Citation: Surisetti v. BelairDirect, 2024 ONLAT 22-007295/AABS

Licence Appeal Tribunal File Number: 22-007295/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:

Ramanjaneya Surisetti

Applicant

and

BelairDirect

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Shahzad Ayub, Counsel

For the Respondent:

Elisa Cogan, Counsel

Written Hearing:

By way of written submissions

OVERVIEW

1Ramanjaneya Surisetti, the applicant, was involved in an automobile accident on October 17, 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, BelairDirect, 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 Minor Injury Guideline (“MIG”) limit?

ii. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Imperial Medical Assessments Inc., in a treatment plan submitted July 15, 2020, and denied August 24, 2020?

iii. Is the applicant entitled to $282.50 for a psychological pre-screening, proposed by Imperial Medical Assessments Inc. in a treatment plan submitted July 15, 2020, and denied August 24, 2020?

iv. Is the applicant entitled to $1,475.36 for chiropractic services, proposed by Uptown Markham Rehab Centre, in a treatment plan submitted August 6, 2020, and denied September 22, 2020?

v. Is the applicant entitled to $2,486.00 for a neurological assessment, proposed by Imperial Medical Assessments Inc., in a treatment plan submitted June 25, 2020, and denied September 22, 2020?

vi. Is the applicant entitled to $3,641.03 for psychological services, proposed by Imperial Medical Assessments Inc., in a treatment plan submitted August 19, 2020, and denied November 12, 2020?

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

RESULT

3The applicant has not met his burden of proving that his accident-related impairments require treatment beyond the MIG.

4The treatment plans for a psychological assessment and a psychological pre-screening are payable once properly invoiced as a result of the respondent’s failure to comply with s. 38 of the Schedule. Interest is payable pursuant to s. 51 of the Schedule.

5The applicant is not entitled to the remainder of the treatment plans in dispute.

ANALYSIS

Application of the Minor Injury Guideline

6I find that the applicant has not met his burden to prove that he should be removed from the 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.

9Under s. 38(8), an insurer has the obligation to, within 10 business days after it receives a treatment plan, provide an insured person with a notice identifying the medical and all of the other reasons why the insurer finds the treatment plan not to be reasonable and necessary. There should be clear and sufficient information for an unsophisticated person to make an informed decision to either accept or dispute the denial.

10If the insurer fails to give a notice in accordance with s. 38(8) in connection with a treatment and assessment plan, the following rules found in s. 38(11) apply: (a) the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies, and (b) the insurer shall 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 after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

11Pursuant to s. 38(10) and 44(1), an insurer may notify an insured person that they are required to be examined by a regulated health professional. Section 44(5) requires an insurer to provide a Notice of Examination which sets out “the medical and any other reasons for the examination.” The medical reason should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the insurer’s request to attend the assessment (M.B. v. Aviva Insurance Canada, 2017 CanLII 87160).

12The applicant submits that his argument is focused exclusively on sections 38(8) and 38(11) with respect to the MIG issue, and sections 44(1) and 44(5)(a) with respect to the insurer examinations requested by the respondent in connection to that issue. The applicant submits that due to the respondent’s breach of s. 38(8) with respect to its denial notices, it is no longer entitled to claim that the MIG applies to the applicant. I note that the applicant has not referred me to any authority to support this proposition. Further, he has not made any submissions or put forward any evidence regarding his substantive entitlement to treatment outside of the MIG.

13The Divisional Court in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707, was clear that even if s. 38(11) is triggered, that only applies to the specific treatment plan in question. It does not impose a permanent prohibition on the insurer with respect to whether the impairment is covered by the MIG. As such, I do not accept the applicant’s argument that a breach of s. 38(8) would remove him from the MIG entirely.

14Due to the applicant’s lack of substantive submissions and evidence, I find that he has not met his burden in proving that he should be removed from the MIG.

15Again, the applicant focuses his argument exclusively on s. 38(8), 38(11), 44(1), and 44(5)(a) with respect to the treatment plans in dispute. He does not make any submissions as to whether the treatment plans are reasonable and necessary. As such, my analysis will also focus exclusively on the applications of those sections of the Schedule.

