Citation: Thanh Du v. Economical Insurance Company, 2023 ONLAT 21-015816/AABS

Licence Appeal Tribunal File Number: 21-015816/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:

Vinh Thanh Du

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Deborah Neilson

APPEARANCES:

For the Applicant: Vinh Thanh Du, Applicant Alden Dychtenberg, Counsel

For the Respondent: Ryland MacDonald, Counsel

HEARD: In Writing

OVERVIEW

1Vinh Thanh Du, the applicant, was involved in an automobile accident on February 14, 2020 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the "Schedule"). The applicant was denied benefits by the respondent, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

2The applicant seeks entitlement to physiotherapy and massage therapy services. The respondent denied the applicant's claims because it determined that all of the applicant's injuries fit the definition of "minor injury" prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline, Superintendent's Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act (MIG). The applicant's position is the opposite.

3If the applicant's position is correct, then I must address the issue of whether the medical treatment claimed is reasonable and necessary. If the respondent's position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s. 18(1) of the Schedule, and in turn, a determination of whether claimed medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

PRELIMINARY ISSUE

4In its submissions, the respondent asked that a preliminary issue be added as an issue for the hearing. The preliminary issue is whether the applicant is barred from applying to the Tribunal on the treatment plans in issue because he refused to attend at an insurer's examination requested by the respondent under s. 44 of the Schedule ("IE"). The request is denied for the following reasons.

5In my view, the preliminary issue is not properly before the Tribunal. It is not listed in the response to the application nor in the case conference order. Neither party has filed motions to add a preliminary issue to this proceeding. The respondent relies on Williams v Aviva Insurance Company, 2023 CanLII 50588 (ON LAT) and Khan v Allstate Insurance, 2023 CanLII 44305 (ON LAT), which it submits allowed preliminary issues to be added as issues to the hearing by way of responding written submissions. I am not bound by these decisions and, as detailed below, they are distinguishable from the present case.

6Khan v Allstate does not assist the applicant because the preliminary issue was listed as an issue in dispute in the case conference order in that case.

7Williams v. Aviva is distinguishable because the Tribunal allowed the preliminary issue to be added to the hearing on the basis the applicant did not object. In this case, the parties were asked whether they wanted the Tribunal to address the issue and, if so, whether they consented to adding the preliminary issue as an issue for the hearing. Unlike Williams v. Aviva, the applicant objected.

8The respondent submits that it is significantly prejudiced by the applicant's refusal to attend the IE because it has not adequately assessed the applicant's injuries and entitlement to the benefits. However, the respondent knew as of November 15, 2022 that the applicant was refusing to attend the IEs as it confirmed the refusal in writing. It is difficult to reconcile significant prejudice with the lack of any steps taken by the respondent to add the preliminary issue as an issue to the hearing before the Tribunal. The respondent submits that it could not seek an IE any earlier because it did not have medical documents it had requested in 2020. Whether or not that was the case, I have been provided with no reason or evidence as to why the respondent could not comply with the well known and entrenched method at the Tribunal for adding an issue – serving and filing a motion under Common Rule 15 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) ["Common Rules"] to obtain an order adding the issue. Accordingly, any prejudice to the respondent is due to the respondent's own actions, or in this case inaction.

9The respondent submits that the applicant in this case consented to adding the issue. It submits that, because the applicant made submissions about why he did not attend the IEs that the applicant consented to adding the issue. In fact, the email from the applicant to the Tribunal and the respondent confirms the opposite. To allow the issue to be added at this point in time would amount to an abuse of process and set the tone for a complete disregard of the Tribunal's Rules of Practice and Procedure and the Common Rules. As such, the Tribunal will not consider the preliminary issue and will focus its analysis on the issues that are outlined in the case conference order. However, my determination does not affect any defence the respondent may have as a result of the applicant's refusal to attend the IEs.

