Citation: Mohamud vs. Certas Home and Auto Insurance Company, 2020 ONLAT 19-005153/AABS

Released Date: 12/15/2020

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:

Rukia Mohamud

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Lindsay Lake

APPEARANCES:

For the Applicant:

Kevan Wylie, Counsel

For the Respondent:

Richard Campbell, Counsel

Heard by way of Written Submissions

1Rukia Mohamud (“Ms. Mohamud”), the applicant, was involved in an automobile accident on March 17, 2017 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ from Certas Home and Auto Insurance Company (“Certas”), the respondent.

2Ms. Mohamud was denied certain benefits by Certas and, as a result, she submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

3A case conference was held on October 15, 2019 and the matter proceeded to a written hearing.

ISSUES IN DISPUTE

4The following issues are to be decided:²

(i) Is Ms. Mohamud entitled to $1,770.00 for assistive devices recommended by Spinetec Health Care Solutions in a treatment plan (“OCF-18”) dated March 14, 2019, and denied on March 21, 2019?

(ii) Is Ms. Mohamud entitled to the following assessments recommended by Meditecs Independent Medical Examinations:

(a) $2,200.00 for an in-home assessment as set out in an OCF-18 dated December 4, 2018, and denied on December 6, 2018?

(b) $2,486.00 for a dental assessment as set out in an OCF-18 dated March 23, 2017, and denied on April 6, 2017?

(c) $2,486.00 for an Ear, Nose and Throat (“ENT”) assessment as set out in a treatment and assessment plan dated March 23, 2017, and denied on June 9, 2017?

(iii) Is Ms. Mohamud entitled to interest on any overdue payment of benefits?

(iv) Is Ms. Mohamud entitled to an award under O. Reg. 664 because Certas unreasonably withheld or delayed payment of benefits?

PRELIMINARY ISSUES

Limitation Period – Dental Assessment

5The Tribunal’s October 15, 2019 Order identified the following preliminary issue to be determined in this hearing:

Is Ms. Mohamud precluded from proceeding for her claim in the amount of $2,486.00 for a dental assessment because she is time-barred pursuant to s.56 of the Schedule?

6For the reasons that follow, I find that Ms. Mohamud is barred from proceeding with her claim to the Tribunal for the dental assessment in the amount of $2,486.00 as her application was filed with the Tribunal after the expiry of the prescribed two-year limitation period. I also find that I have no jurisdiction to extend the limitation period by way of s. 7 of the Licence Appeal Tribunal Act, 1999.³

Clear and Unequivocal Denial and Discoverability

7Under s. 56 of the Schedule, an applicant has two years to commence an application in respect of a denial of benefits from the date that an insurer refuses to pay the amount claimed.

8To determine whether a denial is proper, it must be in accordance with the principles outlined in Smith and Co-Operators General Insurance Company.⁴ According to the Smith case, the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process and it must provide valid or other reasons for the denial. If the respondent’s notice to the applicant does not meet these basic requirements, the denial is invalid and the two-year limitation period in the Schedule is not triggered.

9In Seitzema v. Economical Insurance,⁵ the Court of Appeal found that a denial was valid if it gave the applicant a clear notice of their rights to mediation, followed by arbitration, litigation or neutral evaluation if the applicant wished to dispute the refusal and a clear notice of the two-year limitation period. Seitzema is also authority for the position that once a clear and unequivocal notice is given by the insurer cancelling the insured’s benefits, that this was sufficient to trigger the limitation period despite the insurer giving legally incorrect reasons for cancelling the benefit.⁶

10In the present case, Certas sent correspondence dated April 6, 2017 to Ms. Mohamud in response to the OCF-18 for the dental assessment and copied it to her counsel’s firm. This letter clearly states, “we refuse to pay for the following goods and services: 18, 2017/03/23 Dental Assessment $2486.”⁷ The correspondence also included information on Ms. Mohamud’s right to dispute Certas’ determination of her claim which states in capital and bold letters, “WARNING: TWO YEAR TIME LIMIT.”

11Ms. Mohamud’s submissions stated, “the Respondent denied this treatment plan by way of correspondence on April 6, 2017.”⁸ However, Ms. Mohamud’s position is that the limitation did not begin to run or that it was extended by further correspondence from Certas dated July 26, 2017. In advancing her position that her application was commenced “on time,” Ms. Mohamud relied upon the following portion of the decision of Tomec v. Economical Mutual Insurance Company:⁹

…the rule of discoverability…is directly tied to the cause of action that an insured can assert when denied benefits. A hard limitation period is contrary to the purposes of the SABS and the Supreme Court’s guidance in Pioneer. In addition, a hard limitation in these circumstances would lead to absurd results and is not consistent with the policy rationales that underlie limitation periods.¹⁰

12Aside from highlighting this portion of the decision, Ms. Mohamud provided no further analysis or discussion as to how Tomec should be applied to the facts in this matter.

13In analyzing the July 26, 2017 correspondence from Certas to Ms. Mohamud, Certas agreed to pay for one of two estimates submitted for a possible root fracture of one of Ms. Mohamud’s teeth as a result of the accident. Nowhere in this letter is the opposed dental assessment referred to and Certas only reiterates that it will not pay for any treatment that it had not authorized. Therefore, I find that the limitation period was not extended or altered by Certas’ July 26, 2017 correspondence as suggested by Ms. Mohamud as Certas did not refer to the dental assessment at all in this letter.

