Licence Appeal Tribunal File Number: 20-015064/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:
Amit Fantu
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Rajiv Kapoor, Paralegal
For the Respondent:
Colleen Mackeigan, Counsel
HEARD:
BY WAY OF WRITTEN SUBMISSIONS
OVERVIEW
1Amit Fantu, the applicant, was involved in an automobile accident on July 13, 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 the respondent, Wawanesa Mutual 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 $3,631.87 for chiropractic treatment, proposed by Active Life Wellness Centre in a treatment plan (“OCF-18”) dated December 4, 2018?
iii. Is the applicant entitled to $2,200.00 for a chronic pain assessment proposed by Dr. Nadir Al-Jazrawi in an OCF-18 dated July 9, 2021?
iv. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Dr. Leon Steiner in an OCF-18 dated July 27, 2019?
v. Is the applicant entitled to $4,538.77 for psychological treatment, proposed by Dr. Leon Steiner in an OCF-18 dated September 30, 2021?
vi. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG;
ii. The applicant is not entitled to the OCF-18s for chiropractic treatment or a psychological assessment, as the MIG limits have been exhausted;
iii. The applicant is entitled to the OCF-18s for a chronic pain assessment and psychological treatment, as the respondent’s denials were non-compliant with s. 38 of the Schedule. The applicant is entitled to interest on the incurred treatment; and
iv. The respondent is not liable to pay an award under Regulation 664 or costs.
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 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 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 submits that he should be removed from the MIG on the basis of chronic pain and psychological impairment.
The applicant has not established chronic pain warranting removal from the MIG
7The applicant submits that he developed chronic pain as a result of the accident. To establish his claim, he relies on the clinical notes and records (“CNRs”) of his family physician, medical clinics and treating physiotherapy clinic, as evidence of his ongoing pain post accident. The applicant further relies on the chronic pain assessment report of Dr. Nadir Al-Jazrawi, who diagnosed the applicant with myofascial cervical and lumbar pain and chronic pain syndrome.
8I find that the applicant has not provided sufficient evidence that he has developed chronic pain as a result of the accident.
9The medical record, particularly the CNRs of the applicant’s family physician and walk in clinics, do not indicate ongoing pain complaints. The applicant does not direct me to any CNR entry indicating that he attended at a physician’s office complaining of accident-related pain, prior to February 2021, two and a half years post-accident. If the applicant had been experiencing ongoing chronic pain from the date of the accident, I would have expected to be directed to consistent reports of pain prior to February 2021.
10The applicant also submits that X-rays of the spine conducted in February 2021 revealed a reversal of the cervical lordosis and mild kyphosis in the mid cervical spine. However, I agree with the respondent’s submissions that the applicant has not led any evidence linking these findings to the subject accident. Further, the applicant only reported sporadic pain complaints post-February 2021. On October 18, 2021, the applicant reported that he had shoulder pain for two weeks, but was “unsure of the trigger”. On January 4, 2022, the applicant reported back pain to his medical clinic.
11I do not find such intermittent pain reports to be persuasive evidence of ongoing, chronic pain. Moreover, the CNRs in evidence do not indicate that any of his primary care physicians diagnosed him chronic pain, provided referrals to a pain specialist, or consistently prescribed prescription pain medication. Similarly, the treatment records of the applicant’s physiotherapy clinic do not reveal severe pain complaints. I agree with the respondent’s submissions that many entries report only “discomfort” or “stiffness”, rather than pain.
12Although the applicant relies on the chronic pain assessment report of Dr. Al-Jazrawi, I do not find the report to be persuasive. Firstly, Dr. Al-Jazwari did not appear to review any of the CNRs of the applicant’s various treatment and medical providers or the diagnostic imagining. This is in contrast to the respondent’s IE assessors who did review the applicant’s medical file. In particular, the IE assessor Dr. Rajka Soric, physiatrist, after reviewing the full medical file and conducting a physical examination, found that the applicant did not meet the criteria for a chronic pain disorder. Rather, Dr. Soric opined that the applicant’s reported symptoms were in keeping with seronegative spondyloarthropathy, given his morning stiffness and achiness, rather than true pain. The applicant has not provided any submissions or evidence to address Dr. Soric’s findings.
13In addition, I do not find Dr. Al-Jazwari’s conclusion that the applicant met three out of the six criteria required by the American Medical Association (“AMA”) Guides for determining chronic pain, to be persuasive. While the AMA Guides criteria for chronic pain are not binding on this Tribunal, they are a useful interpretive tool in assessing claims of chronic pain. Although Dr. Al-Jazwari found that the applicant met the criteria of secondary physical deconditioning and withdrawal from recreation activities, I agree with the respondent that this is not consistent with the medical record. Dr. Al-Jazwari stated that the applicant was unable to attend the gym, socialize or take part in recreational activities. However, the physiotherapy records indicate that the applicant reported playing football, basketball and going to the gym.