ISSUES

10In their submissions, the parties clarified that the issues in dispute are as follows and not as set out in the case conference order:

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 Minor Injury Guideline limit? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to $900.00 ($1,800.00 less $900.00 approved) for physiotherapy services from Brant Wellness and Rehab proposed by Pinjalkumar Suthar, physiotherapist, in a treatment plan dated August 10, 2020?

iii. Is the applicant entitled to $450.00 for massage therapy services from Brant Wellness and Rehab proposed by Mr. Suthar in a treatment plan dated August 26, 2020?

iv. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

11The applicant's injuries take him out of the MIG. The respondent is liable to pay for expenses incurred under the disputed treatment plans from the 11th business day after they were received until medical reasons for the denials are provided, save and except any expenses incurred between July 12, 2022 until July 23, 2023, plus interest. The remainder of the applicant's claims are dismissed.

PROCEDURAL ISSUE

12The respondent filed a motion on August 8, 2023, three days prior to the scheduled date for the hearing, seeking to exclude the clinical notes and records of Brant Wellness and Rehab ("Brant Rehab") from the hearing on the basis they were ordered to be produced no later than December 26, 2022. However, it appears that they were not produced until July 23, 2023. The respondent's motion is granted.

13Under Common Rule 9.4, if a party fails to comply with any Rules, directions or orders with respect to disclosure or inspection of documents or things, that party may not rely on the document or thing as evidence without the consent of the Tribunal.

14The Brant Rehab records were documents requested by the respondent. In fact, the applicant was ordered at the case conference to produce the records by November 26, 2022. The applicant was ordered to produce any other evidence he intended to rely on no later than December 26, 2022. The applicant had asked Brant Rehab in July 2022 to produce its file pertaining the applicant. Brant Rehab advised on July 27, 2022 that there were no records. The respondent submitted in its written hearing submissions that there was no evidence that the applicant had attended at Brant Rehab and relied on Brant Rehab's July 27, 2022 denial of having any records for the applicant in support.

15The treatment plans in dispute relate to the applicant's treatment at Brant Rehab. The applicant was provided with an account statement in September 2020 showing that the respondent paid $1,800.00 to Brant Rehab. Having this information, the obvious step for the applicant was to follow up with Brant Rehab before November 26, 2022 and ask why there were no records given that they provided treatment to the applicant, especially since there was a production order for the records that post-dated Brant Rehab's denial of any records. However, the applicant's evidence is that it did not follow up with clinic until July 10, 2023, at which time the applicant submits he was advised by Brant Rehab the records may be in storage.

16The applicant submits that the records should be allowed because they are relevant to the issues in dispute and were included in the reply submissions only to displace an allegation of fraud made against the applicant. He relies on Sylvest v Certas Home and Auto Insurance Co, 2023 CanLII 40094 (ON LAT), as authority that reply submissions responsive to the allegations that were raised by the respondent for the first time in their submissions is an appropriate reply. However, Sylvest v Certas dealt with the introduction of case law, not new evidence that was served after the deadline for serving evidence that a party intended to rely on for the hearing but had not yet produced.

17The respondent submitted that new evidence as part of a reply is not permitted because it does not have the opportunity to respond to new evidence that is tendered as part of a reply. In support, it relied on 18-001471 v Economical Insurance Company, 2019 CanLII 22187 (ON LAT),

18Given the lateness of the disclosure, Common Rule 9.4 provides a presumptive exclusion of such evidence, subject to the Tribunal's discretion. Although the records may be relevant to the issues in dispute, I have no evidence of why the applicant failed to comply with the case conference order and waited until over eight months after the production deadline to make reasonable efforts to obtain the records. There is clearly prejudice to the respondent as its submissions were made on the understanding that Brant Rehab had no records. Having said that, the records are evidence that the applicant did, in fact, attend at the clinic. I cannot ignore that I now have knowledge of that attendance. For these reasons, other than the records being evidence of the fact that applicant did, in fact, attend at the clinic, the records are excluded.

ANALYSIS

The applicant is out of the Minor Injury Guideline ([MIG](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html))

19Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains impairments that are predominantly a minor injury. Section 3(1) defines a minor injury as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.

20An 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. In all cases, the burden of proof lies with the applicant.

