Jamily v. Certas Home and Auto Insurance Company, 2022 CanLII 98064

Citation: Jamily v. Certas Home and Auto Insurance Company, 2022 ONLAT 20-013208/AABS

Licence Appeal Tribunal File Number: 20-013208/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.

Parties

Between:

Roya Jamily

Applicant

and

Certas Home and Auto Insurance Company

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 (the "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:

i. Are the applicant's injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline ("MIG")?

ii. Is the applicant entitled to $2,405.33 ($3,010.70 less $605.38 approved) for physiotherapy services, proposed by 2430303 Ont. Ltd. in a treatment plan/OCF-18 ("OCF-18") dated September 29, 2018?

iii. Is the applicant entitled to $2,894.33 for physiotherapy services, proposed by 2430303 Ont. Ltd. in an OCF-18 dated January 23, 2019?

iv. Is the applicant entitled to $1,211.11 for physiotherapy services, proposed by 240303 Ont. Ltd. in an OCF-18 dated December 6, 2018?

v. Is the applicant entitled to $1,603.57 for physiotherapy services, proposed by 240303 Ont. Ltd. in an OCF-18 dated April 25, 2019?

vi. Is the applicant entitled to $1,212.11 for physiotherapy services, proposed by 240303 Ont. Ltd. in an OCF-18 dated June 12, 2019?

vii. Is the applicant entitled to $1,211.11 for physiotherapy services, proposed by 240303 Ont. Ltd. in an OCF-18 dated July 12, 2019?

viii. Is the applicant entitled to $1,999.82 for a psychological assessment, proposed by 240303 Ont. Ltd./Normed Assessments in an OCF-18 dated November 7, 2018?

ix. Is the applicant entitled to $2,000.00 for an orthopaedic assessment, proposed by 240303 Ont. Ltd./Normed Assessments in an OCF-18 dated May 27, 2019?

x. Is the applicant entitled to $2,000.00 for a neurological assessment, proposed by 240303 Ont. Ltd./Normed Assessments in an OCF-18 dated July 12, 2019?

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

Result

3I find that:

(i) The applicant's injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 MIG treatment limit. An analysis of whether the disputed OCF-18s are reasonable and necessary is unwarranted as the applicant has exhausted the funding available to her for medical benefits;

(ii) The respondent's denial of the OCF-18 dated November 7, 2018 was proper notice in accordance with s. 38(8) of the Schedule and therefore, is not payable;

(iii) The respondent's denials of the remaining OCF-18s in dispute did not comply with s. 38(8) of the Schedule. Therefore the applicant is entitled to the OCF-18s in dispute, with the exception of the November 7, 2018 OCF-18, upon a submission of an invoice for services rendered, plus interest in accordance with s.51 of the Schedule.

Analysis

The Minor Injury Guideline (MIG)

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 this limit if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG or if they provide evidence of a non-minor injury, e.g. a psychological impairment, chronic pain with a functional impairment.

6It is the applicant's burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance or probabilities.²

7I find that the medical evidence establishes that the applicant suffered predominantly minor injuries as a result of the accident.

8To substantiate her physical accident-related impairments, the applicant relies on the Disability Certificate ("OCF-3") dated September 29, 2018, prepared by Dr. Paul Bruni, chiropractor. Dr. Bruni diagnosed the applicant as suffering from acute pain, whiplash associated disorder – WAD3 ("WAD") with complaint of neck pain with neurological signs, radiculopathy, depressive episode, headache, malaise and fatigue, pain in the upper limb and disorders of the sleep-wake schedule.³ These impairments were subsequently repeated in the OCF-18s dated September 29, 2018, January 23, 2019, December 6, 2018, April 25, 2019, June 12, 2019, July 12, 2019, May 27, 2019 and July 12, 2019⁴. Dr. Bruni also provided an Initial Report dated September 29, 2018, wherein he noted the applicant's restricted range of motion, WAD with neurological signs and noted a possible pain disorder.⁵

9The applicant further submits that the various progress notes prepared by Dr. Bruni and the additional comments in the OCF-18s listing chronic pain, radicular symptoms and restrictions in her activities of daily living⁶ support her claim of non-minor accident-related injuries.

10Upon review of the evidence and submissions of the parties, I find that the applicant has not led sufficient medical evidence to establish that she has sustained non-minor physical impairments or chronic pain, which would warrant her removal from the MIG.

11The applicant has provided limited submissions or analysis on the issue of her removal from the MIG on these grounds and instead, reproduces the information contained in the OCF-3 and various OCF-18s and references the progress notes prepared by Dr. Bruni. However, an OCF-3 does not in and of itself establish whether an applicant has sustained a non-minor injury. It is a form used to apply for a specified benefit and is not a comprehensive assessment of injuries sustained in an accident. Similarly, the additional comments provided in the various OCF-18s list various injuries, but are not corroborated by medical records.

