Citation: Fernandez v. Certas Home and Auto Insurance, 2023 ONLAT 21-007628/AABS

Licence Appeal Tribunal File Number: 21-007628/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:

Danis Fernandez

Applicant

and

Certas Home and Auto Insurance

Respondent

DECISION

ADJUDICATOR: Janet Rowsell

APPEARANCES:

For the Applicant: Danis Fernandez, Applicant Tina Lubman, Paralegal

For the Respondent: Certas Home and Auto Insurance Kevin So, Counsel

HEARD: By way of written submissions

OVERVIEW

1Danis Fernandez, the applicant, was involved in an automobile accident on June 7, 2019, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES: APPLICANT'S ALLEGATION THAT THE RESPONDENT'S DENIALS DID NOT COMPLY WITH SECTION 38

2The applicant submits that the respondent’s denial of a treatment plan dated November 9, 2019, is non-compliant with section 38 of the Schedule as it failed to provide a medical or any other reason for the denial, and therefore the respondent is obliged by section 38(11) to pay for all goods, services, etc. in the treatment plan. I note, however, that the applicant’s submissions fail to elaborate on how the denial letter is non-compliant.

3For the following reasons, I find that the respondent is compliant with section 38(8) and is not precluded from taking the position that the applicant is subject to the MIG and the $3,500.00 funding limit.

4Section 38(8) of the Schedule requires the respondent to give the insured a notice that identifies the goods, services, assessments and examinations described in a treatment plan which an insurer agrees to pay for and what the insurer does not agree to pay for, together with medical reasons and other reasons for the decision within ten business days after the respondent insurer received the treatment plan. Section 38(11) states that in the event that the insurer fails to give notice in accordance with section 38(8), there are consequences which include the insurer being prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies. In addition, the consequence for the respondent breaching the 10-business day deadline provided in section 38(8) is outlined in section 38(11)(2) which entitles the applicant to the goods and services consumed starting on the 11th business day and ending in the day in which notice is provided.

5It is worth noting the recent Ontario Court of Appeal decision, Varriano v. Allstate Ins. Company of Canada, 2023 ONCA 78, and the principles established by the Supreme Court of Canada in Smith v. Co-operators General Insurance Co., 2002 SCC 30, [2002] 2 S.C.R. 129, to the effect that a medical reason for a denial does not have to be provided if there was no medical basis for the denial at issue.

6The burden is on the applicant to demonstrate with reference to evidence that there is a violation of the relevant section of the Schedule. The November 9, 2019, denial letter requests the clinical notes and records of the family physician, decoded OHIP summaries and any relevant hospital records for review. However, the denial letter explains that in the absence of the requested documentation, the available information shows the applicant’s injuries fall in the category of the Minor Injury Guideline (MIG). I do not agree that the denial is in violation of section 38(8) of the Schedule. The denial letter’s reasons are that the applicant has not provided medical evidence showing his injuries should not be limited to the Minor Injury Guideline to achieve maximal recovery.

7The applicant also submits that the denials of two treatment plans were late and defective without explaining or identifying the basis for the contention with reference to evidence. The materials included by the applicant show the dates when two treatment plans were received by the respondent on the HCAI (Health Claims for Auto Insurance) record and when the insurer responded to each treatment plan.

8In relation to the treatment plan of Mackenzie Medical denied on June 21, 2019, in the amount of $3,696.50, the HCAI record indicates this treatment plan was received by the insurer on June 11, 2019, followed by the insurer’s response on June 21, 2019, which is not more than the 8th business day after the treatment plan was received by the insurer. The denial by the respondent, is in compliance with the 10-business day requirement specified in section 38(8) as the time limit for the response to the applicant, following receipt of the treatment plan, and therefore the consequences described in section 38(11) do not apply.

9As for the treatment plan in the amount of $1,384.70, partially approved in the amount of $896.16, according to the HCAI record, the respondent received this treatment plan on January 23, 2020, with the respondent’s partial approval on February 3, 2020, which is the 7th business day after the day the treatment plan was received by the insurer. The denial by the respondent, is in compliance with the 10-business day requirement specified in section 38(8) as the time limit for the response to the applicant following receipt of the treatment plan, and therefore the consequences described in section 38(11) do not apply.

