Aliyev v. Intact Insurance Company, 2024 CanLII 10544

Citation: Aliyev v. Intact Insurance Company, 2024 ONLAT 22-003027/AABS

Licence Appeal Tribunal File Number: 22-003027/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:

Abbas Aliyev

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ludmilla Jarda

APPEARANCES:

For the Applicant:

Denis Chubar, Paralegal

For the Respondent:

Monica Chakravarti, Counsel

HEARD:

By Written Submissions

OVERVIEW

1Abbas Aliyev (the “applicant”) was involved in an automobile accident on September 12, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Intact Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. 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?
2. Is the applicant entitled to $1,328.86 for physiotherapy services, proposed by Allstar Medical Clinic in a treatment plan/OCF-18 (“treatment plan”) dated December 7, 2019?
3. Is the applicant entitled to $2,923.53 for chiropractic services, proposed by Allstar Medical Clinic in a treatment plan dated January 31, 2020?
4. Is the applicant entitled to $4,315.93 for psychological services, proposed by Allstar Medical Clinic in a treatment plan dated August 25, 2020?
5. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Allstar Medical Clinic in a treatment plan dated February 19, 2020?
6. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3For the reasons that follow, I find that:

1. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
2. The applicant is entitled to the benefits set out in the disputed treatment plan, if already incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule, with interest in accordance with s. 51 of the Schedule.

ANALYSIS

Minor Injury Guideline (“MIG”)

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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 person 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 from their minor injury 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 suffers from a psychological impairment that warrants his removal from the MIG. The applicant relies on two Disability Certificates (OCF-3) completed by Dr. Reza Babaloui, chiropractor, dated September 14, 2019 and January 30, 2020 respectively, and a psychological assessment report dated August 20, 2020 completed by Dr. Sara Aharon, psychologist.

7The respondent denies that the applicant suffers from a psychological impairment as a result of the accident. The respondent further submits that the applicant has not provided sufficient medical documentation to justify his removal from the MIG. The respondent relies on an insurer examination psychological assessment report dated February 19, 2020 completed by Dr. Rod Day, psychologist.

The applicant did not sustain injuries that warrant removal from the MIG

8I find that the applicant failed to prove, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, he remains within the MIG and its $3,500.00 limit on treatment.

9I find that there is insufficient evidence to support that the applicant sustained a psychological impairment as a result of the accident. There is no objective medical support for the applicant’s OCF-3s regarding his anxiety disorder. The applicant’s medical records are not part of the evidentiary records. Correspondingly, there are no contemporaneous records documenting any psychological complaints or impairments.

10I also find Dr. Aharon’s report to be unpersuasive evidence of an accident-related psychological impairment. Dr. Aharon diagnosed the applicant with an adjustment disorder with mixed anxiety and depressed mood. However, Dr. Aharon did not review the applicant’s medical records, and she relied heavily on the applicant’s self-reporting.

11Additionally, I find Dr. Aharon’s report unreliable and note that it contains incorrect information. As noted by the respondent, on several occasions, Dr. Aharon’s remarks relate to an individual named “Mr. Bolster” as opposed to the applicant. Further, the applicant did not file any reply submissions, and he did not address these discrepancies. As a result, I am unable to determine whether Dr. Aharon’s findings regarding a psychological impairment relate to the applicant or to Mr. Bolster.

12Moreover, I accept Dr. Day’s conclusion that the applicant does not suffer from a psychological impairment as a result of the accident and as such, there is no psychological diagnosis. Dr. Day’s assessment included validity testing which indicated that the results of the psychological testing were valid. Indeed, there was no indication that the applicant attempted to either exaggerate or feign psychological symptoms, nor was there any indication that the applicant minimized his current problems and difficulties.

13Finally, the applicant has not provided any medical evidence or submissions to support that he is unable to achieve maximal medical recovery within the MIG as a result of a pre-existing condition. Likewise, the applicant did not provide any medical evidence or submissions to support that he developed chronic pain with functional limitations and that he was precluded from treatment under the MIG nor did he assert or tender evidence that he suffers from a non-minor physical injury.

