Citation: Angus v. Aviva General Insurance, 2023 ONLAT 21-008080/AABS

Licence Appeal Tribunal File Number: 21-008080/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:

Joel Angus

Applicant

and

Aviva General Insurance

Respondent

DECISION

ADJUDICATOR:

Craig Mazerolle

APPEARANCES:

For the Applicant:

Ryan Jeffries, Paralegal

For the Respondent:

Alicia Edwards, Paralegal

HEARD: In Writing

OVERVIEW

1Joel Angus, the applicant, was involved in an automobile accident on June 22, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).

2The applicant was denied benefits by the respondent, Aviva General Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

3The 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 of the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to $2,147.00 for other goods and services in a treatment plan/OCF-18 recommended by Medex Assessments and submitted August 27, 2019?

iii. Is the applicant entitled to $2,260.00 for other goods and services in a treatment plan/OCF-18 recommended by Medex Assessments Inc. and submitted September 13, 2019?

iv. Is the applicant entitled to $2,260.00 for psychological services in a treatment plan/OCF-18 recommended by Medex Assessments Inc. and submitted August 15, 2019?

v. Is the applicant entitled to $864.73 ($1,303.00 less $438.27 approved) for chiropractic services in a treatment plan/OCF-18 recommended by Medex Assessments Inc. and submitted January 11, 2020?

vi. Is the applicant entitled to $2,000.00 for a chronic pain assessment (amended) in a treatment plan/OCF-18 recommended by Toronto Healthcare Clinic Inc. and submitted April 13, 2020?

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

viii. Is the respondent entitled to a repayment in the amount of $713.44 relating to its payment of the income replacement benefit (“IRB”) for the period of August 11, 2019 to August 23, 2019?

4The respondent requested costs from the applicant in its submissions.

5According to the respondent, the $3,500.00 available to the applicant for treatment under the MIG has been exhausted.

RESULT

6I find the applicant remains within the monetary and treatment limits of the MIG. Since he has exhausted these limits, I further find he is not entitled to payment for the five treatment plans. No interest is owed to the applicant.

7I find the respondent is not entitled to repayment of the IRB. The respondent is also not entitled to costs from the applicant.

ANALYSIS

Applicant Remains Within the MIG

8I do not find the applicant has met his onus to establish removal from the treatment and monetary limits of the MIG.

9The main means of removal from the MIG is when an insured person can demonstrate that they have sustained an impairment that is not “predominantly a minor injury.” A “minor injury” is defined in the Schedule at s. 3(1) as “a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. This definition does not include psychological impairments. Section 18(2) then states that insured persons may be removed if they establish that they had “a pre-existing medical condition” that hinders treatment of an otherwise “minor injury” if held to the treatment and monetary limits of the MIG.

10Though the applicant submitted that he was in “good health” prior to the accident, he did make a reference to “pre-existing injuries exacerbated by the accident” in his submissions. He did not provide any other submissions to help explain this comment, nor did he point to any evidence that would support removal based on s. 18(2). As such, my analysis will focus on whether the applicant sustained a non-minor injury as a result of the accident. The applicant has the onus of demonstrating that his injuries do not fall within the MIG, on a balance of probabilities.

11The applicant’s submissions mainly focused on the treatment plans, with few references to his requested avenue for removal from the MIG. In these limited submissions, the applicant’s argument about the MIG is that his treatment plans and the clinical notes and records of the family physician, Dr. Brian Sheffield, together establish that the MIG does not apply. In particular, the applicant highlighted his regular complaints of pain to Dr. Sheffield. I note that the applicant only included one of the five treatment plans with his submissions (plan dated August 27, 2019).

12The respondent disagreed, arguing that there were no signs of chronic pain, no clinical notes showing appointments after October 2020, and that the applicant’s activities of daily living were unaffected by the accident. The respondent also pointed to the s. 44 physiatry and psychological reports from its assessors to support its position.

13The applicant did not provide reply submissions.

14After reviewing the medical records provided by the applicant, I do not find he has established—on a balance of probabilities—that he sustained a non-minor injury as a result of the accident. First, I find all of the physical impairments cited in the applicant’s medical records to be “minor” as defined in the Schedule. For instance, all of the impairments listed in Part 6 of the August 27, 2019 treatment plan are “minor,” such as subluxation and muscle strain. Further, Dr. Sheffield diagnosed all of the applicant’s accident-related complaints to be myofascial strain or back pain.