21There is no dispute that the applicant sustained soft tissue injuries in the accident. The applicant submits that he suffered a concussion. He submits that a concussion falls outside of the MIG and that he should, therefore, be removed from the MIG. The respondent submits that the applicant could not have sustained a concussion because his vehicle was travelling too slow for him to have sustained an injury. It also submits that the applicant should not be taken out of the MIG for the period of time he refuses to attend an IE assessment.

The applicant is not barred from claiming benefits that exceed the [MIG](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html) policy limits for the period of time he refuses to attend IEs

22The respondent submits that the applicant's failure to attend the IEs is a defence to the applicant's claim for the disputed treatment. I disagree for the following reasons.

23Under s. 38(10) of the Schedule, when an insurer receives treatment plans requesting treatment outside of the MIG, if it believes that the MIG applies to the claimant's impairment, it may notify the claimant in its denial letter under s. 38(8) that it requires the claimant to undergo an IE. The notice under s. 38(8) is required to be sent within ten business days after the insurer receives the treatment plans. In this case, the respondent did not ask for an IE when it denied the treatment plans in dispute. The request was made more than two years after the treatment plans were denied. The applicant refused to attend the IEs.

24Under s. 44(9)2(iii) of the Schedule, the claimant is required to submit to all reasonable examinations requested by the IE assessors. However, there is no provision in the Schedule for a claimant to forfeit medical or rehabilitation benefits or the cost of assessments for the period of time the claimant refuses to attend an IE without a reasonable excuse. This is to be contrasted with the forfeiture provisions for specified benefits for a failure to attend an IE without a reasonable excuse under s. 37(7) and s. 37(8)(b)(ii) of the Schedule. The only recourse for an insurer when a claimant refuses to attend an IE scheduled to assess entitlement to medical or rehabilitation benefits is to bring a preliminary issue before the Tribunal for a determination that the claimant is barred from proceeding with their application at the Tribunal under s. 55(1)2. As noted earlier, the respondent failed to list this as an issue in its response, at the case conference or by way of notice of motion under the Common Rules to add an issue.

25Accordingly, as there is no other remedy for the applicant's failure to attend the IEs requested, I need not consider the reasons why he refused to do so. Nor do I need to consider whether the IE notices complied with s. 44(5) of the Schedule.

The applicant's concussion takes him out of the [MIG](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html)

26The applicant relies on Wadood v Economical Insurance, 2023 CanLII 9251 (ON LAT), Kolanski v. TD Insurance Meloche Monnex, 2021 CanLII 30824 (ON LAT), and 17-001473 v Unica Insurance Inc., 2017 CanLII 69462 (ON LAT), in which the Tribunal held that a concussion and post-concussion syndrome take an insured person out of the MIG. I agree with the reasoning in those decisions. In fact, the respondent did not disagree that a concussion or post-concussion syndrome takes one out of the MIG. It submits that there is not enough evidence in this case of a concussion or post-concussion syndrome.

27The applicant relies on the Credit Valley Hospital Emergency records, which show he attended there on February 15, 2020. The handwritten notes from the emergency record are illegible. However, the applicant's concerns were noted to be head injury and headache. He was released with the diagnosis of head injury/concussion.

28The respondent submits that because the emergency department records state "(no head injury)," that little weight should be given to the records. I disagree. The bracketed comment of no head injury appears under the subjective assessment portion of the records and follows the applicant's description that his head was jerked. In other words, it was the applicant who described that there was no head injury. Accordingly, it was not a diagnosis, but a description of what happened with the applicant's head. He also described to the assessing nurse that his head was jerked forward and back. It is common knowledge that concussion may occur without the head being impacted. The diagnosis of head injury/concussion in the emergency records is not the applicant's subjective complaint but is the attending physician's diagnosis. As such, it carries more weight than the applicant's subjective comment of "no head injury" made to a nurse.

29The applicant relies on the clinical notes and records of Dr. Alex Donskoy, his family physician, which were provided to the respondent on August 25, 2020. Dr. Donskoy's handwriting is mostly illegible. One can make out the words that the applicant's "...body jolted, felt chest pain, has headache...dizziness..." The notes either say something about consciousness or concussion, but they are not clear. One can make out the word "anxiety." Accordingly, I do not find that Dr. Donskoy's note of February 18, 2020 is of much assistance.

