Sahil v. Certas Home and Auto Insurance, 2022 CanLII 98056

Citation: Sahil v. Certas Home and Auto Insurance, 2022 ONLAT 20-013201/AABS

Licence Appeal Tribunal File Number: 20-013201/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:

Ismail Sahil Applicant

and

Certas Home and Auto Insurance Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Julia Logoutova, Paralegal

For the Respondent: Grace Ko, Counsel

HEARD: By Way of Written Submissions

BACKGROUND

1The applicant was involved in an automobile accident on September 2, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule -Effective September 1, 2010 (including amendments effective June 1, 2016)¹ (“Schedule”). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

ISSUES IN DISPUTE

2The issues to be decided in the hearing are:

1. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“MIG”)?
2. Is the applicant entitled to a medical benefit in the amount of $790.02 ($3,010.71 less $2,220.69 approved) for physiotherapy services, proposed by 2430303 Ont. Ltd in a treatment plan/OCF-18 (“OCF-18”) dated September 27, 2018?
3. Is the applicant entitled to a medical benefit in the amount of $2,111.41 for physiotherapy services, proposed by 2430303 Ont. Ltd in an OCF-18 dated December 28, 2018?
4. Is the applicant entitled to a medical benefit in the amount of $1,212.11 for physiotherapy services, proposed by 2430303 Ont. Ltd in an OCF-18 dated May 16, 2019?
5. Is the applicant entitled to a medical benefit in the amount of $1,212.11 for physiotherapy services, proposed by 2430303 Ont. Ltd in an OCF-18 dated September 7, 2019?
6. Is the applicant entitled to a medical benefit in the amount of $1,603.57 for physiotherapy services, proposed by 2430303 Ont. Ltd in an OCF-18 dated March 7, 2019?
7. Is the applicant entitled to a cost of examination in the amount of $1,293.80 for a functional abilities evaluation, proposed by 2430307 Ont. Ltd/Normed Assessments in an OCF-18 dated January 3, 2019?
8. Is the applicant entitled to a cost of examination in the amount of $1,999.82 for a psychological assessment, proposed by 2430307 Ont. Ltd/Normed Assessments in an OCF-18 dated November 7, 2018?
9. Is the applicant entitled to a cost of examination in the amount of $2,000.00 for an orthopaedic assessment, proposed by 2430307 Ont. Ltd/Normed Assessments in an OCF-18 dated May 16, 2019?
10. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

(i) The applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG; and

(ii) The applicant is entitled to the OCF-18s in dispute, upon submission of an invoice for services rendered, plus interest in accordance with s. 51 of the Schedule as a result of the respondent’s failure to comply with s. 38(8) of the Schedule.

ANALYSIS

The Minor Injury Guideline

4The 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.

5Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. 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 that they sustained a psychological impairment or chronic pain with a functional impairment as a result of the accident.

6The onus is on the applicant to show, on a balance of probabilities, that his or her injuries fall outside of the MIG.²

7On the evidence, I find that the applicant has not met his burden of proving that his accident-related impairments require treatment beyond the MIG.

Are the Applicant’s Physical Injuries Minor Injuries?

8To establish his physical impairments, the applicant relies in large part on the Disability Certificate (“OCF-3”) dated September 27, 2018 and corresponding report, prepared by Dr. Paul Bruni, chiropractor. Dr. Bruni diagnosed the applicant as suffering from whiplash associated disorder - Type 3 (“WAD 3”) with complaint of neck pain with neurological signs, radiculopathy, headache, pain in upper limb, pain in lower limb, low back pain, depressive episode, malaise and fatigue and disorders of sleep³. In the OCF-3, Dr. Bruni noted that the anticipated duration of the injuries was 9-12 weeks. These reported injuries were subsequently repeated in all of OCF-18s submitted by 2430303 Ont. Ltd⁴.

