Citation: Bhambra v. Definity Insurance Company, 2026 ONLAT 24-008013/AABS

Licence Appeal Tribunal File Number: 24-008013/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:

Sukhjit K Bhambra

Applicant

and

Definity Insurance Company

Respondent

DECISION

ADJUDICATOR:

Amar Mohammed

APPEARANCES:

For the Applicant:

Ognjen Miketic, Counsel

Written Submissions By:

Georgiana Masgras, Counsel

For the Respondent:

Yuliya Yarema, Paralegal

HEARD:

By Way of Written Submissions

OVERVIEW

1Sukhjit Bhambra, the applicant, was involved in an automobile accident on March 9, 2023, 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, Definity Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution.

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 a non-earner benefit (“NEB”) of $185.00 per week from June 5, 2023 to ongoing?

iii. Is the applicant entitled to $225.62 ($1,874.96 less $1,649.34 approved) for chiropractic services, proposed by Life Total Wellness Centre in a treatment plan/OCF-18 (“plan”) dated December 5, 2023?

iv. Is the applicant entitled to $1,874.96 for chiropractic services, proposed by Dr. Daugherty Chiropractic Professional Corporation in a plan dated June 26, 2024?

v. Is the applicant entitled to $3,051.00 for chiropractic services, proposed by Meditecs Independent Medical Examinations in a plan dated November 1, 2023?

vi. Is the applicant entitled to $4,011.50 for chiropractic services, proposed by Meditecs Independent Medical Examinations in a plan dated November 1, 2023?

vii. Is the applicant entitled to $2,787.95 for an Attendant Care Assessment, proposed by Meditecs Independent Medical Examinations in a treatment plan dated November 1, 2023?

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

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

RESULT

3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit. Since the applicant is subject to the MIG, an analysis of whether the plans in dispute are reasonable and necessary is not warranted.

4The plan proposing $1,874.96 for chiropractic services is payable, pursuant to s. 38(11), once incurred. The rest of the plans are not payable because the denials are compliant with s. 38(8).

5The applicant is not entitled to a non-earner benefit of $185.00 per week from June 5, 2023 to ongoing.

6The applicant is entitled to interest on overdue benefits, if any.

7The respondent is not liable to pay an award.

ANALYSIS

Minor Injury Guideline (MIG)

8I find the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

9Section 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.”

10An 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.

11The applicant submits that it is the opinion of her treating practitioner that she has a prolonged impairment requiring treatment beyond the time period covered by the MIG. The applicant submits that the combination of cervical, lumbar, and shoulder strain resulted in a prolonged impairment because it involved a combination of strains in multiple regions of the musculoskeletal system. However, this does not meet the threshold for removal from the MIG because the definition of a minor injury includes strains. The applicant did not refer me to caselaw in support of the position that multiple strains, as described, warrant removal from the MIG.

12The applicant argues she has a psychological impairment warranting removal from the MIG. The applicant has not referred to any evidence of a psychological diagnosis that would warrant removal from the MIG or that her psychosocial symptoms are more than sequalae of a minor injury as covered by the MIG.

13The applicant argues she has pre-existing conditions that are a barrier to recovery sufficient to warrant removal from the MIG. The applicant’s submissions refer to a history of pre-traumatic headaches, pre-existing osteoarthritis, and chronic health conditions. I note that in order to be removed from the MIG on this basis, the applicant must satisfy the two part-test in s. 18(2). As set out above, the applicant has the burden to establish a documented pre-existing injury or condition, and this must be combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The applicant’s submissions regarding her pre-existing condition do not refer me to where they are documented because there is no reference to evidence. Further, the applicant has not led medical evidence stating any pre-existing conditions would preclude recovery.

14The respondent argues that the clinical notes and records from a general practitioner for almost a three-year period following the accident notes only whiplash and sprain and strain type injuries. There are no references to complaints of a psychological nature in these records. The respondent argues the applicant’s injuries as a result of the accident are clearly predominantly minor injuries as defined under s.3(1) of the Schedule.

15I find that the applicant’s submissions regarding removal from the MIG do not lead or refer to any medical evidence. As to section 38(11), the applicant has not made any specific argument or referred me to any denial notice to which she argues the section should apply. Further, the applicant has not established a foundation for arguing that s. 38(11) operates to remove the applicant from the MIG, in light of the binding Divisional Court decision in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707. In Zheng, Cai, the Divisional Court ruled that the language in s. 38(11) refers to the specific treatment plan in question and does not impose a permanent prohibition as to whether the applicant is covered by the MIG.

16For the reasons above, on a balance of probabilities, I find the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

17Since the applicant is subject to the MIG, an analysis of whether the plans in dispute are reasonable and necessary is not warranted. I find that the plan proposing $1,874.96 for chiropractic services is payable pursuant to s. 38(11), once incurred. The applicant is not entitled to payment for the rest of the plans because the denials are compliant with s. 38(8).

18Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.

19To be compliant with s. 38(8), the respondent’s reasons should engage the specific details about the applicant’s condition forming the basis for the denial and be adequate to allow an unsophisticated person to understand them and make an informed decision to either accept or dispute the denial.