10For these reasons, I find that the applicant has failed to meet his burden of demonstrating that the respondent is in violation of section 38(8) for these two treatment plans and therefore the remedies under section 38(11) do not apply.

11The applicant submits that because the respondent did not contest the section 25 Psychological Assessment, outside the processes at the Licence Appeal Tribunal (LAT) and the Schedule, the respondent implicitly acknowledged that the treatment plan recommending the Psychological Assessment is, reasonable and necessary. The respondent denied funding for the treatment plan seeking the psychological assessment in correspondence dated May 27, 2020. I find the applicant’s submission is incorrect and I fail to see how the denial the respondent is deficient.

ISSUES

12The 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)? The MIG has not been entirely exhausted by the time of the denials. The amount of $3,254.03 has been paid by the respondent insurance company within the Minor Injury Guideline and $245.97 remains.

ii. Is the applicant entitled to chiropractic services, proposed by Mackenzie Medical Rehabilitation Centre, as follows:

1. $3,696.50, in a treatment plan/OCF-18 dated June 11, 2019, and denied on June 22, 2019;

2. $1,977.05, in a treatment plan/OCF-18 dated October 29, 2019, denied on November 9, 2019; and

3. $488.54 ($1,384.70 less $896.16 approved), in a treatment plan/OCF-18 dated on January 23, 2020?

iii. Is the applicant entitled to medical services, proposed by 101 Assessments, as follows:

1. $2,460.00 for the cost of examination for a psychological assessment, in a treatment plan/OCF-18 dated May 8, 2020;

2. $4,688.38 for psychological services, in a treatment plan dated June 16, 2021; and

3. $2,460.00 for the cost of examination for a chronic pain assessment, in a treatment plan dated June 22, 2021?

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

RESULT

13The applicant has not met his burden of proof by demonstrating, on a balance of probabilities, entitlement to treatment for his injuries beyond the $3,500.00 MIG limit.

14Having determined that the applicant sustained minor injuries that are treatable within the MIG and understanding that the MIG limit has been exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required. The amount of $3254.03 has been paid by the respondent insurance company within the Minor Injury Guideline and $245.97 remains within the spending limit, however, in accordance with section 38(1)(a) of the Schedule by reason of the amount remaining being less than capable of covering any of the treatment plans in dispute, the amount remaining is not payable.

15Similarly, where no benefits are payable, it follows that the respondent did not unreasonably withhold or delay the payment of benefits to justify an award under s. 10 of Reg. 664.

16Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

17The application is dismissed.

ANALYSIS

18The Minor Injury Guideline (MIG) establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule which includes sprains, strains, whiplash associated disorders, contusion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Minor injuries are subject to the treatment methodologies outlined in the MIG, and under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

19If an insurer deems an applicant’s injuries to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.

20Section 18(2) states that the $3,500 limit does not apply if the insured person “provides compelling evidence… the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery from the minor injury if he is subject to the $3,500 limit.”

21In the event that the applicant’s injuries fall within the definition of minor injuries, the applicant can be removed from the MIG in accordance with section 18(2) of the Schedule. The applicant must meet all three of the following requirements in order to be removed from the MIG under this section:

a. He has a pre-existing medical condition;

b. The pre-existing medical condition was documented by a health practitioner before the accident; and

c. The person’s treating health practitioner determines and provides compelling evidence that the pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3500.00 limit under the MIG.

22The Tribunal has also determined that chronic pain with functional limitations or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant to demonstrate on a balance of probabilities that the injuries are not minor or they have a pre-existing condition that would prevent maximal recovery within the MIG.

Pre-existing Injuries, Accident-related Physical Injuries & Chronic Pain

23The applicant concedes that he has no pre-existing medical conditions of a physical or psychological nature before the accident which would prevent him from achieving maximum medical recovery if he is subject to the $3,500 MIG limit.

24The Tribunal has consistently held that the characterization of an applicant’s pain as chronic does not, by itself, exclude the applicant from the MIG and the $3,500.00 monetary limit for medical and rehabilitation benefits. Rather, there must be a significant reduction in the applicant’s functionality to remove a person from the MIG.