16The applicant submits that the respondent’s denial letters consist solely of “limited, non-specific explanations”, and are inconsistent with the Schedule. The applicant also submits that the respondent’s denial letters were not provided within 10 business days of receipt of the treatment plans. Further, the applicant submits that the respondent’s subsequent denial letters do not cure the breach of s. 38(8) and thus the treatment plans in dispute are payable pursuant to s. 38(11)2. He argues that the s. 44 assessments were improperly procured, and are void ab initio, thus eliminating the medical reasons provided in the subsequent denial letters and rendering them non-compliant with s. 38(8).

Psychological Assessment (issue (ii))

17In a letter dated August 24, 2020, the respondent acknowledged receiving a treatment plan for a psychological assessment on July 15, 2020. The respondent denied the treatment plan because it believed that MIG applied. It stated that there was insufficient compelling evidence that the applicant had a pre-existing medical condition that would prevent him from achieving maximum medical recovery under the MIG limit. The stated “medical reasons” given were: “A Psych pre-screen OCF18 was rec’d for Adj disorder”. The respondent requested that the applicant attend a s. 44 assessment with a psychologist, and advised the applicant of the date, time, and location of the assessment.

18The applicant subsequently attended an assessment with Dr. Jason Bacchiochi, psychologist. In a letter dated January 20, 2021, the respondent indicated that, based on Dr. Bacchiochi’s report, the applicant’s injuries qualified him for treatment under the MIG. It stated that “A medical opinion has determined that [the applicant] did not present with a significant accident related psychological symptom that would warrant a DSM diagnosis. He is not presenting with symptoms that would require treatment outside of the MIG.”

19I find that the respondent’s first denial letter did not comply with s. 38(8). It was provided later than 10 business days after it received the treatment plan. Further, it did not include any details about the applicant’s medical condition forming the basis for the respondent’s decision. It also requested a s. 44 assessment without providing any medical reason for doing so. I find that neither the denial nor the s. 44 request were clear or sufficient such that an unsophisticated person could make an informed decision to either accept or dispute the respondent’s decision.

20However, I find that the respondent’s second letter did comply with s. 38(8). It relied on Dr. Bacchiochi’s opinion, and clearly stated the reasons why the respondent believed the applicant belonged in the MIG and thus was not entitled to the treatment plan.

21The applicant submits that attendance at an improperly compelled insurer examination does not constitute a waiver of an insured’s entitlement to receive proper notice of an assessment that is consistent with s. 44(5). He submits that the results of an improperly procured insurer examination are void ab initio, and therefore insurers are not entitled to ground their denial of benefits on that examination. The applicant’s argument is that, in order for the second denial letter to cure the initial breach of s. 38(8), the insurer examination must also be procured in a manner consistent with the requirements of the Schedule. The applicant submits that there were no reasons provided for the s. 44 assessment request. The applicant relies on Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (“Taksali”).

22In Taksali, the Tribunal found that there is “no provision for an insured to waive their right to a benefit, most especially by attending an examination at which their non-attendance would threaten their entitlement to the benefit that they are seeking” (para. 22). The Tribunal stated that the insured is placed in the position of either attending an examination for inadequate reasons, or not attending, thereby incurring the immediate loss of a benefit and the financial cost of appealing to the Tribunal. The Tribunal found that this was contrary to the spirit and intent of the Schedule.

23I am not bound by Tribunal decisions, and do not find that the reasoning in Taksali is compelling. I do not agree that attending a s. 44 assessment, where insufficient notice has been provided, means that the applicant has waived her right to a benefit. The only right the applicant would waive by attending the s. 44 assessment is the right to argue that she should not have attended the assessment in the first place. That is not a “benefit” under the Schedule. If the insurer has not provided clear and sufficient reasons for the s. 44 request, the insured legitimately does not have to attend, and the entitlement is not threatened by the insured’s non-attendance.