20The applicant argues that none of the denial letters related to the plans in dispute do not engage with the applicant’s injuries or symptoms. The applicant did not make specific reference to the evidence by tab and page number, as required by the Case Conference Report and Order. A review of a filed index indicates that the denial letters are located in the document brief.

21I find that the applicant did not provide a denial letter relating to the disputed $225.62 ($1,874.96 less $1,649.34 approved) for chiropractic services. Instead, there is an OCF-18 where the index indicated a denial letter is located. Accordingly, the applicant has not established that the disputed portion of this plan is subject to payment under s. 38(11).

22The Explanation of Benefits dated July 12, 2024 denying the plan proposing $1,874.96 for chiropractic services, identifies the applicant’s injuries and states that there is no evidence in the file of injuries sustained that are not minor. However, I find that the respondent did not indicate that it believes that the MIG applies, as required under s. 38(8) by virtue of the requirement in s. 38(9). Therefore, this plan is payable under s.38(11), once incurred.

23The OCF-18 proposing $3,051.00 for chiropractic services, was proposing $200.00 for completion of the OCF-18, $2,000.00 for an Optometric Concussion Assessment, and $500.00 for Claimant Transportation to Assessment-London Ontario, plus applicable tax. The OCF-18 proposing $4,011.50 for chiropractic services was proposing $200.00 for completion of the OCF-18, $2,000.00 for a Neurosurgeon Assessment, and $350.00 for Claimant Transportation to Assessment, $1,000.00 for a medical file review, plus applicable tax. The respondent denied these plans by way of two Explanations of Benefits dated November 10, 2023, stating that in-home assessments are not available under the MIG, that the applicant’s listed injuries are predominantly a minor injury and because the MIG applies. I find that the respondent’s first reason for denial does not appear to apply to these two plans because they do not appear to be in-home assessments. Since the plans are clearly proposing a transportation expense for the applicant to attend the assessments, the respondent appears to be denying the plan partly on the basis of a reason that does not apply to these plans. However, I find that the respondent’s reasons engaged the specific details about the applicant’s condition forming the basis for the denial and is adequate to allow an unsophisticated person to understand the reasons and make an informed decision to either accept or dispute the denial. The applicant could dispute any or all of the three principal reasons provided for the denial.

24The OCF-18 proposing $2,787.95 for an in-home Attendant Care Assessment, was also denied with essentially identical reasons as above, by Explanation of Benefits dated November 10, 2023. For the same reasons identified above, I find that the applicant’s notice complied with the requirements of s. 38(8). In addition, in this instance, the respondent’s reliance on s. 25(2) stating in-home assessments are not available under the MIG was correctly applied.

25For the reasons above, on a balance of probabilities, I find that the plan proposing $1,874.96 for chiropractic services is payable, pursuant to s. 38(11), once incurred. Further, that the applicant is not entitled to payment for the rest of the plans because the denials are compliant with s. 38(8).

Non-Earner Benefit (NEB)

26I find that the applicant is not entitled to a NEB of $185.00 per week.

27Section 12(1) provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391 (“Heath”), which focuses on a comparison of pre- and post-accident activities.

28The applicant submits that she has significant physical impairments, including no range of motion in her left shoulder and leg, that she is reliant on assistance for transfers and stairs, and suffers an inability to independently perform daily activities. Further affecting her overall functioning is ongoing anxiety and depression, and impaired concentration and memory. The applicant does not refer me to any medical evidence in support. The records of Dr. Peter Nord, family doctor, establish that the applicant attends the gym four times a week and walks 1 kilometre daily. The applicant has not addressed how this reconciles with her position that she has a complete inability to carry on a normal life.

29The respondent argues and I find that the applicant offers no evidence or comparison of her life before and after the accident. She has not indicated any activities that she performed before the accident that she can no longer do after the accident. Since the applicant simply makes submissions without referring me to evidence that would establish that she meets the test in Heath, I am unable to undertake the analysis required by Heath.

30For the reasons above, on a balance of probabilities, I find that the applicant is not entitled to a NEB of $185.00 per week from June 5, 2023 to ongoing.

Interest

31The applicant is entitled to interest on the payment of overdue benefits, if any, pursuant to s. 51 of the Schedule.

Award

32The 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 applicant did not make any specific arguments or refer to any instance of unreasonable conduct by the respondent. The applicant also did not identify the amount of award sought. The sole benefit payable on this application is in the amount of $1,874.96 for chiropractic services, as a result of the respondent’s non-compliance with ss. 38(8) and 38(9). The Tribunal has held in the past that errors or mistakes, without more, do not amount to unreasonable conduct which attracts an award. Accordingly, the respondent is not liable to pay an award.

ORDER

33For the reasons above, I make the following orders:

i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit. Since the applicant is subject to the MIG, an analysis of whether the plans in dispute are reasonable and necessary is not warranted.

ii. The plan proposing $1,874.96 for chiropractic services is payable, pursuant to s. 38(11), once incurred. The rest of the plans are not payable because the denials are compliant with s. 38(8).

iii. The applicant is not entitled to a NEB of $185.00 per week from June 5, 2023 to ongoing.

iv. The applicant is entitled to interest on overdue benefits, if any.

v. The respondent is not liable to pay an award.