Licence Appeal Tribunal File Number: 21-013035/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:
Daniela Aquino
Applicant
and
Novex Insurance Company
Respondent
DECISION
ADJUDICATOR:
Alla Kadysh
APPEARANCES:
For the Applicant:
Rajiv Kapoor, Paralegal
For the Respondent:
Theomarcus Giannou, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Daniela Aquino, the applicant, was involved in an automobile accident on March 3, 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, Novex 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 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to $120.00 for chiropractic treatment, proposed by Healthmax Physiotherapy Scarborough in a treatment plan submitted on June 12, 2019?
iii. Is the applicant entitled to $2,969.74 for chiropractic treatment, proposed by Healthmax Physiotherapy Scarborough in a treatment plan/OCF-18 (“plan”) submitted on August 28, 2019?
iv. Is the applicant entitled to $1,831.39 for assistive devices, proposed by Healthmax Physiotherapy Scarborough in a treatment plan/OCF-18 (“plan”) submitted on June 8, 2020?
v. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
vii. Is the applicant entitled to costs?
RESULT
3I find that the applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG.
4I find that the applicant is entitled to $120.00 for chiropractic treatment, submitted on June 12, 2019, with applicable interest.
5The applicant is not entitled to payment with respect to the remainder of the issues in dispute.
6The applicant’s claim for costs is dismissed.
ANALYSIS
The Minor Injury Guideline (MIG)
7I find that the applicant has failed to establish that her injuries are not predominantly minor injuries under the Schedule, and they are therefore subject to treatment within the $3,500.00 limit and in the MIG.
8The 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 s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.
9Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. An applicant may receive payment for treatment beyond the $3,500.00 cap if they can establish that their accident-related injuries fall outside of the MIG, if they can demonstrate that a pre-existing condition, documented by a medical practitioner, prevents maximal medical recovery under the MIG, or if they provide evidence of a psychological impairment or chronic pain with a functional impairment.
10It is the applicant’s burden to establish entitlement to coverage beyond the $3,500.00 cap on a balance of probabilities.
11The applicant submits that she was a healthy individual and had no pre-existing medical conditions prior to the accident. Therefore, there are no pre-existing medical conditions that would preclude the applicant’s recovery within the confines of the MIG and may warrant her removal from the MIG.
12The applicant submits no medical evidence of psychological impairment. On April 4, 2019 – one month after the accident - the applicant reported anxiety when in a vehicle to her family physician Dr. Alexov but was not referred to a specialist or diagnosed with any kind of psychological conditions that may warrant her removal from the MIG.
13The applicant suggests that her removal from the MIG is warranted due to chronic pain. The Tribunal has also determined that evidence of chronic pain with a functional impairment may warrant removal from the MIG.
14The applicant, however, submits no medical evidence of chronic pain diagnosis. The evidence does not satisfy me that the applicant has any significant functional impairments resulting from accident related chronic pain. She did not provide evidence of excessive dependence on health care providers. She was not prescribed pain medication. There is no evidence that the applicant has withdrawn from social or recreational activities due to pain. She told Dr. Paul Tepperman at a s. 44 assessment that she had continued to drive since the accident and had returned to work full-time. She also reported that she continued to do cooking, cleaning, laundry, and shopping as she did pre-accident and had resumed going to the gym.
15As the applicant does not submit any medical reports suggesting that her removal from the MIG is warranted due to chronic pain, the only evidence that I have to rely on and that is relevant to the applicant’s claim of chronic pain is that from Dr. Tepperman, the s. 44 assessor.
16Dr. Tepperman examined the applicant twice, both times in person. In both reports - one, dated December 10, 2019, and the second one, dated October 5, 2020 - Dr. Tepperman concluded that the applicant sustained a minor injury as defined in the Schedule as a result of the index accident.
17As a result, on a balance of probabilities, I find that the applicant has failed to establish entitlement to coverage beyond the $3,500.00 MIG limit.
OCF-18 for chiropractic treatment in the amount of $120.00 ($1,300 less $1,180.00) submitted June 12, 2019.
18I find the respondent’s letter of denial dated June 26, 2019, does not meet the requirements set in the s.38 of the Schedule, therefore the treatment plan in dispute should be paid in full.
19The Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
20The Tribunal provided guidance with respect to the interpretation of “medical and other reasons”, in “T.F. v. Peel Mutual Insurance Company”, 2019 ONSC 5318, 2019 CanLii 39373 (ON LAT). It stated: “…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”.
21The applicant submits that the OCF-18 in the amount of $120.00 ($1,300 less $1,180.00) for chiropractic treatment, physical rehab sessions and manual therapy recommended by Healthmax Physiotherapy Scarborough submitted June 12, 2019, was denied on June 26, 2019, and therefore is in direct violation of s. 38(8) of the Schedule. The applicant submits that while the denial was made within ten days, the documents sent via regular mail are deemed to be delivered five days following the date they were sent. Upon review, I find that the denial was also provided by fax on the 10th business day, being June 26, 2019, therefore there is no violation of s. 38.
22The applicant further submits that the denial letter is deficient: it states an incorrect denial amount and creates confusion. Specifically, the breakdown of denied amount is recorded as being $360.00. Two lines down the denied amount is listed as $1,300.00. The denial letter also states the reason for the partial denial as: “MIG limits exceeded.” The applicant submits that this information is incorrect, and that “the respondent on its own volition at paragraph 6 of its response submissions conceded that the MIG limits have not been exhausted and/or exceeded and there is a remainder of $67.19”. On this point I agree with the applicant. The letter is confusing. The denied amount is listed in the letter twice, both times incorrectly, and the reason for the partial denial is not factual. Therefore, I find that the denial letter is not clear enough to allow an unsophisticated person to understand the reason for the denial and to make an informed decision.
