Licence Appeal Tribunal File Number: 21-014786/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:
Eduard Loiczli
Applicant
and
TD Insurance Meloche Monnex
Respondent
DECISION
ADJUDICATOR: Craig Mazerolle
APPEARANCES:
For the Applicant: Maziar Mortezaei, Counsel
For the Respondent: Martin Lidums, Counsel
HEARD: In Writing
OVERVIEW
1Eduard Loiczli, the applicant, was involved in an automobile accident on December 22, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, TD Insurance Meloche Monnex, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The issues in dispute 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 of the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to $903.38 per month for an attendant care benefit (“ACB”) for the period from January 23, 2020 to date and ongoing?
iii. Is the applicant entitled to $3,010.71 for physiotherapy services, as proposed in the treatment plan/OCF-18 (“plan”) by 2430303 Ontario Inc.?
iv. Is the applicant entitled to $2,111.41 (less $1,419.69 already approved) for physiotherapy services, as proposed in the plan by 2430303 Ontario Inc.?
v. Is the applicant entitled to $1,603.57 (less $1,066.62 already approved) for physiotherapy services, as proposed in the plan by 2430303 Ontario Inc.?
vi. Is the applicant entitled to $1,212.11 (less $564.03 already approved) for physiotherapy services, as proposed in the plan by 2430303 Ontario Inc.?
vii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
4The respondent indicated that the correct start date of the applicant’s ACB claim was January 23, 2020, not January 23, 2021 (as noted in the case conference report and order). The applicant did not file a reply, but I fail to see any detrimental impact that would face the applicant from this change. As such, I have modified this aspect of the case conference report and order.
5The respondent also submitted that there were incorrect dates in the case conference report and order for the treatment plans. Due to these alleged discrepancies, I have identified the treatment plans above with reference to the amounts in dispute, as opposed to the dates of submission and denial. Finally, while the applicant’s submissions and the case conference report and order both indicated that the treatment plan for $1,212.11 was denied in full, the respondent submitted an Explanation of Benefits (dated October 26, 2020) that shows a part of this plan had since been approved.
RESULT
6The applicant remains within the MIG.
7The letter partially approving the treatment plan for $1,603.57 does not comply with s. 38(8) of the Schedule. However, without evidence of services being incurred in compliance with s. 38(11), no payment is owing.
8No payment is owing on the three other treatment plans.
9The applicant is not entitled to an ACB.
10The applicant is not entitled to an award, and no interest is owing.
ANALYSIS
Applicant Remains Within the MIG
11I do not find the applicant has met his onus to establish removal from the funding limit of the MIG.
12An insured person may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the insured person.
13The applicant supported removal from the MIG by arguing that he sustained accident-related chronic pain and psychological impairments. He also made brief references to neurological impairments in his submissions. The applicant highlighted a Disability Certificate (dated December 24, 2019, “OCF-3”) and progress reports from Dr. Paul Bruni, chiropractor, to support his position on the MIG. The applicant also argued that there is support for his position in an attendant care assessment from Beverly Neal, registered nurse (completed January 23, 2020); records from his treating clinics; and the IE report from Dr. Yong-Kyong Michael Ko, physiatrist (dated May 12, 2020). Taken together, the applicant claimed these records show “the validity and reliability” of his self-reported complaints. Alternatively, the applicant challenged the sufficiency of the respondent’s letters that either denied or partially approved the treatment plans.
14The respondent disagreed, arguing the applicant did not provide a sufficient evidentiary basis to establish any non-minor injuries. The respondent also argued its letters were all compliant with s. 38(8) of the Schedule.
15The applicant did not provide reply submissions.
Chronic Pain
16I do not find the applicant has established that he sustained chronic pain as a result of the accident.
17The applicant highlighted medical records from both his healthcare team and the respondent to support his position on chronic pain. I accept that there are references to accident-related pain in the evidence before me. Specifically, I find Dr. Bruni’s progress reports present a pattern of pain complaints and functional limits from the accident up to the final progress report before me (dated November 6, 2020). I further accept that the attendant care assessment from Ms. Neal provides support for his position.
