Citation: Noor v. Intact Insurance Company, 2022 ONLAT 20-009592/AABS

Licence Appeal Tribunal File Number: 20-009592/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:

Abdirasaq Noor

Applicant

and

Intact Insurance Company

Respondent

DECISION AND ORDER

VICE-CHAIR:

Chloe Lester

APPEARANCES:

For the Applicant:

Abdirasaq Noor, Applicant

Sam Elbassiouni, Paralegal

Rajiv Kapoor, Paralegal

For the Respondent:

Karla Barone, Representative

Rosalind Eastmond, Counsel

Interpreter:

Fowzia Ahmad, Somali Interpreter

Court Reporter:

Anthony Ng

Heard by Videoconference:

May 16-18, 2022

REASONS FOR DECISION AND ORDER

BACKGROUND

1The applicant, Abdirasaq Noor, was involved in an automobile accident on June 13, 2018, when he was rear-ended at a red light. Based on his initial injuries, Mr. Noor sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016)¹. Upon review of the initial treatment plan the respondent, Intact Insurance Company (“Intact”), placed Mr. Noor in the Minor Injury Guideline (“MIG”)² and approved benefits to the $3,500.00 policy limit. Once treatment was denied outside of the $3,500.00 limit, Mr. Noor applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service³ (“Tribunal”) to dispute Intact’s decision.

PRELIMINARY ISSUES

2At the beginning of the hearing, Mr. Noor requested that the treatment plans be adjudicated before the other issues in dispute. He argued that since he was arguing that the treatment plans were subject to what he believed was a s. 38(8) violation, and if he was right, then it would reduce his witness list and the additional arguments at the hearing.

3Intact objected and indicated that it was ready to proceed with its witnesses. Intact argued that if Mr. Noor’s arguments failed, then that would require additional hearing days to argue whether the treatment plans are reasonable and necessary. Intact argued that all the issues in dispute should be argued as part of one hearing.

4I agreed with Intact and denied the request. The Tribunal must consider requests to bifurcate the hearing seriously. Bifurcating a hearing may increase Tribunal’s resources and potentially the costs for the parties. While it also may reduce hearing time, in this case, it would not. Hearing the alleged s. 38(8) arguments, would not resolve the entire application before the Tribunal. The issue of whether Mr. Noor was subject to the Minor Injury Guideline (“MIG”) or whether he was entitled to a non-earner benefit would still have to be argued. As bifurcating the hearing would not save any additional hearing time and the witnesses were ready to proceed, the request is denied.

5After I orally issued my decision on the request to bifurcate the hearing, Mr. Noor withdrew the non-earner benefit issue.

6At the beginning of the hearing, Mr. Noor indicated that the log notes did not contain the reasons for the redactions. Intact agreed to disclose the reasons for the various redactions by the end of the first hearing day.

7On day 2 of the hearing, Mr. Noor had concerns regarding the redactions that claimed internal strategy/relevance. He argued that if the note concerned him and it was not the subject of a privileged conversation or regarding reserve information then the information should be visible. I compared the unredacted version to the redacted version. There were approximately 10 notes that were redacted because they contained the adjuster’s analysis and action plan, the strategy of the adjuster or a periodic review of the file. Intact claimed that those log notes were not disclosable because they related to the adjuster’s own thoughts on the file or action plan. Mr. Noor argued that all log notes are disclosable unless they relate to privilege or reserve information.

8I agreed with Mr. Noor and found the log notes to be disclosable. The Tribunal has been very clear that log notes are producible regardless of whether there is an award on the file or whether the log note relates to the issues in dispute. They are an internal record of when actions were taken on the file, when documents were received or sent, and reasons for denials. Since the Schedule is a consumer protection legislation, and the dominant purpose of the notes is not for litigation, they are fully producible at any time. The parties agree that privileged conversations/advice and information regarding reserves may be redacted. Intact was ordered to remove the redactions and it complied.

9Just prior to the testimony of the adjuster, Karla Barone, Mr. Noor argued that even though he summonsed the adjuster to testify, it was for the purpose of cross-examination. He claimed that this issue had already been decided and rendered orally by Vice-Chair Hunter in an earlier motion decision.

