Asiase v. Pembridge Insurance Company, 2023 CanLII 72668

Citation: Asiase v. Pembridge Insurance Company, 2023 ONLAT 21-006272/AABS

Licence Appeal Tribunal File Number: 21-006272/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:

Evans Asiase

Applicant

and

Pembridge Insurance Company

Respondent

DECISION

ADJUDICATOR: Lisa Yong

APPEARANCES:

For the Applicant: David Carranza, Paralegal

For the Respondent: April C. Snow, Counsel

HEARD: In Writing

OVERVIEW

1Evan Asiase, the applicant, was involved in an automobile accident on October 16, 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, Pembridge 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?

ii. Is the applicant entitled to $2,460.00 for an orthopaedic assessment recommended by Dr. Desai in a treatment plan submitted on March 5, 2020?

iii. Is the applicant entitled to $4,515.81 for physiotherapy services recommended by Physio Fix and Fitness in a treatment plan submitted on March 10, 2021?

iv. Is the applicant entitled to $2,018.89 for a psychological assessment recommended by Physio Fix and Fitness in a treatment plan submitted on March 9, 2021?

v. Is the applicant entitled to $3,242.43 for psychological services recommended by Physio Fix and Fitness in a treatment plan submitted on March 10, 2021?

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

RESULT

3I find that the applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

4The applicant is not entitled to payment of the treatment plans for orthopedic assessment and psychological assessment.

5The applicant is entitled to payment of the treatment plan for physiotherapy services for the costs incurred between March 10, 2021 to March 30, plus interest; and

6The applicant is entitled to the treatment plan for psychological services.

ANALYSIS

Minor Injury Guideline (MIG)

7Section 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.”

8An 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.

9The applicant submits that he suffered from a pre-existing condition and psychological impairment as a result of the accident and these injuries fall outside of the MIG and is therefore entitled to treatment beyond the $3,500.00 limit. The respondent submits that the applicant has insufficient evidence to meet his evidentiary onus that he should be taken out of the MIG.

The applicant has not established physical impairments that warrant removal from the MIG

10I find that the applicant’s physical injuries are minor injuries. Based on the medical records tendered, there are no indications of anything other than minor injuries.

11The hospital medical records from the day of the accident indicate that the applicant was diagnosed with “MVA whiplash injury” and was discharged home without any prescriptions. On 19 October 2019, Dr. Hany Beshay, the applicant’s family physician, noted that the applicant complained about experiencing neck pain, lower back pain, muscle stiffness in his neck and back and diagnosed the applicant with neck muscle spasm and mechanical lower back pain as a result of the accident. He referred the applicant to physiotherapy, massage and prescribed Naproxen and Apo-cyclobenzaprine and noted “no x-ray needed.”

12Based on the clinical notes and records (“CNRs”) from PhysioFix, chiropractor Dr. Gersheiga Thirunavukkarasu noted that the applicant was found to have a range of soft tissue injuries such as “right and tender bilateral upper trapezius fibres (UTF)…” I find that all of the above-mentioned sprain and strain-type injuries fall squarely within the definition of “minor injury” under the Schedule.

The applicant has not established he suffers from a pre-existing condition that precludes his recovery under the MIG

13I find that the applicant has not provided sufficient evidence to meet his burden of proof that he suffers from a pre-existing medical condition that precludes maximal recovery within the MIG funding limits.

14The applicant submits that his pre-existing condition of his right shoulder and upper back pain warrant removal from the MIG. However, I note that the family doctor’s CNRs and other medical documents reported that the applicant made complaints of his lower back (not upper back).

15Although on October 25, 2010, Dr. Louis Weisleder, orthopedic surgeon, diagnosed the applicant with chronic rotator cuff tendinitis (on the right side) and a partial tear of the right supraspinatus tendon, there were no legible CNRs from any medical professionals between the years 2011 to 2017 which speak to an ongoing right shoulder condition, upper or lower back pain or any medications prescribed for treatment of the diagnosed condition during that period of time.

16With respect to any pre-existing condition, the applicant reported only intermittent pain complaints to the right shoulder and lower (not upper) back pain in the year and a half pre-accident. On February 5, 2018, Dr. Beshay noted the applicant reported lower back pain, noted that the condition had happened before and specifically noted a “history of spray painting.” Dr. Beshay recommended back exercise and advised “no heavy lifting” and prescribed pain relief and muscle relaxant medications. In the subsequent visits on June 30, 2018 and January 3, 2019, the applicant did not report any back pain or right shoulder-related concerns and Dr. Beshay did not record any diagnoses nor prescribe any medications for same.