30The applicant also relies on Dr. Donskoy's OCF-3 disability certificate dated April 13, 2020 that clearly listed concussion as one of the applicant's injuries from the accident. Dr. Donskoy also advised that a referral to a neurologist was being made. The applicant described in that OCF-3 that he lost consciousness for 10 to 15 seconds. The applicant also relies on the report of his neurologist, Dr. Viachislav Prigozhikh, dated November 11, 2020, which was provided to the respondent on May 11, 2022. Dr. Prigozhikh diagnosed the applicant with chronic headache which developed after the accident, concussion and post-concussion syndrome.

31The respondent submits that little weight should be given to Dr. Donskoy's records because they are illegible. It also submits that Dr. Donskoy's and Dr. Prigozhikh's diagnoses are based on subjective symptoms disclosed by the applicant and should, therefore, be given little weight. It submits that little weight should be given to Dr. Donskoy's and Dr. Prigozhikh's opinions because they did not review the hospital records or any other documentation related to the accident.

32I am not persuaded that little weight should be given to a diagnosis based on the applicant's description of the accident and his subjective complaints in this case. I have been provided with no reason to suspect the applicant's credibility. In fact, his description of not injuring his head despite it being jerked back and forth is an indication that the applicant made no attempt to magnify his injuries to the emergency staff. This indicates he is credible. Further, Dr. Prigozhikh did not base his report only on the applicant's subjective report. He had the applicant's June 7, 2020 CT scan of his head in addition to the physical assessment he clearly conducted of the applicant.

33The respondent submits that a diagnosis of concussion made in the absence of a review of the property damage file and the MVA report should have no weight. The submission stems from the applicant's statement that he was travelling 5 km per hour when he was rear-ended. I am not persuaded by the respondent's submission. The force of the vehicle that struck the applicant was hard enough to propel the applicant's vehicle into the vehicle in front of him, which in turn was propelled into the rear end of a fourth vehicle. I have no evidence of how fast the vehicle that struck the applicant's Hyundai was going, nor any evidence that the Hyundai sustained very little damage. In fact, the adjuster's notes state the applicant's vehicle was a total loss. Accordingly, the respondent's submissions are mere speculation. Nor do I have any evidence that Dr. Prigozhikh has training in biomechanics such that having the MVA report or the property damage file would have affected his diagnosis.

34If the respondent suspected that the Delta V (change in velocity) forces in the applicant's vehicle were not strong enough to cause a concussion, I would have expected it would have arranged for a biomechanical expert to conduct a paper review or a biomechanical IE assessment shortly after receiving Dr. Donskoy's OCF-3 by April 20, 2020. The respondent submits that it waited for two years to request an IE because it did not have enough medical information to conduct an IE. However, there is no provision in the Schedule that allows an insurer to delay requesting a reasonably required IE because a claimant has not produced medical records to the insurer. Under s. 44(9)2(ii) of the Schedule, a claimant is required to provide the IE assessor with such information and documents as are relevant or necessary for the review of the claimant's medical condition. A failure to comply with this section can result in the claimant being barred from proceeding with an application at the Tribunal under s. 55(1)2 of the Schedule. Further, the evidence does not support the respondent's submission that it delayed in seeking an IE because it did not have enough medical information.

35The respondent had Dr. Donskoy's OCF-3 in April 2020 and was able to discern from his clinical notes as of September 2, 2020, that Dr. Donskoy diagnosed a concussion four days after the accident. By then, the treatment plans in issue had been denied based on the MIG policy limits. Yet, in November 2020, the adjuster's notes state the respondent would consider an IE if treatment was requested outside of the MIG. There was no indication in the adjuster's note that other medical records were required to adjust the claim. It is not clear to me why this note was made in November 2020 when treatment outside of the MIG was requested three months prior. However, since the respondent did not see fit to request an IE when it might have been reasonable to do so, I am unable to accept that little weight should be given to Dr. Donskoy's and Dr. Prigozhikh's diagnoses.