14Based on all of the information before me, I find that Certas’ April 6, 2017 correspondence was a clear and unequivocal denial of the proposed dental assessment and complied with the requirements of the Schedule and the Smith and Seitzema cases. As there is no dispute between the parties that Ms. Mohamud’s Application by an Injured Person was filed with the Tribunal on May 14, 2019, I find that Ms. Mohamud’s Application was filed outside of the two-year limitation period provided under s. 56 of the Schedule.

Section 7 of the LAT Act and s. 56 of the Schedule

15Alternatively, Ms. Mohamud sought relief from the expiry of the s. 56 limitation period under s. 7 of the LAT Act which states:

Extension of time

7 Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

(b) give the directions that it considers proper as a result of extending the time.

16Ms. Mohamud relied upon the decision of A.F. v. North Blenheim Mutual Insurance Company¹¹ to argue that the Tribunal has jurisdiction to extend the time to commence her application to the Tribunal for the dental assessment.

17Certas’ position is that s. 7 of the LAT Act does not apply to the Schedule to extend a limitation period and relies upon the Tribunal decision of M.N v. Aviva General Insurance Company¹² and the reconsideration decision in S.S. v. Certas Home and Auto Insurance.¹³

18At the outset, S.S. and A.F. are currently under appeal to the Divisional Court and, therefore, there is no direction on the issue from a court of superior jurisdiction given the disagreement of the Tribunal’s decisions on the applicability of s. 7 of the LAT Act and whether or not it confers jurisdiction to the Tribunal to extend the s. 56 limitation period. However, I prefer the determination in S.S. over that of A.F. based solely on the principals of statutory interpretation the formed the basis of Adjudicator Neilson’s decision that s. 7 of the LAT Act did not apply to s. 56 of the Schedule because the Schedule is a regulation and not an “Act” which is the specific term used in s. 7 of the LAT Act. Further, in preferring the decision in S.S. over A.F., I also echo the following statement by Adjudicator Neilson in M.N. regarding the decision in A.F.:

the Executive Chair was not asked to consider that both “Act” and “regulation” are used in s.3 of the LAT Act, which refers to the duties assigned to the Tribunal “by or under any Act or regulation.” This is very different from s.7 of the LAT Act, where only “Act” is used. If “by or under any Act” is meant to include regulations made under an Act, then the use of “regulation” in s.3 of the LAT Act is redundant. Such an interpretation is contrary to the principles of interpretation…¹⁴

19For all of the reasons set out above, I find that I do not have the jurisdiction to extend the limitation period under s. 56 of the Schedule by virtue of s. 7 of the LAT Act. As I have found that Ms. Mohamud’s Application was filed outside of the prescribed two-year limitation period, I find that Ms. Mohamud is statute-barred from continuing with her claim for $2,486.00 for the proposed dental assessment.

Ms. Mohamud’s request to add additional evidence

20On October 20, 2020, Ms. Mohamud’s counsel filed a Notice of Motion seeking to add a November 24, 2012 clinical note of Dr. Thomas Hupel, orthopaedic surgeon, as evidence for the hearing. Certas opposed this request.

21An order was issued by the Tribunal on November 5, 2020 which reflected the parties’ consent to have the motion addressed as part of the written hearing.

22Ms. Mohamud’s request to add the November 24, 2012 clinical note of Dr. Hupel is denied for the following reasons:

(i) aside from the Notice of Motion, Ms. Mohamud filed no other supporting documents or submissions with the Tribunal in support of her motion;

(ii) the Tribunal’s October 15, 2019 Order provided that the last date for Ms. Mohamud to submit evidence for the hearing was with her reply submissions on April 3, 2020;

(iii) Ms. Mohamud provided no explanation for the delay in seeking to have Dr. Hupel’s clinical note included as evidence for the hearing given that it had not been submitted by April 3, 2020 and it was dated several years before this deadline;

(iv) Certas had also repeatedly requested production of Dr. Hupel’s records from Ms. Mohamud since July 17, 2019 and it is unclear if Dr. Hupel’s records were ever provided to Certas prior to the hearing; and

(v) I agree with my decision in 18-002569 v Aviva Insurance Canada,¹⁵ relied upon by Certas in response to the motion, that orders from the Tribunal should be followed and when they are not without sufficient, persuasive or any reasons, there should be consequences.¹⁶

23Based on all of the reasons set out above, I find that Ms. Mohamud has failed to provide any reasons as to why she could not submit Dr. Hupel’s clinical note as evidence in compliance with the deadlines provided in the Tribunal’s October 15, 2019 Order. As a result, Ms., Mohamud’s motion is denied.

RESULT

24I find that Ms. Mohamud is:

(i) entitled to the March 14, 2019 treatment plan for assistive devices excluding the portion for the knee brace plus interest in accordance with s. 51 of the Schedule;

(ii) statute-barred from continuing with her claim for the proposed dental assessment pursuant to s. 56 of the Schedule;

(iii) not entitled to the treatment plans for the in-home assessment and the ENT assessment; and

(iv) not entitled to an award.