25The clinical notes and records (CNRs) of Dr. Tahir describe that, on June 8, 2019, the applicant complained of experiencing right shoulder and back pain the day following the accident. Dr. Tahir recommended non-prescription Advil and icing, but not prescription pain medication. Dr. Tahir also provided a medical letter excusing the applicant from work until June 13, 2019, for the purpose of reassessment on that date. However, the applicant did not return to Dr. Tahir for a reassessment. Instead, the applicant returned to his employment after June 13, 2019. He did not return again to his family physician to investigate the possibility of taking additional leave from his employment by reason of any accident-related injuries.

26The applicant did not return to Dr. Tahir until over one year later on July 12, 2020, with new complaints of back pain. However, the CNR dated July 12, 2020, does not describe accident-related causes but rather work-related back pain resulting from physical lifting in a warehouse setting. On July 12, 2020, Dr. Tahir prescribes medication to address osteoarthritis and Dr. Tahir recommended physiotherapy. A similar CNR dated October 24, 2020, shows the applicant experiencing right arm and shoulder pain in the four-week period before the doctor’s appointment caused by what the applicant describes as repetitive heavy lifting in the course of his work at a warehouse. Dr. Tahir recommends the applicant start physiotherapy for mechanical back pain.

27I find that the CNR’s of the family physician do not state or in anyway demonstrate that the cause of the applicant’s back and shoulder pain in July 2020, has a causal connection to the subject accident. My finding is supported by the applicant only addressing accident-related impairments and injuries on June 8, 2019, with his family doctor, and not subsequently. The test to determine causation is the “but for” test, where causation is a factual determination made on a balance of probabilities: Sabadash v. State Farm et al, 2019 ONSC 1121. In order to demonstrate causation, an applicant must show that “but for” the accident he would not have suffered an impairment. A decision-maker is to take a robust and pragmatic approach to determining causation. In Sabadash, the Divisional Court held that the accident need not be the sole cause of the impairment but must be a “necessary” cause.

28I find that the applicant has failed to demonstrate with compelling medical evidence that the accident was a necessary cause of back pain described in Dr. Tahir’s CNR’s in July 2020 and afterwards. As stated, Dr. Tahir asked the applicant to return for a reassessment following the accident, on June 13, 2019. The applicant did not return to Dr. Tahir until July 12, 2020, seeking physiotherapy for back pain which is described as based on his work in a warehouse performing “lots of lifting.” There is no mention of the accident as a cause of the onset of the applicant’s decreased range of motion and back pain in July 2020. Dr. Tahir determines the applicant will benefit from muscle relaxants and physiotherapy for the applicant’s work-related injuries. Dr. Tahir recommended physiotherapy in July 2020 as the applicant suffered work-related injuries.

29The applicant received physiotherapy treatment following the accident to address accident-related injuries with greater frequency in July and August 2019, however, he attended physiotherapy at Mackenzie Medical Rehabilitation on only three to four occasions each month from September to November 2019, and on one occasion only in each of December 2019 and in January 2020. The history of the applicant accessing physical therapy treatment is suggestive that his injuries caused by the accident, fall within the MIG and resolved before the year 2020, because the applicant did not seek therapy regularly after November 2019 and he does not mention the accident as a cause of his pain when he meets with Dr. Tahir requesting physiotherapy in July 2020.

30With regard to the applicant’s claim that he experiences chronic pain syndrome requiring a chronic pain assessment as recommended in the treatment plan dated June 22, 2021, I find that the pain referred to by the applicant in the CNR’s of Dr. Tahir from July 12, 2020, onward is explicitly attributed to the applicant’s employment. From June 8, 2019, to July 12, 2020, the applicant does not attend his family physician for any issue that is accident-related after his physician invited him to return by June 13, 2019, with any further accident-related concerns requiring additional leave from work or in order to address pain symptoms. Dr. Tahir provided the applicant with a letter dated on June 8, 2019, allowing for leave from his employment following the accident for a one week period. The applicant was asked to return for a reassessment on or after June 13, 2019, in order to address ongoing symptoms suggestive of accident-related impairments. The applicant did not return to Dr. Tahir until over a year later with new complaints which he stated were caused by his work in a warehouse and the required work-related lifting.

31Following the accident, the Applicant returned to work as a distributor at Aspect Retail after a week’s leave of absence and he has continued to work in that capacity since. The applicant’s functional capacities were not affected following his return to work and he did not make further report of accident-related pain to Dr. Tahir. Such functionality contradicts the Applicant’s claims of a chronic pain condition. I am not satisfied that the applicant should be removed from the MIG due to chronic pain. I now turn to the remaining possible basis to remove the applicant from the MIG, namely psychological impairments.