17On February 22, 2018, the applicant was referred to see Dr. Wahab Khan, a physiatrist who diagnosed the applicant with “lumbar myofascial strain secondary to his work as a spray painter” and was provided two injections. There were no further doctors’ records of any complaints or concerns of any back pain or right shoulder pain or concerns until October 19, 2019 after the accident.

18I further note that in the applicant’s assessor’s orthopedic report dated June 2, 2020, Dr. Sagar Desai, orthopedic surgeon, opined that there were no pre-existing impairments which would preclude the applicant from achieving maximal recovery under the MIG.

19While the applicant has established that he suffered from a right shoulder and lower back injury as documented by medical professionals prior to the subject accident (e.g. dating back to 2010 and 2018 separately), he has not led compelling evidence with respect to the second requirement of s. 18(2) of the Schedule. Namely, the applicant does not point to any compelling evidence where the medical professional opined that the applicant’s pre-existing conditions prevent him from achieving maximal recovery under the MIG.

20Accordingly, I find that the applicant has not demonstrated, on the balance of probabilities, that his pre-existing conditions warrant removal from the MIG.

The applicant has not established he suffers from a psychological impairment that precludes his recovery under the MIG

21I am not persuaded that the applicant suffered an accident-related psychological impairment.

22To establish his claim, the applicant relies on a psychological assessment report dated May 19, 2021. In this report, Dr. Mursal Srosh and Dr. Hadi Bahiraei diagnosed the applicant as suffering from “severe range” of depression symptoms, “severe level of anxiety”, “above average” pain depression and anxiety scores and “severe level” of distress. I find that there were no reported psychological impairment or symptoms in any of the family physician’s post-accident CNRs that provide contemporaneous or corroborating support for these diagnoses.

23Further, I note that the psychological assessment appeared to be conducted by Dr. Srosh and Dr. Bahiraei. However, it is unclear who conducted the clinical interview and psychometric testing in support of the diagnoses rendered. As a registered psychotherapist, Dr. Srosh is not qualified to render a psychological diagnosis and it is unclear as to Dr Bahiraei’s involvement, other than co-signing the report. This uncertainty reduces any weight given to this report. Most persuasively, the lack of any supporting evidence of any psychological impairment or symptoms in the CNRs, and the report prepared by Dr. Beshay, leads me to give the psychological assessment little weight.

24In the respondent’s s. 44 psychological assessment report dated July 9, 2021, Dr. Pushpa Kangaratanam found that the applicant did not suffer from any accident-related psychological impairments. I find this report to be more persuasive as it is more consistent and in line with the rest of the medical evidence tendered.

25For the above reasons, I find the applicant has failed to establish on the balance of probabilities that he has any accident-related psychological impairment that would fall outside of the MIG.

Sufficiency of denials – section 38(8)

26Although I find the applicant to be within the MIG, the applicant further submits that the respondent’s denials of the disputed treatment plans failed to comply with s. 38(8) of the Schedule. Without a valid denial, the applicant may have access to funding for the treatment or assessment plans (“OCF-18”) in dispute, pursuant to the remedy under s. 38(11).

27Section 38(8) of the Schedule requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

28If 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 incurred 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.

The applicant is not entitled to the OCF-18 in the amount of $2,460.00 for an orthopaedic assessment

29In respect to the subject OCF-18 and the following two OCF-18s in dispute (namely, physiotherapy services and psychological assessment), the applicant submits that the respondent provided the identical reason in all its denial letters, being that there is insufficient compelling medical evidence of a documented pre-existing injury or condition, or medical documentation to persuade the respondent that the applicant’s accident-related injuries fall outside of the MIG as defined. The applicant submits that the reason appears to be a “boilerplate” that could apply to many MIG related denials and did not offer an insight into the specific medical reasons and all the other reason for the denials. He submits that the reasons provided by the respondent are vague and fall short of the strict requirements of s. 38(8) of the Schedule.

30The respondent submits that the reasons provided in its denials letters were sufficient and compliant in accordance with s. 38(8). It submits that there were minimal medical records for review, updated CNRs of the family doctor was provided but there were no accident-related complaints. The respondent also submits that all the medical records it had at the time did not show any evidence of any pre-existing condition or any non-minor injuries. It submits that there was insufficient evidence which is consistent with the reason for denial.