18However, I, ultimately, accept the respondent’s position that Dr. Bruni’s and Ms. Neal’s findings are not supported by contemporaneous medical records, including the lengthy period when the applicant did not make any accident-related complaints to his family physician, Dr. Sherif Shafik Kodsi. I also accept its submission that the complaints noted in Dr. Bruni’s progress reports do not align with findings from the IE reports. Therefore, on a balance of probabilities, I conclude that the applicant has not established he sustained accident-related, chronic pain that merits removal from the MIG.
19I place significant weight on the lack of explicit references to accident-related complaints in Dr. Kodsi’s records following a visit with the applicant on February 12, 2020. In fact, during this visit, the applicant reported: “NECK / BACK PAIN BETTER”. Dr. Kodsi also found no evidence of radiculopathy, and he observed the applicant’s range of motion in the neck and back as “ALMOST FULL”. Similar range of motion findings were made during an earlier visit with Dr. Kodsi on December 24, 2019—two days after the accident.
20Further, Dr. Kodsi’s observations contrast with those included in Ms. Neal’s report. Though Ms. Neal reported that every one of her measurements found moderate to severe levels of restriction, these range of motion findings do not align with those made by Dr. Kodsi during this same period. I place greater weight on the findings from Dr. Kodsi, because—while his testing was not as extensive the testing done by Ms. Neal—his pre- and post-accident relationship with the applicant meant he was better positioned to assess the accident’s effects on his physical condition.
21I would also note that the Dr. Ko’s IE physiatry report from May 2020 found no limits to the applicant’s range of motion. Again, this finding fails to align with the significant limitations noted by Ms. Neal.
22I then conclude that the functional restrictions recorded in Dr. Bruni’s progress reports and Ms. Neal’s assessment do not align with the findings from the IE assessors. Ms. Neal and Dr. Bruni both reported significant impacts on the applicant’s ability to perform basic daily tasks. For example, Ms. Neal found the applicant experienced “Extreme difficulty” with dressing, grooming, and walking. Similarly, in his progress report from March 6, 2020, Dr. Bruni found the applicant experienced “significant and continuous limits and restrictions on work duties, housekeeping activities and social activities.”
23In contrast, the respondent’s IE assessments found the applicant’s functionality remained largely intact. First, in the brief section of his report about daily activities, Dr. Ko stated the applicant reported being “independent in the activities of daily living such as eating, grooming, showering, toileting and dressing.” Then, in the report from the respondent’s psychological assessor, Dr. Terra Seon (dated June 15, 2020), the applicant’s daily activities were again described as largely unaffected [italics in original]:
[The applicant] reported he experiences difficulty sitting “for hours like before”. [The applicant] denied experiencing any difficulty standing or walking; however, noted difficulty bending on occasion. [The applicant] has remained independent with attending to his activities of daily living. He reported that he continues to assist with household chores “where I can”, noting that his mother received assistance to tend to the household activities one to two times a month prior to the pandemic. He indicated that he does not engage in heavy household chores as a result of his physical injuries.
24Dr. Seon then noted that the applicant experienced some issues with sleep, but he had no significant concerns with driving or socialization.
25While I accept that he mentioned some limitations to the IE assessors (namely, sleep and “heavy household chores”), I find there is a great disparity between these complaints and those recorded by Dr. Bruni and Ms. Neal. I then conclude that the limited impacts noted by the IE assessors better align with the relatively minor, accident-related complaints the applicant made to Dr. Kodsi—records I again place significant weight on.
26Finally, I do not find the treatment records provide much support for the applicant’s position on chronic pain. I accept that he regularly relied on these services following the accident, but the notes from NorMed Clinic and East Sheppard Rehabilitation Clinic provide little detail about the applicant’s accident-related impairments and functionality.
27After considering the evidence highlighted by the parties, I find—on a balance of probabilities—that the applicant has not established he sustained accident-related, chronic pain that merits removal from the MIG. Rather, this pain is better understood as clinically associated sequelae to his otherwise “minor” injuries.
Psychological Impairments
28Similarly, while there are several psychological complaints in the records highlighted by the applicant (notably, the OCF-3), I again find the complaints are better understood as clinically associated sequelae to otherwise “minor” injuries.