23As a result, I find that the respondent’s denial letter does not constitute proper notice in accordance with s. 38(8) of the Schedule and the treatment plan in dispute should be paid in full.
OCF-18 for chiropractic treatment in the amount of $2,969.74 submitted August 28, 2019.
24I find that the respondent’s letter of denial dated September 19, 2019, was not provided in accordance with the timeframes in the Schedule. However, as the applicant has not provided any evidence that the treatment has been incurred during the period of the respondent’s non-compliance, I find the treatment plan is not payable.
25The applicant submits that the OCF-18 in the amount of $2,969.74 was submitted to the insurer on August 28, 2019, and therefore, the denial letter dated September 19, 2019, is in direct violation of s. 38 of the Schedule as it was not received within 10 business days. The applicant further submits that the denial letter for this treatment plan was deficient as it failed to specifically identify each of the goods, services, assessments, and examinations described in the OCF-18.
26The respondent acknowledges that the OCF-18 in dispute was not denied within 10 business days.
27If an insurer does not comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered: the insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies, and 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).
28The respondent submits that s. 38(11)2 of the Schedule dictates that an insurer is able to cure a deficient notice but must pay for goods and services that relate to the period in between the deficient and cured notice.
29The respondent cites Adjudicator Levitsky in Saied v. Intact Insurance Company, 2023 CanLII 44309 [Saied], who stated that “It cannot be said that if an insurer sends a denial letter late, all goods and services in the denied treatment plan are forever payable. That would effectively render s. 38(11)2 meaningless”.
30The respondent further submits that Adjudicator Levitsky was bound by the Divisional Court decision in Aviva General Insurance v. Catic, 2022 ONSC 6000, where the insurer provided a denial letter outside of the 10-day period under s. 38(8) of the Schedule, and the insured did not incur any expenses up to the date the denial letter was delivered. The Court found that s. 38(11)2 compels the insurer to pay for all items in the treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding. The respondent further submits that they are not aware of any treatment incurred by the applicant in the period prior to the notice being received on September 19, 2019.
31As to the deficiency of the letter, the respondent argues that not listing each of the items listed on the OCF-18 in the denial letter is not a breach of s. 38(8), particularly because the treatment plan was clearly denied in its entirety. I find this argument persuasive.
32As a result, I find that the denial letters were not provided in accordance with the timeframes in the Schedule. However, as the applicant does not direct me to any evidence showing that the treatment was incurred during the time the notice remained outstanding, I find that no amounts are payable.
OCF-18 for assistive devices in the amount of $1,831.39 submitted June 8, 2020.
33I find that the respondent’s letter of denial dated June 26, 2019, constitutes proper notice in accordance with s. 38(8) of the Schedule and the treatment plan is not payable.
34The applicant submits that the OCF-18 in the amount of $1,831.39 for assistive devices, recommended by Healthmax Physiotherapy Scarborough submitted June 8, 2020, was denied on June 22, 2020, via regular mail and therefore is in direct violation of s.38(8) of the Schedule as it was not received within 10 business days.
35The respondent submitted that in this case, the treatment plan was submitted on June 8, 2020, so the calculation begins on June 9, 2020. Ten business days from June 9, 2020, is June 22, 2020. Therefore, the denial letter provided by fax on the 10th business day, being June 22, 2020, was not in violation of s. 38.
36As the applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG, it is unnecessary for me to consider the reasonableness or necessity of the disputed treatment plan outside of the MIG limits.
Interest
37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the balance amount in dispute for the partially approved OCF-18, submitted on June 12, 2019.
Award
38The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
39It is well established that the award should not be ordered for the simple reason an adjudicator determined that an insurer made an incorrect determination. Rather, in order to attract a s. 10 award, the insurer’s conduct must rise to the level of excessive, imprudent, stubborn, inflexible, unyielding or immoderate. I find no evidence that respondent acted in such a manner, therefore I find that the applicant is not entitled to an award.
Costs
40The applicant indicated in her submissions that she is seeking costs at $500.00 for the unreasonable behaviour for not producing documents as per the Tribunals order. The award of costs is an exceptional remedy requiring evidence before the Tribunal that the opposing party has acted in bad faith and/or their conduct was in breach of a direction or order issued by the Tribunal.
41The applicant submitted that to date she has not received the s. 44 assessor’s CNRs and the referral letters with respect to the issues in dispute.
42Upon reviewing the Case Conference Report and Order, I find that the applicant did not request the Tribunal’s order for any specific productions. The CCRO states: “The parties discussed productions and advised that they do not need an order for productions. The parties will write to each other with their respective list, if any and exchange all agreed upon documents in accordance with the above timeline.” As the applicant opted out of the specific production order issued by the Tribunal, I find that the respondent’s conduct was not in breach of the order. Accordingly, I dismiss the claim for costs.
ORDER
43The Tribunal orders as follows:
i. The applicant has not met her onus of proving that her accident-related impairments warrant removal from the MIG.
ii. The applicant is entitled to $120.00 being the balance amount in dispute for partially approved OCF-18, submitted on June 12, 2019.
iii. The applicant is entitled to applicable interest under section 51 of the Schedule on overdue payment of $120.00.
iv. The applicant is not entitled to an award.
v. No costs are payable.
Released: February 13, 2024
Alla Kadysh
Adjudicator