Licence Appeal Tribunal File Number: 20-004718/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:
Angela Carriero
Applicant
and
Jevco Insurance
Respondent
DECISION
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Rajiv Kapoor, Paralegal
For the Respondent: Leah Dick, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Angela Carriero (the "applicant") was involved in an automobile accident on August 4, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by Jevco Insurance (the "respondent") and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.
ISSUES
2The issues in dispute are:
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 ("MIG") limit?
Is the applicant entitled to $3,696.50 for chiropractic services and massage services, proposed by Mackenzie Medical Rehabilitation Centre in a treatment plan ("OCF-18") submitted on August 21, 2018, and denied on September 5, 2018?
Is the applicant entitled to $1,977.05 for chiropractic services and massage services, proposed by Mackenzie Medical Rehabilitation Centre in an OCF-18 submitted on January 21, 2019, and denied on January 31, 2019?
Is the applicant entitled to $1,384.70 for chiropractic services and massage services, proposed by Mackenzie Medical Rehabilitation Centre in an OCF-18 submitted on March 18, 2019, and denied on March 21, 2019?
Is the applicant entitled to $1,218.47 for an in-home exercise program and equipment, proposed by Novo Medical Services Inc., in an OCF-18 submitted on June 7, 2019, and denied on June 20, 2019?
Is the applicant entitled to $2,090.00 for a social work assessment, proposed by Novo Medical Services Inc., in an OCF-18 submitted on July 9, 2019, and denied on July 19, 2019?
Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Gladshteyn & Baskakova Psychology PC in an OCF-18 submitted on October 28, 2018, and denied on November 12, 2018?
Is the applicant entitled to $87.19 for the completion of a Disability Certificate ("OCF-3") which was submitted on September 21, 2018, and denied on September 28, 2018?
Is the respondent liable to pay an award pursuant to s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG.
ii. With respect to the OCF-18 in the amount of $1,218.47 for in-home exercise program and equipment, the respondent was non-compliant with s. 38(8) and 38(9) of the Schedule, and as such the applicant is entitled, pursuant to s. 38(11)2, to any incurred expenses starting on the 11th business day after the respondent received the OCF-18, along with applicable interest.
iii. With respect to the OCF-18 in the amount of $2,090.00 for a social work assessment, the respondent was non-compliant with s. 38(8) of the Schedule, and as such the applicant is entitled, pursuant to s. 38(11)2, to any incurred expenses starting on the 11th business day after the respondent received the OCF-18, along with applicable interest.
iv. With respect to the OCF-18s listed as issues: two, and three, the respondent was initially non-compliant with s. 38(8) of the Schedule, and as such the applicant is entitled, pursuant to s. 38(11)2, to any incurred expenses starting on the 11th business day after the respondent received the OCF-18s and ending, when compliant notice was given, along with applicable interest.
v. The applicant is not entitled to the remaining OCF-18s in dispute, as she remains within the MIG and is subject to its $3,500.00 limit on treatment, which has been exhausted.
vi. The applicant is not entitled to the remaining balance of $87.19 for the completion of the OCF-3 or interest.
vii. The respondent is not liable to pay an award.
ANALYSIS
The Minor Injury Guideline ("MIG")
4Section 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 minor injuries. 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."
5An insured person may be removed from the MIG if it can be established that accident-related injuries fall outside of the MIG, or if there is documentation of a pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if kept within the MIG, pursuant to s. 18(2). The standard for excluding an impairment on the basis of pre-existing conditions is well-defined and strict. A pre-existing condition will not automatically exclude a person's impairment from the MIG. The Tribunal has also determined that chronic pain with a functional impairment or a psychological condition may warrant removal from the MIG.
6The burden is on the applicant to show, on a balance of probabilities, that her injuries fall outside of the MIG. Here, the applicant submits that she suffered from pre-existing conditions that precluded her recovery within the MIG and that she sustained psychological impairments, chronic pain, and radiculopathy as a direct result of the accident.
7The respondent submits that the applicant's impairments fall within the MIG. The respondent submits that the applicant sustained uncomplicated soft-tissue sprain/strain injuries and has failed to meet her onus to establish that she should be removed from the MIG on the basis of a psychological impairment, chronic pain, or pre-existing conditions.