The respondent is liable for the treatment incurred under the disputed treatment plans until they are properly denied

36The applicant submits that he is entitled to the treatment recommended in the disputed treatment plans because the respondent failed to properly deny the claims. The respondent disagrees and submits that the treatment plans are not payable because they were not signed and it is not required to pay any benefits under s. 33(6) of the Schedule for the period of time the applicant failed to provide information it requested. The respondent also submits that the applicant has not provided evidence that the treatment plans are reasonable and necessary as a result of the accident.

The treatment plans were not properly denied

37Section 38(8) of the Schedule requires an insurer to provide its medical and all other reasons for a denial within 10 business days after receipt of a treatment plan. Under s. 38(11)1 of the Schedule, an insurer is prohibited from taking the position that the claimant has an impairment to which the MIG applies if it fails to mention the MIG is a reason for denying the claim. If an insurer fails to provide the requisite denial, under s. 38(11)2, it is required to pay for all goods and services described in the treatment plan that relate to the period incurred from the 11th business day after the treatment plan was submitted until the proper denial is given.

38The applicant submits that the respondent failed to provide any medical reasons for the denial of the claim. I agree. He relies on 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) ["TF v. Peel"], a reconsideration decision of the Tribunal. In that case, the Tribunal reversed the initial decision that held that denials containing requests for IEs complied with s. 38(8) of the Schedule. The reconsideration decision held that 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. The Tribunal held that the reasons for the denial 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. The Tribunal further held that if s. 38(8) is to achieve its purpose, it must require insurers to accompany any denial of benefits with meaningful and accurate reasons based on an insured's medical condition as described in the file at hand.

39The respondent submits that its denials comply with s. 38(8) and relies on 16-003024 v Security National Insurance Company, 2017 CanLII 62185 (ON LAT) and Yao Yue Chen v. Certas Direct Insurance Company, 2016 ONFSCDRS 154. In those cases, the Tribunal and the FSCO arbitrator determined that s. 38(8) is complied with if the denial letters state the following:

i. The insurer was unable to approve treatment plans based on its belief that the MIG applied; and

ii. The insurer noted there was no medical evidence from a health practitioner suggesting the applicant's injuries fell outside the definition of a minor injury.

40Both of those decisions pre-date the Tribunal reconsideration decision in TF v. Peel. However, the respondent also relies on the Court of Appeal decision in Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78. The Court of Appeal held that "and" in the phrase "medical and other reason" in s. 37(4) of the Schedule can include both the joint sense and the several sense, but when read contextually, the ordinary meaning of the word "and" was intended in its several sense. I find that Varriano is distinguishable because it dealt with denial of a specified benefit (e.g., an income replacement benefit) under s. 37, not a medical or rehabilitation benefit. Section 37(2) of the Schedule lists seven reasons for why an insurer may deny a specified benefit, out of which only two reasons have any relation to a medical basis. The denial in Varriano v. Allstate was based on the claimant returning to work. The only sections similar to s. 37(2) in s. 38 of the Schedule is s. 38(8.1) the goods are not essential and s. 38(9) the MIG, both of which, by their very nature, are a conclusion based on medical reasons. In other words, if an insurer denies a treatment plan based on the MIG, there must be a medical reason – i.e. injuries or injury that is either a sprain, strain (injury to one or more tendons or ligaments, muscles including a partial but not a complete tear), whiplash associated disorder, contusion, abrasion, laceration or subluxation (partial but not a complete dislocation of a joint) and any clinically associated sequelae. Without such an explanation, the purpose of adding the medical or other reason requirement to s. 38(8) of the Schedule to allow an unsophisticated person to know why the benefits were denied is defeated. To simply say "your injury is minor" without describing what the applicant's injuries are does not comply with s. 38(8) of the Schedule.

41In this case, the respondent's denial stated:

In Part 4 of the OCF-18, the assessor indicated the predominant impairment is a minor injury as referred to in the Minor Injury Guideline applicable to the accident.

