Sharma v. Western Assurance Company, 2025 CanLII 94789

Citation: Sharma v. Western Assurance Company, 2025 ONLAT 24-010001/AABS

Licence Appeal Tribunal File Number: 24-010001/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:

Bharat Sharma

Applicant

and

Western Assurance Company

Respondent

DECISION

ADJUDICATOR: Timothy Porter

APPEARANCES:

For the Applicant: Delaney McCartan, Counsel

For the Respondent: Lori J. Sprott, Counsel

Heard by Videoconference: May 19-22, 2025

OVERVIEW

1Bharat Sharma, the applicant, was involved in an automobile accident on June 27, 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, Western Assurance 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 MIG limit?

ii. Is the applicant entitled to attendant care benefits in the amount of $10,302.46 per month from November 4, 2022, to date and ongoing?

iii. Is the applicant entitled to the treatment plans /OCF-18s (“plan”) proposed by Innovative Occupational Therapy Services:

a) $2,200.00 for an Occupational Therapy Assessment, in a plan dated August 3, 2022?

b) $6,033.60 for occupational therapy services, in a plan dated August 16, 2022?

c) $7,036.40 for occupational therapy services, in a plan dated March 19, 2024?

iv. Is the applicant entitled to the plans proposed by Mackenzie Medical Rehabilitation Centre as follows:

a) $3,622.73 for chiropractic services, in a plan dated July 13, 2022?

b) $2,023.03 for chiropractic services, in a plan dated November 18, 2022?

c) $1,524.84 for chiropractic services, in a plan dated January 6, 2023?

v. Is the applicant entitled to $240.00 for hospital services, submitted on a claim form (“OCF-6”) dated February 16, 2023?

vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant has not met his onus and remains within the MIG.

4The applicant is not entitled to the attendant care benefit because he remains within the MIG.

5As the applicant remains within the MIG, it is not necessary to conduct the reasonable and necessary analysis of the treatment plans and OCF-6 in dispute.

6As there are no overdue payments, no interest is due.

7No award is due.

PROCEDURAL MATTERS

8On May 7 and 8, 2025, prior to the hearing, the applicant brought two motions; the first requesting an order to produce certain documents agreed to be shared at the case conference, and an order to produce unredacted adjuster’s log notes (“Motion One”). The second motion sought to exclude s. 44 insurer’s examination reports and addendums by Dr. Seung-Jun Lee and Dr. Charlotte Lynn Gooden, as well as to bar both doctors from testifying at the hearing regarding the Minor Injury Guideline (“MIG”) (“Motion Two”). The motions were heard at the beginning of the hearing.

MOTION ONE

9The applicant submits that, although ordered to do so in the CCRO of December 4, 2024, the respondent failed to produce the raw test data from Dr. Lee and Dr. Gooden. The applicant also submits that the unredacted adjuster’s log notes are required to advance his award claim.

10The respondent submits that the adjuster’s log notes were produced as ordered, redacted for privilege and reserves, with the reasons for the redactions noted. The respondent also submits that Dr. Lee does not have any raw test data, and that Dr. Gooden’s professional standards demand that her raw data be submitted to another professional with the same standing within her professional college. This latter point is outlined in the CCRO of December 4, 2024.

11I find that the respondent has complied with the CCRO regarding the adjuster’s log notes disclosures. The CCRO is clear that the adjuster’s log notes may be redacted for privilege and reserves.

12Regarding the raw test data. The applicant confirmed that he did not follow-up on the disclosure agreement, and he did not proactively identify which doctors from whom raw test data was required. Raw test data does exist within the records of Dr. Gooden; however, no release was sought, and no receiving professional was identified by the applicant.

13For the reasons above, I find that the respondent has complied with, within reason, the CCRO of December 4, 2024. The motion is dismissed.

14Awaiting the outcome of the motion, the applicant had not yet submitted the particulars of his award claim. As such, I ordered the timeline for provision of particulars of his award claim to be extended from 30 days following receipt of the log notes to May 21, 2025.