ANALYSIS

Causation

25In its submissions, Certas raised the issue of causation of Ms. Mohamud’s injuries except for Ms. Mohamud’s hearing loss.¹⁷ Certas’ position is that Ms. Mohamud’s injuries were not caused as a result of the accident but were instead pre-existing. Certas is also requesting that an adverse inference should be drawn as a result of Ms. Mohamud’s failure to produce several pre-accident documents that were requested multiple times by Certas.

26Ms. Mohamud made no reply submissions and, as a result, failed to address the issue of causation raised by Certas.

27In order to determine entitlement to the treatment plans in dispute, Ms. Mohamud is required to prove, on a balance of probabilities, that the accident caused her impairments. The applicable test in making this determination is the “but for” test: whether Ms. Mohamud would have had the impairments but for the accident.¹⁸ The accident is not required to have been “the cause” – that is, the accident need not be the sole cause or have been sufficient in itself to have caused the impairments at issue. Rather, the accident need only to have been a “necessary cause.”¹⁹

28Following a comparison of the pre- and post- accident evidence before me, I find that Ms. Mohamud has proven on a balance of probabilities that she sustained injuries to her neck, upper and lower back and right hip as a result of the accident. I also find that the accident was the cause of Ms. Mohamud’s headaches and the worsening of her pre-existing psychological conditions. I find that Ms. Mohamud’s complaints regarding her left knee and right shoulder were not caused by the accident and I decline to make a determination on the cause of Ms. Mohamud’s complaints of dizziness, memory difficulties, loss of balance, light-headedness, decreased concentration and disruptive sleep as such a determination is not required for me to determine the issues in dispute.

Post-accident Injuries/Conditions

29Ms. Mohamud attended St. Mary’s General Hospital on March 17, 2017 following the accident and complained of a headache, neck pain, chest pain and right hip pain. The emergency record is largely illegible including the diagnosis section and the discharge instructions. Ms. Mohamud had two CT scans and several x-rays on March 17, 2017 and March 18, 2017 that showed no fractures but did note osteoarthritis and degenerative diseases.

30Although Ms. Mohamud submitted that the St. Mary’s General Hospital records suggests that she sustained a possible rib fracture as a result of the accident, a March 25, 2017 x-ray report of Ms. Mohamud’s chest and right ribs from Fairway X-ray and Ultrasound showed no evidence of a fracture or dislocation and the impression was a normal examination. Therefore, I find that Ms. Mohamud did not sustain a rib fracture as a result of the accident.

31Ms. Mohamud did not submit any of the clinical notes and records (“CNRs”) from her family doctor, Dr. Albert Manesh, although Certas submitted selected excerpts of these CNRs. The decoded OHIP summary for the period of January 1, 2010 to June 16, 2017, however, showed that Ms. Mohamud did not see Dr. Manesh after the accident until March 21, 2017. Ms. Mohamud’s next visit to Dr. Manesh does not appear to be until May 5, 2017 and the code description only notes complaints regarding the leg. A further visit is noted on May 24, 2017 for “other problems of social adjustment” and finally there is a visit on June 15, 2017 for a migraine. None of these CNR entries from Dr. Manesh are before me although Ms. Mohamud did submit a prescription by Dr. Manesh for a rigid knee brace for her left knee and a pillow dated June 15, 2017.

32The OHIP summary also shows a visit to Dr. Thomas O’Brien on April 22, 2017. Dr. O’Brien’s CNR entry from this visit noted, among other things, that Ms. Mohamud complained of headaches and right sided neck pain since the accident and he ultimately diagnosed Ms. Mohamud with a headache.

33In an CNR entry dated October 13, 2017 of an unidentified health care provider, Ms. Mohamud is noted as complaining of increased arm and shoulder pain for three weeks and was diagnosed with neuropathic pain of her right arm.

34In a May 10, 2018 Neurology report, Dr. Michael Rathbone, neurologist,²⁰ diagnoses Ms. Mohamud with the following conditions as a result of the accident: memory difficulties likely due to chronic pain, anxiety and clinical features of post traumatic stress disorder (“PTSD”); post traumatic headaches (which he described as resolved); musculoligamentous injuries to the cervical, thoracic and lumbar spines with resultant chronic myofascial pain; possible right-sided cervical radiculopathy (requiring further investigation); post-traumatic right sided hearing loss due to inner ear injury; and exacerbation of left knee pain.

35In a January 23, 2019 psychological evaluation report by Dr. Romeo Vitelli, psychologist,²¹ Ms. Mohamud is diagnosed with general anxiety disorder, major depressive disorder and specific phobia (situational type – vehicular).

