Cunanan v. Intact Insurance Company, 2018 CanLII 153784

Licence Appeal Tribunal Decision

Citation: Cunanan v. Intact Insurance Company, 2022 ONLAT 19-013787/AABS Licence Appeal Tribunal File Number: 19-013787/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:

Ivan Cunanan

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Maziar Mortezaei, Counsel

For the Respondent: Jesse Braun, Counsel

HEARD: By way of written submissions

REASONS FOR DECISION

BACKGROUND

1The Applicant, Ivan Cunanan, was involved in an automobile accident (“the accident”) on December 9, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).¹ He applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when his claims for benefits were denied by the respondent.

2The respondent denied the applicant’s claims, including treatment for psychological services and a psychological assessment, because it determined that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline (“the MIG”).² The applicant’s position is the opposite, and submits his injuries fall outside of the MIG.

3If the applicant’s position is correct, then I must address if the psychological assessment and treatment for psychological services is reasonable and necessary. The applicant further claims that Intact did not satisfy the notice requirements under s. 38(8) of the Schedule when it denied these treatment plans and that the consequences under s. 38(11) of the Schedule should be applied. Furthermore, the applicant submits that his psychological injuries remove him from the MIG, and that the treatment plans for psychological services and a psychological assessment are reasonable and necessary. The applicant is also seeking an award under Regulation 664 and interest.

4If the respondent’s position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and not entitled to an award or interest.

ISSUES

5The following are the issues to be determined, as per the Case Conference Order of Vice-Chair Lake, dated July 24, 2020:

1. Are the applicant’s injuries predominately minor as defined in s.3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the MIG?
2. Is the applicant entitled to $2,197.29 for a psychological assessment recommended by Health-Pro Wellness in an treatment plan (“OCF-18”) submitted on May 28, 2018, and denied on June 12, 2018?
3. Is the applicant entitled to $3,693.04 for psychological services recommended by Health-Pro Wellness in an OCF-18 submitted on August 8, 2018, and denied on August 27, 2018?
4. Is the applicant entitled to interest on any overdue payment of benefits?
5. Is the respondent liable to pay an award pursuant to Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

6Both the applicant and respondent submitted that the OCF-18 for issue 3 was sent on August 7, 2018, and not August 8, 2018. As such, for the purposes of my decision, the OCF-18 was submitted on August 7, 2018.

RESULT

7I find that the applicant sustained predominately minor injuries because of this accident, and that he is also not removed from the MIG as a result of any psychological impairments.

8However, as a result of Intact’s non-compliance with s. 38(8) of the Schedule, the applicant is entitled to any incurred expenses starting on June 12, 2018, for a psychological assessment and ending on June 12, 2018, when compliant notice was provided.

9Also, Intact was non-compliant with s. 38(8) of the Schedule, and the applicant is entitled to any incurred expenses starting on August 22, 2018, for psychological services, and ending on August 27, 2018, when compliant notice was provided.

10I find that the applicant is not entitled to an award under Regulation 664.

11I find that the applicant is entitled to interest for the OCF-18’s in the amount of $2,197.29 and $3,693.04, if these were incurred during the time periods that Intact was non-compliant with s. 38(8) of the Schedule.

ANALYSIS

The MIG

12I find that the applicant sustained predominately minor injuries because of this accident, and he is also not removed from the MIG as a result of psychological impairments.

13The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule 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.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

14Section 18(1) limits the entitlement for medical and rehabilitation benefits for minor injuries to $3,500. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG, or if they provide evidence of a psychological impairment or chronic pain with a functional impairment as a result of the accident. It is the applicant’s evidential burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.³ The onus is also on the applicant to demonstrate that his injuries fall outside of the MIG.

15On January 3, 2018, Dr. Benson Ng, a chiropractor, completed an Disability Certificate (“OCF-3”) which listed the following injuries as a result of the accident: other sleep disorders; acute pain; whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs; other sprain and strain of the cervical spine; sprain or strain of the sacroiliac joint; sprain or strain of the lumbar spine; sprain or strain of the other and unspecified parts of the lumbar spine and pelvis; sprain or strain of the thoracic spine; low back pain; and pain in the thoracic spine.⁴ The OCF-3 completed by Dr. Ng has injuries that are clearly within the definition of the MIG, and this was completed shortly after the accident. I do not accept the opinion of Dr. Ng with respect to other sleep disorders, as he is a chiropractor, and a psychological diagnosis is outside of his area of practice.