MOTION TWO

15Once again, the applicant sought to bar the reports and testimony of Dr. Lee and Dr. Gooden from the hearing. I did not grant this motion, as I found the applicant was properly informed of the examinations at issue and the implications of those examinations.

16The applicant submits that s. 44(1), s. 44(5), and s. 44(6) of the Schedule place strict guidelines around insurer’s examinations noting that an insurer cannot proceed to conduct any insurer’s examination, at any time, without first providing proper notice. The applicant relies upon Waring v. Aviva General Insurance Company, 2022 CanLII 59513 (ON LAT) in support of his position that the MIG was not identified specifically as a reason for s. 44 insurer’s examinations by Dr. Lee and Dr. Gooden, and yet they opined on the applicability of the MIG.

17The respondent submits that it is well settled that the MIG and benefits eligibility are intertwined, and that the MIG is not a stand-alone issue. The respondent relies on Derenzis v. Gore Mutual Insurance Co., 2025 ONSC 2732 (“Derenzis”) in support of their position, highlighting that the applicant is relying on old Tribunal decisions which have been superseded by Derenzis. Further, the reports are relevant to the issues in dispute.

18I find the Derenzis decision instructive regarding the direction to analyze the course of communication between the parties:

i. On August 19, 2022, the respondent’s correspondence to the applicant explains the MIG, identifies that an OCF-18 in the amount of $3,622.73 indicates the applicant should qualify for treatment outside of the MIG. The letter requests additional medical documentation in support of this claim. The respondent goes further to explain that, upon receipt of the requested information, the respondent will re-evaluate their position regarding the OCF-18 and advise if an examination is needed under s. 44.

ii. On October 18, 2022, the respondent’s correspondence to the applicant outlines that multiple insurer’s examinations are required to determine eligibility to the non-earner benefit. It also states that the first examination with a general practitioner is to be in-person and is scheduled for November 1, 2022.

iii. On December 15, 2022, the respondent’s correspondence to the applicant outlines that a paper review of the applicant’s medical records is required to determine eligibility to certain OCF-18s.

19This correspondence suggests to me that, on a balance of probabilities, the applicant was made aware that his eligibility for various benefits was in question, and that the respondent considered the applicant was within the MIG. The applicant has not persuaded me that the communications from the respondent in 2022 were vague, opaque, or unclear in any way.

20I find that the applicant was properly informed of the examinations and the implications of those examinations. Further, I find that the documents are relevant to the issues in dispute, and, therefore, I admitted them as evidence in the hearing.

The applicant’s brother may not testify

21The respondent submitted that, at the beginning of the hearing, the applicant identified his brother as a witness to be called. According to the respondent, this was the first time it had heard of the brother, and, as per Rule 9 of the Licence Appeal Tribunal Rules, 2023, they are not aware of the brother’s name, he has not been properly identified, and, they have not been provided with a summary of evidence.

22The applicant submitted that on April 4 and April 29, 2025, they informed the respondent that a family member or friend would be called in support of the applicant’s claims.

23There have been no reasons identified by the applicant for why the name and summary of evidence were not submitted to the respondent and Tribunal, as per Rule 9.4.3. The respondent opposes the brother being called as a witness. As the late request is a failure to comply with the rule, I turn to Rule 9.3 to explore relevant factors to assess the failure to comply. The reason for non-compliance is not clear, the applicant is aware of his brother and that he may have testimony in support of his position. The respondent would be prejudiced with the allowance to call the brother, the prejudice to the applicant is unclear as no summary of evidence has been submitted. The respondent opposes the admission of the testimony. The relevance of the applicant’s brother’s testimony is unclear as no summary of evidence has been produced.

24For the reasons above, the brother was not approved to be called as a witness for the hearing.