12I place limited weight on the initial report of Dr. Bruni and his progress notes detailing radicular symptoms and chronic pain. I agree with the respondent's submissions that a diagnosis of chronic pain or radiculopathy by Dr. Bruni, is beyond the scope of his practice as a chiropractor. The applicant has not been diagnosed as suffering from chronic pain or radiculopathy by a physician. Similarly, no diagnostic imaging or neurological testing has been submitted. No clinical notes and records ("CNRs") from a family physician have been provided by the applicant. The only objective medical records submitted were records from Humber River Hospital.

13However, the applicant does not direct me to anything in the hospital records that would indicate that she sustained a non-minor injury as a result of the accident. The records indicate that the applicant attended at the hospital the day after the accident, and again a few days later, with complaints of neck, arm and shoulder pain and headaches. The hospital records from September 3, 2018 indicate that the applicant was diagnosed with "minor STI's [soft tissue injuries] MVC" and on September 6, 2018, with "MVC, bruising"⁷. These diagnoses fall squarely within the definition of a minor injury.

14With respect to the issue of chronic pain, the applicant relies on her self-reports of pain and functional limitations noted in the comments sections of the various OCF-18s and the progress notes prepared by her treating facility. However, the applicant has not provided any clinical notes and records from a family physician evidencing ongoing reports of pain, referrals to specialists or prescriptions for pain medication. Further, I agree with the respondent's submissions that applicant has not led evidence that she has met three of the six diagnostic criteria for chronic pain established by the American Medical Association's Guidelines ("AMA Guidelines").

15While not binding, the Tribunal has used the AMA Guidelines criteria as an interpretive tool for chronic pain claims⁸, particularly when a diagnosis of chronic pain has not been provided by a physician. The applicant has not provided evidence that she is dependent on prescription pain medication, is excessively dependent on health care providers or family, that she has withdrawn from social, work or recreational activities due to pain, or that she suffers from secondary physical deconditioning due to fear-avoidance of pain. Other than self-reports of functional limitations the applicant has not led any evidence demonstrating functional impairment.

16Similarly, the applicant has not provided sufficient evidence that she suffered a psychological impairment as a result of the accident. The applicant again solely relies on the various OCF forms. The OCF-3 and OCF-18s for physiotherapy treatment prepared by Dr. Bruni list psychological symptoms, in addition to the various physical complaints. However, I find that psychological diagnoses are beyond the scope of Dr. Bruni's practice as a chiropractor and as such, I place limited weight on these forms.

17In addition, the applicant relies on an OCF-18 for a psychological assessment dated November 7, 2018, prepared by Dr. John Mills, psychologist,⁹ and the results of a pre-screening interview, which list symptoms such as nightmares, fatigue, sleep disturbances, depression and anxiety¹⁰. However, I agree with the respondent's submissions that it does not appear that any objective diagnostic testing was conducted, or a diagnosis rendered. No additional medical evidence, such as CNRs of a family physician, were submitted by the applicant indicating that she reported or sought treatment for psychological impairments.

18The applicant submits that the reason she was not able to provide additional medical evidence, such as CNRs of family physicians, to establish physical injuries, chronic pain or psychological impairment, is she does not have access to public health care. The applicant asserts that she is not eligible for the Ontario Health Insurance Plan ("OHIP") given her citizenship status and such, must pay for all of her doctors visits out of pocket.¹¹ The applicant further submits that given her limited access to medical services and the Schedule's consumer protection goal, "the respondent should have provided the applicant with a chance to be assessed by a medical professional who's qualification and opinion would have satisfied the respondent's requirements for 'compelling evidence'".¹²

19I do not find the applicant's argument to be persuasive. It is circular logic for the applicant to argue that the respondent must first approve the OCF-18s for the various assessments, so that the applicant could then collect sufficient evidence of such impairments to establish the basis for such OCF-18s. While I am sympathetic to the applicant's submissions that she has limited access to public health care, it is still incumbent on the applicant to make her case that she has sustained non-minor injuries and to present her evidence to support her claim.

20Finally, the applicant submits that the respondent should have conducted its own insurer's examination ("IE"). While I agree with the applicant that the respondent did not conduct its own psychological, orthopaedic or neurological assessments, pursuant to s.44(1) of the Schedule an insurer is not obligated to conduct its own examination of the insured. The section simply holds that an insurer may require an examination. Moreover, I do not find that the respondent's lack of IE assessments to be determinative of the issue, given that the applicant has not provided sufficient medical evidence establishing non-minor injuries. Further, the burden of proof is on the applicant to prove entitlement, and not on the respondent to disprove it.

21As a result, on a balance of probabilities, I find that the applicant has failed to establish that she sustained accident-related impairments that would warrant removal from the MIG.