16The applicant argues that he should be removed out of the MIG due to a psychological impairment. The respondent disagrees with this submission.

The applicant does not suffer from a psychological impairment as a result of this accident

17The applicant has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of any psychological injury from the accident.

18Psychological injuries, if established, fall outside the MIG, because the MIG only governs “minor injuries”, and the prescribed definition does not include psychological impairments.

19The applicant relies on an OCF-18 completed by Dr. Ng, on April 4, 2018, wherein “other sleep disorders”⁵ is listed in the injury and sequelae section. Once again, it was outside of Dr. Ng’s area of practice to make such a psychological diagnosis. The applicant also relies on an OCF-18 completed by Dr. Aghamohseni, psychologist, on May 23, 2018, for a psychological assessment. Dr. Aghamohseni lists the following psychological injuries: problems related to life-management difficulty; other sleep disorders; nervousness; stress, not elsewhere classified; unhappiness; symptoms and signs involving emotional state; state of emotional shock and stress, unspecified; specific (isolated) phobias; and adjustment disorders. Although, I recognize that Dr. Aghamohseni, is a psychologist, I have placed little weight on her medical opinions for reasons that will be discussed below.⁶

20The applicant relies on a psychological assessment, dated July 26, 2018, conducted by Dr. Aghamohseni who was also assisted by Ms. Patel. Dr. Aghamohseni diagnosed the applicant with an Adjustment Disorder, Somatic Symptom Disorder with predominant pain, in the persistent range, at mild levels, and Specific Phobia (situational type, vehicular). Dr. Aghamohseni further concluded that the applicant falls outside of the MIG based on this assessment.⁷

21The respondent relies on Dr. Kanagaratnam’s psychological reports, dated September 11, 2018, which were conducted to determine whether the issues in dispute were reasonable and necessary, and whether the applicant’s impairments fell within the MIG. I note that the applicant advised Dr. Kanagaratnam that he had a previous psychological assessment, and it only took 30 minutes because he had no issues. The applicant further advised that his life after the accident was essentially the same as pre-accident with the exception that he was more cautious when driving, however, he continued to drive with the same frequency. Dr. Kanagaratnam administered the Semi-Structured Clinical Interview and Millon Clinical Multiaxial Inventory (“MCMI-III”) testing. Dr. Kanagaratnam concluded that based on the clinical interview presentation, file review, and the psycho-diagnostic data obtained, there was an absence of a clinically significant psychopathology. Also, the applicant did not suffer from a psychological impairment as a result of this accident. Dr. Kanagaratnam further acknowledged that despite objective test data which showed that the applicant may have underestimated his symptoms, there were no clinically significant symptoms. As such, Dr. Kanagaratnam concluded that the applicant’s impairments were within the MIG.⁸

22I place less weight on the report of Dr. Aghamohseni and prefer the report of Dr. Kanagaratnam, for the following reasons:

i. The psychological testing and clinical interview did not support Dr. Aghamohseni’s conclusions. Both the Beck Depression Inventory and the Beck Anxiety Inventory noted that the applicant suffered from depression and anxiety in the mild range. Dr. Aghamohseni further concluded that these results were consistent with the clinical interview, yet as the applicant pointed out, the symptoms presented during the clinical interview painted a greater degree of psychological impairment. Dr. Aghamohseni did not provide any explanation on how the applicant met the criteria for a DSM-5 diagnosis, when the psychological testing illustrated, he suffered from mild depression and anxiety, at best;

ii. I agree with the respondent, that Dr. Aghamohseni appears to have completed her report without reviewing any medical documentation on file for the applicant. In contrast, Dr. Kanagaratnam appeared to have reviewed a number of medical documentation with the exception of the psychological report of Dr. Aghamohseni. I place more weight on an expert’s opinion where they had reviewed the medical documentation on file; and

iii. Dr. Aghamohseni stated that she used a validity index in the Pain Patient Profile Test but did not reveal the results, and no explanation was provided on why this was not included. I find Dr. Kanagaratnam’s report more credible as he revealed the results of the validity testing showing that the desirability index was elevated which suggested that the applicant may have a defensive response style or a “faking good” profile.⁹

23I agree with the respondent, as the applicant has failed to produce evidence of any mental health complaints in clinical notes and records of any treating physician.

