Licence Appeal Tribunal File Number: 21-013433/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:
Banou Mehrabi
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Maziar Mortezaei, Counsel
For the Respondent:
Theomarcus Giannou, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Banou Mehrabi, the applicant, was involved in an automobile accident on December 11, 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, Intact 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 limit? Note: The remaining amount of the MIG limit was identified as $200.00.
ii. Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from February 1, 2020 to December 11, 2021?
iii. Is the applicant entitled to $4,647.40 for physiotherapy services, proposed by Health-Pro Wellness in a treatment plan/OCF-18 (“plan”) submitted January 14, 2020?
iv. Is the applicant entitled to $3,445.12 for physiotherapy services, proposed by Health-Pro Wellness in a plan submitted July 21, 2020?
v. Is the applicant entitled to $3,226.64 for physiotherapy services, proposed by Health-Pro Wellness in a plan submitted November 10, 2020?
vi. Is the applicant entitled to $1,800.00 for an attendant care assessment, proposed by Health-Pro Wellness in a plan submitted January 14, 2020?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
3In the applicant’s submissions, the issue of non-earner benefits (“NEB”) is claimed at $185.00 per week from January 10, 2020 to December 11, 2021 and not as listed at issue (ii) in the Case Conference Report and Order (“CCRO”) as $185.00 per week from February 1, 2020 to date and ongoing. The respondent makes no submissions regarding the proposed change to the time period in dispute of the claim for NEB.
4I find that it makes sense to amend the end date of the claim period for the NEB to December 11, 2021 under the Schedule. However, since the respondent has not agreed to expand the period of the claim for NEB, the start date will remain as agreed in the CCRO from February 1, 2020, with the end date 104 weeks after the date of the accident, or December 11, 2021.
RESULT
5The applicant has failed to demonstrate that she suffers from a pre-existing condition that warrants removal from the MIG. It is not necessary to consider whether the plans for physiotherapy services and an attendant care assessment are reasonable and necessary;
6I find that the applicant is not entitled to a non-earner benefit in the amount of $185.00 for the period from February 1, 2020 to December 11, 2021;
7The applicant is entitled to any amount that remains within the $3,500.00 MIG limit as of the date of this decision;
8Interest does not apply;
9An award is not payable by the respondent, and;
10The applicant is dismissed.
PROCEDURAL ISSUES
11The applicant submitted an additional seven pages of submissions above the 12-page limit set in the CCRO. The applicant did not request additional pages to make her submissions, therefore, I will not consider these additional submissions. I find the additional submissions proposed by the applicant is procedurally unfair to the respondent in limiting its submissions to the 12-page limit.
12The respondent makes no submissions regarding the additional submissions by the applicant. Since I have found that the applicant is not entitled to the disputed benefits, there is no prejudice to the applicant in not considering the additional submissions regarding a special award.
ANALYSIS
Applicability of the Minor Injury Guideline (“MIG”)
13The applicant submits that she suffers from serious accident-related physical and psychological impairments, which require her removal from the MIG. The applicant also claims she has a pre-existing condition that will preclude recovery if she is kept in the MIG.
14Section 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 in accordance with the MIG. 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.”
15An 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 condition combined with compelling medical evidence stating that the condition precludes recovery of a 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.
16I find that the applicant has not met her onus to prove that her accident-related impairments warrant removal from the MIG. I also find that the applicant has not produced evidence of a documented pre-existing condition with compelling medical evidence that the pre-existing condition would prevent maximum medical recovery if she is kept in the MIG.
The applicant has not demonstrated that she suffers from accident-related injuries that warrant removal from the MIG
17I find that the applicant has not established non-minor injuries as a result of the accident to warrant removal from the MIG.
18The applicant submits that she should be removed from the MIG based on the following accident-related injuries:
a. Her diagnosis of chronic pain;
b. Her diagnosis of post-concussal syndrome;
c. Her lumbar spine decompression surgery, and;
d. Her psychological impairments
19To this end, the applicant relies on her Disability Certificate (OCF-3), various clinical notes of family physician, Dr. Anjum Kanjee, Mackenzie Health and Sunnybrook hospital records and treatment records. The applicant claims that on a balance of probabilities these documents together establish that she sustained critical stenosis at level L3-5, cauda equina syndrome and post-concussal syndrome.
20In response, the respondent submits that the applicant’s injuries are soft tissue in nature and fall within the definition of minor injury under the Schedule. The respondent relies on the clinical notes of Dr. Kanjee, Mackenzie Health hospital records and the Insurer Examination (“IE”) reports of Dr. Greg Gelman, general practitioner and Nicholas Livados, occupational therapist.
The applicant has not established chronic pain syndrome to warrant removal from the MIG
21The clinical notes and records of the applicant’s treating physicians do not mention any complaints of chronic pain or functional limitations as a result of the accident. The OCF-3 dated December 17, 2019 completed by Dr. Rob Tarulli, chiropractor indicates that the applicant sustained sprain and strain type injuries to her neck, shoulder and back as a result of the accident. Further, Dr. Kanjee diagnosed whiplash and mechanical low back pain as a result of the accident.
22The respondent points to the IE reports of Mr. Livadas and Dr. Gelman dated March 18, 2020 which indicates the applicant has the functional ability to return to her pre-accident housekeeping tasks. Dr. Gelman found that the applicant sustained soft tissue injures as a result of the accident.