Respondent's Denial of Treatment Plans

Section 38(8) of the Schedule

22As an alternative argument, the applicant submits that the respondent did not properly deny the disputed treatment plans, in accordance with s.38(8) of the Schedule,

23Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.

24If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11)1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that if an insurer fails to provide proper notice of the reasons for its denial it 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 after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8).

25The Tribunal provided guidance with respect to the interpretation of "medical and other reasons", in the decision T.F. v Peel Mutual¹³, stating:

"Nevertheless, 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."¹⁴

Sufficiency of Respondent's Denials of OCF-18s dated September 29, 2018, December 6, 2018, January 23, 2019, April 25, 2019, June 12, 2019, and July 12, 2019

26The applicant submitted six OCF-18s for physiotherapy services proposed by 2430303 Ont. Ltd. The respondent denied these treatment plans by way of Explanation of Benefits ("EOB"s), dated January 8, 2019¹⁵, January 26, 2019¹⁶, February 14, 2019¹⁷, May 8, 2019¹⁸, June 20, 2019¹⁹ and July 23, 2019²⁰.

27The language used in the six EOBs is substantially similar, stating that the respondent reviewed the list of injuries and compared them to the criteria in the Minor Injury Guideline and concluded that the injuries fall within the Guidelines. The respondent further states that recommendations "must address your diagnosis" and that it has not received "any compelling medical documentation" to support the applicant claims that her injuries are not minor.

28I find that the language contained in these EOBs was deficient and not in accordance with s. 38(8) of the Schedule. Although the respondent references the Minor Injury Guideline, and the fact that the applicant's injuries are "minor", the respondent does not include specific details about the applicant's medical condition or even mention what her injuries were. There are no references made to what documents the respondent reviewed in coming to its determination or what documents the respondent further required from the applicant.

29For these reasons, I find that the above-listed EOBs fall short of the respondent's obligations to provide medical and other reasons under s. 38(8) of the Schedule. As a result, the consequences set out in s. 38(11) are triggered and the OCF-18s are payable.

Sufficiency of the Respondent's Denial of OCF-18 dated November 7, 2018

30In her submissions, the applicant states that OCF-18 dated November 7, 2018 for a psychological assessment, was withdrawn and re-submitted on November 20, 2018. The applicant further asserts that the respondent did not respond to the OCF-18 dated November 20, 2018 and as such, it should be payable in full.²¹

31However, in its submissions, the respondent provided a copy of its EOB dated November 28, 2018, denying the OCF-18 in question²². In her reply submissions, the applicant did not dispute the respondent's assertions that it sent a denial on November 28, 2018 and did not provide further information or evidence to corroborate her position. Therefore, I accept the respondent's position that it did respond to the applicant's OCF-18 within the 10-day timeframe.

32The language in the EOB dated November 28, 2018 differs slightly from the respondent's prior EOBs discussed above. The respondent still states that it reviewed the applicant's list of injuries and compared it to the Minor Injury Guideline and found that the injuries fell within the Guideline. However, the respondent then provides additional detail in stating that it finds that the medical documentation it has received does not support a finding that the applicant suffered a psychological impairment as a result of the accident.

33Unlike in the previous EOBs, the respondent has specifically referenced the applicant's medical condition – i.e., a purported psychological impairment. As such, I find the respondent's reference to the Minor Injury Guideline and specific reference to the applicant's psychological impairment in the EOB dated November 28, 2018 was a valid denial of the November 7, 2018 OCF-18.

Sufficiency of the Respondent's Denial of OCF-18 dated May 27, 2019

34The applicant submitted an OCF-18 dated May 27, 2019 for an orthopedic assessment.

35The respondent denied this OCF-18 by an EOB dated June 6, 2019, stating that it had not received any "compelling medical evidence" that the applicant's injuries were not predominantly minor, or that she had suffered any "tears or fractures" as a result of the accident which would prevent her from recovering within the MIG.²³ The respondent also referenced s. 15(1)(h) of the Schedule, which states that recommended goods and services should be essential.

36I find that the language contained in the EOBs was deficient and not in accordance with s. 38(8) of the Schedule. The EOB does reference specific medical conditions, namely the assertion that the applicant did not sustain any fractures or tears. However, the OCF-18 dated May 27, 2019 did not reference fractures or tears, but discussed radiculopathy symptoms, among other physical symptoms. The EOB does not reference the purported symptoms of radiculopathy or other listed impairments. 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.

37As 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 and falls short of the respondent's obligations to provide medical and other reasons under s. 38(8) of the Schedule.

Sufficiency of the Respondent's Denial of OCF-18 dated July 12, 2019

38The applicant submitted an OCF-18 dated July 12, 2019 for a neurological assessment. By way of EOB dated July 30, 2019, the respondent denied the claim.²⁴

39I find that the language contained in this EOB was deficient and not in accordance with s.38(8). The respondent again asserted that it had reviewed the list of injuries and compared them to the criteria in the Minor Injury Guideline, concluding that the injuries fall within the Guidelines. The respondent further states that it has not received "any compelling medical documentation" to support the applicant claims that her injuries are not minor.