24The applicant relies on the authority of 17-002337 v. Wawanesa Mutual Insurance Company¹⁰, wherein the Tribunal held that if psychological impairments are established, they fall outside of the MIG, because they are not covered in the definition under s.3(1) of the Schedule. I note that in this case, the applicant failed to establish that he suffered from a psychological impairment. While I agree that when a psychological impairment is established, it will take the applicant out of the MIG. However, in this instance, the applicant has not established a psychological impairment on a balance of probabilities.

25The onus is on the applicant to prove on a balance of probabilities and not on the respondent to disprove. I am not satisfied on a balance of probabilities that the applicant sustained a psychological impairment that would remove him from the MIG.

26Despite my finding that the applicant is in the MIG, neither party has advised me whether the MIG limits were exhausted. As such, I will need to determine whether the disputed OCF-18’s are reasonable and necessary.

27However, the applicant submits that the respondent was non-compliant with s.38(8) of the Schedule with respect to their denials of the disputed OCF-18’s. I will now turn to discuss whether benefits were improperly denied.

The respondent did not comply with s.38(8) of the Schedule

28I find that the respondent was initially non-compliant with s. 38(8) of the Schedule for both OCF-18’s in the amount of $2,197.29 and $3,693.04 as Intact failed to respond within 10 business days. However, Intact became compliant when they responded on June 12, 2018, to deny the OCF-18 in the amount of $2,197.29 and on August 27, 2018, when they denied the OCF-18 in the amount of $3,693.04.

29Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not. An insurer must also provide notice regarding the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary. Section 38(11)1 sets out that if the insurer fails to comply with subsection (8), it is prohibited from taking the position that the MIG applies, s. 38(11)2 states the insurer must pay for any incurred treatment expenses starting on the 11th business day after the day the insurer received the treatment plan and ending on the day the insurer gives a proper notice.

30The applicant submits that Intact was non-compliant with s.38(8), and as a result the consequences listed under s.38(11) are triggered. The respondent does not dispute the timing of the denials. The Divisional Court in Zheng v. Aviva Insurance Company of Canada at paragraphs 19 and 21 states:

“The consequences in s. 38(11) relate directly to the insurer’s failure to fulfill those statutory requirements. The insurer is no longer able to take the position that the impairment falls within the MIG and must pay for costs under the Treatment Plan in question until a compliant notice is given…”

“The Adjudicator’s actual orders do not go beyond the Treatment Plans at issue. Further, the language used in s. 38 refers to the specific Treatment Plan in question. We therefore do not accept the submission, in these cases, that s. 38(11) imposes a permanent prohibition on Aviva with respect to whether the impairment of the Respondents is covered by the MIG or is subject to the $3500 limit in s. 18(1).”¹¹

31The respondent acknowledged that they received the OCF-18 in the amount of $2,197.29 for the psychological assessment on May 28, 2018, and the denial letter was sent on June 12, 2018, more than 10 business days after the submission of the OCF-18.¹² Further, the respondent did not dispute that they received the OCF-18 for psychological services in the amount of $3,693.04 on August 7, 2018, and that the denial letter was sent on August 27, 2018, more than 10 business days later.¹³ The denial letters of June 12, 2018, and August 27, 2018, advised the applicant that Intact believed his injuries fell within the MIG and in order to determine whether the OCF-18’s were reasonable and necessary, a s.44 psychological assessment was required. They also advised the applicant that Intact had not received compelling medical evidence to support the need for psychological intervention as a result of the accident. I find that the denial letters of June 12, 2018, and August 27, 2018, were compliant with s.38(8).

32The applicant submits that he has incurred the OCF-18 in the amount of $2,197.29 for a psychological assessment, however he has failed to advise when this was incurred.

33The applicant is entitled to payment for both OCF-18’s in the amount of $2,197.29 and $3,693.04, if these were incurred between the 11th business day and when compliant notice was given.