The applicant has failed to establish that her pre-existing conditions preclude recovery in the MIG
8I find that the applicant has not established that she should be removed from the MIG on the basis of her pre-existing conditions.
9The applicant submits that she sustained a left retinal detachment and suffered subsequent loss of vision due to a motor vehicle accident in December 2007 and that she suffers from a range of other pre-existing conditions such as: diabetes, demyelinating lesions, major depressive disorder, TMJ, carpal tunnel, hypertension, and sleep disturbances. However, she has not directed me to any evidence which demonstrated how any of these injuries and impairments precluded her recovery within the MIG. This is a critical omission, as the Schedule explicitly requires compelling evidence linking such pre-existing conditions and an inability to recover within the MIG and its limits on treatment.
10As such, I find that the applicant has failed to discharge her onus and has not demonstrated that any pre-existing conditions preclude her from recovery within the MIG.
The applicant has not established that she sustained a psychological impairment
11I find that the applicant has not provided sufficient evidence of a psychological impairment.
12Psychological impairments are not included in the definition of minor injury in s. 3 of the Schedule. The onus is on the applicant to establish that she had a psychological impairment and not just psychological symptoms or sequelae of a minor injury.
13The applicant submits that she was diagnosed with an Adjustment Disorder with Mixed Anxiety and Depressed Mood, by Mr. Ivan Staroversky, registered psychotherapist, under the supervision of Dr. Nina Belyakova, psychologist in a report dated February 17, 2019, and that she complained of psychological symptoms to Dr. Jerry Somer, family physician.
14The respondent submits that the applicant has not sustained any psychological impairments as a result of the accident. To support its position, it relies on the s. 44 assessments completed by Dr. Terra Seon, psychologist.
15I am not persuaded that the applicant's medical evidence supports that she suffered a psychological impairment as a result of the accident. Most notably, the applicant only made one complaint about psychological issues to Dr. Somer after the accident. On August 30, 2018, the applicant advised Dr. Somer of nervousness while driving after the accident. However, Dr. Somer did not render an opinion on this matter, nor did he refer the applicant to a psychiatrist or prescribe medicine to treat psychological conditions. The applicant does not direct me to any subsequent CNR entry where she continued to report accident-related psychological symptoms, sought psychological treatment, or was diagnosed with a psychological condition by Dr. Somer.
16Both the applicant and the respondent submitted psychological assessment reports in support of their claim. The applicant relies on the s. 25 report by Mr. Staroversky, and Dr. Belyakova, dated February 17, 2019, who diagnosed her with an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
17In contrast, s. 44 assessor, Dr. Seon, in her psychology assessment report dated March 29, 2019, noted that the applicant reported initial emotional adjustment difficulties including symptoms of vehicular anxiety, which continued to improve with the passage of time, and that the applicant denied any significant psychological impairment that negatively interfered in her ability to travel in or operate a vehicle at that time. As a result, Dr. Seon opined that the applicant's current psychological presentation was not of the magnitude to warrant a psychological diagnosis.
18In addition, Dr. Seon, completed a Psychology Paper Review, dated July 25, 2019, and reviewed an extensive amount of medical evidence, including the clinical notes and records of Dr. Somer and the s. 25 report by Mr. Staroversky and Dr. Belyakova, and maintained her previous opinion.
19When comparing the s. 25 report and the s. 44 reports, I prefer the reports of Dr. Seon. Dr. Seon reviewed the fulsome medical record, including the clinical notes and records of the applicant's family physician. In contrast, Mr. Staroversky and Dr. Belyakova did not review any documentation, and relied heavily on the applicant's self-reporting.
20Moreover, Dr. Seon's findings that the applicant reported initial emotional adjustment difficulties including symptoms of vehicular anxiety and was not of the magnitude to warrant a psychological diagnosis, is consistent with the bulk of the medical evidence. As noted above, the applicant complained of nervousness while driving on one occasion following the accident, and was not diagnosed with a psychological impairment by Dr. Somer.