29I mainly base this finding on the IE report from Dr. Seon—a report highlighted by the respondent in its submissions. In this report, Dr. Seon concluded the applicant’s “current presentation is not of the magnitude to warrant a psychological diagnosis”. I find this conclusion to be compelling, as Dr. Seon based her findings, in part, on an interview with the applicant where he “denied any significant psychological impairment”. The applicant’s psychometric test results were also all minimal—aside from a rating of “moderate peak pain” on one of the tests. I then place more weight on this conclusion than Dr. Bruni’s findings in the OCF-3 and progress reports, as Dr. Seon is a psychologist and Dr. Bruni, as a chiropractor, is not qualified to diagnose psychological issues.
30Further, I have not been pointed to any records from Dr. Kodsi that detail accident-related, psychological complaints. There is an entry on April 20, 2020 where the assessment is listed as: “ANXIETY”, but there is no context about the source of this psychological complaint. Again, considering the longstanding relationship between the applicant and Dr. Kodsi, I find this absence of accident-related psychological complaints is significant.
31Taken together, I am not satisfied that the applicant has established that he sustained an accident-related, psychological impairment.
Neurological Impairments
32I do not find the applicant has met his onus to demonstrate that he sustained an accident-related, neurological impairment.
33Pointing to the OCF-3, the applicant made a few, brief references in his submissions to neurological impairments, namely, “Dr. Bruni opined that the Applicant’s disabilities are outside of the Minor Injury due to neurological and psychological injuries.” The applicant then appeared to support Dr. Bruni’s findings by pointing to Dr. Ko’s report, which noted complaints of ongoing headaches, tinnitus, and dizziness. The respondent argued that the applicant’s reliance on the OCF-3 is unfounded, because Dr. Bruni, as a chiropractor, is not qualified to diagnose neurological symptoms.
34Beyond the fact the applicant only pointed to a few records in support of his position, I place significant weight on how Dr. Kodsi wrote the applicant presented with a “Grossly normal” neurological presentation the day after the accident. Dr. Kodsi also noted the applicant showed no signs of radiculopathy during later visits on December 24, 2019 and February 12, 2020. These notes contradict the findings made by Dr. Bruni in the OCF-3, and I again place significant weight on Dr. Kodsi’s pre- and post-accident relationship with the applicant. The applicant has not met his onus to establish removal from the MIG based on a neurological impairment.
Respondent’s Letter (Dated September 9, 2020) is Non-Compliant
35I accept the applicant’s argument that there was a breach of s. 38(8) of the Schedule as it relates to the respondent’s letter (dated September 9, 2020) for the treatment plan totalling $1,603.57. However, I have not been provided with evidence that the outstanding services from this plan were incurred in accordance with s. 38(11), so no payment is owing. The other three treatment plans were either denied or partially approved with letters that are compliant with s. 38(8).
36Section 38(8) states that, when denying any aspect of a treatment plan, an insurer is required to provide “the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.”
37Challenging the four letters related to the disputed treatment plans, the applicant argued the respondent “failed to provide reasonable explanations for the denials… other than to state that the injuries are minor.” The respondent disagreed, submitting that it provided sufficient reasons. Specifically, the respondent argued an insurer is not required to list every document it reviewed, and its letters correctly noted that the denials were based on the IE reports.
38Reasons in denial letters are a procedural right that insured persons may rely on to help them navigate accident benefit disputes. These reasons should assist an insured person to respond to an insurer’s denial. Or, in the words of the Divisional Court from Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318, at para. 18: “… where reasons are required, they must be meaningful in order to permit the insured to decide whether or not to challenge the insurer’s determination.” The respondent’s September 9, 2020 letter did not meet this standard, but the other three letters highlighted by the applicant did.
January 3 and March 24, 2020 Letters
39In the January 3, 2020 letter denying the treatment plan valued at $3,010.71, the respondent wrote:
Your injuries sustained fall within the Minor Injury Guideline and no compelling medical evidence have been received to indicate otherwise.
Based on the above rationale, we will not pay for the above goods services and/or assessments… If you have compelling evidence of a pre-existing condition that has been documented before the accident that might exempt you from treatment under the Minor Injury Guideline, please forward it for our review and consideration.
Until it has been determined that your impairment does not come within the Minor Injury Guideline, we will approve treatment for you based on the assumption that your impairment is a minor injury.
40A similar set of reasons was then provided in the March 24, 2020 letter from the respondent concerning the partial approval of the plan totalling $2,111.41.