14Although in his submissions the applicant references his self-reports to various assessors of back and neck pain, I find that intermittent pain reports are not sufficient to establish chronic pain. Rather, there must be some evidence of ongoing functional impairment. The applicant has provided limited evidence that he suffered any functional impairment due to pain. He reported to Dr. Al-Jazwari that he was not working, but this was due to the fact that he was in university full-time, that he was able to manage all aspects of his personal care and partake in all household chores.
15As such, I find that the applicant has not met his onus of establishing pain of the duration, severity and functionally disabling extent necessary to remove him from the MIG.
The applicant has not established that he has sustained a psychological impairment as a result of the accident
16The applicant submits that he has sustained a psychological impairment as a result of the accident, warranting removal from the MIG. He relies in large part on a s. 25 psychological assessment from Dr. Leon Steiner. Dr. Steiner diagnosed the applicant with Adjustment Disorder with Mixed Anxiety and Depressed Mood and Specific Phobia – passenger.
17I find that the applicant has not led sufficient evidence of a psychological impairment.
18The applicant has not directed me to any CNR entry in the medical record indicating complaints of ongoing psychological symptoms post-accident, any referrals for psychological treatment, a psychological diagnosis or medication for anxiety or depression. In the three years post-accident, the applicant had not reported any psychological symptoms to any treatment provider.
19The respondent conducted its own psychological assessment by Dr. Tatiana Dumitrascu, who found that the applicant had did not meet the criteria for any DSM-5 diagnosis. When comparing the psychological reports of Dr. Steiner and Dr. Dumitrascu, I prefer that of the respondent’s IE report. Dr. Dumitrascu reviewed the applicant’s entire medical file, whereas it does not appear that Dr. Steiner reviewed any additional medical information. Further, I find that Dr. Dumitrascu’s findings are consistent with the medical record, which does not indicate any reporting of psychological symptoms post-accident.
20As such, I find that the applicant has not met his onus to prove a psychological impairment warranting removal from the MIG.
21The applicant sustained a minor injury as defined in the Schedule and is subject to the MIG and the $3,500.00 funding limit on treatment. All the OCF-18s in dispute propose treatment outside of the MIG. Given that I have determined the applicant’s impairments are subject to the MIG and the $3,500.00 funding limit on medical and rehabilitation benefits, an analysis of whether these OCF-18s in dispute are reasonable and necessary is unwarranted.
22As an alternative argument, the applicant submits that the OCF-18s in dispute are payable, due to the respondent’s non-compliance with the requirements of s. 38(8) of the Schedule. I will address each of the plans in turn.
OCF-18 dated December 4, 2018 for chiropractic treatment
23I agree with the applicant that the respondent’s initial denial letter did not comply with s. 38(8) of the Schedule.
24In the Explanation of Benefits (“EOB”) dated January 3, 2019, the respondent stated that it required the applicant’s attendance at an IE, and that it had determined that there was not sufficient evidence of injuries outside of the MIG or a pre-existing condition. I agree with the applicant that this general assertion fails to discharge the respondent’s obligation to provide a “medical and any other reason” in accordance with the Schedule. 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.
25However, I find that the respondent’s subsequent correspondence was compliant with s. 38(8) of the Schedule. In a letter dated May 10, 2019, the respondent included its orthopaedic IE report and summarized the assessor’s findings and conclusion that the MIG applied. I find that the respondent provided a medical reason for the denial, and that the reasons why the respondent was denying the OCF-18 were clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
26Given that the respondent rectified its initial non-compliance, pursuant to the Divisional Court decision of Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000, treatment must be incurred, to be payable. In Catic, the Court held that in cases where a deficient notice was subsequently corrected by a proper notice, only those goods and services that are incurred during a shall-pay period by the applicant are payable by an insurer. The applicant has not led any evidence as to what, if any, portion of the treatment plan was incurred during the period of non-compliance. Without such evidence, I am unable to find that he is entitled to payment of the treatment plan.
OCF-18 dated July 9, 2021 for a chronic pain assessment
27The applicant submits that the respondent’s denial failed to comply with s. 38 of the Schedule. He asserts that the medical reason provided in the letter dated July 28, 2021 was a “generic and opaque” response, and that the respondent failed to reference the MIG in its denial, as required by s. 38(9) of the Schedule.
28I find that the respondent’s correspondence was not in compliance with s. 38 of the Schedule.
29I agree with the applicant’s submissions that the respondent failed to reference the MIG or s. 38(9) in its denial letter. In its July 28, 2021 correspondence, rather than referring to the MIG the respondent advised that it had determined that the proposed chronic pain assessment was not reasonable and necessary. However, s. 38(9) of the Schedule is clear that if an insurer believes that the MIG applies to an insured’s impairment, then the s. 38(8) notice must so advise the insured. In its submissions for this hearing, the respondent has argued that the applicant should not be removed from the MIG. As such, I do not see how it can assert that its denials need not cite the MIG when, viewed as a whole the respondent thinks the MIG applies. As such, I find that the respondent’s denial was not in compliance with the Schedule.