21In addition, I am not persuaded by the applicant's reference to Lechumanan v. The Co-operators General Insurance Company, 2022 CanLII 14947, (ON LAT), where the Tribunal determined that the applicant should be removed from the MIG due to psychological impairments. The facts in that matter are distinguishable, as the s. 44 assessor conducted only validity testing and personality testing. In the matter before me, Dr. Seon conducted validity testing and P-3 testing, which is used to identify patients who are experiencing emotional distress. Moreover, in Lechumanan, the applicant complained to his family physician about psychological symptoms several times following the accident, in contrast with the single report that the applicant made to her family doctor here.
22Based on the totality of the evidence before me, I do not find that the applicant has a psychological impairment that would remove her from the MIG.
The applicant has not established chronic pain warranting removal from the MIG
23I find that the applicant has not provided sufficient evidence that she suffers from a chronic pain condition with functional impairments, that would warrant removal from the MIG.
24First, the applicant provides only a summary of the medical evidence without explanation or reference to any legal framework that sets out the criteria needed to prove that she should be removed from the MIG on the basis of chronic pain. This alone makes it challenging for the applicant to meet her burden. Second, even when I review the totality of the medical evidence presented by the applicant there is minimal if any support for her claims of chronic pain that would warrant removal from the MIG.
25The records of Dr. Somer do not support a finding of chronic pain with a functional impairment. The applicant only met with Dr. Somer once in relation to the accident. On August 30, 2018, Dr. Somer assessed the applicant with minor soft-tissue injuries. No referral was made to a specialist, nor was any medication prescribed. While a formal diagnosis of chronic pain or a report from a specialist is not mandatory in order to be removed from the MIG, I find that the evidence of chronic pain is lacking in this matter.
26In their report, dated February 17, 2019, Mr. Staroversky, and Dr. Belyakova, noted that the applicant reported following the accident, that she was independent with her personal care activities, and she was able to do her housekeeping tasks, albeit she required assistance with laundry, and cooking.
27In her report, dated March 29, 2019, s. 44 assessor, Dr. Seon noted that the applicant advised that she was cooking, was independent with her activities of daily living, albeit sometimes she required assistance with brushing her hair, had returned to driving, and had obtained full time employment following the accident. The applicant also reported pain with heavy household chores, and walking her dog, and that this pain has caused her to reduce her participation in social activities.
28In his reports, dated December 11, 2018, and May 15, 2019, s. 44 assessor, Dr. Ahmad Belfon, general practitioner, noted that the applicant had reported that she was independent with respect to her personal care activities, cooking, and driving following the accident.
29As such, given the applicant's self-described level of function, I am not satisfied that her pain caused an ongoing functional impairment. As noted above, the applicant is independent with her household chores, and activities of daily living, albeit she requires assistance with some tasks. Moreover, the applicant self-reported to Dr. Seon that she obtained a new full-time job following the accident, as she did not enjoy her previous employment. Although, I acknowledge that the applicant advised that she had pain with heavy household chores, walking her dog, and had reduced her social activities, she has failed to demonstrate that this is detrimental to her overall functionality.
30Finally, the applicant has not referred me to a medical opinion or evidence to rebut Dr. Belfon's finding that the applicant's physical impairments were minor injuries, as defined by the Schedule. Accordingly, the applicant has failed to demonstrate that she has chronic pain with a functional impairment.
The applicant is not removed from the MIG due to claims of radiculopathy
31The applicant has failed to establish that she suffers from radiculopathy as a result of the accident that would warrant removal from the MIG.
32I place little weight on the only medical evidence submitted by the applicant regarding radiculopathy. The only mention of such a condition is in the OCF-3 completed by Dr. Mahsa Gordanpour, chiropractor, on August 10, 2018. While Dr. Gordanpour diagnosed the applicant with radiculopathy as a result of the accident, it is outside of his expertise as a chiropractor to diagnose or comment on such nerve conditions. Thus, the applicant has failed to discharge her evidentiary onus regarding claims of radiculopathy and is not removed from the MIG on this basis.
Conclusion
33For the reasons noted above, the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment, which has been exhausted.
The Treatment Plans
34As I have found the applicant to remain within the MIG (which has been exhausted), I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.