31Specifically, to this dispute, the applicant submits that the respondent’s denial of the OCF-18 submitted March 5, 2020 for an orthopedic assessment was deficient. He argues that the respondent’s denial notice was sent on April 14, 2020, which is well outside the ten business days required under s. 38 of the Schedule. The applicant further contends that even if the denial letter was issued within the timeframe, it was deficient in that it did not properly refer to the medical and any other reasons “sufficient enough to allow an unsophisticated person to make an informed decision to accept or dispute the decision at hand; as only then will the explanation serve the Schedule’s goal of consume protection.”

32The respondent did not make any submissions with regard to the late issuing of the denial letter but submits that the reasons given in the letter were valid and in compliance with s. 38(8) of the Schedule. It submits that there was very little medical documentation provided by the applicant, at the time of the denial.

33Section 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. The requirement of medical reasons was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company 2018 CANLII 39373 (ONLAT) in which the Executive Chair stated in paragraph 19:

an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.

34While the respondent’s denial was based on insufficient compelling medical evidence, of any pre-existing conditions or of accident-related injuries that would take the applicant outside of the MIG, the respondent provided a list of suggested documents which the applicant could submit for reconsideration of the treatment plan. I find that there were sufficient reasons provided in the respondent’s denial letter.

35However, I agree with the applicant in that the respondent failed to respond within the ten business days requirement in s. 38(8) of the Schedule, and therefore, the obligation under s. 38(11) is triggered. The treatment plan is payable if the applicant incurred the cost between the dates of March 5, 2020 and April 14, 2020. However, the orthopedic assessment was conducted on June 2, 2020, hence the applicant did not incur the cost of this assessment between the window dates of March 5, 2020 and April 14, 2020. Therefore, I find the respondent is not liable to pay for the cost of the orthopedic assessment.

The applicant is entitled to the OCF-18 in the amount of $4,514.81 for physiotherapy services

36The Case Conference Report and Order dated May 5, 2022 identify the amount in dispute for this OCF-18 is $4,515.81 However, the OCF-18, respondent’s denial letter and the applicant’s submission refers to the amount $4,514.81. Therefore, I find the correct amount in dispute is $4,514.81.

37The parties made the same submissions as the previous section. Based on the evidence tendered, the OCF-18 for physiotherapy services was submitted on March 10, 2021 and denied March 30, 2021. The applicant submits that he received physiotherapy services from October 21, 2019 to May 5, 2021.

38The respondent’s reason for denial of this OCF-18 was identical to the denial of the previous OCF-18 (above). Despite the fact that this OCF-18 was submitted over a year after the accident, based on my previous analysis for the same reasons, I maintain my finding that that the respondent’s reasons for denial are sufficient reasons as required by s. 38(8) of the Schedule.

39However, I also find that the respondent issued its denial beyond the prescribed timeframe pursuant to s. 38(8). As such, the respondent is liable to pay for the applicant’s incurred cost for physiotherapy services between the window of dates of March 10, 2021 and March 30, 2021.

40Based on the Physio Fix and Fitness Account Summary for Mediation tendered by the applicant, the applicant incurred the cost of $872.26 on March 30, 2021 during the said time period. It is unclear to me whether the amount relates to physiotherapy services, hence I cannot conclude if this is the correct amount to be paid by the respondent.

41Notwithstanding the above, I find the respondent is liable to pay for the physiotherapy services incurred by the applicant between the dates March 10, 2021 and March 30, 2021, including interest in accordance with s. 51 of the Schedule.

The applicant is not entitled to the amount of $2,018.89 for a psychological assessment

42Again, the parties made the same submissions as per the earlier sections and the respondent’s reasons for denial of this OCF-18 is identical to the previous OCF-18s above. This OCF-18 for psychological assessment was submitted March 9, 2021 and denied April 1, 2021. However, the applicant did not incur the costs for the psychological assessment until May 12, 2021.

43Based on the above analysis, I find that the respondent’s reasons for denial are valid reasons that satisfy the requirement set out in s. 38(8) of the Schedule. However, the denial letter was issued late and therefore the obligation under s. 38(11) is triggered if the applicant incurred the cost of the OCF-18 between the dates March 9, 2021 to April 1, 2021.

44As the psychological assessment was conducted on May 12, 2021, the applicant did not incur the cost of this OCF-18 within the required timeframe (i.e. between March 9, 2021 to April 1, 2021). Therefore, the respondent is not liable to pay for this OCF-18.

Is the applicant entitled to $3,242.43 for psychological services recommended by Physio Fix and Fitness in a treatment plan submitted on dated March 10 2021?