ANALYSIS

The applicant has not met his onus and remains within the MIG

25For the reasons that follow, I find that the applicant has not met his onus and remains within the MIG.

26Section 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.”

27An 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 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.

28The applicant submits that psychological impairments he is suffering were caused by a concussion received during the subject accident. The applicant relies on the ambulance call report, William Osler Emergency Room Care records, the testimony and report of Dhinat Khan, occupational therapist (“OT”), and the testimony and report of Dr. Irina Valentin, neuropsychologist. Note that neither Ms. Khan nor Dr. Valentin were qualified as experts for the purposes of the hearing and have not submitted Acknowledgement of Expert’s Duty forms.

29The respondent acknowledges the applicant was injured in the subject accident, but denies these injuries are more than minor in nature and points to a lack of objective evidence to support the applicant’s claims. The respondent relies on the testimony and reports of Dr. Lee, general practitioner, and the testimony and report of Dr. Gooden, psychologist.

30I am not persuaded by the testimony of the applicant that he suffers from psychological issues. The applicant testified regarding multiple physical injuries that curtail some functional abilities, such as cooking and cleaning. The applicant also testified that he experiences headaches and that his short-term memory has been affected. The applicant also testified that he continued his education program, post-accident, riding the bus to and from school, ultimately graduating with a project management certificate in June 2023. The applicant also testified that he began working following the accident. One of the applicant’s post-accident roles involved inventory counting and recording, which I can infer to involve a degree of short-term memory work. The inconsistency between the applicant’s self-reported functional limitations and the symptoms he is experiencing do not align with his performance at school and work which causes me to not be persuaded by the self-reports.

31The applicant has not received a diagnosis of concussion. The applicant relies on the ambulance call report that states the applicant, according to bystanders, was prone on the ground unconscious for a short period of time following the subject accident. However, the ambulance call report accounts that the applicant reported no head or neck pain, no neurological deficits, had minor abrasions, and that the medication administered was Acetaminophen and Ibuprofen. Which causes me to place little weight on the reports of unknown bystanders.

32Turning to the William Osler Hospital records from the evening of the subject accident, they report no acute findings before releasing the applicant two to three hours after attending at the ER. Hospital personnel were aware of the potential loss of consciousness, placing a question mark on the notation beside “LOC”. There is no finding or concern for a concussion, or neurological injuries noted.

33Ms. Khan, who was not qualified as an expert, testified as a treating OT. Ms. Khan’s testimony is afforded no weight, because of her lack of medical file review and because her Assessment of Attendant Care Needs (“Form-1”, dated October 7, 2022) seems inconsistent with the applicant’s demonstrated level of function. The medical file review is an important part of the assessment process that provides the assessor context and potentially third-party insight into the applicant’s function and the evolution of symptoms experienced; without a medical file review the assessors’ observations and reporting of self-reports is undermined.

34Ms. Khan’s Form-1 identified that the applicant requires 24-hour care and observation which I find unreasonable and not based on any credible fact set. While 24-hour care is unreasonable, I draw particular attention to the assertion by Ms. Khan that the applicant required 20 hours per day of observation in case of emergency. In contrast to this assertion, the applicant testified to several solutions should he encounter an emergency. Ms. Khan also seemingly ignored the fact that the applicant was continuing to attend school by bus, and had, post-accident, secured work. Ms. Khan was not able to provide a meaningful answer to these contrasts between the applicant’s ability and her Form 1 assertions which leaves me questioning the entirety of her recommendations.

35I am also not persuaded by the testimony of Dr. Valentin, because she relies on the report of Ms. Khan for findings of mild cognitive and mood disorders, and she places weight on assumptions regarding the ambulance call report. Also, while her standardized test findings show an invalid profile, she opines that the applicant has a neuro-cognitive disorder. Dr. Valentin, who was not qualified as an expert, testified as a treating neuropsychologist, and, although there is a report, an Acknowledgement of Expert’s Duty form was not filed, which causes me to provide her opinion diminished weight.