35However, both the respondent and the applicant raise procedural arguments regarding the treatment plans in dispute with respect to issues: 2 to 6, which I will now turn to.
s. 20(1) of the Schedule
36Pursuant to section 20(1) of the Schedule and subject to subsection (2), no medical, rehabilitation and attendant care benefit is payable for expenses incurred,
(i) more than 260 weeks after the accident, in the case of an insured person who was at least 18 years of age at the time of the accident; or
(ii) after the insured person's 28th birthday, in the case of an insured person who was under 18 years of age at the time of the accident.
37The respondent submits that pursuant to s. 20(1) of the Schedule, the period for which the applicant is entitled to claim and receive accident benefits expired on August 4, 2023. Further, the respondent submits that the applicant has not provided proof that the disputed OCF-18s were incurred.
38The applicant did not make any submissions with respect to section 20(1) of the Schedule, and simply referred me to the authority of Han v. Wawanesa Mutual Insurance Company ("Han"), 2023 CanLII 1465 (ON LAT).
39I find that the applicant's right to payment for the proposed OCF-18s did not expire with the lapse of the 260 weeks. I find the authority of Han persuasive and agree with the Tribunal's approach in that case. In Han, the Tribunal dismissed the preliminary hearing motion of whether the applicant was barred from proceeding with her claim pursuant to section 20(1) of the Schedule. The Tribunal reaffirmed that prior Tribunal decisions and case law have determined that requiring an insured person to pre-pay for treatment before proceeding to the Tribunal "would disadvantage the impecunious." Although I am not bound by prior decisions of the Tribunal, I agree with the finding of the Tribunal in this instance and adopt the reasoning for this hearing. The circumstances here involve the same issues regarding the 260-week limitation period specified in the Schedule. In paragraph 7, the Tribunal found:
"The applicant had five years from the date of an accident to seek treatment. That treatment was denied, so she had two years to appeal to this Tribunal. Her right to payment for that treatment did not expire with the lapse of 260 weeks."
40As such, I will consider whether the disputed OCF-18s are payable by the respondent pursuant to ss. 38(8) and 38(9) of the Schedule.
OCF-18 for chiropractic and massage services in the amount of $3,696.50, submitted on August 21, 2018
41I find that the respondent's explanation of benefits ("EOB"), dated September 5, 2018, was non-compliant with the requirements pursuant to s. 38(8) of the Schedule. However, I find that the EOB, dated December 24, 2018, was compliant with s. 38(8) of the Schedule.
42Sections 38(8), (9) and (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 of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan within ten business days. Section 38(9) requires that if the insurer takes the position that the MIG applies, it must include this information in the notice. Pursuant to s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.
43The applicant submits that the EOB is non-compliant with section 38(8) of the Schedule because it was not sent within 10 business days, and it failed to advise her of the medical reasons for denying the disputed OCF-18.
44The respondent submits that the fax was sent on September 5, 2018, which is within the 10 business days, and referred to the authority of Krzweski v. Cumis General Insurance Company 2023 CanLII 17715 (ON LAT) ("Krzweski"), to support its position that there were no medical records at the time of the denial and as such, there was no medical basis for the denial.
45The applicant submits in reply that the fax confirmation shows that the EOB letter was sent after 5:00 PM and as such, it was not sent in a timely fashion. The applicant further submits that the respondent had a copy of the OCF-3 in its possession at the time of its denial letter, dated September 5, 2018. As such, the applicant submits that the respondent cannot take the position that there was no medical basis at the time of the denial letter.
46I find that the EOB was faxed after 5:00 PM on September 5, 2018, and pursuant to section 64(20) of the Schedule, it was deemed to be delivered on the next business day, which is September 6, 2018. Therefore, I find that the respondent's EOB, dated September 5, 2018, is non-compliant with s. 38(8) of the Schedule, as it was delivered beyond the mandated ten business days.
47I will now determine whether the content of the EOB was sufficient to cure the notice as it was late.
48The EOB advised the applicant that her impairment is predominantly a minor injury and that there is insufficient compelling evidence that the applicant had a pre-existing condition prior to the accident. The EOB further advised the applicant, that the respondent reviewed the medical documentation provided, and that it was denying the OCF-18, and requesting a medical opinion.