10Intact disagrees and argues the decision by Vice-Chair Hunter was simply that the adjuster could be summonsed as a witness as per his written decision. Intact referred me to a decision I wrote, Sahadeo v. Pafco Insurance Company,⁴ where I found that an applicant can summons an adjuster for testimony, but since there is no property in a witness, the person who summonses must conduct an examination-in-chief.

11Since Vice-Chair Hunter’s motion decision did not explicitly state that the summons was only for the purpose of cross-examination, the decision would be left to me.

12Mr. Noor argued that we should call Vice-Chair Hunter as a witness to provide context to his motion decision or that I should phone him to seek clarification.

13Calling a Vice-Chair to testify or to phone him to seek clarification on his decision would be inappropriate. The Tribunal does not have a process for clarifying interlocutory decisions. If Mr. Noor is unsatisfied with my final decision or feels that a previous interlocutory decision may have impacted the procedural fairness of this hearing then it is incumbent on Mr. Noor to file a request for reconsideration. For the reasons set out in Sahadeo, I find there is no property in a witness, and since Mr. Noor summonsed the adjuster to testify, he ought to conduct an examination-in-chief.

ISSUES

14Are Mr. Noor’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500 limit and in the MIG?

15Is Mr. Noor entitled to $1,300.00 (less amounts approved) for a physical therapy treatment plan recommended by Health Max on September 7, 2018?

16Is Mr. Noor entitled to $4,212.81 for a physical therapy treatment plan recommended by Health Max on November 1, 2018?

17Is Mr. Noor entitled to $2,200.00 for a psychological assessment recommended by Health Max on November 7, 2018?

18Is Intact liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payment to Mr. Noor?

19Is Mr. Noor entitled to interest on any overdue payment of benefits?

20Is either party entitled to costs for the hearing?

RESULTS

21Mr. Noor is not in the MIG.

22Mr. Noor is entitled to the remainder of the treatment plan for $1,300 and is entitled to the treatment plan for $4,212.81. The treatment plan for $2,200.00 is considered payable as per s. 38 (11) of the Schedule. Mr. Noor is entitled to interest in accordance with the Schedule if the treatment has been incurred and is considered overdue.

23Mr. Noor is not entitled to an award.

24The parties are not entitled to costs for the hearing.

THE MINOR INJURY GUIDELINE AND THE DISPUTED TREATMENT PLANS

25The MIG establishes a treatment framework for injured persons who sustain a minor injury because of an accident. A “minor injury” is defined in section 3(1) of the Schedule as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae. Under section 18(1) of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on medical and rehabilitation benefits.

26To request treatment above the $3,500.00 funding limit, Mr. Noor must prove, on the balance of probabilities, that his injuries do not fall within the definition of minor injury in section 3(1) of the Schedule⁵. Mr. Noor can establish that by:

a. Producing compelling evidence, provided by a health practitioner that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subject to the funding limit⁶; or

b. establishing an impairment sustained in the accident is not a predominantly minor injury.

27Mr. Noor argues that he should not be subject to the MIG because he has pre-existing conditions that prevent maximal recovery within the MIG funding limit. He also argues that he suffers from chronic pain which does not fall within the definition of a minor injury.

28Intact argues the injuries sustained in this car accident were soft tissue injuries subject to the MIG. It further argues that since Mr. Noor’s pre-existing complaints were not documented prior to the accident, then he has not met his onus to produce compelling medical evidence that proves the pre-existing injuries would prevent achieving maximal recovery within the MIG.

29Mr. Noor replied arguing that it would be impossible for him to get the medical records of his pre-existing injuries because the injuries occurred in Somalia. Mr. Noor argued that the gunshot wound to his shoulder and PTSD stemmed from the war in the 90s. He has lived in Canada for quite some time now and does not have any medical records from that period.