Pursuant to Section 18(1) of the SABS states that the sum of the medical and rehabilitation benefits payable in respect of an insured person who sustains an impairment that is predominantly a minor injury shall not exceed $3500.00 for any one accident, less the sum of all amounts paid in respect of the insured person in accordance with the Minor Injury Guideline. The $3500.00 cap applies to any and all expenses and/or treatments under the Medical and Rehabilitation Benefit. This benefit is subject to a deduction of any collateral insurance benefit plan available to you.

We find the above OCF-18 to be partially reasonable and partially necessary and agree to provide funds in the amount of $900 only, subject to your collateral, which is based on the remaining balance of the Medical and Rehabilitation section of the policy and the Statutory Accident Benefits Schedule (SABS).

42The respondent makes no mention of the types of diagnosis that are defined to be minor or which of those injuries the applicant has, or how his diagnosis of concussion, of which the respondent was aware by then, fits within the definition of minor injury. The denial for both treatment plans was virtually identical and, given the lack of medical reasons, are both deficient. Accordingly, once the applicant provides proof of what has been incurred, the respondent is required to pay for any of the expenses incurred under the disputed treatment plans from the 11th business day each treatment plan was received until the requisite denial is sent, save and except for the period between July 12, 2022 to July 23, 2023 for the reasons noted below.

The unsigned treatment plans do not relieve the respondent of liability

43Under s. 38(2) of the Schedule, the respondent is not liable for the expenses recommended in the treatment plans unless the treatment plans meet the requirements in s. 38(3) of the Schedule. Two of those requirements are that the plans must be signed by both a regulated health professional and the applicant. As pointed out in A.M. v Wawanesa Mutual, 2020 CanLII 45490 (ON LAT) and D. G. v Co-operators General Insurance Company, 2020 CanLII 61461 (ON LAT), the exception is if the insurer waives the signature requirements. The Schedule does not set out what constitutes a waiver.

44As was the case in A.M. v Wawanesa Mutual, the respondent did not raise the lack of signatures on the disputed treatment plans at any time before the hearing and it also partially approved the treatment plan for physiotherapy. The Tribunal in A.M. v Wawanesa Mutual determined that the insurer was not liable for the treatment recommended in the unsigned treatment plans in dispute in that case. The Tribunal distinguished the following decisions: S.J. v Aviva Insurance Canada, 2019 CanLII 76996 (ON LAT); and 17-005631 v. Aviva Insurance Canada, 2019 CanLII 63375 (ON LAT). The Tribunal in those cases rejected the insurers' raising arguments regarding s. 38(3) compliance at the hearing given the consumer protection nature of the Schedule and the electronic submissions of treatment plans through HCAI. I agree with that reasoning.

45A.M. v Wawanesa Mutual is distinguishable from the case before me. When a treatment plan is sent through the HCAI system, the regulated health professional who recommended the treatment is required to print a copy of the treatment plan, sign it and keep the copy in its records. In A.M. v Wawanesa Mutual, the Tribunal had the clinical notes and records from the clinic from which the disputed treatment plan was issued. Those records disclosed that the chiropractor who prepared the treatment plans failed to sign the copies that were printed at his clinic, yet he was able to sign a disability certificate that he prepared. For those reasons the Tribunal held that the treatment plans failed to comply with s. 38(3) and were therefore not payable.

46In this case, since the records have been excluded pursuant to the respondent's motion, there is no evidence before me that Mr. Suthar failed to print and sign the Brant Rehab copies of the disputed treatment plans. I find that, based on the reasoning in A.M. v Wawanesa Mutual, if an insurer is going to raise an issue for the first time at a hearing after partial approval that a treatment plan does not comply with s. 38(3) because it is not signed, it is incumbent upon the insurer to provide proof, other than the HCAI issued version of the treatment plan, that the treatment plan's author's copy is unsigned. As that was not done in this case, the respondent's submission that it is not liable under s. 38(2) fails.

under s. 33(6) of the Schedule

47Under s. 33(1)1 of the Schedule, a claimant must provide on request any information reasonably required to assist the insurer in determining his or her entitlement to a benefit. The time period for complying is ten business days.