9The applicant also relies on the progress note of Dr. Bruni dated December 27, 2018, which documented his ongoing pain in his neck, back, knee, shoulder and headaches. The progress note further noted that “radicular symptoms were reported”⁵ and that the applicant had significant difficulties with his activities of daily living. The applicant submits that Dr. Bruni’s finding of a WAD 3 injury with radiculopathy is sufficient and compelling medical evidence warranting his removal from the MIG.

10Upon review of the totality of the medical evidence, I find that the evidence does not support the applicant’s claims that he sustained non-minor physical injuries as a result of the accident.

11Aside from the evidence of Dr. Bruni, which consisted of the OCF-3, with the corresponding initial report, and OCF-18s with a progress note, the applicant has not submitted any contemporaneous medical evidence that he has sustained physical injuries that are not minor in nature as per the definition set out in the Schedule.

12I agree with the respondent’s submissions that the hospital records do not support the applicant’s assertion that he sustained serious physical impairments as a result of the accident. The applicant did not attend at the hospital the day of the accident but did attend six days later on September 8, 2018. Hospital records indicate that he complained of soft-tissue pains in the left arm, neck, back and leg. He was diagnosed with “whiplash/MVC”⁶ and referred for physiotherapy and massage therapy. The doctors did not make any findings of objective injuries and did not note any neurological symptoms. Further, no diagnostic imaging was requisitioned or performed which would support a diagnosis involving the spinal cord. The emergency room doctor’s finding of whiplash falls squarely within the definition of minor injury.

13The only additional medical records provided by the applicant are clinical notes and records (“CNRs”) of Dr. Camelia Dragomir, family physician at North Park Medical Centre. There are only two entries in Dr. Dragomir’s CNRs, one visit almost a year after the accident in August 2019, and the other in February 2020. The applicant does not direct me to anything in the CNRs which would indicate that he raised his physical injuries to his neck, back, shoulders, or symptoms of radiculopathy with Dr. Dragomir. In fact, in one of the two visits, on August 24, 2019, when the applicant complained of headaches and reported taking ibuprofen. Dr. Dragomir conducted an examination and found that the applicant had normal head, eyes ear, nose and throat examination, with “no significant M [muscle] contract paravert”⁷. Therefore, Dr. Dragomir did not find evidence of any physical injury.

14As such, I agree with the respondent’s submissions that the applicant has failed to provide sufficient medical evidence that he suffered from non-minor physical injuries.

15In his submissions, the applicant argues that the OCF forms submitted are “compelling medical evidence” that he sustained WAD 3 injury with radiculopathy, taking him outside of the MIG.

16It is well-settled that when seeking entitlement to accident benefits, it is the applicant’s burden to provide evidence and persuasive analysis to prove that he has sustained an injury that falls outside the definition of a “minor injury”. Merely reproducing the particulars of an OCF-3 or OCF-18 without providing additional medical evidence or an analysis is not sufficient.

17Although the applicant’s chiropractor Dr. Bruni diagnosed the applicant with radiculopathy in the various OCF forms, I give this diagnosis limited weight, as this goes beyond the scope of the doctor’s practice. There are no further medical diagnoses of radiculopathy from any other physician, such as Dr. Dragomir or a neurologist, supporting Dr. Bruni’s view. In addition to the absence in Dr. Dragomir’s CNRs of any ongoing accident-related physical complaints relating to radiculopathy, there is also an absence of any diagnostic imaging reports, neurological findings or any referrals made by a family physician to any specialists to address the applicant’s alleged non-MIG injuries.

18I note that the applicant highlights the fact that the respondent did not conduct a s.44 Insurer’s Examination (“IE”) to support its conclusion. However, pursuant to s.44(1) of the Schedule an insurer is not obligated to conduct its own examination of the insured and the section simply holds that an insurer may require an examination. Rather, it is the applicant that holds the responsibility to prove that he sustained an injury that falls outside the definition of a “minor injury”, not the respondent to disprove it. I find that the absence of an IE report in this case is not determinative because the applicant has not provided sufficient medical evidence of a non-minor injury, and thus, it is not incumbent on the respondent to conduct an IE to defend its position.

Did the Applicant Sustain a Psychological Injury as a Result of the Accident?

