Citation: Desangher v. Intact Insurance Company, 2026 ONLAT 24-010632/AABS

Licence Appeal Tribunal File Number: 24-010632/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:

Paiton Desangher

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jeff Chatterton

APPEARANCES:

For the Applicant:

Lauren A Cullen, Counsel

For the Respondent:

Jaskiran Gill, Counsel

HEARD: In Writing

OVERVIEW

1Paiton Desangher, the applicant, was involved in an automobile accident on January 8, 2024, 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 (“the MIG”) limit?

ii. Is the applicant entitled to $3227.12 for Physiotherapy treatment, proposed by DMA Rehability in a treatment plan/OCF-18 (“plan”) dated January 22, 2024?

iii. Is the applicant entitled to $1800.00 for Physiotherapy assessment, proposed by DMA Rehability in an OCF-23 dated June 14, 2024?

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

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

RESULT

3The application is granted. The applicant has met his onus to establish he should be removed from the MIG, and that the treatment plans in dispute are reasonable and necessary.

4Interest and an award are payable.

ANALYSIS

Should the applicant be removed from the MIG due to a concussion?

5The applicant has met the onus to establish he should be removed from the MIG due to a concussion injury.

6Section 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.”

7An 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.

8The applicant submits he should be removed from the MIG due to a concussion. To support his claim, the applicant relies upon the Clinical Notes and Records (CNR’s) from his family physician, Dr. James Andrew Lanz-O’Brien, an Emergency Room report from Chatham-Kent Health Alliance, the OCF-3, and a Physiotherapy Assessment authored by Physiotherapist Lisa Souliere dated January 30, 2024.

9The respondent argues the applicant has not met the burden of proof to establish he has suffered a concussion, and that the applicant’s injuries are minor. To support its claim, the respondent relies upon a s.44 assessment conducted by GP Dr. Pankaj Bansal, dated July 22, 2024.

10Both parties agree that clear evidence of a concussion should remove an injured person from the MIG. The applicant argues that they have independent diagnosis of a concussion brain injury from the applicant’s family physician, a CT Scan conducted in the Emergency Room, and from the applicant’s physiotherapist.

11The respondent argues that a physiotherapist is not qualified to diagnose a concussion.

12I agree with the respondent that a physiotherapist is not qualified to make a diagnosis regarding a concussion. I do note Ms. Souliere has her concussion management certification and is qualified to treat post-concussion symptoms, but I give no weight to Ms. Souliere’s diagnosis.

13However, I find the applicant has, even without the evidence of the physiotherapist, provided evidence of an accident-related concussion brain injury in the form of the emergency room report, dated January 9, 2024 and signed by MD Dylan Kelly. This report shows the applicant underwent CT Scans of the head and spine. The Final Impression section indicated “Concussion, neck strain” while the Final Diagnosis section states “Concussion injury of brain.”

14Furthermore, this evidence aligns with the initial diagnosis provided by the applicant’s family physician. Dr. Lanz-O’Brien’s, whose notes, taken earlier in the day of January 9, 2024, indicate “Brain bleed vs concussion” with a recommendation to seek immediate emergency treatment.

15The respondent argues that the applicant has not been referred to a concussion specialist since the accident. The respondent also points to Dr. Bandal’s report, which indicates that the applicant suffered only minor sprain and strain type injuries.

16I have read Dr. Bandal’s report and find that it does not comment on whether or not the applicant suffered a concussion. The only references to concussion occur in the preamble when Dr. Bandal outlines the OCF-18 in dispute.

17In summary, I find the applicant’s evidence establishes that he has an accident-related concussion. There are two independent medical doctors, both of whom diagnose a concussion. This diagnosis is supported by objective testing, in the format of a CT scan.

18In my opinion, this is more than sufficient to meet the onus, on a balance of probabilities, to establish that the applicant has suffered a concussion and therefore, shall be removed from the Minor Injury Guideline.

Physiotherapy Treatment Plans

19The applicant is entitled to the treatment plans in dispute (issues ii and iii).

20To receive payment for a treatment and assessment plan under s. 15 and 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.

21The plans are an OCF-18 for 12 weeks of physiotherapy services, with stated goals of pain reduction, increased strength and range of motion, with a goal of returning the applicant to full-time schooling, as well as an OCF-23 for the aforementioned physiotherapy report by Lisa Souliere.

22The applicant argues that the only reason the treatment plans were denied was due to MIG limits. If the MIG limits do not apply, the applicant argues the respondent has no valid reason to refuse payment, and the OCF-18 (issue ii) and OCF-21 (issue iii) should be paid in full.

23The applicant further points out that physiotherapy was recommended by the applicant’s family physician.

24The respondent says the denials were proper, and that the two treatment plans were denied based on the IE report of Dr. Bansal, which stated that it was unnecessary to remove the applicant from the MIG.

25I have found that the applicant is to be removed from the MIG, and I find that both treatment plans are both reasonable and necessary. The applicant has provided medical evidence in the form of both Ms. Souliere’s Vestibular Physiotherapy Assessment and the CNR’s from Dr. Lanz-O’Brien which support their claim for physiotherapy treatment. While I acknowledge the respondent’s argument, I put little weight on the report of Dr. Bansal because I have established that it was indeed necessary to remove the applicant from the MIG.

26I find that the applicant has, on the balance of probabilities, met the onus to establish entitlement to both issue ii (an OCF-18 for $3,227.12) and issue iii (an OCF-21 for $1,800.00).

Interest

27Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the benefits are overdue, interest applies as per the Schedule.

Award

28The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this criteria.

29The applicant claims the respondent should pay an award because they have denied access to physiotherapy on the inappropriate statement that a concussion is a minor injury. The applicant further states that the respondent ignored objective medical evidence, and in doing so, demonstrated an excessive, stubborn, inflexible and unyielding attitude to the adjustment of the claim. By stubbornly refusing to reconsider their MIG position, the applicant argues the respondent has unnecessarily delayed the reasonable and necessary medical treatments which were outlined in the OCF-18’s.

30The respondent submits that the applicant has not demonstrated how the insurer acted in bad faith or unreasonably withheld benefits in dispute.

31I agree with the applicant. I find the evidence clear, objective and convincing. The treatment plans in dispute are clearly tied to post-concussion recovery, and are supported by medical evidence and recommendations. Furthermore, a CT Scan and third party diagnosis is more than sufficient to offer proof of a non-minor injury. Either the insurer is mistaken in their assumption that a concussion is a minor injury, or they have chosen to disregard clear and objective evidence in the way they have handled this claim.

32While I am conscious of the fact that the maximum amount I can award is 50%, such an award would not be rendered lightly. However, in this case, I find this is justifiable. I say this for the following reasons:

i. In holding to their position, the respondent has delayed treatment for the treatment plans in dispute.

ii. It has long been established that a concussion removes an insured party from the MIG. Yet, despite two independent doctors confirming a concussion, the insurer refused to accept this conclusion.

iii. Instead, the respondent relied on a s.44 report which did not even speak to whether the applicant had been concussed. This report was authored six months after the accident.

33I find such conduct is a clear example of stubborn, unyielding behaviour. For this reason, I find on a balance of probabilities that the applicant is entitled to an award of 50% of the disputed treatment plans, plus interest in accordance with s. 10 of Regulation 664.

ORDER

34The application is granted.

i. The applicant is removed from the MIG.

ii. The applicant is entitled to the treatment plans in dispute.

iii. Interest on the treatment plans applies as per the Schedule.

iv. An award of 50% of the treatment plans in dispute is payable, along with interest in accordance with s. 10 of Regulation 664.