49The respondent is required to provide medical and all of the other reasons for the denial. There are no references made to the applicant's medical conditions or what documents the respondent reviewed in coming to this decision. The respondent was in possession of the OCF-3, and a reference could have been made to that. Further, the EOB does not identify what further information is required from the applicant. In the recent decision of Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78, a medical reason for a denial does not have to be provided if there was no medical basis for the denial at issue. However, where there is a medical basis for a denial, then in my view, medical reasons should be provided. For the foregoing reasons, I find that the denial is not in compliance with s. 38(8) of the Schedule.
50On December 24, 2018, the respondent sent the applicant an EOB attaching the report of s. 44 assessor, Dr. Belfon. The EOB noted that based on Dr. Belfon's report, the applicant sustained uncomplicated soft tissue injuries which qualified her for treatment under the MIG. The EOB also advised that the disputed OCF-18 was not reasonable and necessary based on the s. 44 report completed by Dr. Belfon. The applicant is of the view that this does not describe her conditions and therefore is not in compliance with the Schedule.
51I find that the December 24, 2018, EOB to be proper notice in accordance with s. 38(8) of the Schedule because it makes reference to the applicant's injuries. In my view, using the term "uncomplicated soft tissue injuries" is quite clear. Although the respondent could have made reference to the specific conditions such as the sprain/strain of the cervical spine and right shoulder, I find this explanation to be tailored towards someone who might not have an understanding of medical terminology. It explains the conditions in simple terms. Thus, the subsequent EOB, dated December 24, 2018, cured the deficiency of the previous EOB.
52In accordance with section 38(11)2 of the Schedule, the respondent shall 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 it received the treatment plan and ending on December 24, 2018, the date proper notice was provided, along with any applicable interest.
OCF-18 for chiropractic and massage services in the amount of $1,977.05, submitted on January 21, 2019
53I find that the EOB, dated January 31, 2019, was non-compliant with ss. 38(8) and 38(9) of the Schedule, however the subsequent EOB, dated May 28, 2019, cured this deficiency.
54The applicant submits that the EOB dated January 31, 2019, was non-compliant with s. 38(8) of the Schedule and the letter did not advise the applicant whether she was in the MIG pursuant to s. 38(9) of the Schedule.
55The respondent in its submissions acknowledge that the EOB, dated January 31, 2019, did not comply with s. 38(9), however it submits that the EOB, dated May 28, 2019, is compliant as it advised the applicant that she sustained uncomplicated soft tissue injuries that can be treated within the MIG.
56The applicant in reply submits that the EOB, dated May 28, 2019, was unclear because it did not refer to whether the applicant's injuries were considered a minor injury in accordance with the Schedule.
57The EOB, dated January 31, 2019, did not reference the MIG and that was the basis for the denial of the OCF-18, which is non-compliant with s. 38(9) of the Schedule. In addition, there was no reference to the applicant's medical condition or what documents the respondent required from the applicant. I find that this correspondence is boilerplate and does not meet the minimum requirements of s. 38(8). As such, I find that the respondent is non-compliant with both ss. 38(8) and 38(9) of the Schedule.
58I find that, pursuant to s. 38(8), the respondent did not provide proper notice. As such, it is prohibited from taking the position that the MIG applies to this specific treatment plan, and it must pay for any treatment expenses incurred starting on the 11th business day after it received the treatment plan and ending on the day it gave proper notice.
59The EOB, dated May 28, 2019, stated that the disputed OCF-18 was denied as the applicant sustained uncomplicated soft tissue injuries based on the section 44 report completed by Dr. Belfon. Further the EOB advised based on Dr. Belfon's report that the applicant could be treated within the MIG, and the OCF-18 was not reasonable and necessary. The EOB further advised the applicant to submit any imaging for her right shoulder if it becomes available. I find that the subsequent EOB dated May 28, 2019, to be proper notice in accordance with section 38(8) of the Schedule because it makes references to the applicant's injuries, provided medical and other reasons for the denial, and identified further information required from the applicant. Therefore, I find that the respondent did provide a proper notice on May 28, 2019.
60Pursuant to section 38(11)2 of the Schedule, the respondent shall 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 it received the treatment plan and ending on May 28, 2019, the date proper notice was provided, along with any applicable interest.