19Psychological impairments, if established, fall outside the MIG, because such impairments are not included in the prescribed definition of “minor injuries.”

20The applicant did not provide any direct submissions on whether he sustained psychological impairments as a result of the accident. However, as the respondent addressed the issue of psychological impairments in its submissions, and one of the OCF-18s related to a psychological assessment⁸, I will address the issue as part of this written hearing.

21I find that the applicant has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of a psychological impairment.

22The only evidence put forth by the applicant relating to psychological impairments, are the various OCF forms. The OCF-3 prepared by Dr. Bruni lists, in addition to physical injuries, depressive episode, malaise and fatigue and disorders of the sleep-wake schedule⁹. These reported symptoms were then repeated in all of the OCF-18s submitted by 2430303 Ont. Ltd. However, given that these OCF forms were completed by a chiropractor, and psychological conditions fall outside a chiropractor’s scope of practice, I give little weight to Dr. Bruni’s finding of psychological impairments as a result of the accident.

23In addition, although not expressly stated, the applicant implies that the OCF-18 dated November 7, 2018 for a psychological assessment supports a finding that he suffers from a psychological accident-related impairment. The results of the psychological pre-screening interview conducted by Dr. John Mills, psychologist, that accompanied the OCF-18 noted the applicant’s reports of various psychological complaints, including anxiety attacks, depressed mood and anger¹⁰.

24I place limited weight on the summary of the pre-screening interview, appended to the OCF-18 for the following reasons: I agree with the respondent’s submissions that there are inconsistencies in some of the personal information reported, including the fact that Dr. Mills noted that the applicant had not been able to return to work, despite the fact that the applicant had returned to work a few days after the accident and was laid off for unrelated reasons. Further, it does not appear that any objective testing was conducted, or formal diagnosis was made. Rather, the description of symptoms appears to be based on the applicant’s self-reports. Finally, I note that these symptoms are not reflected anywhere else in the medical record, including in the CNRs of Dr. Dragomir of North Park Medical Centre.

25In his reply submissions, the applicant asserts that due to his status as a refugee without access to the Ontario Health Insurance Plan (“OHIP”), he is unable to access government-funded medical care. As such, the applicant submits that the respondent’s position that the OCF forms alone are not sufficient and that additional medical evidence of impairment is required, creates a situation in which the applicant would never be able to collect sufficient evidence to support a claim for accident benefits.

26I do not find the applicant’s argument to be persuasive. Although the applicant submits that due to his lack of OHIP coverage it is impossible to obtain additional medical evidence, I note that both hospital records and CNR’s of Dr. Dragomir were provided by the applicant. The applicant attended at his medical clinic to address health issues that he felt were serious enough to warrant medical treatment. Neither Dr. Dragomir’s CNRs nor the hospital records provided, indicated any psychological complaints or a psychological diagnosis. The applicant has not provided any contemporaneous medical evidence or persuasive analysis that he sustained a psychological impairment as a result of the accident.

27Further, the applicant has not provided any submissions or evidence on the issues of removal from the MIG on the basis of chronic pain or pre-existing injury. Without submissions identifying these as grounds for removal from the MIG, there is no basis for me to consider these criteria.

28As a result, based on my review of the submissions and the totality of the medical evidence, I find that the applicant has failed to prove on a balance of probabilities that his injuries are outside of the MIG.

SUFFICIENCY OF THE DENIALS OF OCF-18s

Were the Respondent’s denials in compliance with the Schedule?

29Although I have found the applicant to be within the MIG and the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted in this matter, the applicant further submitted that the respondent’s denials of the disputed treatment plans failed to comply with s. 38(8) of the Schedule. As a result, the applicant’s position is that he is entitled to the disputed treatment plans as the respondent is precluded from taking the position that the MIG applies to the applicant’s accident-related impairments.

30Sections 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, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

31The applicant relies on the Tribunal’s reconsideration decision of T.F. v. Peel Mutual Insurance Company¹¹ (“T.F. v. Peel”). In this decision, the Tribunal held:

“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.”¹²

32If an insurer fails to comply with its obligations under s. 38(8), s. 38(11) states that the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies and must pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day until such time that it gives proper notice.