48The insurer is not liable to pay a benefit during any period in which the claimant fails to provide the insurer with the requested information under s. 33(6) of the Schedule. If the claimant eventually complies with the insurer's request, with a reasonable explanation for the delay, the insurer must pay the withheld benefit under s. 33(8).

49The respondent submits that it requested medical information on April 20, 2020, pursuant to s. 33 of the Schedule and that the information was not provided in ten business days. The respondent requested an OHIP summary, the applicant's family physician's clinical notes and records from one year pre-accident to date, the Credit Valley Hospital records and any other medical information from treating practitioners from the date of loss. However, there was no mention of s. 33(2) of the Schedule and the applicant's obligation to provide information reasonably required to adjust the claim. Nor was there any mention in the April 20, 2020 letter of s. 33(6) or of the consequences to the applicant if he failed to provide the information within ten business days of receipt of the letter. The respondent sent similar letters on January 11, 2022 and March 25, 2022 that added a request for Dr. Prigozhikh's records, but did not mention the records of all treating practitioners since the accident. The applicant sent a copy of Dr. Donskoy's records to the respondent on August 25, 2020. Dr. Prigozhikh's records were produced under cover of letter dated May 11, 2022 and the OHIP summary was produced under cover of letter dated May 18, 2022.

50It was not until June 27, 2022 that the respondent requested documents and advised the applicant of the details of s. 33 and the consequences of failing to produce information under s. 33(6) of the Schedule. I find that any requests made prior to June 27, 2022 were not s. 33 requests. Given the harsh consequences of s. 33(6) and the consumer protection nature of the Schedule, I find that s. 33(6) does not apply unless a request letter clearly sets out a claimant's obligation to produce information and documents reasonably required to adjust the claim under s. 33(2) and the consequences under s. 33(6) of failing to produce the documents within ten business days without a reasonable excuse. That was not done in this case until June 27, 2022. Accordingly, the applicant had until the end of July 11, 2022 to respond to the respondent's s. 33 request. As mentioned, it appears that the Brant Rehab records were produced to the respondent on July 23, 2023.

51I find that the clinical notes and records of Brant Rehab and the hospital records were reasonably required to adjust the claim as they are relevant to the applicant's injuries. Brant Rehab's erroneous advice that it did not have any records appears at first glance to be a reasonable excuse for failure to produce the records. However, I am unable to find that was a reasonable excuse given that the applicant knew that he had attended at Brant Rehab, knew the insurer paid Brant Rehab for his treatment and that the treatment plans in dispute were for treatment at Brant Rehab. The applicant should have followed up for the records immediately after it received Brant Rehab's response to find out what happened to the records. As noted earlier, there is no evidence as to why he failed to do so.

52Accordingly, although I have found that the applicant is entitled to any treatment incurred under the disputed treatment plans from 11 business days after each plan was received by the respondent until a proper denial is made, the respondent is not required to pay for any of the treatment incurred under the disputed treatment plans from July 12, 2022 until July 23, 2023 pursuant to s. 33(6) of the Schedule.

The applicant has not proven that physiotherapy is reasonable and necessary

53The applicant claims entitlement to $900.00 ($1,800.00 less $900.00 approved) for physiotherapy services from Brant Rehab proposed by Mr. Suthar in a treatment plan dated August 10, 2020. The respondent submits that the applicant has failed to satisfy his onus of proof that he is entitled to the treatment.

54To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

55I have determined that the respondent is liable under s. 38(11) for the physiotherapy the applicant has incurred under this treatment plan from the 11th business day after the treatment plan was received to July 12, 2022 and from July 23, 2023 until the proper denial is received. As I do not know whether any of the treatment has been incurred, I must also determine whether it is reasonable and necessary. I find that the applicant has failed to prove that it is.

56The goals of the treatment plan, according to its author, were pain reduction, increased strength and range of motion, and to return the applicant to his activities of normal living and his pre-accident work activities. I find that these were reasonable goals, especially since Mr. Suthar noted that the applicant's low back pain had improved by 50%, neck pain by 30% and seat belt injury by 100% from treatment he had already received.