OCF-18 for chiropractic and massage services in the amount of $1,384.70, submitted on March 18, 2019
61I find that the EOB, dated March 21, 2019, was compliant with s. 38(8) of the Schedule.
62The applicant submits that the EOB failed to adhere to s. 38(8) of the Schedule by not providing a breakdown of the goods, services, assessments, and examinations that it denied, and the respondent did not identify which documents it reviewed in arriving at its decision. The applicant further submits that the respondent should have drawn her attention to the specific documents it reviewed and relied upon. Lastly, the applicant submits that the EOB did not adhere to section 38(9) of the Schedule.
63The respondent submits that the EOB, dated March 21, 2019, clearly advised the applicant that she sustained uncomplicated soft tissue injuries which are covered within the parameters of the MIG. The respondent further submits that the subsequent EOB, dated May 28, 2019, advised the applicant that pursuant to the section 44 report by Dr. Belfon, she sustained uncomplicated soft tissue injuries, which could be treated within the MIG, and that the OCF-18 was not reasonable and necessary.
64The EOB dated March 21, 2019, advised the applicant that she sustained uncomplicated soft tissue injuries and as such, she should be treated within the parameters of the MIG. The EOB further advised the applicant that if further testing for her right shoulder became available, then it would review same, and arrange an addendum report if required. I find that this EOB was compliant with s. 38(9) of the Schedule as it advised the applicant that the funding for the OCF-18 was not reasonable and necessary as the applicant's injuries should be treated within the parameters of the MIG. I also find that the EOB, dated March 21, 2019, was compliant with s. 38(8) of the Schedule because it made reference to the applicant's injuries, and it identified further information that it required from the applicant.
65In conclusion, the EOB, dated March 21, 2019, was compliant with ss. 38(8) and 38(9) of the Schedule, and since the MIG limits have been exhausted, I do not need to consider whether the proposed OCF-18 is reasonable and necessary.
OCF-18 for an in-home exercise program, and equipment in the amount of $1,218.47, submitted on June 7, 2019
66I find that the EOB, dated June 20, 2019, was non-compliant with ss. 38(8) and (9) of the Schedule. I also find that the subsequent EOB, dated July 17, 2019, was non-compliant with s. 38(9) and s. 38(8) of the Schedule.
67The applicant submits that the EOBs, dated June 20, 2019, and July 17, 2019, were non-compliant with ss. 38(8) and 38(9) of the Schedule.
68The respondent acknowledged in its submissions that the EOB dated June 20, 2019, did not comply with s. 38(9) of the Schedule. However, the respondent stated that the EOBs did comply with s. 38(8) as the letters were sent within 10 business days of the submission of the OCF-18 and it was communicated to the applicant that the OCF-18 was being denied based on Dr. Belfon's report, as the proposed services were not reasonable and necessary.
69The EOB, dated June 20, 2019, informed the applicant that the OCF-18 was being denied based on the medical documentation, and that the respondent was requesting a medical opinion. The respondent did not specify the applicant's medical condition as described in the available documentation like the OCF-3.
70The respondent is required to provide medical and all of the other reasons for the denial pursuant to s. 38(8). There are no references made to the applicant's medical conditions or what documents that the respondent reviewed in coming to this decision. A reference could have been made to the OCF-3 that the respondent had in its possession at that time. As such, I find that the EOB is non-compliant with s. 38(8) of the Schedule.
71I also find that the EOB, dated June 20, 2019, was non-compliant with s. 38(9) as it did not reference the MIG.
72As the EOB was non-compliant with both ss. 38(8) and ss. 38(9), in accordance with s. 38(11) of the Schedule, the respondent is prohibited from taking the position that the MIG applies to this specific treatment plan.
73I also find that the EOB, dated July 17, 2019, was non-compliant with s. 38(9) as it did not reference the MIG. I read s. 38(9) as adding to the notice requirement in s. 38(8) that where the insurer believes the MIG applies, a compliant s. 38(8) notice must always include mention of the MIG in such circumstances.
74As the respondent did not cure its deficient notice, the respondent no longer has the opportunity to issue a proper denial notice, as a decision has been rendered regarding this benefit (see Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200) ("Suarez").