36In his March 4, 2019 Independent Medical Evaluation Report, Dr. Igor Wilderman, physician,²² noted that Ms. Mohamud continued to experience persistent headaches, neck pain, right shoulder pain, lower back pain, upper back pain, left knee pain, dizziness, loss of balance, light-headedness, decreased memory and concentration ability, disrupted sleep and psychological difficulties. Dr. Wilderman ultimately diagnoses Ms. Mohamud with the following conditions as a result of the accident: chronic pain disorder; post-concussional syndrome; chronic whiplash associated disorder (WAD) type II; mechanical lower back pain pattern 1 PEN; lumbago; bilateral sacroiliac joint dysfunction; bilateral trochanteric bursitis; bilateral piriformis syndrome; post-traumatic chronic headaches; TMJ syndrome on the right; internal derangement of knee joint probably due to meniscal tear on the left; impingement syndrome of shoulder on the right; rotator cuff syndrome on the right; post-traumatic osteoarthritis of acromioclavicular joint on the right; subacromial bursitis on the right; myofascial pain syndrome of rhomboid region on the right; bicipital tendonitis on the right; dizziness not yet diagnosed; post-traumatic right ear hearing loss due to inner ear injury (according to neurological report); depression; and moderate PTSD.

37Ms. Mohamud submitted several treatment plans as part of her hearing evidence that list injury and sequelae information for the post-accident period but these OCF-18s are not evidence of any post-accident diagnoses.

38In summary, the evidence suggests that post-accident, Ms. Mohamud complained of injuries to her neck, upper and lower back, right shoulder, right hip and left knee. The evidence also suggests that Ms. Mohamud was diagnosed with psychological conditions as a result of the accident and that Ms. Mohamud complained of headaches, dizziness, memory difficulties, loss of balance, light-headedness, decreased memory and concentration ability and disrupted sleep. As stated above, I decline to make a determination on the cause of Ms. Mohamud’s complaints of dizziness, memory difficulties, loss of balance, light-headedness, decreased concentration and disruptive sleep as such a determination is not required for me to determine the issues in dispute.

Pre-accident Injuries/Conditions

39The only pre-accident evidence submitted in accordance with the Tribunal’s October 15, 2019 Order for a comparison with Ms. Mohamud’s post-accident complaints was provided by Certas. This evidence, while not complete, showed that Ms. Mohamud had an extensive pre-accident medical history.

Left Knee and Right Shoulder

40I find that Ms. Mohamud has failed to prove on a balance of probabilities that the accident caused her left knee and right shoulder issues.

41Ms. Mohamud had significant pre-accident issues with her left knee and her right shoulder. As early as September 2, 2009, Ms. Mohamud was noted as walking with a limp and was diagnosed with chronic knee pain by Dr. Manesh. On this date, Ms. Mohamud advised Dr. Manesh that she was applying for long-term disability, that she had been under the care of an orthopaedic surgeon and that she had undergone arthroscopic surgery on her left knee.

42In October 2009, Dr. Manesh’s CNRs reflect a probable diagnosis of osteoarthritis in Ms. Mohamud’s left knee and right shoulder. This probable diagnosis of the left knee was confirmed by a November 3, 2009 ultrasound report²³ that showed moderate to severe osteoarthritis of Ms. Mohamud’s left knee. In fact, Ms. Mohamud’s degeneration of her left knee was described by Dr. Manesh in a letter to a legal clinic dated October 18, 2010 as being so severe that Ms. Mohamud would have had difficulty at that time with any prolonged activity or weight baring activities and that any type of torsion, lifting or twisting would exacerbate her underlying osteoarthritis in her knee.²⁴

43Dr. Manesh’s probable diagnosis of osteoarthritis in Ms. Mohamud’s right shoulder was also confirmed in an ultrasound report dated October 9, 2015 by Victoria Westmount Ultrasound Mammography.²⁵ This report stated that Ms. Mohamud’s ultrasound showed early osteoarthritic changes of the acromioclavicular joint in her right shoulder.

44The OHIP summary shows that Ms. Mohamud was a patient of Dr. Tariq Suhail, rheumatologist, which is also confirmed by Dr. Manesh’s CNRs. Ms. Mohamud saw Dr. Suhail on May 9, 2014, June 17, 2014, May 26, 2015, June 21, 2016 and August 4, 2016. Dr. Suhail’s CNRs were not submitted as evidence by either party for the hearing. Certas, however, requested Dr. Suhail’s CNRs, along with numerous other documents, from Ms. Mohamud’s counsel on July 17, 2019, August 16, 2019, September 24, 2019 and October 4, 2019. Further follow-up correspondences were sent by Certas on November 28, 2019, January 10, 2020, January 24, 2020 and February 5, 2020 requesting updates on various production requests including Dr. Suhail’s CNRs.

45While Dr. Suhail’s CNRs are not before me, certain information from Dr. Suhail is included in Dr. Manesh’s CNRs. For example, on May 2, 2016, Dr. Manesh referred Ms. Mohamud to Dr. Suhail for steroid knee injections to her left knee. In this CNR entry, Dr. Manesh confirms that Dr. Suhail was already scheduled to see Ms. Mohamud on June 1, 2016 regarding her shoulder. Dr. Manesh’s CNRs also reported that Ms. Mohamud was using a knee brace on her left knee for stability and pain, a shower mat and chair at this time.

46Dr. Suhail provided a follow-up note to Dr. Manesh dated June 21, 2016. In this letter, Dr. Suhail noted that he first administered a steroid injection in May 2015 to Ms. Mohamud’s knee, that Ms. Mohamud was complaining of ongoing shoulder pain at this appointment and that Ms. Mohamud reported that Tylenol 3 was not providing her with much benefit. Dr. Suhail referred to an MRI of Ms. Mohamud’s shoulder and stated that it revealed evidence of tendinitis, bursitis and osteoarthritis. Dr. Suhail also provided a steroid injection to Ms. Mohamud’s left knee at this visit and renewed her prescription for Arthrotec.