34I will now turn to whether the OCF-18’s in the amount of $2,197.29 and $3,693.04 are reasonable and necessary.

The OCF-18’s are not reasonable or necessary

35The OCF-18’s in the amount of $2,197.29 for a psychological assessment and $3,693.04 are not reasonable or necessary for the reasons outlined below.

36The applicant relies on the disputed OCF-18’s in the amount of $2,197.29 and $3,693.04 and the report of Dr. Aghamohseni, to support that these are reasonable and necessary. It is well known that an OCF-18 alone is not objective medical evidence. Moreover, I am not persuaded by the report of Dr. Aghamohseni which was outlined above. I find that these OCF-18’s are not reasonable or necessary because the applicant has not demonstrated on a balance of probabilities he suffered from a psychological impairment. Secondly, the applicant advised Dr. Kanagaratnam that he does not require psychological treatment.

The applicant is not entitled to an award pursuant to Regulation 664

37The applicant is not entitled to an award pursuant to section 10 of Regulation 664 for the reasons outlined below.

38Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.

39I disagree with the applicant that the insurer withheld or delayed payment by ignoring creditable medical evidence. The applicant has not provided the respondent with any clinical notes and records from any treating practitioners. When the respondent received the OCF-18’s in dispute, they advised the applicant on June 12, 2018, and August 27, 2018, that there was no compelling medical evidence to take him outside of the MIG and they required s.44 insurer’s examinations as a result. These s. 44 reports were completed by Dr. Kanagaratnam, who concluded that the applicant was in the MIG and the disputed OCF-18’s were not reasonable or necessary. Despite the respondent being non-compliant initially with s. 38(8) of the Schedule, this does not support the finding that their actions rose to the level of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate behavior, and such, the applicant is not entitled to an award pursuant to Regulation 664.

ORDER

40For the reasons outlined above, I find that:

i. The applicant sustained predominately minor injuries as defined pursuant to the Schedule;

ii. The respondent was initially non-compliant with section 38(8) of the Schedule, and as such the applicant is entitled to pursuant to s.38(11)2, to any incurred expenses starting on June 12, 2018, for a psychological assessment in the amount of $2,197.29 and ending on June 12, 2018, when compliant notice was provided.

iii. The respondent was initially non-compliant with s.38(8) of the Schedule, and as such the applicant is entitled to pursuant to s.38(11)2, to any incurred expenses starting on August 22, 2018, for psychological services in the amount of $3,693.04, and ending on August 27, 2018, when compliant notice was provided.

iv. If the OCF-18’s in the amount of $2,197.29 for a psychological assessment and $3,693.04 for psychological services were not incurred between the above-referenced time periods, they are also found to be neither reasonable nor necessary.

v. The applicant is not entitled to an award pursuant to Regulation 664; and

vi. The applicant is entitled to interest for the OCF-18’s in the amount of $2,197.29 for a psychological assessment and $3,693.04, for psychological services if these were incurred during the time periods that Intact was non-compliant with s. 38(8) of the Schedule.

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635 para.24 (Div. Ct.).
4. 4Applicant’s Book of Documents, Tab 1, Disability Certificate (OCF-3) dated January 3, 2018.
5. 5Applicant’s Book of Documents, Tab 2, OCF-18 dated April 4, 2018.
6. 6Applicant’s Book of Documents, Tab 4, OCF-18 dated May 23, 2018.
7. 7Applicant’s Book of Documents, Tab 3, Psychological Assessment by Dr. Aghamohseni, dated July 26, 2018.
8. 8Respondent’s Book of Documents, Tab 5 and 8, Psychological Assessments of Dr. Kanagaratnam, dated September 11, 2018.
9. 9Respondent’s Book of Documents, Tab 5 and 8, Psychological Assessments of Dr. Kanagaratnam, dated September 11, 2018.
10. 102017 CanLII 99137 (ON LAT).
11. 112018 ONSC 5707, para.19 and 21 (Div. Ct.).
12. 12Applicant’s Book of Documents, Tab 5, EOB and Notice of Examination dated June 12, 2018.
13. 13Applicant’s Book of Documents, Tab 7, EOB and Notice of Examination dated August 27, 2018.