40However, the respondent went on to state in its "What Happens Next" section that a medical examination was being arranged so that the respondent could confirm the applicant's diagnosis and treatment needs and that details of the appointment would follow. However, it does not appear that any such follow-up details of an insurer's examination were sent to the applicant, or that such an examination was arranged.

41I find that the EOB was confusing in its denial. The respondent has not submitted any evidence that it had scheduled or tried to schedule an insurer's examination. As such, the EOB did not provide sufficient information to assist the applicant in determining what steps, if any, she could take next to challenge the decision.

Payment of OCF-18s Pursuant to s.38(11) of the Schedule

42For reasons stated above, I find that all of the OCF-18's in dispute, with the exception of the OCF-18 dated November 7, 2018 for a psychological assessment, are payable for the period starting on the 11th business day after the day that the respondent received the OCF-18s in question, together with interest in accordance with section 51 of the Schedule.

43This 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.

44I find that the OCF-18 dated November 7, 2018 for a psychological assessment is not payable, as the denial was sufficient.

The Applicant remains in the MIG

45In her submissions, the applicant appeared to be asserting that due to the respondent's lack of compliance with s. 38(8), she should be removed from the MIG entirely. I find that despite the respondent's non-compliance with s.38(8), the respondent is not precluded from taking the position that the MIG applies to the applicant's accident-related impairments pursuant to s. 38(11)1 for any future treatment plans. The Divisional Court has held that the language used in s. 38 of the Schedule refers to the specific treatment plan in question and, as a result, s. 38(11) does not impose a permanent prohibition on an insurer with respect to whether an insured person's impairments is covered by the MIG or is subject to the $3,500.00 limit in s. 18(1).²⁵

Order

46For the reasons outline above, I find that:

a. The applicant's injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 MIG treatment limit;

b. The respondent's denial of the OCF-18 dated November 7, 2018 was proper notice in accordance with section 38(8) of the Schedule and therefore, is not payable;

c. The respondent's denials of the remaining OCF-18s in dispute did not comply with s. 38(8) of the Schedule. Therefore, the applicant is entitled to the remaining OCF-18s in dispute, with the exception of the OCF-18 dated November 7, 2018, upon a submission of an invoice for services rendered, plus interest in accordance with s.51 of the Schedule.

Footnotes

1. 1O. Reg. 34/10 including amendments
2. 2Scarlett v. Belair Insurance, 2015 ONSC 3635, para. 24 (Div. Ct.).
3. 3Applicant's Submissions, Tab12, OCF-3 dated September 29, 2018
4. 4Applicant's Submissions, Tabs 11 and 12, OCF-18s dated September 29, 2018, January 23, 2019, December 6, 2018, April 25, 2019, June 12, 2019, July 12, 2019 May 27, 2019 and July 12, 2019
5. 5Applicant's Submissions, Tab 12, Initial Report of Dr. Bruni dated September 29, 2018
6. 6Applicant's Submissions, Tabs 12 and 13, East Sheppard Rehabilitation Clinic Progress Notes dated January 23, 2019, April 25, 2019, June 12, 2019, July 12, 2019
7. 7Respondent's Submissions, Tab 25, CNRs of Humber River Hospital
8. 8Applicant v. Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT).
9. 9Applicant's Submissions, Tab 11, OCF-18 dated November 7, 2018
10. 10Applicant's Submissions, Tab 14, Psychological Assessment Pre-Screening Questionnaire
11. 11Applicant's Submissions at para 8.
12. 12Applicant's Reply Submissions, at para 10.
13. 13T.F. v. Peel Mutual Insurance Company 2019 ONSC 5318, 2019 CanLii 39373 (ON LAT)
14. 14Ibid. at para. 19
15. 15Respondent's Submissions, Tab 8, EOB dated January 8, 2019
16. 16Respondent's Submissions, Tab 12, EOB dated January 26, 2019
17. 17Respondent's Submissions, Tab 10, EOB dated February 14, 2019
18. 18Respondent's Submissions, Tab 14, EOB dated May 8, 2019
19. 19Respondent's Submissions, Tab 16, EOB dated June 20, 2019
20. 20Respondent's Submissions, Tab 18, EOB dated July 23, 2019
21. 21Applicant's Submissions, at para 16.
22. 22Respondent's Submissions, Tab 20, EOB dated November 28, 2018
23. 23Respondent's Submissions, Tab 22, EOB dated June 6, 2019
24. 24Respondent's Submissions, Tab 24, EOB dated July 30, 2019
25. 25Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 at para. 21.```