75The parties disagree on the issue of whether a treatment plan must be incurred in order to be payable in cases involving s. 38(8) non compliance. Section 38(15) of the Schedule states that the insurer is required to pay for treatment under s. 38 within 30 days after receiving an invoice for them. On this issue, I am bound to apply the principles of the Divisional Court decisions of Suarez and Aviva General Insurance Company v. Catic, 2022 ONSC 6000 ("Catic").
76In Suarez, the Divisional Court ruled that where an insurer fails to provide a proper s. 38(8) notice and does not cure the deficiency before the Tribunal has adjudicated the dispute in favour of the insured, then the insured can proceed to consume the disputed OCF-18. The insurer shall pay for that disputed OCF-18 in accordance with s. 38(15) and cannot cure their defective denial.
77This can be distinguished from the Divisional Court decision of Catic, where the court held that treatment must be incurred, in cases where a deficient notice was subsequently corrected by a proper notice. In such situations, only those goods and services that are incurred during a shall-pay period by the applicant are payable by an insurer. In the matter at hand, as the insurer did not rectify its deficient notice, I find that the Divisional Court's reasoning in Suarez is applicable.
78As such, I find that the applicant is entitled to the OCF-18 for an in-home exercise program, and equipment, with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.
Social Work Assessment in the amount of $2,090.00, submitted on July 9, 2019
79I find that the EOB, dated July 19, 2019, was non-compliant with ss. 38(8) and (9) of the Schedule. I further find that the subsequent EOB, dated August 2, 2019, was non-compliant with s. 38(8) of the Schedule.
80The applicant submits that the EOB, dated July 19, 2019, and August 2, 2019, were non-compliant as the respondent did not advise that she was in the MIG, and the EOBs did not outline the medical reasons and other rationale for the denial of the OCF-18.
81The respondent does not contest that the EOB, dated July 19, 2019, did not comply with s. 38(9) of the Schedule. However, it submits that the EOB, dated August 2, 2019, was compliant with s. 38(8) as it advised the applicant that the OCF-18 was being denied on the basis of a section 44 report completed by Dr. Seon who opined that the applicant did not have a psychological impairment.
82The EOB, dated July 19, 2019, informed the applicant that the OCF-18 was being denied based on the medical documentation, and that the respondent was requesting a medical opinion. The respondent did not specify the applicant's medical condition as described in the available documentation, such as the OCF-3.
83The respondent is required to provide medical and all of the other reasons for the denial pursuant to s. 38(8). There are no references made to the applicant's medical conditions or what documents that the respondent reviewed in coming to this decision. A reference could have been made to the OCF-3 that the respondent had in its possession at that time.
84I also find that the EOB, dated July 19, 2019, was non-compliant with s. 38(9) as there was no reference to the MIG.
85As the EOB was non-compliant with both ss. 38(8) and ss. 38(9), in accordance with s. 38(11) of the Schedule, the respondent is prohibited from taking the position that the MIG applies to this specific treatment plan.
86The EOB, dated August 2, 2019, stated that the OCF-18 is not reasonable and necessary based on an unknown assessment conducted in the spring of 2019 with the "undersigned". In my view, it is not clear what the respondent meant by this, as the undersigned is the adjuster, and she clearly did not conduct any assessments on the applicant. The EOB also did not advise the applicant of the medical reasons on why the OCF-18 is not reasonable and necessary, nor did it refer the applicant to any medical documentation that the respondent relied on to make its determination. Moreover, the respondent did not provide details about the applicant's condition, which formed the basis of its decision. I find that this correspondence is confusing and is not clear enough to allow an unsophisticated person to make an informed decision as to whether to accept or dispute the denial.
87As the insurer did not rectify its deficient notice, I find that the Divisional Court's reasoning in Suarez is applicable and the applicant is entitled to the OCF-18 for a Social Work Assessment, with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.
The applicant has failed to demonstrate that she is entitled to the completion cost of an OCF-3 with a balance of $87.19
88I find that the applicant has failed to meet her onus to establish that she is entitled to the remaining cost of $87.19 for the completion of the OCF-3.
89The applicant made no submissions, nor did she refer me to any evidence to support entitlement for the completion of the OCF-3 for the amount outstanding.
90The respondent did not provide any submissions either.
91The onus is on the applicant to demonstrate that she is entitled to the completion costs of the OCF-3 with a remaining balance of $87.19. The applicant has failed to meet this onus as she has not provided any submissions or referred me to any evidence. As such, the applicant has failed to establish when the OCF-3 was submitted, when was it denied, the basis for the denial, and most importantly, the legal argument on why it is payable.
92The applicant had the opportunity to address this issue in dispute in her initial submissions and reply submissions and chose not to do so.
93Given the applicant's failure to provide any submissions or evidence, it is clear the applicant has not met her evidentiary burden with regard to this issue in dispute and therefore, I find that it is not reasonable and necessary.
Interest
94Pursuant to s. 51 of the Schedule, interest is payable on the overdue payment of benefits. As such the applicant is entitled to interest on the OCF-18s listed as issues two, three, five and six, where the respondent was found not to be compliant with ss. 38(8) and (9) of the Schedule.
The Respondent is not liable to pay an award
95I find that the applicant is not entitled to an award pursuant to s. 10 of Regulation 664, for the reasons that will follow below.
96Pursuant to section 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning "behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate." The onus is on the applicant to prove, on a balance of probabilities, that the respondent's conduct meets this criteria.
97The applicant submits that she is entitled to an award for the following reasons. Firstly, the adjuster's log note, dated September 11, 2019, indicated that the file was being transferred to a Non-CAT 2 adjuster and as such the respondent knew that the applicant's injuries were not in the MIG. Further, the applicant submits that the respondent paid over the MIG limits. Lastly, the applicant submits that the respondent failed to provide updated medical evidence since July 2019 to its section 44 assessors to obtain an updated medical opinion on whether the applicant's injuries should be classified within the MIG.
98The respondent submits that it behaved reasonably and in good faith in adjusting this matter. The respondent further submits that the updated medical evidence provided by the applicant is from Sunnybrook Hospital and that it is in relation to a stroke which is unrelated to this accident. Moreover, the respondent submits that despite the applicant's submission, it attempted to obtain updated section 44 reports, but did not receive a response from the applicant's representative.
99Although, I did find that the respondent contravened s. 38(8) of the Schedule in issues, two, three, five, and six, I do not find that such conduct rises to the level where an award would be appropriate in this case. While the denials did not meet the standard for such a notice required by the Schedule, it was a mistake on the part of the insurer, not the sort of excessive, imprudent, stubborn, inflexible, unyielding, or immoderate conduct that I would deem to warrant an award. I have also reviewed the adjuster's log note, dated September 11, 2019, and I find it is insufficient to warrant an award. The entry did not state the reason why the file was being transferred to a Non-CAT 2 adjuster and whether that withheld or delayed the payment of any benefits, and the applicant's submissions are pure speculation. Accordingly, the applicant's request for an award is denied.
ORDER
100For the reasons set out above, I find that:
a. The applicant's injuries are within the MIG;
b. With respect to the OCF-18 in the amount of $1,218.47 for in-home exercise program and equipment, the respondent was non-compliant with s. 38(8) and 38(9) of the Schedule, and as such the applicant is entitled, pursuant to s.38(11)2, to any incurred expenses starting on the 11th business day after the respondent received the OCF-18, along with applicable interest.
c. With respect to the OCF-18 in the amount of $2,090.00 for a social work assessment, the respondent was non-compliant with s. 38(8) of the Schedule, and as such the applicant is entitled, pursuant to s. 38(11)2, to any incurred expenses starting on the 11th business day after the respondent received the OCF-18, along with applicable interest.
d. With respect to the OCF-18s listed as issues: two, and three, the respondent was initially non-compliant with s. 38(8) of the Schedule, and as such the applicant is entitled, pursuant to s. 38(11)2, to any incurred expenses starting on the 11th business day after the respondent received the OCF-18s and ending, when compliant notice was given, along with applicable interest.
e. The applicant is not entitled to the remaining benefits in dispute, as she remains within the MIG and is subject to its $3,500.00 limit on treatment, which has been exhausted.
f. The applicant is not entitled to the remaining balance of $87.19 for the completion of the OCF-3 or interest.
g. The respondent is not liable to pay an award.
Released: December 19, 2023
Tanjoyt Deol
Adjudicator