47The OHIP summary shows that Ms. Mohamud saw Dr. Suhail on March 10, 2017, which was only one week prior to the accident. In my opinion, any documentation regarding this visit with Dr. Suhail would have been helpful to assess the issue of causation regarding Ms. Mohamud’s left knee and right shoulder. However, the same FSC description is contained on the OHIP summary as was included in all but the June 17, 2014 entry of Ms. Mohamud’s visit to Dr. Suhail of “insertion of sutures outside of hospital” and referred to the bursa joint. From the limited information before me, I accept that Ms. Mohamud received some sort of injection from Dr. Suhail, likely to her knee, in the week prior to the accident.

48Certas has requested that I draw an adverse inference from Ms. Mohamud’s failure to produce certain documents including Dr. Suhail’s CNRs and I am prepared to do so in this matter. Here, Certas requested Dr. Suhail’s CNRs several times in advance of the hearing and a law clerk from Ms. Mohamud’s firm even confirmed with Certas via email on October 8, 2019 that a motion seeking production of the CNRs was not required as they were agreeable to produce Dr. Suhail’s CNRs.²⁶ No explanation was provided by Ms. Mohamud or her counsel as to why Dr. Suhail’s CNRs were not provided. Given all of the information before me, I agree with Certas that an adverse inference should be drawn as a result of the failure of Ms. Mohamud to produce Dr. Suhail’s CNRs to Certas.

49I also give little weight to Dr. Rathbone’s diagnosis of exacerbated left knee pain as a result of the accident in his May 10, 2018 Neurology report. Dr. Rathbone stated in his report that, “Ms. Mohamud had left knee pain before the accident. She hit her left knee in the vehicle. She reports increased pain in the left knee since the accident.”²⁷ There are no details regarding any pain ratings before and after the accident or any comparison of pain frequency pre- and post-accident. Further, while Dr. Rathbone stated that he received Dr. Manesh’s CNRs, there is no date range outlined as to when the CNRs were reviewed from and, while he mentions Ms. Mohamud’s left knee osteoarthritis, there is no discussion on this diagnosis related to his finding that Ms. Mohamud’s left knee pain increase post accident.

50Further, I also give little weight to the diagnoses regarding Ms. Mohamud’s left knee in Dr. Wilderman’s March 4, 2019 report. In his report, Dr. Wilderman noted that Ms. Mohamud’s medical history is significant for osteoarthritis and left knee and shoulder pain. However, in arriving at his diagnoses, Dr. Wilderman never reviewed any pre-accident diagnostic reports. Additionally, Dr. Wilderman only asked Ms. Mohamud about her current pain complaints and there was no comparison made between these pain ratings and her pre-accident pain in her left knee and right shoulder. Further, although Ms. Mohamud denied undergoing surgery to Dr. Wilderman, this directly contradicts her reports to Dr. Manesh that she had arthroscopic surgery on her left knee prior to September 2009.

51Based on the adverse inference drawn against Ms. Mohamud for failing to submit Dr. Suhail’s CNRs, the contemporaneous nature of her last visit to Dr. Suhail with the date of the accident and the evidence that Ms. Mohamud was complaining of shoulder pain within the year prior to the accident that necessitated a visit with Dr. Suhail, I find that Ms. Mohamud has failed to prove that any injuries to her left knee and right shoulder were caused by the accident. It is far more probable that Ms. Mohamud’s issues with her left knee and right shoulder were as a result of the ongoing deterioration of her diagnosed osteoarthritis in these areas.

Neck, Upper and Lower Back, Right Hip and Headaches

52Regarding Ms. Mohamud’s other post-accident physical complaints, I find that Ms. Mohamud has proven on a balance of probabilities that she sustained injuries to her neck, upper back and right hip as a result of the accident and that her headaches were also caused by the accident. In making this finding, I place significant weight on the OHIP summary provided as there are no code descriptions regarding these complaints within three years prior to the accident which I find is a reasonable time period for a comparison of pre- and post-accident complaints given Ms. Mohamud’s extensive pre-accident medical history.

53Further, although Ms. Mohamud was diagnosed with facet arthritis lower lumbar spine on the left on December 2, 2009 and also with degenerative disc disease of mild to moderate severity at the L5-S1 level on April 5, 2010, Ms. Mohamud’s lower back was asymptomatic leading up to the accident. There is no reference to any services provided on the OHIP summary regarding Ms. Mohamud’s lower back from three years prior to the accident. Therefore, I find that the accident was the cause of Ms. Mohamud’s lower back complaints.

Psychological Conditions

54I find that Ms. Mohamud has proven on a balance of probabilities that any worsening of her psychological conditions arising after the accident were caused by the accident, as Ms. Mohamud’s pre-existing psychological conditions were well-controlled and did not require any medical interventions prior to the accident.