33The respondent submits that its Explanation of Benefits (“EOBs) for each of the treatment plans in dispute complied with s.38(8) of the Schedule.

Sufficiency of Respondent’s Denials for:

• OCF-18 dated September 27, 2018
• OCF-18 dated December 28, 2018
• OCF-18 dated March 7, 2019
• OCF-18 dated May 16, 2019
• OCF-18 dated September 7, 2019
• OCF-18 dated November 7, 2018

34The above-referenced OCF-18s were all submitted for proposed physiotherapy, with the exception of the OCF-18 dated November 7, 2018 which proposed a psychological assessment.

35The respondent denied the listed OCF-18s by way of EOBs dated October 24, 2018, January 26, 2019, March 19, 2019, June 1, 2019, September 26, 2019 and November 27, 2018¹³.

36The language contained in the EOBs was substantially similar for all the above-listed OCF-18s. The respondent stated that it believed that the applicant’s injuries were categorized as minor injuries and fell within the MIG. In the “Additional Details” section of the EOB, the respondent included standard language defining a minor injury, and noting the $3,500 limit. Some of the EOBs went on to state that the respondent had “not received any compelling medical documentation to support that your injuries are not predominantly minor in nature”¹⁴.

37With respect to these denials, I agree with the applicant that the respondent’s EOBs refer to the applicant’s injuries as being “minor,” but then fail to include any specific details about the applicant’s condition or even mention what his minor injuries were. The language in the correspondence is boilerplate and provides no information about the applicant’s impairments. I note that essentially the same language was used to deny the treatment plans for physiotherapy treatment, as the treatment plan for a psychological assessment, despite the fact that the OCF-18s referenced different injuries and requested markedly different benefits.

38The denial provided by the respondent would not provide the reader with any clarification of the details of the applicant’s condition and is not clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. The respondent does not reference what documents it reviewed in coming to its decision or what medical information it was basing its decision on. Despite the fact that the respondent states that it has not received “compelling medical information”, it does not provide the applicant with any information as to what additional documentation it requires.

39I found the decision cited by the applicant, 17-006967 v Certas Home and Auto Insurance Company¹⁵, to be persuasive. In this decision, the Tribunal found that a denial very similar to one contained in the present EOBs, failed to comply with s.38(8). The Tribunal found that such language did not constitute valid medical reasons and that the EOB did not provide the applicant with what information was relied on to reach their conclusion. As such, the Tribunal concluded that the applicant was left not knowing what information formed the basis for the denial and whether the applicant should or should not dispute the denial. The respondent did not address this decision in its submissions, nor provide any case law in support of its position that its EOBs were sufficient denials.

40For these reasons, I find that the EOBs dated October 24, 2018, January 26, 2019, March 18, 2019, June 1, 2019, September 26, 2019 and November 27, 2018, fall short of the respondent’s obligations to provide medical and other reasons under s. 38(8) of the Schedule. As a result, the respondent is prohibited from taking the position that the applicant has an impairment where the MIG applies with respect to these treatment plans.

Sufficiency of Respondent’s Denial for OCF-18 dated January 3, 2019

41The applicant submitted the above-referenced OCF-18 for a functional abilities examination. In its EOB dated January 26, 2019, the respondent issued a denial, stating that:

“You have advised that you were able to return to your pre accident employment, job duties and hours after the accident. I am unable to approve the recommended treatment as it does not appear to be reasonable or necessary.”

42I agree with the applicant’s submissions that the correspondence fails to meet the requirements in s. 38(8) of the Schedule. I find that this denial does not meet the consumer protection mandate, because it has not provided the applicant with information about the respondent’s understanding of his medical condition – there are no medical reasons provided or any discussion about what documents were reviewed by the respondent in coming to its decision. The EOB also did not provide sufficient information to assist the applicant in determining what steps, if any, he could take next to challenge the decision. As such, I find the respondent is prohibited from taking the position that the applicant has an impairment where the MIG applies with respect to this treatment plan.