24Further, I do not agree with the Tribunal’s statement in Taksali that the Schedule makes no provision for an insured to be able to waive requirements under the Schedule, and only allows an insurer to do so. Section 44(6) allows the parties to mutually agree to waive a requirement for notice, and s. 46(2) allows an insured person to waive a conflict of interest with respect to a referral. It therefore cannot be said that the spirit and intent of the Schedule was such that an insured person could never waive any of its requirements.

25If the applicant’s interpretation was correct that attendance at an improperly compelled insurer examination does not constitute a waiver of the receipt of proper notice, it would allow insureds to make a tactical decision to attend assessments, and if the assessment was not favourable, argue that the treatment plan is payable based on a technicality. This would result in an insurer paying for an assessment that it assumed the insured person agreed to, only to have the insured person turn around and argue otherwise. I find that this would be an absurd result.

26The Schedule is consumer protection legislation. However, I do not find that the interpretation suggested by the applicant would merely serve to protect insured persons. There is already a consequence for the respondent’s failure to provide adequate notice of a s. 44 assessment: the insured does not have to attend. That is the consumer protection function built into the Schedule. To interpret the legislation otherwise would allow an insured person to obtain a tactical benefit, which goes further than protection.

27Without the Schedule explicitly stating otherwise, and in light of the absurd result that would ensue, I do not accept the applicant’s argument. Although I agree with the applicant that the reasons provided for the s. 44 assessment were inadequate, I find that the respondent was entitled to rely on the results of the assessment in its denial letter.

28The respondent submits that there is no evidence that the treatment plans in dispute have been incurred. It submits that there is no obligation on the respondent to pay under s. 38(11)(2) for any goods or services not incurred between the date of the defective notice, if any, and the date of proper notice.

29In Aviva General Insurance Company v. Catic, 2022 ONSC 6000, the Divisional Court stated that s. 38(11)2 compels an insurer who fails to provide the statutory notice called for in s. 38(8) to pay for all of the items listed in the subject treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding. I am bound by this decision.

30Despite the respondent’s submission that there is no evidence that the treatment plans in dispute have been incurred, it provided me with a copy of a s. 25 psychological assessment report dated September 17, 2020. I find on a balance of probabilities that this is sufficient evidence that the cost of the assessment proposed in the treatment plan was incurred prior to January 20, 2021, when the respondent provided the compliant denial letter. As such, I find this treatment plan to be payable pursuant to s. 38(11)2.

Psychological Pre-Screen (issue (iii))

31In a letter dated August 24, 2020, the respondent acknowledged receiving a treatment plan for a psychological pre-screening in the amount of $282.50 on July 15, 2020. In denying the treatment plan, the respondent repeated the language in its denial letter for the psychological assessment. The treatment plan was denied again in the respondent’s letter of January 20, 2021, described above.

32For the same reasons as above, I find that the initial denial letter did not comply with s. 38(8), however I also find that the denial letter of January 20, 2021, cured this deficiency.

33Somayyeh Sabet Ghadam, psychological associate, completed a “psychological screening” on July 15, 2020, and the results were included with the treatment plan that proposed a psychological assessment. While the applicant did not provide me with an invoice for the pre-screening, I find on a balance of probabilities that the service was provided and was therefore incurred prior to January 20, 2021. As such, it is payable pursuant to s. 38(11)2 once properly invoiced.

Chiropractic Services

34In a letter dated September 22, 2020, the respondent acknowledged receiving a treatment plan for chiropractic services on August 13, 2020. It stated that the applicant’s impairment was predominantly a minor injury, and there was insufficient compelling evidence that the applicant had a pre-existing medical condition that would prevent him from achieving maximum medical recovery under the MIG limits. It also requested a s. 44 assessment and stated: “A medical opinion is required to determine if treatment outside the MIG is considered reasonable, necessary and essential for Insured. CNRs have been received so proceeding to a GP IE.”

35I find that this letter did not comply with s. 38(8). It was provided later than 10 days after the respondent received the disputed treatment plan. Further, despite acknowledging the receipt of clinical notes and records, it did not include any details about the applicant’s medical condition, why it believed the applicant belonged in the MIG, or the medical reasons why it believed a s. 44 assessment was required. I find that neither the denial nor the s. 44 request were clear or sufficient such that an unsophisticated person could make an informed decision to either accept or dispute the respondent’s decision.