30The initial treatment plans from the service provider indicated that Mr. Noor suffered soft-tissue injuries. Upon receipt of a Disability Certificate (OCF-3) Intact requested that Mr. Noor attend a s. 44 assessment to determine eligibility for a non-earner benefit. The report by Dr. Mian, physician, dated October 16, 2018, confirmed that the injuries sustained in the car accident were soft tissue injuries and that Mr. Noor had returned to his pre-accident normal life activities. Upon examination, Dr. Mian noted that “his left shoulder all the way down to his left hand was significantly atrophied to the point that his side of his body was approximately half the size of his right shoulder and arm. This atrophy was likely from underuse given the fact that he had a significant gunshot wound to that region several years ago for which he received essentially no rehabilitation or physical therapy while in his native Somalia.” When asked by Intact whether Mr. Noor had any pre-existing medical conditions and whether it would prevent Mr. Noor from achieving maximal recovery from the accident-related injuries, he responded, “yes, the claimant suffers from significant pre-existing medical condition which he had left shoulder atrophy including left arm and hand atrophy due to underuse secondary to a gunshot wound suffered to the left shoulder in his native Somalia several decades ago. This underlying ailment will exacerbate his recovery.”

31Once Intact received a treatment plan that was for funding outside the MIG policy limits, it referred Mr. Noor back to Dr. Mian for a s. 44 assessment but this time for a paper review.⁷ When asked about the injuries sustained in the car accident and whether they fell within the MIG, Dr. Mian answered that he believed they were soft tissue injuries and they would be expected to heal within 8-12 weeks. During this paper review, Intact did not ask him whether Mr. Noor had any pre-existing injuries that would prevent maximal recovery within the MIG limits.

32The MIG treatment framework was established to grant quick access to medical and rehabilitation benefits because in most cases the impairments suffered from a large majority of car accidents would result in soft tissue injuries. Those injuries had an expected recovery within 8-12 weeks. The thought was that if someone had a pre-existing condition in a certain area, the impact of even soft tissue injuries to that area could exacerbate the condition that recovery within the 8-12 weeks might not be possible. In most cases, an insured person would need to produce documentation, established prior to the accident by a health practitioner, that demonstrates a pre-existing condition that would prevent maximal recovery if subject to the MIG limits.

33I will preface my findings with this statement. The circumstances of this hearing are extremely rare and exceptional. In almost all cases the findings below will not be applicable as precedence for a future case. My findings are unique to this hearing and are in line with the Schedule being a consumer protection legislation and interpretation of the sections should be liberally construed.

34In this case, I find that the record before me sufficiently document’s Mr. Noor’s pre-existing injury and therefore, I do not feel that Mr. Noor had to produce additional medical records to support his pre-existing condition for the following reasons.

35First, Ms. Barone, Dispute Management Adjuster, testified that Intact would not require the medical records from Somalia but only the year prior to the accident. I find that Intact was essentially conceding to the fact that the records regarding his gunshot, which occurred in the 90’s, would not be required.

36Secondly, the s. 44 assessor, an unbiased opinion for Intact, established the injury was pre-existing by physically examining him and rendering an opinion that it would affect Mr. Noor’s recovery. In this case, the s. 44 assessor is reiterating that even though the applicant suffered from soft tissue injuries from the accident, his pre-existing injuries are so blatant that upon physical examination it was clear that Mr. Noor suffered from a “significant pre-existing medical condition”. It was his opinion that the underlying condition would exacerbate Mr. Noor’s recovery. Although the second s. 44 report does not explicitly say Mr. Noor should be removed from the MIG because of a pre-existing injury, he was also never asked that question. The first report made it clear that Mr. Noor should be removed because of his pre-existing injuries because it would impact the recovery of his soft-tissue injuries.

37Third, this is not a case where the credibility of the pre-accident injury or the medical report is in question. Intact did not deny the fact that the injury was pre-existing.

38So, taking in the totality of the evidence, it would be a miscarriage of justice if I were to rule differently. I find that Mr. Noor is out of the MIG based on his pre-existing injuries and the fact that he would not be able to achieve maximal medical recovery of his soft tissue injuries if subjected to the MIG limits, as opined by the s.44 examiner in his report dated October 16, 2018.

39Since Mr. Noor is now out of the MIG, he has access to greater funding for medical and rehabilitation benefits. The first treatment plan in the amount of $1,300.00, was approved and considered reasonable and necessary. The total amount of the treatment plan was not approved on the basis that Mr. Noor had exhausted his MIG funding limits. Since Mr. Noor is no longer subject to the $3,500.00 MIG limit, I find the treatment plan payable.