45The applicant submits that the OCF-18 submitted on May 27, 2021 was denied late by the respondent on March 16, 2022 and that he is entitled to the payment of the OCF-18 in full in accordance with s. 38(11) of the Schedule. The respondent submits that this treatment plan was not signed by the applicant at the time of submission which was required pursuant to s. 38(3)(a) of the Schedule, and the applicant only signed the OCF-18 on March 3, 2022. The applicant did not provide any submissions or explanations to dispute the unsigned OCF-18.

46In the absence of the applicant’s reply submissions on this point, and based on the evidence tendered, I find that the subject treatment plan was submitted on May 27, 2021 but as a result of the applicant not signing the same, the submission date was rectified/cured on March 3, 2022.

47The applicant again submits that the respondent’s denial was issued late

48The respondent denied the OCF-18 on March 16, 2022 on the basis that “we are unable to consider this treatment as per sec[tion] 44 Psychology Insurer’s Examination”.

49I find that the respondent’s notice of denial is defective and invalid for the following reasons:

i. The respondent’s denial notice did not contain any reasons or explanation for why the OCF-18 was denied other than a mere reference to the s. 44 psychological assessment report (“s. 44 IE report”). A mere reference to the s. 44 IE report is not sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue and certainly does not serve the Schedule’s consumer protection goal;

ii. The applicant was not provided with a copy of the said report in accordance with s. 38(13) of the Schedule. Section 38(13) requires that, within 10 business days of receipt of a report conducted under s. 44 for the purpose of assessing the treatment and assessment plan, the insurer shall provide the insured person and the regulated health professional who prepared the treatment and assessment plan with a copy of the said report. Based on the evidence tendered by the applicant, the applicant submits that his legal representative did not receive a copy of the s. 44 psychological report until the day of the Case Conference on May 2, 2022, despite evidence of numerous follow-up correspondences with the respondent on November 18, 2021, March 1, 2022 and April 29, 2022 respectively, seeking a copy of the same;

iii. The respondent submits that a copy of the said report was sent to the applicant’s home address and the document was never returned back as “return to sender” so it presumed that the document was delivered. The respondent has not lead any evidence such as a log note or record to prove that the report was sent by mail to the applicant; and

iv. I note that all the respondent’s denial notices for all the OCF-18s, tendered as evidence in this matter, were sent to the applicant’s representative, ICS Legal Services, via fax. I find that it is unreasonable to fax a denial notice for an OCF-18 which merely references the s. 44 psychological report as the denial reason, and then separately sends the said report by mail to the applicant’s home address. It is evident from the correspondences tendered, that the applicant is represented by ICS Legal Services during the time for which the OCF-18s were submitted. I take the view that if the respondent denies the OCF-18 with a simple reference to the s. 44 IE report, then a copy of the said report should be annexed to the denial notice or alternatively provide a summary of the content of the s. 44 IE report, for which the respondent relies upon in its denial, to satisfy its obligation under s. 38(8) of the Schedule.

50For all of these reasons, I find that the respondent’s denial notice falls short of its obligations under s. 38(8) of the Schedule. As a result, the consequences set out in s. 38(11) are triggered and the treatment plan for psychotherapy treatment is payable starting on the 11th business day after the day that the respondent received the OCF-18 as the respondent no longer has the opportunity to issue a proper denial notice as a decision has been rendered regarding this medical benefit.

51On the subsequent issue on whether the applicant has incurred the costs of this treatment plan, it relies on the case D. G. v Wawanesa Mutual Insurance Company, 2018 CANLII 110079 (ON LAT) and submits that the Adjudicator in that case acknowledged that the applicant had not incurred the cost of the psychological treatment, but he may do so following the decision. The respondent did not make any submissions to this point.

52I find that the more appropriate Divisional Court decisions related to this topic are Aviva General Insurance Company v. Catic, 2022 ONSC 6000 and Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200. In Catic, the Divisional Court addressed the issue of non-compliant notices and denials, and found that for the OCF-18s to be payable, they must be incurred. In Suarez, 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.

53I find that this treatment plan in dispute is similar to that of Suarez as the respondent no longer has the opportunity to issue a proper denial notice to “close the door” for the purposes of s. 38(11)2. Hence, the applicant is entitled to proceed to consume the subject OCF-18 following this decision.

ORDER

54For the reasons outlined above, I find that:

i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the $3,500.00 MIG treatment limit;

ii. The applicant is not entitled to payment of the treatment plans for orthopedic assessment and psychological assessment;

iii. The applicant is entitled to payment of the treatment plan for physiotherapy services for the costs incurred between March 10, 2021 to March 30, including interest; and

iv. The applicant is entitled to the treatment plan for psychological services.