36The applicant subsequently attended a s. 44 assessment with Dr. Shafik Dharamshi, general practitioner, on December 7, 2020. In a second denial letter dated November 20, 2020, the respondent advised the applicant that Dr. Dharamshi’s report indicated that his injuries fell within the MIG, and the chiropractic treatment was not reasonable or necessary.

37I find that this letter was compliant with s. 38(8). It provided a medical reason, that being the opinion of Dr. Dharamshi. I find that it was clear and sufficient such that an unsophisticated person could make an informed decision to either accept or dispute the denial.

38There is no evidence before me that this treatment plan was incurred prior to November 20, 2020. As such, I find that it is not payable.

Neurological Assessment

39The respondent’s letter of September 22, 2020, acknowledged receiving a treatment plan for a neurological assessment on June 25, 2020. The reasons for the denial were that the applicant’s impairment was predominantly a minor injury, and there was insufficient compelling evidence that the applicant had a pre-existing medical condition that would prevent him from achieving maximum medical recovery under the MIG limits. It also requested a s. 44 assessment and stated: “The OCF18 recommends Neuro and GP assessment is required to determine if treatment out of the MIG is considered reasonable, necessary and essential”.

40I find that this denial letter did not comply with s. 38(8). Like the other denial letters, it was provided later than 10 business days after it received the treatment plan. It did not include any details about the applicant’s medical condition forming the basis for the respondent’s decision. Further, I find that the reason provided for its request for the s. 44 assessment was also non-specific and did not refer to the applicant’s medical condition. I find that neither the denial nor the s. 44 request were clear or sufficient such that an unsophisticated person could make an informed decision to either accept or dispute the respondent’s decision.

41By way of letter on December 14, 2020, the respondent denied this treatment plan based on the opinion of Dr. Dharamshi that a neurological evaluation was not reasonable or necessary as no neurological injuries or impairments were identified in the assessment. The letter also referred to Dr. Dharamshi’s diagnoses, and opinion that the applicant’s prognosis was favourable within the MIG.

42I find that this letter was compliant with s. 38(8). It outlined the definition of the MIG, referred to the applicant’s medical condition, and clearly and sufficiently explained the medical reason for the denial.

43There is no evidence before me that this treatment plan was incurred prior to December 14, 2020. As such, I find that it is not payable.

Psychological Services

44In a letter dated November 12, 2020, the respondent acknowledged receiving a treatment plan for psychological services on October 20, 2020. Its reasons for denying the treatment plan were that it had reviewed the medical documentation and treatment plan provided and determined that the applicant’s impairment was predominantly a minor injury. Further, there was insufficient evidence that the applicant had a pre-existing medical condition that would prevent him from achieving maximum medical recovery under the MIG limits. The letter also indicated that a medical opinion was required to determine if the proposed treatment was reasonable, necessary, and essential out of the MIG.

45I find that the letter was not compliant with s. 38(8), as the reasons provided were non-specific, and did not refer to the applicant’s medical condition, or explain why it required a medical opinion by way of a s. 44 assessment. It was also provided more than 10 days after the respondent received the treatment plan.

46On January 20, 2021, the respondent sent a second letter denying this treatment plan based on the report of Dr. Bacchiochi. The letter is the same as the one that ultimately denied the treatment plans for a psychological assessment and pre-screening. I have already found that this denial letter was compliant with s. 38(8).

47There is no evidence before me that this treatment plan was incurred prior to January 20, 2021. As such, I find that it is not payable.

Interest

48I find that interest is applicable on the payment of the overdue benefits pursuant to s. 51 of the Schedule.

ORDER

49The applicant has not met his burden of proving that his accident-related impairments require treatment beyond the MIG.

50The treatment plans for a psychological assessment and a psychological pre-screening are payable as a result of the respondent’s failure to comply with s. 38 of the Schedule. Interest is payable pursuant to s. 51 of the Schedule.

51The applicant is not entitled to the remainder of the treatment plans in dispute.