14Accordingly, I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.

The Treatment Plans

15To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

16When an insurer denies a treatment plan, s. 38(8) of the Schedule requires that the insurer reply to a treatment and assessment plan within 10 business days after receipt of the treatment plan, identifying the goods and services it will and will not pay for and provide the medical and all other reasons for its decision.

17If the insurer believes that the MIG applies to the insured person’s impairment, s. 38(9) of the Schedule provides that the notice under s. 38(8) must so advise the insured person.

18Section 38(11) provides the consequences of an insurer’s failure to comply with ss. 38(8) and 38(9) of the Schedule, which includes the insurer being prohibited from taking the position that the insured person has an impairment to which the MIG applies and the obligation to pay for the goods and services incurred by the applicant starting on the 11th business day and ending on the day a compliant notice is provided.

19The applicant submits that the respondent is required to pay for the treatment plan for a psychological assessment pursuant to s. 38(11) of the Schedule. The applicant submits that the treatment plan was not denied within 10 business days after it was submitted as required by the Schedule.

20While the respondent concedes that its denial letter for the treatment plan for a psychological assessment was untimely, it argues that it is not required to pay for the treatment plan as it delivered a compliant notice on the 11th business day, and the applicant did not incur the treatment plan during the period of non-compliance. The respondent relies on Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 and Aviva General Insurance Company v. Catic, 2022 ONSC 6000 [Catic].

The psychological assessment is not payable under s. 38(11) of the Schedule

21I find that the applicant has failed to demonstrate, on a balance of probabilities, that the treatment plan dated February 19, 2020 for a psychological assessment in the amount of $2,200.00 is payable pursuant to s. 38(11) of the Schedule.

22I find that the respondent is not prohibited from taking the position that the applicant has an impairment to which the MIG applied under s. 38(11)1 of the Schedule. There is no evidence that the respondent did not comply with s. 38(9) of the Schedule. Indeed, all the denial letters indicate that the respondent believes that the applicant’s injuries are subject to the MIG in accordance with the Schedule.

23I further find that the respondent is not required to pay for the treatment plan for a psychological assessment. A compliant notice was provided on the 11th business day after the treatment plan was submitted to the respondent, and there is no evidence that the applicant incurred the treatment plan during the period of non-compliance. Correspondingly, in Catic, the Divisional Court held at paragraph 18 that s. 38(11)2 of the Schedule operates so as to compel the insurer who fails to provide statutory notice under s. 38(8) to pay for all of the items listed in the treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding.

24Accordingly, the applicant has failed to establish that the psychological assessment is payable pursuant to s. 38(11) of the Schedule.

The applicant is entitled to the disputed treatment plans pursuant to s. 40(8) of the Schedule

25As I have found that the applicant remains within the MIG, it is not necessary for me to consider the reasonable and necessary nature of the treatment plans in dispute.

26Nevertheless, I note that the respondent incorrectly affirms that the monetary limit of the MIG has been exhausted. According to the Standard Benefit Statement dated October 23, 2022, the respondent has paid $3,387.19 in medical and rehabilitation benefits, leaving $112.81 remaining within the $3,500.00 limit of the MIG.

27Section 40(8) of the Schedule provides that if it is determined that the MIG applies to an insured person following a dispute before the Tribunal, the benefits and/or assessments incurred under the MIG are deemed reasonable and necessary.

28Therefore, I find that the applicant is entitled to the benefits set out in the treatment plans, if already incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to the Schedule, with interest pursuant to s. 51 of the Schedule.

ORDER

29For the reasons outlined above, I find that:

1. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
2. The applicant is entitled to the benefits set out in the disputed treatment plan, if already incurred, up to the remaining amount of the MIG limits as such benefits are deemed reasonable and necessary pursuant to s. 40(8) of the Schedule, with interest in accordance with s. 51 of the Schedule.