30If an insurer fails to comply with its obligations under s. 38(8), s. 38(11) states that the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies and must 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 until such time that it gives a valid denial.
31No evidence was provided indicating that the deficient notice was subsequently rectified. Given that the applicant has incurred the cost of the chronic pain assessment, I find that he has established that this OCF-18 is payable.
OCF-18 dated July 27, 2019 for a psychological assessment
32I find that the denial of this OCF-18 was compliant with s. 38 of the Schedule.
33Although the applicant submits that the denial letter dated August 13, 2021 improperly referenced an orthopaedic report, the letter also specifically references the lack of medical documentation indicating a psychological impairment or a pre-existing psychological history. Although the applicant submits that the respondent should have listed the specific symptoms listed in the OCF-3 and the psychological pre-screening interview, I agree with the respondent that not referencing each symptom or document submitted, is not akin to “turning a blind eye”.
34As such, I find that the reasons provided by the respondent are clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue, and in compliance with the Schedule.
OCF-18 dated September 30, 2021 for psychological treatment
35With respect to the OCF-18 for psychological treatment, the applicant reiterates his submissions that the denial letter was not compliant, as it did not specifically state that the MIG applied.
36I agree with the applicant that the respondent’s correspondence is not compliant s. 38(8) of the Schedule.
37Both the initial correspondence dated October 21, 2021 and the subsequent denial dated December 9, 2021 failed to reference the MIG or s. 38(9). Rather, the reason for the denial provided in the correspondence was that the proposed psychological treatment is not reasonable and necessary. However, in its submissions, the respondent has made it clear that it has kept the applicant within the MIG.
38As previously noted, pursuant to s. 38(9) of the Schedule if an insurer believes that the MIG applies to an insured’s impairment, then the s. 38(8) notice must so advise the insured. As the respondent did not provide proper notice to the applicant, pursuant to s. 38(11)2, it must pay for any treatment expenses that relate to the period starting on the 11th business day after it received the treatment plan and ending on the day it gave proper notice. Given that no other correspondence from the respondent was submitted with respect to this OCF-18, 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”).
39In Suarez, the Divisional Court found 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. Catic is consistent with Suarez because if the insurer cures the defective denial before the Tribunal has adjudicated the disputed OCF-18, then that “closes the door” for the purposes of s. 38(11)2.
40In the matter at hand, the insurer did not rectify its deficient notice. As such, I find the OCF-18 for psychological treatment to be payable, once incurred and properly invoiced by the applicant.
Interest
41Interest applies on the payment of any overdue benefits under s. 51 of the Schedule. In accordance with Suarez, interest is only payable once the treatment has been incurred and is overdue. Since the only OCF-18 that is payable and incurred relates to the chronic pain assessment, I can only order interest related to this treatment plan.
Award
42Section 10 of Regulation 664 provides that a special award may be granted if the respondent unreasonably withheld or delayed payments.
43In the matter at hand, the respondent took the position that the applicant’s injuries were subject to treatment under the MIG. I have considered the medical evidence and have come to the same conclusion. Further, despite the respondent’s non-compliance with the notice provisions for two treatment plans, I am not persuaded the applicant is entitled to an award. I have not been directed to evidence that meets the threshold of behaviour that can be considered excessive, imprudent, stubborn, inflexible, unyielding, and immoderate, despite the non-compliance. Accordingly, the applicant’s request for an award is denied.
Costs
44In his submissions the applicant requests costs pursuant to Rule 19.1 of the LAT Rules. He submits that the respondent failed to provide its IE assessor’s psychometric testing and raw data to Dr. Steiner, despite numerous requests and the applicant’s provision of an executed authorization on March 31, 2022. The applicant argues that as a result of this delay, he was prejudiced in his ability to obtain an updated opinion.
45I am not persuaded that the respondent’s behaviour can be considered serious misconduct warranting costs.
46The respondent submits that its assessment company forwarded the applicant’s test data as requested, to Dr. Steiner at his listed address per the College of Psychologists of Ontario. It further asserts that it was not aware that Dr. Steiner had not received the materials until November 11, 2022. The respondent submits that it was reasonable to send the raw test data to the address listed with the College and on Dr. Steiner’s website. As such, it argues that it made best efforts to get the materials to Dr. Steiner.
47I agree and find that the applicant has failed to establish that the respondent acted in a manner that was unreasonable, frivolous, vexatious or in bad faith. The applicant is not entitled to costs.
ORDER
48For the reasons set out above, I find that:
(i) The applicant’s injuries fall within the MIG;
(ii) The applicant is not entitled the OCF-18s for chiropractic treatment or a psychological assessment;
(iii) The applicant is entitled to the OCF-18s for a chronic pain assessment and psychological treatment, plus interest in accordance with s. 51 of the Schedule; and
(iv) The applicant is not entitled to an award or costs.
Released: July 31, 2023
Ulana Pahuta
Adjudicator