55Ms. Mohamud was diagnosed with both anxiety and depression prior to the accident. However, Dr. Manesh described Ms. Mohamud’s anxiety as “well controlled” in his CNR entries dated October 19, 2010 and November 5, 2010. The OHIP summary shows that Ms. Mohamud saw Dr. Manesh on June 11, 2014 for “depressive or other non-psychotic disorders,” however this CNR entry is not before me but it was almost three years prior to the accident. The closest entry regarding psychological conditions prior to the accident in Dr. Manesh’s CNRs was on January 30, 2017 in which Ms. Mohamud reported feeling depressed due to familial issues, but no medications were prescribed for Ms. Mohamud’s mood at this time.

56For all of the reasons set out above, I find that Ms. Mohamud has proven on a balance of probabilities that the injuries sustained to her neck, upper and lower back and right hip were as a result of the accident. I also find that the accident was the cause of Ms. Mohamud’s headaches and the worsening of her pre-existing psychological conditions. I find that Ms. Mohamud’s complaints regarding her left knee and right shoulder were not caused by the accident.

The Treatment Plans

57Ms. Mohamud submitted that Certas failed to comply with its obligations under s. 38(8) of the Schedule regarding several of its notices denying the remaining treatment plans in dispute.

58Sections 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 10 business days after it receives the OCF-18 of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan.

59The requirement of medical reasons in s. 38(8) of the Schedule was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company,²⁸ in which Executive Chair Lamoureux stated:

an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.²⁹

60Pursuant to s. 38(11), if an insurer fails to comply with its obligations under s. 38(8), it must pay for all goods, services, assessments and examinations described in the treatment plan starting on the 11th business day after the day that the insurer received the treatment plan until such time that it gives notice that complies with s. 38(8) of the Schedule. As such, the insurer is given a window to “cure” a defective notice but without such a cure, any goods, services, assessment and examinations set out in the treatment plan are payable as an analysis as to the reasonableness and necessity of the proposed treatment under s. 15 of the Schedule is no longer required.³⁰

61For the remainder of the treatment plans where Ms. Mohamud did not raise issues concerning Certas’ denials or in the event that I find that Certas complied with its obligations under s. 38(8) of the Schedule, Ms. Mohamud bears the onus of proving her entitlement to the claimed goods, services and assessments by proving that each of the treatment plans are reasonable and necessary on a balance of probabilities.³¹

62I find that Ms. Mohamud is entitled to all but the portion for a knee brace of the March 14, 2019 treatment plan for assistive devices is payable as a result of Certas’ failure to comply with its requirements under s. 38(8) of the Schedule. Ms. Mohamud is not entitled to the remaining disputed treatment plans.

Assistive Devices

63The March 14, 2019 OCF-18 was completed by Dr. Joseph Paton, chiropractor, and sought funding in the total amount of $1,770.00 for completion of the OCF-18 and for the following assistive devices: lumbar support, low; a knee brace; microcurrent electrical therapy; custom orthotic shoes; and a hot/cold gel pack.

64At the outset, Ms. Mohamud is not entitled to the knee brace listed in this OCF-18 as I have found that any injuries or conditions associated with her left knee were not caused by the accident. The remainder of the proposed devices were recommended for injuries that Ms. Mohamud has established were as a result of the accident.

65Certas denied the March 14, 2019 OCF-18 on March 21, 2019. Ms. Mohamud submitted that Certas’ denial did not comply with the requirements of s. 38(8) of the Schedule as Certas provided no medical reasons for its denial of the March 14, 2019 OCF-18.

66I agree with Ms. Mohamud and find that Certas’ March 21, 2019 denial letter fails to provide a medical reason for its denial of the requested assistive devices. Instead, Certas’s letter stated:

Based on your medical information of file, I am unable to approve this recommendation. I need information to support that the recommendations are reasonable and necessary. Please submit your family doctor clinical notes and records from the date of loss till today and any other records you believe would support the proposed goods and services.³²

67In only asking for more information from Ms. Mohamud, Certas failed to provide a medical reason for its denial and failed to even mention any conditions of Ms. Mohamud. As a result, the consequences set out in s. 38(11) of the Schedule are triggered. Therefore, all but the portion of the March 14, 2019 treatment plan for a knee brace is payable as there are no other denial letters before me regarding this treatment plan and Certas no longer has the opportunity to issue a proper denial notice as a decision has been rendered regarding this benefit.

In-Home Assessment

68The December 3, 2018 treatment plan was completed by Dr. Paton and sought funding for an in-home assessment to be completed by Sandra Fraser, registered nurse. The goals of the treatment plan were: to evaluate Ms. Mohamud’s needs at home; to optimize Ms. Mohamud’s level of functional independence with respect to her home duties; to determine recommendations and treatment options; to determine if Ms. Mohamud suffers a complete inability to carry on a normal life as a result of the accident; to determine what medical and rehabilitation benefits are reasonable and necessary; and to determine if Ms. Mohamud required any assistance with personal care.

69Ms. Mohamud submitted that Certas’ denial of the OCF-18 failed to comply with s. 38(8) of the Schedule as the denial reasons provided by Certas were not proper and were not meaningful enough to allow Ms. Mohamud to decide whether or not to dispute Certas’ position. I disagree.