Sufficiency of Respondent’s Denial for OCF-18 dated May 16, 2019

43The final OCF-18 dated May 16, 2019, was for an orthopaedic assessment. By EOB dated June 6, 2019, the respondent denied the assessment, stating:

“15(1)(h) of the Statutory Accident benefits Schedule say recommended goods and services should be essential. I have not received any compelling medical documentation to support that your injuries are not predominantly minor, or that you suffered any tears or fractures as a result of the accident that would prevent you from recovering within the minor injury limits…”

44This EOB does reference specific medical conditions, namely the assertion that the applicant did not sustain any fractures or tears. However, the OCF-18 did not reference fractures or tears, but discussed radiculopathy symptoms, in addition to other physical impairments. The EOB does not reference the purported symptoms of radiculopathy or conditions listed in the OCF-18. In addition, although the respondent stated that it had not received any compelling medical documentation in support of the applicant’s injuries, the respondent did not provide any clarification as to what documentation it still required from the applicant or in the alternative, what medical information it had reviewed in coming to its decision. As such, the EOB was not sufficiently clear to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. As such, I find the respondent is prohibited from taking the position that the applicant has an impairment where the MIG applies with respect to this treatment plan.

OCF-18s are Payable Pursuant to s.38(11)

45For all of the reasons delineated above, I find that the OCF-18’s dated September 27, 2018, December 28, 2018, March 7, 2019, May 16, 2019, September 7, 2019 and November 7, 2018, January 3, 2019 and May 16, 2019 are payable starting on the 11th business day after the day that the respondent received the OCF-18s in question and upon submission of an invoice for services rendered.

46This is despite the fact that maximum benefits payable under the MIG have been exhausted, as the respondent is prohibited from taking the position that the MIG applies to the applicant’s impairments pursuant to s. 38(11) with respect to these specific treatment plans.

Interest

47The applicant is entitled to interest in accordance with section 51 of the Schedule once the goods and services set out in the treatment plans listed in paragraph 45 above have been incurred and become overdue. If the applicant has already incurred these goods and services, then the applicant is entitled to interest in accordance with section 51 of the Schedule.

CONCLUSION AND ORDER

48For the reasons outlined above, I find that:

i. The applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG;

ii. The applicant is entitled to the OCF-18s in dispute, plus interest in accordance with s. 51 of the Schedule, as a result of the respondent’s failure to comply with s. 38(8) of the Schedule, upon submission of an invoice for services rendered.

Footnotes

1. 1O. Reg. 34/10 including amendments.
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Applicant’s Submissions, Tab 4, OCF-3 dated September 27, 2018
4. 4Applicant’s Submissions, Tab 5, OCF-18s dated September 27, 2018, December 28, 2018, March 7, 2019, May 16, 2019 and September 7, 2019
5. 5Respondent’s Submissions, Tab 26, Progress note of Dr. Bruni dated December 27, 2018
6. 6Respondent’s Submissions, Tab 23, CNR’s of Humber River Hospital
7. 7Applicant’s Submissions, Tab 18, CNRs of North Park Medical Centre
8. 8Applicant’s Submissions, Tab 11, OCF-18 dated November 7, 2018
9. 9Applicant’s Submissions, Tab 4, OCF-3 dated September 27, 2018
10. 10Applicant’s Submissions, Tab 11, OCF-18 dated November 7, 2018
11. 112018 CanLII 39373 (ON LAT Reconsideration Decision).
12. 12Ibid. at para. 19.
13. 13Applicant’s Submissions, Tab 6, Explanation of Benefits dated October 24, 2018, January 26, 2019,March 18, 2019, June 1, 2019, September 26, 2019
14. 14Applicant’s Submissions, Tab 6, Explanation of Benefits dated June 1, 2019 and September 26, 2019
15. 1517-006967 v Certas Home and Auto Insurance Company, 2018 CanLII 95582 (ON LAT)