36Dr. Valentin relies on Ms. Khan’s statement that the applicant suffers from mild cognitive and mood disorders. OTs are not trained or licensed to diagnosis any condition or its cause. Therefore, a significant factor within the consideration of Dr. Valentin’s diagnosis was based on the diagnosis by a healthcare professional not trained or licensed to provide such an opinion.

37Another aspect of Dr. Valentin’s report I take issue with is her conclusion regarding the applicant’s Glasgow Coma Scale (“GCS”) score. The GCS is a tool that healthcare providers use to measure decreases in consciousness. The highest possible score of a fully conscious person is 15. The ambulance call report identifies that the applicant’s GCS at a score of 14. Taken together, the applicant was relatively awake, alert, and oriented when tested by the ambulance personnel between 10 and 20 minutes following the subject accident.

38Dr. Valentin testified that she assumes it was a much lower scale score in the 10 minutes before the ambulance arrived, based on the reports of bystanders who have not provided evidence to Dr. Valentin or the Tribunal. Taken together, on a balance of probabilities, I find that Dr. Valentin has placed too much weight on an assumption about what the GCS score could have been which has impacted her diagnosis of the applicant.

39While Dr. Valentin states that the applicant has a neuro-cognitive disorder, likely due to a mild traumatic brain injury, she did not explore how he attended and graduated from, what was agreed at the hearing to be a difficult program at college, and how he has worked multiple jobs in the time between the accident and her assessment. Dr. Valentin’s report was issued on February 11, 2025, more than two years post-accident. Dr. Valentin testified that her personality inventory testing points to a possible minimization of issues and significant defensiveness in the applicant which rendered the profile invalid; the assessor was not able explain why she continued to rely on the test results in the face of an invalid profile except for the theory that the applicant was minimizing his symptoms. Of note, the applicant denied any psychological problems to the doctor during the structured interview portion of the assessment. In my mind, an invalid profile does not garner confidence that the findings will be useable for a diagnosis.

40Finally, Dr. Valentin seems to ignore evidence contrary to her opinion. Dr. Valentin reports the applicant is having memory difficulties when distracted, yet the interview was conducted over videoconference from a workplace locker room, with multiple distractions. Dr. Valentin also reports the applicant was significantly distracted, having regularly checked his phone throughout the face-to-face administration of multiple-choice tests. Taken together, on a balance of probabilities, the applicant can perform interviews and take tests while distracted.

41In contrast, the respondent’s expert, Dr. Gooden, testified that the applicant does not have any significant or severe psychological symptoms that are diagnosable, and, therefore, there is no functional impairment to assess. Dr. Gooden reported that the applicant took no breaks during the assessment, that he completed all tests in a timely fashion, was a good historian and expressed himself with organized and coherent thoughts. Dr. Gooden found that the applicant is not malingering and that while he has a mild depression it is within the normal range and therefore not an impairment to his function and not diagnosable.

42The applicant has not met his onus and has not submitted objective evidence sufficient to meet his burden.

The applicant is not entitled to attendant care benefits as he remains within the MIG

43As the applicant remains within the MIG, an analysis of attendant care eligibility is not necessary.

44As I have found that the applicant remains within the MIG, and the MIG is exhausted, I am not required to determine whether the treatment plans or OCF-6 submitted in this dispute are reasonable and necessary.

Interest

45There are no overdue benefits pursuant to s. 51 of the Schedule. There are no overdue payments and therefore interest does not apply.

Award

46The applicant sought an award under s. 10 of Reg. 664.

47As there are no benefits owing there is no basis for an award.

ORDER

48For the reasons above, I find that the applicant remains within the MIG.

49The applicant is not entitled to the attendant care benefit because he remains within the MIG.

50As the applicant remains within the MIG, it is not necessary to conduct the reasonable and necessary analysis of the treatment plans and OCF-6 in dispute.

51No interest is due.

52No award is due.