40The second treatment plan in dispute is in the amount of $4,212.81 for additional physical therapy. Mr. Noor argues that it is reasonable and necessary considering his pre-existing conditions and his injuries from the car accident. Mr. Noor argues that not only did his treating practitioner recommend more therapy for his injuries by way of a treatment plan, but Dr. Mian also expressed that his recovery would be exacerbated by the pre-existing injuries.

41Intact claims that Dr. Mian opined that the treatment plan was not reasonable and necessary because, Mr. Noor had experienced soft tissue injuries because of the accident, and since he had already received treatment the injuries should have healed.

42I find the treatment plan reasonable and necessary. I find the second report of Dr. Mian incomplete considering he was not asked about Mr. Noor’s pre-existing injuries and the impact on recovery. Considering Dr. Mian’s first report indicated that Mr. Noor’s prognosis would be good, but his recovery was impacted by his pre-existing injuries, I find the reasons in the treatment plan persuasive for why Mr. Noor required more treatment. I find that it would be reasonable that Mr. Noor would require more treatment to improve upon his accident-related injuries.

43Lastly, the parties disagree on whether the psychological assessment proposed for Mr. Noor is reasonable and necessary. Mr. Noor argues that he had pre-existing PTSD as a result of the Somalian war. He argues that the accident exacerbated his condition. Intact argues that the s. 44 psychological assessment of Dr. Mandel⁸ supports its position that the psychological assessment is not reasonable and necessary. Mr. Noor did not have a diagnosable psychological impairment; therefore, a psychological assessment would not be necessary.

44I find the psychological assessment not reasonable and necessary. An assessment is considered reasonable and necessary when there are sufficient signs and symptoms to warrant further investigation. The treatment plan alleges that Mr. Noor is experiencing a variety of psychological signs and symptoms as a result of the accident. A review of the evidence demonstrates that under the additional comments section it appears they mostly relate to familial issues and are not related to the accident.⁹ Both the s. 44 assessment by Dr. Mandel and the family doctor’s records do not support ongoing psychological distress that warrants investigation.

45That being said, the treatment plan is payable as Intact did not abide by its obligations under s. 38(8), and therefore, it shall pay for the assessment as described in the treatment plan in accordance with s. 38(11) of the Schedule.

46The treatment plan for the psychological assessment was received by Intact on November 7, 2018.¹⁰ As per s. 38(8), Intact had 10 business days to respond to the treatment plan and provide the insured notice of whether it agreed to pay for the treatment plan or not. The notice indicating that Intact would not pay for the treatment plan and the reasons why were contained in a letter dated November 21, 2018. Unfortunately, when Intact tried to send the notice to Mr. Noor’s representatives via fax, the fax did not go through. Intact decided to send the notice via mail on the same day, November 21, 2018. As s. 64(18) states that a letter or notice sent via mail is considered received after 5 business days, Intact’s notice was not received by Mr. Noor within 10-days as required by s. 38(8).

47Mr. Noor argues that since Intact sent the notice via mail the notice was received outside the 10 business days. That renders the treatment and assessment plan payable. Intact argues that according to s. 38(8) its obligation is only to send it within 10 business days not that it must be received within 10 days. It relies on the words “within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice…”. Intact argues because the Schedule states that it “shall give” the notice, means all that it was required to do was send it out by the 10 business days not that it should be received within that time.

48I agree with Mr. Noor’s submissions and find that the notice must be received within 10 business days. The Schedule indicates in s. 64(5) that “Despite clause (2)(d), any notice or other document that must be given within fewer than five business days shall not be delivered by ordinary mail.” The assumption is the notice via mail would not be received in time with the deadline prescribed in the Schedule. The words in s. 38(8) “shall give”, are similar to the same words in s. 64(5) “must be given”, therefore there is an expectation that the notice in s. 38(8) must be received “within 10 business”. Since the notice was received within 15 business days, s. 38(11)2 is triggered which obligates the insurer to pay for the assessment described in the treatment plan that relates to the period beginning on the 11th day until proper notice is received. Since the assessment would have taken place in that period, I find that Mr. Noor can incur the treatment and it is payable.