41I find these two letters both met the standard under s. 38(8), because they provided a rationale for the decisions, such that the applicant could choose “whether or not to challenge” the determinations. In fact, they also suggested what the applicant could do next, namely, provide medical records to show his injuries are not minor.
September 9, 2020 Letter
42I do not find the September 9, 2020 letter partially approving the plan totalling $1,603.57 met the standard under s. 38(8). The respondent relied on the IE reports, but provided little explanation for why the findings in these reports were linked to its decision to partially approve the plan:
We are approving the following items based on what is remaining in your $3500 Medical and Rehabilitation limit and considering what was covered by your Extended Healthcare plan:
We do not agree to pay for the balance of the treatment plan including the following goods, services and/or assessments for medical reasons and all other reasons known as of the date of this notice as follows:
As per the insurer’s examination reports dated June 15, 2020, your injuries are minor in nature, as outlined in the Minor Injury Guideline.
I am not satisfied that an insured person could be reasonably expected to draw a connection between the $3,500.00 limit mentioned at the start of the letter and the finding that the “injuries are minor in nature”, as referenced after the lists of approved and denied services. Failing to draw a connection between these two points would have been confusing to the applicant, as he needed to understand why some services were approved, but other services—seemingly identical to the approved services—were being denied. This letter, therefore, fails to meet the standard under s. 38(8).
October 21, 2020 Letter
43In contrast, I find the respondent’s initial denial letter for the plan totalling $1,212.11 (dated October 21, 2020) met the standard under s. 38(8):
We do not agree to pay for any of the following goods, services and/or assessments for medical reasons and all other reasons known as the date of this notice as follows:
As per the Insurer’s Examination Reports dated June 15, 2020, your injuries currently meet the definition of a Minor Injury, as outlined in the Minor Injury Guideline. Your claim remains subject to the Medical and Rehabilitation limit of $3500.00 which has been reached.
Similar to the September 9, 2020 letter, this letter also cited the IE reports. Yet, due to the ordering and proximity of the last two sentences cited, I find that an insured person could have been reasonably expected to draw a connection between the IE reports’ finding that his “injuries currently meet the definition of a Minor Injury” and the $3,500.00 limit. For this reason, I find the rationale of the respondent’s decision was clear in a way I did not find in the earlier September 2020 letter. The clarity of the respondent’s rationale meant this letter met the standard under s. 38(8).
No Payment is Owing on the Four Treatment Plans
44The applicant did not specifically indicate what remedy he sought concerning the alleged breaches of s. 38(8). He instead noted in this section of his submissions that all the treatment plans “should be paid in full, with interest, payable per the [Schedule].”
45Section 38(11) provides several remedies for s. 38(8) breaches. One of the remedies is a finding that “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” are payable.
46I have not been directed to any evidence that shows the denied services from the plan totalling $1,603.57 have been incurred “starting on the 11th business day after the day the insurer received the application.” Without this evidence, I cannot order the services are payable under s. 38(11).
47Further, though the case conference report and order indicated that “the MIG limits are near exhaustion”, the parties did not indicate in their submissions whether any of this funding remains. Without this information, I cannot say whether there is any available funding for any of the disputed treatment plans, including the three plans with compliant letters.
Applicant is Not Entitled to Payment of an ACB
48Section 14(1)2 of the Schedule states that an ACB is only payable “[i]f the impairment is not a minor injury”. Since the applicant has not demonstrated that he sustained a non-minor injury, I do not find he is entitled to an ACB.
Award and Interest
49Section 10 of Regulation 664 states that if an insurer is found to have “unreasonably withheld or delayed payments”, the Tribunal “may award a lump sum of up to 50 per cent of the amount to which the person was entitled at the time of the award together with interest on all amounts then owing to the insured”. There is no benefit owing, so there can be no basis for an award.
50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. No payment is owing to the applicant, so no interest is owing.
ORDER
51I order the following:
i. I find the applicant remains within the MIG.
ii. The letter partially approving the plan totalling $1,603.57 does not comply with s. 38(8) of the Schedule. No payment is owing on this plan.
iii. No payment is owing on the three other treatment plans in dispute.
iv. The applicant is not entitled to payment of the ACB.
v. The applicant is not entitled to an award or interest.
Released: November 24, 2023
Craig Mazerolle
Adjudicator