15There is a brief reference to “numbness and tingling sensations” in the “Additional Comments” section of the August 27, 2019 treatment plan, but there is no similar complaint in the notes from Dr. Sheffield.

16Second, while there are several psychological complaints in these records, such as trouble sleeping, frustration, and anxiety, I find these complaints are not psychological impairments. Rather, they are better defined as “clinically associated sequelae” to otherwise “minor” injuries. I base this finding largely on the respondent’s psychological assessment report (dated October 9, 2020).

17In this report, Dr. Randy Silverman, psychologist, concluded the applicant had “not developed a substantive accident-related psychological impairment.” I find this conclusion to be compelling, as Dr. Silverman based his findings on an interview with the applicant where he found no “substantive psychological symptomatology” related to the accident, as well as psychometric testing that recorded mostly mild levels of psychological distress. I also place more weight on this report than the applicant’s records, because Dr. Silverman is a psychologist, while Dr. Sheffield is a family physician. Further, the sole treatment plan provided by the applicant with his submissions was authored by an occupational therapist.

18Finally, I am not satisfied that the applicant has established that he sustained chronic pain caused by the accident. Though the applicant did not cite chronic pain per se as a basis for removal from the MIG in his submissions, I do note that much of his argument involves the regular reporting of pain to Dr. Sheffield following the accident. Yet, despite these complaints, I find the applicant has not demonstrated that his pain complaints amount to chronic pain.

19As Vice-Chair Boyce noted in Brown v. Economical Insurance Company, 2020 CanLII 94789 (ON LAT), functional impairment is an essential aspect of determining whether pain complaints merit removal from the MIG. I accept that there are references to pain-related functional limits in the records provided by the applicant, most notably the “Additional Comments” in the treatment plan. However, when compared with the functional capacities reported by the applicant in the respondent’s physiatry report from Dr. Seyed Hossein Hosseini (dated May 5, 2020), I find these pain complaints have little impact on his daily activities. Specifically, other than some limits on sports, the applicant did not report any limits on daily activities to Dr. Hosseini. For example, the applicant reported that he was independent with personal care, that he was able to complete household chores (albeit with pain), and that he was assisting with childcare at home.

20I do note that there are some examples of pain-related issues with daily activities in Dr. Silverman’s report. He wrote that the applicant experienced “diminished levels of interaction” with his children due to pain and not feeling “physically capable” of performing his pre-accident job. However, the applicant also reported being able to complete other tasks, including driving and maintaining a stable relationship with his girlfriend.

21Taken together, I find—on a balance of probabilities—that the applicant’s pain complaints are clinically associated sequelae to his otherwise “minor” injuries, and not evidence of chronic pain that would warrant treatment outside of the MIG.

22Overall, the applicant has not met his onus to establish removal from the MIG.

23As the applicant continues to be within the MIG, and as the $3,500.00 MIG limit has been exhausted, I find there is no available funding for the five treatment plans. Despite the applicant’s submissions supporting payment of the plans, it is not necessary for me to determine whether they are reasonable and necessary, pursuant to s. 15(1) of the Schedule.

24Further, I do not accept the applicant’s additional argument that the treatment plans should be deemed payable, pursuant to s. 38(11).

25If an insurer does not comply with the notice provisions under s. 38(8) of the Schedule, s. 38(11) provides several remedies. These remedies include a finding that “all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application” are payable if incurred.

26According to the applicant, the respondent did not comply with the requirement under s. 38(8) that an insurer must provide “the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.” For example, when discussing the treatment plan submitted August 6, 2019, the applicant claimed:

As the only medical or other reasons provided were that the MIG applies to the impairments sustained by [the applicant] it is again submitted that the consequences of s. 38 (11) should apply if the impairments sustained by the Applicant are found to fall outside of the MIG limits and the treatment plan ought to be ‘deemed approved’ and payable.

Similar arguments were made for the other four treatment plans.

27The respondent did not expressly address these arguments in its submissions. Despite the respondent’s lack of response, I do not find the applicant has satisfied me that there is a breach of s. 38(8) that requires a remedy under s. 38(11).