Award

49Mr. Noor claims he is entitled to an award under s. 10 of Regulation 664¹¹ because Intact unreasonably withheld or delayed payments of benefits. Mr. Noor alleges that for all three treatment plans there were issues of gross mishandling, and he ought to be granted an award. He claims that with the first treatment plan, not only was the notice received late but also did not contain a proper denial. The second treatment plan was denied within the timelines, but once the s. 44 report was received, Intact did not send it until months later, despite the Schedule obligating it to send it within 10 business days. The third treatment plan, Intact did not send the notice within the 10 business days as it is obligated to do. Lastly, it claims that the s. 44 report by Dr. Mian indicated that Mr. Noor should have been out of the MIG, yet Intact kept him in that category and denied him treatment outside the MIG limits.

50Intact argues that an award is not warranted. It argues that the first treatment plan, was supplied on an OCF-18, but since the treatment was for a MIG extension treatment plan, Mr. Noor himself was in essence conceding he ought to be in the MIG. Since Mr. Noor was subject to the MIG guidelines, Intact believes that a MIG extension treatment plan does not need to follow the obligations set out in s. 38(8). Intact argues that even though it acknowledges the s. 44 report was sent to Mr. Noor outside the 10 business days, the Schedule does not have a punitive remedy for the lateness. Lastly, Intact believes it properly kept Mr. Noor in the MIG as per the reasons listed above and fulfilled its obligations to send the notice for the third treatment plan within 10 business days.

51I find Mr. Noor not entitled to an award. It is rooted in case law that an insurance company is not held to a standard of perfection. It is entitled to make some mistakes. In doing so, if a mistake is perceived by the insured or its representative, then it is incumbent on them to point it out. A mistake can only be remedied if it is known. If at that point an insurer refuses to remedy the mistake, then the actions may surmount to an entitlement for an award. An award is only granted if the actions of the insurance company are stubborn, inflexible or imprudent. In this case, Mr. Noor only pointed out the alleged mistakes approximately one month prior to the hearing. In my opinion, this did not leave Intact enough time to potentially remedy the alleged mistakes. I do not find the actions of Intact led to an unreasonably withholding or delayed payments of benefits. Mr. Noor is not entitled to an award.

REQUEST FOR COSTS

52Both parties have requested costs for the hearing.

53Mr. Noor seeks costs for the hearing because he has incurred costs for the hearing which include multiple motions, and efforts to resolve issues to reduce the hearing days or the entire claim.

54Intact is requesting costs on the basis that it had to secure witnesses for the issue of non-earner benefits to only have the issue withdrawn on the first day of the hearing.

55For costs to be granted, a party must have acted unreasonably, frivolously, vexatiously, or in bad faith during the proceeding.¹² This is a high bar to meet.

56Both parties have not proven that either one has acted in such a way to warrant costs being granted. The actions of the parties are simply the normal costs associated with pursuing a claim and defending it. The request for costs is denied.

CONCLUSION

57Mr. Noor is out of the MIG and is entitled to two treatment plans. The psychological assessment is rendered payable under s. 38(11) because Intact failed to issue its notice within 10 business days.

Footnotes

1. 1Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 as amended. (“Schedule”)
2. 2Superintendent’s Guideline No. 01/14 Minor Injury Guideline issued under s. 268.3 (1.1) of the Insurance Act.
3. 3Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (“Tribunal”)
4. 4Sahadeo v. Pafco Insurance Company, 2022 ONLAT 19-006331/AABS – M (“Sahadeo”)
5. 5Scarlet v. Belair, 2015 ONSC 3635 para 24
6. 6The Schedule Section 18(2)
7. 7S. 44 report dated December 4, 2018 by Dr. Mian – Paper Review -Applicant’s Brief page 355
8. 8Psychological assessment report by Dr. Mandel dated February 26, 2019 -Applicant’s brief page 383
9. 9Treatment plan for psychological assessment – Applicant’s brief page 136
10. 10Explanation of Benefits for the psychological assessment treatment plan -Applicant’s Brief Page 81
11. 11R.R.O. 1990, Reg. 664: AUTOMOBILE INSURANCE
12. 12License Appeal Tribunal’s Rules of Practice and Procedure Rule 19