57The respondent relies on 17-002971 v Aviva Insurance Canada, 2018 CanLII 13180 (ON LAT) and submits that the presence of objective supporting evidence to justify further physiotherapy treatment is important in determining whether the medical benefits in dispute are reasonable and necessary. I agree with the reasoning that evidence corroborating the evidence in the treatment plan is important for determining whether a claimant has satisfied his onus of proof.

58The applicant submits he has met his onus of proof. I disagree. He submits that his pain complaints recorded in Dr. Donskoy's notes support his submission that the treatment plan was reasonable and necessary based on his persistent physical injuries. However, the applicant has failed to point me to the tab and page numbers in which the complaints were recorded, despite paragraph 12 of the case conference order requiring him to do so. It is not up to the Tribunal to go through over 600 pages of documents to find the evidence in support of a party's submissions. The clinical notes and records from Dr. Donskoy listed in the applicant's and the respondent's indexes only go up to May 22, 2020. This means Dr. Donskoy's clinical notes cannot contain any record of pain complaints made contemporaneously with the disputed treatment plans. Therefore, I have been pointed to no evidence that complies with the case conference order to corroborate the comments and recommendations in the treatment plan.

59The applicant submits that the respondent's partial approval of the treatment plan is evidence that the respondent found the treatment was reasonable and necessary. I disagree, it is only evidence that the part of the treatment plan that the respondent approved of was reasonable and necessary. It is not proof that the denied portion of the treatment plan is reasonable and necessary.

60Accordingly, the applicant is not entitled to the physiotherapy recommended in the treatment plan for any period of time after the requisite denial is made under s. 38(8) of the Schedule.

The applicant has not proven that massage therapy is reasonable and necessary

61The applicant is seeking $450.00 for massage therapy services from Brant Rehab proposed by Mr. Suthar in a treatment plan dated August 26, 2020. My comments and reasoning with respect to the treatment plan for physiotherapy apply equally to the treatment plan for massage therapy. Accordingly, the applicant is not entitled to the massage therapy recommended in the treatment plan for any period of time after the requisite denial is made under s. 38(8) of the Schedule.

Interest

62Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have determined that the applicant is entitled to benefits under s. 38(11) of the Schedule, the applicant is entitled to interest in accordance with the Schedule.

Award

63The applicant seeks an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50% of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The applicant submits that the unreasonable withholding and delay in the payment of benefits makes the respondent liable for a special award. The claim for an award is dismissed for the following reasons.

64I have some concern that the respondent denied the treatment plans on the basis of the MIG knowing that the applicant had been diagnosed with concussion, but recorded that it would deal with it if the applicant submitted another treatment plan outside of the MIG. The reasoning was clearly faulty as the denied portion of the physiotherapy plan and the entire massage plan were submitted outside of the MIG. However, the decision does not appear to have been made for any reason other than an error.

65My finding that the respondent is required to pay the disputed benefits is based on a faulty denial and not because the applicant established they were reasonable and necessary as a result of his injuries. It was not an easy decision to determine whether the denial complied with s. 38(8) given that the subsequent requests for IEs did provide medical reasons. Further, I have no evidence of what the applicant has incurred under the disputed treatment plans. Accordingly, as I also have no evidence of the quantum in dispute, I am unable to find that the failure of the respondent to provide medical reasons to the applicant for why benefits were being denied merits an award. Therefore, this claim is dismissed.

ORDER

66The applicant's injuries take him out of the MIG.

67The respondent is liable for paying the following:

i. Physiotherapy incurred under the August 10, 2020 treatment plan for $1,800.00 proposed by Mr. Suthar from the 11th business day after the treatment plan was received to July 12, 2022 and from July 23, 2023 until the proper denial is received;

ii. Massage therapy incurred under the August 26, 2020 treatment plan for $450.00 proposed by Mr. Suthar from the 11th business day after the treatment plan was received to July 12, 2022 and from July 23, 2023 until the proper denial is received; and

iii. Interest on the foregoing in accordance with the Schedule.

68The remainder of the applicant's claims are dismissed.