70Certas denied this treatment plan by way of correspondence dated December 6, 2018. This letter stated, “I am unable to approve your request for an in[-]home assessment at this time. It is noted in your s[.]25 Neurological report dated 2018/05/16 you are independent in all your self care activities.”³³ I find that Certas provided specific medical details about Ms. Mohamud’s condition that formed the basis of its decision and its reasons were clear, straightforward and sufficient enough to allow Ms. Mohamud to decide to either accept or dispute the decision at issue. For all of these reasons, I find no breach of s. 38(8) of the Schedule and now must consider the reasonableness and necessity of the proposed in-home assessment.

71In denying the in-home assessment, Ms. Mohamud alleged that Certas selectively highlighted one statement from Dr. Rathbone’s report in that Ms. Mohamud was independent with her self-care when other portions of his report show objective findings of functional loss and demonstrate a need for attendant care. For example, Ms. Mohamud draws attention to Dr. Rathbone’s comment in his report that:

[Ms. Mohamud’s] chronic pain (neck, upper back and low back pain) prevents her from carrying on a normal life. The chronic pain limits her walking, standing, bending, carrying, as well as sustained regular activity over a period of time. She has difficulties performing the heavier tasks in homemaking, [sic] and is unable to lift heavier items like a vacuum.³⁴

72Ms. Mohamud also relies upon the January 23, 2019 Psychological Evaluation Report by Dr. Vitelli wherein Ms. Mohamud is noted as reporting the following functional difficulties:

From a functional perspective, Ms. Mohamud reported that she struggles with housekeeping and home maintenance activities since the accident. She stated, “I can’t cook, do laundry or wash dishes I have to lean on the sink because of back pain,.[sic]” She reported having trouble in cleaning, bending, sitting and standing for any length of time.³⁵

73The difficulty that I have with placing weight on Ms. Mohamud’s self-reports of her function that are contained in Dr. Rathbone’s and Dr. Vitelli’s reports is that this information is completely contrary to the information contained in the September 14, 2018 Oncology Consultation Note by Dr. Janet A. MacEachern, physician, which was submitted and relied upon by Certas. In this note, Dr. MacEachern stated that Ms. Mohamud was employed “doing housekeeping at a hotel,” and that, “she had a lot on her plate as she is the primary caregiver for her husband who has Parkinson’s disease and Lewy body dementia.” Again, as there are no reply submissions before me, Ms. Mohamud failed to address the significant discrepancy between her reported levels of function to her assessors to the level of function described in Dr. MacEachern’s note.

74I find that there is no evidence before me that Ms. Mohamud had any difficulties with her personal care tasks and, based on this finding, Ms. Mohamud would not be entitled to any attendance care benefits that fall under “Level 1” on the Assessment of Attendance Care Needs Form (“Form 1”). Ms. Mohamud correctly stated that there are still two other possible levels of attendant care benefits that she could be entitled to as set out on the Form 1. Level 2 is for basic supervisory functions and Level 3 is for complex healthcare and hygiene functions. There is no evidence before me that Ms. Mohamud required any supervision as outlined in Level 2 or for any complex healthcare or hygiene functions as proposed in Level 3 of the Form 1. The only functional difficulties reported by Dr. Rathbone and Dr. Vitelli regarding housework, which could possibly fall under Level 2, remains contradicted by Dr. MacEachern’s note and unaddressed by Ms. Mohamud in reply. Therefore, I find that at almost one year and nine months post-accident that Ms. Mohamud has failed to prove that she would likely be entitled to attendant care benefits and, therefore, the goals of the proposed in-home assessment concerning determination of attendant care needs would not be met.

75I also find that Ms. Mohamud has failed to show that the proposed in-home assessment would meet the other goals of the treatment plan of determining recommendations and treatment options and to determine if Ms. Mohamud suffers a complete inability to carry on a normal life as a result of the accident. Ms. Mohamud was under the care of several other health care providers at the time the OCF-18 was submitted to Certas and it is unclear why a further health care provider was required to make recommendations for her care at that time. Further, the OCF-18 affirmatively indicated that Ms. Mohamud was unable to carry out her activities of normal life and Ms. Mohamud was in receipt of NEBs. Thus, there is no evidence before me as to why a further analysis of this issue was required at this time.

76I also do not agree with Ms. Mohamud’s position that simply because she was receiving non-earner benefits (“NEBs”) from Certas that this somehow automatically entitled her to the in-home assessment for attendant care benefits. Despite receiving NEBs, Ms. Mohamud is still required to prove the reasonableness and necessity of the proposed assessment on a balance of probailities.

77For all of these reasons, I find that Ms. Mohamud has failed to prove the reasonableness and necessity of the proposed in-home assessment on a balance of probabilities and, therefore, she is not entitled to this treatment plan.

ENT Assessment

78Ms. Mohamud submitted that Certas denied the treatment plan seeking funding in the amount of $2,486.00 for an ENT assessment on June 9, 2019 and, therefore, is required to pay for the assessment pursuant to s. 38(8) of the Schedule as it failed to provide a response within 10 business days after it received the disputed OCF-18. Ms. Mohamud maintained that the costs of the OCF-18 were incurred prior to Certas’ denial as she underwent an assessment with Dr. Maky Hafidh, physician (otolaryngology – head and neck surgery), on August 8, 2017.

