, I give this treatment plan no weight.

20The respondent submits that the medical evidence submitted by the applicant confirms that she sustained minor injuries in the accident. The respondent relies upon the s. 44 Insurer Examination (“IE”) report of Dr. Sabrina Ming-Wai Tu, family medicine, dated January 13, 2023, and the Paper Review Report, dated October 19, 2023, which concluded that the applicant’s injuries were predominantly minor injuries. Dr. Tu concluded that from a musculoskeletal perspective, the applicant has likely suffered from a cervical strain, a thoracic strain, and a lumbar strain, which are minor injuries.

21For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain with functional impairments such that she should be removed from the MIG.

b. The applicant is not removed from the MIG on the basis of psychological injuries

22I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological impairment that would remove her from the MIG.

23The applicant submits that she suffers a psychological impairment as a result of the accident. In support of her position, she relies upon the pre-screen report prepared by Mr. Sabayle, occupational therapist, in the treatment plan, dated August 13, 2021. Mr. Sabayle recommended a psychological assessment. The pre-screen notes that the applicant reported experiencing depressive episodes, anxiety, nervousness, stress and sleep issues. As Mr. Sabayle is an occupational therapist, I do not place any weight on this evidence as to whether the applicant suffers a psychological impairment.

24I also find that despite seeing her family physician, Dr. Khan, on multiple occasions following the accident, there is no mention of any psychological complaints in Dr. Khan’s CNRs.

25I find the s. 44 IE report of Dr. Amena Syed, psychologist, dated January 13, 2023, relied upon by the respondent, persuasive, because he is a psychologist and qualified to opine on the applicant’s psychological condition. Dr. Syed concluded that the applicant is not suffering from any psychological impairment that would warrant a diagnosis as per the DSM-5 as a result of the accident and concluded that the applicant’s psychological injuries are considered minor.

26For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers a psychological impairment such that she should be removed from the MIG.

The applicant is not entitled to the disputed treatment plans

27As the applicant continues to be within the MIG and the MIG limits have been exhausted, the applicant is not entitled to the treatment plans in dispute for physiotherapy services, a psychological assessment, an orthopaedic assessment, a functional abilities evaluation, and an attendant care assessment.

The applicant is not entitled to a NEB

28I find that the applicant is not entitled to a NEB. She has not established, on a balance of probabilities, that she suffers a complete inability to carry on a normal life as a result of the accident.

29Section 12(1) of the Schedule provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines “a complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”

30The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Insurance Company, 2009 ONCA 391 (“Heath”), which, generally focuses on a comparison of the applicant’s pre- and post-accident activities.

31For the applicant to prove that she sustained injuries that continuously prevent her from engaging in substantially all of her pre-accident activities, she must present a thorough analysis and comparison of activities that she could do before and after the accident. The applicant must first identify the activities in which she used to engage, along with their frequency and importance.

32While the applicant submits that she suffers a complete inability to carry on a normal life as a result of the accident, I find that the applicant provided few submissions with respect to her entitlement to a NEB and the accident-related impact on her pre- compared to post-accident activities.

33The applicant relies upon the CNR of Dr. Khan, family physician, dated March 3, 2022, where she complained that she has a hard time with activities of daily living due to pain and she can only tolerate activity for 15 minutes. She further relies upon the October 14, 2022 Consultation Summary of Dr. Dhillon, pain specialist, where it notes that her injuries effect her function in terms of performing her activities of daily living (eating, bathing, dressing, transferring, toileting, moving around). He notes that she can complete these tasks but it takes her 2-3 times longer to complete the basic tasks. As noted above, with respect to instrumental activities of daily living (phone, shopping, cooking, cleaning, laundry, driving, finances, meds) he notes she is independent with difficulty. The applicant submits that her functional difficulties limit the number of activities that can be done in a day and therefore she is not engaging in all of her activities that she would have prior to the accident.

34The respondent submits that the applicant has not met her burden of proof that she suffered a complete inability to carry on a normal life as a result of and within 104 weeks of the accident. The respondent relies upon the August 24, 2021 IE reports of Dr. Sabrina Ming-Wai Tu, family medicine, Dr. Amena Syed, psychologist, and Mr. Atul Kaul, occupational therapist, which confirm that the applicant does not suffer a complete inability to carry on a normal life.

35I find that the applicant has not proven on a balance of probabilities that she suffers from a complete inability to carry on a normal life for the following reasons.

36I find that the applicant has not made submissions on the particulars of the pre- and post-accident activities as required by Heath. Without details regarding the activities she valued, or evidence of the frequency and time commitments of her pre-accident activities, I cannot compare her pre- and post-accident ability to engage in activities she ordinarily engaged in or valued and therefore I find the applicant has not met her onus.

37Further, I am persuaded by the evidence of the respondent set out in the August 24, 2021 IE reports of Dr. Tu, family medicine, Dr. Syed, psychologist, and Mr. Kaul, occupational therapist, which I find provide a thorough analysis and assessment of the applicant’s injuries and directly references the complete inability test.

38I find, on a balance of probabilities, that the applicant has not demonstrated that those injuries and impairments resulted in a complete inability to carry on a normal life. For these reasons, I find that the applicant is not entitled to a NEB.

Interest

39Interest 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

40For 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 an NEB; iii. The applicant is not entitled to interest; and iv. The application is dismissed.