Psychological Impairments

32The applicant does not describe psychological injuries to Dr. Tahir following the accident. In addition, I am not satisfied that the accident is a cause of any psychological injuries referred to in the section 25 Psychological Assessment dated as taking place over March 26, April 9, April 17, and May 14, 2021, since there is no compelling medical evidence supportive of the findings in the psychological assessment of the applicant. The respondent refers to Balijepalli v. Aviva General Insurance, 2022 CanLII 154 (ON LAT), where the Tribunal found the applicant’s injuries fell within the MIG despite a section 25 psychological report because the report was not supported by objective medical evidence from a treating physician, similar to the circumstances in this case.

33The respondent submits that there is no explanation of the roles played in the preparation of the psychological assessment by Carolina Vintu, Delia Petrescu and Dr. Waxer. The report describes Carolina Vintu as an assessor, Dr. Waxer as Supervising Psychologist and Delia Petrescu, as psychometrist. The report does not address who conducted the interview of the applicant; who gathered the relevant data or who made the formal DSM-5 diagnosis, which is significant since not all of the named examiners conducting the assessment are qualified to make a formal psychological diagnosis. The treatment plan only lists Dr. Waxer as conducting the psychological assessment which is not stated in the psychological assessment itself.

34The respondent submits that there is no corroborating objective clinical notes and records from a treating physician supportive of the diagnosis in the section 25 Psychological Assessment. There was no referral or recommendation made by Dr. Tahir or any other physician supportive of a psychological assessment. Likewise, the respondent submits no psychotropic medication was prescribed historically and Dr. Tahir’s CNRs, do not describe a compelling psychological injury or any mental health issues. As stated in the respondent’s submissions, and I agree, if the applicant’s mental health issues are significant, it is reasonable to anticipate that mental health issues pertaining to the applicant would be captured in the CNRs of the family physician, together with referrals for psychological treatment and prescription psychotropic medication.

35In addition, the psychological assessment contains inaccuracies and was conducted without the benefit of a review of the relevant background medical documentation in the CNRs of Dr. Tahir. The report describes that immediately following the accident the applicant was prescribed pain and anti-inflammatory medication which is not included as information in the CNR of Dr. Tahir on June 8, 2019. June 8, 2019 was the only occasion when the applicant sought treatment for accident-related injuries and his family doctor suggested non-prescription Advil to address any accident-related pain. The applicant did not return to his family doctor for a reassessment of accident-related injuries when it was suggested by Dr. Tahir on June 13, 2019, or afterwards.

36For the reasons described, which is that the report does not include a review of relevant medical documentation; that the report is based instead on the applicant’s reporting; that the report contains inconsistencies with the CNRs and that there is no objective medical evidence corroborating the existence of any psychological impairments resulting from the accident, I place little evidentiary weight on the opinions offered in the section 25 psychological report regarding the applicant’s psychological impairments.

37Accordingly, for the above reasons, I find that the applicant has not met his burden to be removed from the MIG.

38As the applicant has exhausted his MIG funding limit, I do not need to analyze the reasonableness or necessity of the treatment plans. He is not entitled to them.

Interest

39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, it follows that no benefits are overdue. Therefore, interest is not payable.

40Having determined that the applicant sustained minor injuries that are treatable within the MIG, and the MIG being exhausted, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary is not required because they propose treatment outside the MIG and the $3,500.00 funding limit. The amount of $3254.03 has been paid by the respondent insurance company within the Minor Injury Guideline and $245.97 remains within the spending limit, however, in accordance with section 38(1)(a) of the Schedule by reason of the amount remaining being less than capable of covering any of the treatment plans in dispute, the amount remaining is not payable.

41As no benefits are payable, it follows that no benefits are overdue. Therefore, interest does not apply pursuant to s. 51.

CONCLUSION AND ORDER

42I find that the applicant sustained minor injuries as a result of the accident that are treatable within the MIG and that the MIG limit has been exhausted.

43The applicant is not entitled to any treatment plans in dispute, as the MIG limit have been exhausted.

44Given that there are no benefits owed, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.

45The application is dismissed.