79I disagree with Ms. Mohamud’s position regarding the date of Certas’ denial letter as the copy of this letter that is before me is dated June 9, 2017, not June 9, 2019 as submitted. However, as the parties agree that the OCF-18 was submitted to Certas on May 25, 2017, I find that Certas’ June 9, 2017 denial was one day outside of the 10-business day time period for it to respond under s. 38(8) of the Schedule and the consequences set out in s. 38(11) are still triggered.

80Nonetheless, I find that Certas is not liable for the costs of the assessment under s. 38(11) because Ms. Mohamud incurred the proposed assessment after Certas’ June 9, 2017 letter on August 8, 2017. As Ms. Mohamud raised no other issues regarding the sufficiency of Certas’ denial under s. 38(8), I find that the ENT assessment was not incurred prior to Certas curing its non-compliance with s. 38(8) and I must now consider the reasonableness and necessity of the treatment plan.

81The March 23, 2017 OCF-18 is not in its entirety before me. The only part of this disputed treatment plan that was filed as evidence for the hearing is the fax back portion which only includes the last two pages of the OCF-18.

82In the reconsideration decision of J.R. v. Certas Home and Insurance Company,³⁶ the Executive Chair highlighted the obligation of the Tribunal to ask parties to submit information that it believes a party meant to rely upon as evidence in a hearing. The Executive Chair stated:

Just as an insurer reviews a complete OCF-18 in order to properly decide whether to fund the insured’s request, the Tribunal generally requires the same document in order to properly understand both the insured’s request and the insurer’s response. Put simply, the Tribunal cannot fairly adjudicate an application in most cases without a complete copy of the very document giving rise to the parties’ dispute [my emphasis added].³⁷

83I find that this matter is a case where I do not need the entire OCF-18 to be before me for a full and satisfactory understanding of the issue in dispute.

84The additional comments section of the treatment plan states, “please refer to the attached document from “Forest Hill Hearing INC [sic],” and then appears to cite two excerpts from this document. Ms. Mohamud, for whatever reason, also did not submit as evidence for the hearing the Forest Hill Hearing Inc. document referred to in the OCF-18.

85Even if the OCF-18 was allowed into evidence in its entirety at this late stage of the proceeding, it is clear that without the Forest Hill Hearing Inc. document, I would not be able to assess the reasonableness and necessity of the proposed ENT assessment. This position is further supported by Certas’ referral to the Forest Hill Hearing Inc. document in its denial letter dated June 9, 2017. While I appreciate that two excerpts appear to be set out in the OCF-18, I give these two comments little weight in analyzing the reasonableness and necessity of the treatment plan as I am not prepared to accept them without the ability to review and analyze the full Forest Hill Hearing Inc. document.

86I also find that I am not obliged to go back to Ms. Mohamud for the Forest Hill Hearing Inc. document and seek submissions from the parties regarding whether or not it should be allowed into evidence at this time because this document is not the document that gave rise to the dispute between the parties and, therefore, is distinguishable from J.R. v. Certas. Moreover, although the OCF-18 stated that the Forest Hill Hearing Inc. document was attached to the OCF-18, there is no evidence before me that it could not have been submitted as a stand-alone document as it appears that some documents from Forest Hill Hearing Inc. were in the possession of Ms. Mohamud. For example, the CNRs from Forest Hill Hearing Inc. were listed as documents reviewed by Dr. Wilderman in his March 4, 2019 Independent Medical Evaluation Report.

87In addition, Certas submitted that it agreed to fund and paid for a hearing aid for Ms. Mohamud after Ms. Mohamud provided “medical records to substantiate that the claim was arising from the car accident.”³⁸ It is not clear from Certas’ submissions and the evidence before me if the documents submitted by Ms. Mohamud that supported the approval of a hearing aid included Dr. Hafidh’s August 8, 2017 letter as a result of the incurred ENT assessment by Dr. Hafidh or not. Although Ms. Mohamud stated in her submissions, “the assessment conducted by Dr. Hafidh demonstrated hearing loss in the right ear; and that diagnosis lead to the approval of hearing aids by the Respondent,”³⁹ there is no evidence to support this submission and this submission, on its own, does not constitute evidence.

88For all of these reasons, I find that Ms. Mohamud is not entitled to the proposed ENT assessment as she failed to prove the reasonableness and necessity of the OCF-18 on a balance of probabilities.

Interest

89Ms. Mohamud is entitled to interest in accordance with s. 51 of the Schedule for the March 14, 2019 treatment plan for assistive devices excluding the portion for a knee brace.

Award

90Section 10 of O. Reg. 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. It is well settled, however, that an award should not be ordered simply because an insurer made an incorrect decision. Rather, in order to attract a s. 10 award, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding or immoderate.

91I find that Ms. Mohamud has not met her burden of proving on a balance of probabilities that she is entitled to an award in this matter. Even though I found that Certas failed to comply with its obligations under s. 38(8) of the Schedule regarding one of the disputed treatment plans, this finding in and of itself does not amount to an unreasonable withholding or delay of payment of benefits.

92No other evidence is before me that support a finding that Certas’ actions rose to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate. Therefore, I find that Ms. Mohamud is not entitled to an award under O. Reg. 664 in this matter.

CONCLUSION

93For all of the reasons set out above, I find that Ms. Mohamud is: