Keynan v. Certas Home and Auto Insurance Company, 2023 CanLII 32786

Licence Appeal Tribunal File Number: 20-010293/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:

Kaltuun Keynan

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Justin Mariani, Paralegal

For the Respondent: Aly Pabani, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Kaltuun Keynan, the applicant, was involved in an automobile accident on September 13, 2017, 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 the respondent, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

ISSUES

2The 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 and in the Minor Injury Guideline ("MIG")?

ii. Is the applicant entitled to $3,326.33 for physiotherapy treatment, proposed by HealthMax in a treatment plan dated March 23, 2018?

iii. Is the applicant entitled to $1,299.55 for physiotherapy treatment, proposed by HealthMax in a treatment plan dated January 5, 2018?

iv. Is the applicant entitled to $3,311.93 for chiropractic treatment, proposed by HealthMax in a treatment plan dated October 29, 2018?

v. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Injury Management in a treatment plan dated April 9, 2018?

vi. Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by HAL Disability in a treatment plan dated April 9, 2018?

vii. Is the applicant entitled to a non-earner benefit ("NEB") of $185.00 per week from August 24, 2018 to September 13, 2019?

viii. 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?

ix. 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. The applicant is entitled to the two treatment plans ("OCF-18s") dated April 9, 2018 and the OCF-18 dated October 29, 2018, upon submission of an invoice for services rendered, plus interest in accordance with s. 51 of the Schedule, as a result of the respondent's failure to comply with s. 38(8) of the Schedule;

iii. The applicant is not entitled to the remaining treatment plans in dispute;

iv. The applicant is not entitled to an NEB for the period in dispute; and

v. The respondent is not liable to pay an award under Regulation 664.

ANALYSIS

Minor Injury Guideline

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 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."

5An 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 applicant.

6The applicant has provided limited submissions as to how her accident-related impairments fall outside the minor injury definition. Although she provides extensive submissions on the reasonableness and necessity of the various treatment plans, the applicant does not identify any grounds in which her accident-related impairments fall outside of the definition of a minor injury, whether by way of non-minor physical impairment, psychological impairment, chronic pain or a pre-existing condition. The applicant appears to rely in large part on the argument that it is "incongruous" that she was paid NEBs for over a year, while at the same time being held within the MIG. She contends that given that the respondent felt that the applicant met the onerous NEB test for a year, it cannot argue that the applicant has sustained only a minor injury. The applicant argues that "'NEB' and 'MIG' clearly cannot coexist".

7I do not find that the mere fact that the respondent paid NEBs to the applicant for a period of time, establishes that the applicant's injuries are automatically removed from the MIG. Firstly, although the applicant asserts that the respondent improperly held her within the MIG while paying NEBs "in excess of one year", I find that the timeline of such overlap was more limited. In response to the applicant's Disability Certificate, the respondent advised on November 29, 2017 that it agreed to pay NEBs. On January 5, 2018, the applicant submitted a Minor Injury Treatment Discharge Report (OCF-24) and an OCF-18 which was partially approved up to the MIG limit. For the next four months, the respondent continued to pay NEBs, while denying treatment plans in dispute on the basis of the MIG.

8However, the respondent provided its first Notice of Examination (NOE) on May 1, 2018, where it requested the applicant's attendance at insurer's examinations (IEs) to determine her ongoing entitlement to NEBs. These IEs were rescheduled a number of times, but upon completion of these IEs, the respondent concluded that the applicant did not suffer a complete inability to carry on a normal life. As such, I find that while it is correct that the respondent paid NEBs for close to a year, it is inaccurate to state that the respondent "accepted" that the applicant was entitled to the NEB for over a year, given its ongoing s. 44 requests. Rather, the respondent fulfilled its statutory obligation to pay the benefit, pending the outcome of the IEs.

9Further, the test to establish entitlement to NEBs is significantly different from that required to find that accident-related impairments are outside of the MIG. To establish removal from the MIG, the applicant must lead sufficient medical evidence that her specific accident-related impairments are outside the definition of a "minor injury" contained in s. 3(1) of the Schedule. In contrast, entitlement to NEBs is established by a comparison of the applicant's pre-accident activities to her post-accident activities in order to assess whether she has a complete inability to carry on a normal life. As such, a MIG analysis requires an entirely different assessment.

10Although the applicant relies on the Tribunal decision Cargnelli v. Aviva, 2021 CanLII 55275 (ON LAT) ("Cargnelli") in support of her position, I agree with the respondent that it is distinguishable. In Cargnelli, the applicant had already been removed from the MIG and the issues in dispute related to treatment plans, as well as an NEB. Further, the Tribunal did not consider the fact that the insurer had paid NEBs when determining entitlement to the treatment plans themselves. Rather, it was a factor that was considered when determining whether an award under s. 10 was warranted. Similarly in this case, the fact that NEBs were paid for a period of time may be considered in any s. 10 analysis, however, I do not find that it is a significant factor as part of a MIG analysis.

11Upon review of the medical evidence presented, I do not find that the applicant has established that her accident-related impairments warrant removal from the MIG. In terms of physical impairments, the applicant describes various sprains and strains of the thoracic and lumbar spine, left hip, joint and ligaments of the right knee. However, such soft-tissue injuries fall squarely within the definition of a minor injury. Further, diagnostic imaging of the applicant's chest, right knee and right shoulder similarly did not show any accident-related injuries.

12The applicant has further not provided any submissions or directed me to any evidence establishing a pre-existing condition, documented by a medical practitioner, which precludes her ability to achieve maximum medical recovery under the MIG or an accident-related psychological impairment. The respondent conducted a psychological IE assessment where Dr. James Murray, psychologist, concluded that there was no objective evidence or subjective self-report of an accident-related psychological impairment. The applicant has not directed me to any evidence to refute Dr. Murray's findings.

13The bulk of the applicant's medical evidence relates to ongoing pain complaints. Therefore, it would appear that the applicant is arguing that she should be removed from the MIG on the basis of chronic pain.

14However, I find that the applicant has not led sufficient evidence to demonstrate that she has developed chronic pain as a result of the accident. I agree with the respondent's submissions that the clinical notes and records (CNRs) of her family physician indicate that the applicant did not raise any accident-related pain complaints with her doctor for a year post-accident, despite attending at his office seven times for unrelated issues. Although the applicant submits that this gap in pain reports was due to the fact that during this period she was under the care of the health care practitioners at her treating clinic, no CNRs of her treating clinic were submitted in support of this claim, other than the OCF-18s themselves. It is well-settled that a treatment plan alone is not compelling evidence.

15The applicant began to report pain to her family physician, Dr. Uddaraju, from September 10, 2018 to January 2019. She reported that she had pain "all over her body for a year" and in the September 10, 2018 CNR entry, her doctor queried whether this was chronic pain, or fibromyalgia. However, the applicant does not direct me to any subsequent entry which indicates a formal chronic pain diagnosis. In fact, by January 2019, the CNR entries indicate that the applicant reported right leg pain only "occasionally" and although she reported right shoulder pain, Dr. Uddaraju found that she had full range of motion in her right shoulder with encouragement, and that she "appeared well".

16The applicant did not attend at Dr. Uddaraju's office again until more than a year later, in February 2020. At this point, she reported joint pain on most movements. However, Dr. Uddaraju did not link this pain to the accident. Rather, he diagnosed the applicant with arthritis and polyarthralgia. In a subsequent entry, he noted that given the applicant's joint pain and bloodwork indicating positive Rh factor, rheumatic diseases needed to be ruled out. As such, I do not find that the CNR entries of Dr. Uddaraju establish accident-related chronic pain of the duration, severity and functionally disabling extent necessary to remove the applicant from the MIG. The applicant does not direct me to any additional evidence supporting a finding of chronic pain.

17As a result, based on my review of the submissions and the totality of the medical evidence, I find that the applicant has failed to prove on a balance of probabilities that her injuries are outside of the MIG.

18The parties have confirmed in their submissions that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

19However, an applicant may also establish entitlement to payment of a treatment plan, by showing that the respondent failed to comply with the notice requirements in s. 38(8) of the Schedule. The applicant argues that all of the treatment plans in dispute are payable, as the respondent did not comply with its statutory notice requirements.

OCF-18 dated January 5, 2018 for $1,299.55 is not payable

20The applicant submits that the OCF-18 dated January 5, 2018 is payable, due to the respondent's non-compliance with s. 38(8) of the Schedule. However, the respondent submits that the applicant failed to comply with the two-year limitation period to dispute the treatment plan, pursuant to s. 56 of the Schedule and as such, is statute barred from proceeding with this claim.

21The respondent submits correspondence indicating the treatment plan in dispute was denied on January 13, 2018. The applicant does not dispute that the application was filed on September 4, 2020. Therefore, the filing of the application was clearly outside of the two-year limitation period, even taking into account the Covid-related extension provided by O. Reg. 73/20¹. Despite providing reply submissions, the applicant did not address this issue, or request that I exercise my discretion to grant an extension of time pursuant to s. 7 of the Licence Appeal Tribunal Act. The onus rests with the applicant to establish that the case warrants an extension of time pursuant to s. 7. In the absence of any submissions on the issue, I am not prepared to extend the time limit and I find that the applicant is statute-barred from proceeding with her claim for this treatment plan.

OCF-18 dated March 23, 2018 for $3,326.33 is not payable

22The applicant submits that the OCF-18 dated March 23, 2018 is payable, as the respondent's Explanation of Benefits ("EOB") failed to meet the requirements of s. 38(8) of the Schedule. Namely, that the respondent's reason for denial was boilerplate and did not provide a "medical and any other reason" for the denial.

23Upon review of the respondent's EOB dated April 10, 2018, I find that the respondent's denial was in compliance with s. 38(8). The EOB stated that there was no compelling evidence of a pre-exiting medical condition or medical evidence to support a non-minor injury. In addition, the respondent went on to request specific documentation, namely, updated CNRs, for reconsideration. The respondent submits that at that point, it had only received an OHIP summary and hospital records from William Osler Health. But it had not received any CNRs, either from the applicant's family physician or treating clinic. Therefore, the respondent's request for such CNRs was not boilerplate and clearly identified the information that the insurer required but did not have, as per T.F. v. Peel² and 16-002325 v. Aviva³. As such, I find that the applicant has not established that the OCF-18 dated March 23, 2018 is payable pursuant to s. 38(8) of the Schedule.

OCF-18s dated April 9, 2018 and October 29, 2018 are payable due to the respondent's non-compliance with s. 38(8) of the Schedule

24The applicant submitted two OCF-18s dated April 9, 2018 for a psychological assessment and a chronic pain assessment, along with an OCF-18 dated October 29, 2018 for chiropractic treatment. These treatment plans were denied by way of two EOBs dated May 9, 2018 and an EOB dated November 8, 2018. The applicant submits that none of these EOBs are in compliance with s. 38(8) of the Schedule.

25I agree with the applicant's submissions. Upon review of the EOBs all three denials simply state in very generic terms, the respondent's conclusion that the applicant either falls within the Guideline, or that she has not established a "non-minor injury". I find that these reasons do not provide any details about the applicant's condition that formed the basis of the respondent's decision. Further, the respondent did not specify what medical information it did not have, but still required. In one of the EOBs, no additional information was requested and in two of the EOBs, the respondent requested "substantiating medical documentation". I find this request to be vague as it does not assist the applicant to understand what information was lacking, in contrast with the previous EOB which specifically identified missing CNRs. I agree with the applicant that this correspondence fails to discharge the respondent's obligation to provide a "medical and any other reason" in accordance with the principles outlined in 16-002325 v. Aviva and T.F. v. Peel and Mutual.

26I find that, pursuant to s. 38(8) of the Schedule, the respondent did not provide proper notice to the applicant. As such, it is prohibited from taking the position that the MIG applies to these specific treatment plans and it must pay for any treatment expenses starting on the 11th business day after it received the treatment plan. The three OCF-18s in dispute are payable, plus interest in accordance with s. 51 of the Schedule, upon submission of an invoice for services rendered.

The Applicant has not Established Entitlement to Non-Earner Benefits for the period in dispute

27The applicant submits that she is entitled to NEBs from August 24, 2018 to September 13, 2019. The respondent had initially paid the applicant NEBs, beginning on November 29, 2017. On May 1, 2018, the respondent provided a Notice of Examination requiring the applicant to attend three IEs to determine continued eligibility to NEBs. By way of letter dated August 24, 2018, the respondent noted the applicant's failure to attend the occupational therapy ("OT") IE and suspended the NEB benefits until she attended the remaining IE, pursuant to s. 37(7)(b) of the Schedule. The applicant subsequently attended the OT IE. Upon completion of all of the IEs, the respondent denied the applicant further NEBs by way of an EOB dated November 17, 2018, on the basis that all of its IE assessors found that the applicant did not suffer from a complete inability to carry on a normal life.

28The applicant submits she is entitled to NEBs for the period in dispute, as both the respondent's initial NOE and the subsequent denial of the NEBs based on the IE assessments, failed to comply with the notice provisions of the Schedule.

29Upon review of the NOE and denial correspondence, I find that the respondent has satisfied its notice obligations under the Schedule, as the notice for the IEs and ultimate denial, provides the required medical and other reasons and meets all other requirements of s. 44(5) and s. 38(8) of the Schedule.

30With respect to the initial NOEs dated May 31, 2018, the applicant's argument that the explanation and notice of the IEs were not clear and did not disclose sufficient reasons, is not supported by the evidence. The respondent's correspondence to the applicant states that the IEs are to determine the applicant's ongoing entitlement to the NEBs. It is sufficiently detailed and sets out that the IEs are required because the initial disability certificate indicated that the anticipated duration of the disability was 9-12 weeks and it is now 7 months post-accident. I find that the reasons were clear enough to allow an unsophisticated person to make an informed decision regarding the IE attendance. The relevant correspondence and notice were also provided to applicant's lawyers.

31The respondent's subsequent denial by way of EOB dated November 17, 2018, similarly complied with the respondent's notice obligations. The EOB enclosed the OT, physiatry and psychological IE Reports, and stated that none of the assessors were of the opinion that the applicant suffered a complete inability to carry on a normal life. Specific reference was made to the psychological assessor's findings that there were no diagnosable psychological injuries and the physiatry assessor's findings that there were no ongoing physical impairments.

32I find that the respondent's denial contains straightforward and clear language, sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. The applicant submits that she cannot be expected to know what constitutes "no diagnosable psychological injuries" or "no ongoing physical impairments". However, I find that these are accurate reflections of the assessors' findings. An assessor cannot reference specific psychological impairments, if none were found. As such, I find that the respondent's EOB was in compliance with s.38(8) of the Schedule.

33With respect to the substance of the claim for NEBs, I agree with the respondent's submissions that the applicant has not established that she suffers from a complete inability to carry on a normal life. All three of the respondent's psychological, OT and physiatry IE assessors found that the applicant did not sustain such a complete inability. The applicant has not directed me to any medical evidence or provided specific submissions, to refute the IE assessors' findings.

34To establish entitlement to an NEB, and applicant must lead sufficient evidence of an impairment that continuously prevents her from engaging in substantially all of the activities in which she ordinarily engaged before the accident. The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant's pre- and post-accident activities.

35The applicant has not provided any specific submissions or tendered any evidence of her pre-accident activities of daily living, or demonstrated how her engagement in these activities has changed as a result of the accident. In her submissions, the applicant does not identify the activities she values or provide evidence of the frequency and time commitments of her pre-accident activities, as required by Heath and many NEB cases at the Tribunal, such as 16-003141 v. Aviva Insurance Canada, 2017 CanLII 46352 (ONLAT). In the absence of this information, it is difficult to compare her pre and post-accident capabilities with respect to the activities she ordinarily engaged in or valued.

36The applicant further does not direct me to any medical opinion from a treating physician that she suffers a complete inability to carry on a normal life. Although the OCF-3 prepared by Dr. Fadumo Hassan, chiropractor, identifies such an inability, I note that an OCF-3 alone does not establish whether an applicant has sustained a complete inability to carry on a normal life. Further, the anticipated duration of this inability was identified as being 9-12 weeks.

37On this basis, I find that the applicant has not established entitlement to an NEB for the period in dispute.

Award

38Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.

39In the matter at hand, the applicant is seeking an award, submitting that she was improperly held within the MIG, while NEBs were being paid. The applicant submits that these contrasting positions cannot coexist, and that as such it is evidence that her file was improperly adjusted and that an award should be payable. Upon a review of the medical evidence, I found that the applicant did not establish that her accident-related impairments warranted removal from the MIG. As such, there is nothing in the evidence before me to suggest that the respondent behaved in an unreasonable manner. Accordingly, the applicant's request for an award is denied.

ORDER

40For the reasons outlined above, I find that:

i. The applicant's injuries fall within the MIG;

ii. The applicant is entitled to payment of the following the OCF-18s plus interest, in accordance s. 51 of the Schedule:

a. OCF-18 dated April 9, 2018 for a psychological assessment;

b. OCF-18 dated April 9, 2018 for a chronic pain assessment;

c. OCF-18 dated October 29, 2018 for chiropractic treatment;

iii. The applicant is not entitled the remaining treatment plans in dispute;