28Reasons provided in the denial letters of insurers are a procedural right that insured persons may rely upon to help them navigate accident benefit disputes. These reasons should assist insured persons (regardless of their familiarity with the accident benefits system) to understand and respond to insurers’ denials, requests for examinations, etc. After reviewing the denial letters provided by the applicant, I find they all provided sufficient reasons. Put another way, the letters all provided adequate information to assist the applicant to understand and respond to the denials.

29For example, turning again to the treatment plan submitted August 6, 2019, the related denial letter (dated September 25, 2019) provides:

There is insufficient medical documentation on the file indicating that your injuries fall outside of the minor injury guideline. At this time, we are requesting that you submit an OCF-23 for treatment within the Minor Injury Guideline or provide us with clinical notes and records as previously requested on August 7th 2019.

These reasons provide an explanation for the insurer’s decision, in that they specifically state that it has insufficient medical documents on file to suggest that the applicant’s injuries are non-minor in nature. There is also a suggestion of what the applicant can do to address the denial, such as provide requested clinical notes and records.

30Regardless, I have not been directed to any evidence that shows the services and assessments requested in the five treatment plans were incurred “starting on the 11th business day after the day the insurer received the application.” Without this evidence, the services and assessments are not payable under s. 38(11).

Respondent is Not Entitled to Repayment of the IRB

31I do not find the respondent is entitled to repayment of the IRB.

32Section 7(3)(a) of the Schedule allows an insurer to deduct from an IRB payment “70 per cent of any gross employment income received by the insured person as a result of being employed after the accident and during the period in which he or she is eligible to receive an income replacement benefit.”

33Section 52(1) allows insurers to request repayment of benefits paid to insured persons, with ss. 52(2) and 52(3) placing requirements on the insurer when it requests a repayment.

34The respondent contends that the applicant received employment income in the amount of $1,019.20 during the period from August 11 to August 23, 2019. The respondent paid the applicant an IRB amounting to $742.86 during this time. In a letter dated November 11, 2020, the respondent informed the applicant that it was unaware of his return to work. As such, it requested a repayment of the IRB in the amount of $713.44. The applicant did not address the repayment request in his submissions.

35After reviewing the Record of Employment provided by the respondent for the relevant period, I am satisfied that the respondent was entitled to deduct 70% of the $1,019.20 received as employment income during this time, specifically $713.44.

36However, I am not satisfied that the requirements under s. 52(3) have been met.

37Section 52(3) states:

If the notice required under subsection (2) is not given within 12 months after the payment of the amount that is to be repaid, the person to whom the notice would have been given ceases to be liable to repay the amount unless it was originally paid to the person as a result of wilful misrepresentation or fraud.

I am not satisfied that the respondent has demonstrated compliance with this section. The first letter requesting repayment from the applicant was sent over a year after the payment period in question.

38I then find the respondent has not satisfied me that the IRB was paid to the applicant “as a result of wilful misrepresentation or fraud.” As the insurer indicated in a letter dated October 9, 2020, it discovered that the applicant had worked following the accident in Dr. Silverman’s report. After a second letter (dated October 23, 2020), the applicant provided the aforementioned Record of Employment to the respondent on November 10, 2020.

39There is no indication in Dr. Silverman’s report that the applicant attempted to withhold information about his post-accident employment during this assessment. It also appears from the timeline of events that (despite the need for a second letter requesting this document) the applicant took prompt steps to provide the Record of Employment. The respondent has not provided any evidence that would suggest the applicant’s failure to inform it of these post-accident earnings was due to “wilful misrepresentation or fraud.”

40Taken together, I find the respondent has not satisfied me that it made this repayment request in accordance with s. 52(3). There is no repayment owing from the applicant.

Interest and Costs

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest may also be requested on repayments, pursuant to ss. 52(5) and 52(6). Neither side is entitled to any payment, so no interest is owing.

42The respondent sought costs from the applicant. It did not provide submissions in support of this request. Without submissions demonstrating how the applicant’s actions merit this discretionary relief, I find the respondent has not met the high burden for costs under Rule 19.1 of the Licence Appeal Tribunal Rules, 2023.

ORDER

43I order the following:

i. The applicant remains within the monetary and treatment limits of the MIG and the five treatment plans are not payable.

ii. The respondent is not entitled to a repayment of the income replacement benefit, nor is the respondent is entitled to costs.

iii. No interest is owing to either party.