23There medical evidence provided by the applicant indicates that she sustained uncomplicated soft tissue injuries with no residual functional impairment. The applicant has not demonstrated that her accident-related injuries fall outside the MIG.
The applicant has not established post-concussion syndrome to warrant removal from the MIG
24The applicant relies on the OCF-3 completed by Dr. Tarulli, which indicates she suffers from whiplash, sprain and strain of the neck, back and shoulder, headaches and post-concussion syndrome as a result of the accident. Dr. Kanjee did not provide a diagnosis of post-concussion syndrome.
25The respondent submits that there is no diagnosis of post-concussion syndrome in any of the applicant’s medical records. The respondent further submits that only Dr. Tarulli mentions post-concussion syndrome in the OCF-3 and there is no other medical evidence in support of this diagnosis.
26I find that there is no other medical evidence of post-concussal syndrome other than the OCF-3 completed by Dr. Tarulli, a chiropractor. The applicant’s treating physician did not make a diagnosis of concussion or refer the applicant to a specialist. I discount the opinion of Dr. Tarulli as a chiropractor in his diagnosis of post-concussion syndrome since neurological conditions are not within his scope of practice.
The applicant has not established accident-related decompression surgery to warrant removal from the MIG
27The applicant also points to the records of Dr. Kanjee two years after the accident, when she developed numbness in both legs in Iran which required decompression surgery. Since Dr. Kanjee advised the applicant to go to the Emergency Room for immediate surgery, rather than through a referral, there are no consultation reports from the treating orthopaedic surgeon, Dr. Jeremie Larouche. As a result, there is no report from an orthopaedic surgeon to explain whether the surgery is accident-related, therefore, the hospital records carry minimal weight.
28The respondent submits that the Mackenzie Health hospital records indicate the applicant developed radicular back pain two years after the accident. The applicant denied any prior symptoms of paresthesia. In his report dated January 4, 2022, Dr. Gelman indicates the applicant returned to housekeeping tasks after the accident until she returned from Iran. Dr. Gelman indicates the applicant sustained soft tissue injuries as a result of the accident and the sudden radicular symptoms are not accident-related.
29The respondent further submits that the attendant care assessment by Haciyeva Kamala, registered nurse, dated January 12, 2022 following the decompression surgery is not an accurate assessment of the applicant’s accident-related functionality. The respondent further submits that the applicant’s reports to her doctor after her return from Iran in December 2021 are not related to the accident.
30The applicant seeks removal from the MIG on the basis of her chronic pain, radicular symptoms and functional impairments, which required emergency spinal surgery two years after the accident. Although the applicant admits she had pre-existing scoliosis and degenerative changes in her back, she makes no submissions regarding how the accident is related to the decompression surgery. The applicant submits that there are only post accident diagnostic reports of her lumbar spine.
31I find the applicant’s submissions are contradictory in view of the radiological findings of her lumbar spine dated January 22, 2020 showing severe multi-level degenerative changes and longstanding L1 wedge compression fracture. There is no orthopaedic opinion to explain the effect of the accident on the applicant’s longstanding degenerative changes in her lumbar spine, and the sudden onset of cauda equina syndrome two years after the accident, which required emergency decompression surgery.
The applicant has not established psychological impairments to warrant removal from the MIG
32The applicant submits that she should be removed from the MIG on account of her psychological impairments. However, there is no medical evidence from the applicant’s treating doctors in support of an accident-related psychological impairment.
33The respondent submits that the applicant has not provided medical evidence of an accident-related psychological impairment or psychological treatment.
34Overall, I find that the applicant has not met her onus of establishing entitlement to treatment beyond the MIG in the absence of medical evidence from her doctors of accident-related chronic pain with functional impairment, post-concussal syndrome, decompression surgery or psychological impairment.
The applicant has failed to demonstrate that she suffers from a pre-existing condition that warrants removal from the MIG
35The applicant has not established a pre-existing condition warranting removal from the MIG.
36The applicant submits that she should be removed from the MIG based on the following pre-existing conditions:
a. Her pre-existing diabetes;
b. Her pre-existing osteoporosis;
c. Her pre-existing osteoarthritis;
d. Her pre-existing scoliosis, and;
e. Her pre-existing degenerative changes of the lumbar and cervical spine.
37The applicant makes no submissions pointing to a pre-existing condition documented by a health care provider before the accident combined with compelling medical evidence that the pre-existing condition precludes her recovery within the MIG.
38Although the applicant’s chiropractor stated that her pre-existing conditions of diabetes, osteoporosis and osteoarthritis are sufficient to remove her from the MIG, I agree with the respondent that applicant has failed to provide sufficient medical evidence for removal on this ground. The applicant has not provided any clinical notes and records of her medical conditions before the accident. Since the applicant has not met her burden of established a pre-existing condition documented by a health care provider before the accident, there is no need to determine whether or not she is able to reach maximum medical recovery under the MIG.
39In response, the respondent relies on the clinical notes of the family physician and the IE reports of Dr. Gelman and Mr. Livados. The respondent submits that Dr. Gelman reviewed the clinical notes and records of Dr. Kanjee and concluded the applicant has no pre-existing conditions which would inhibit the applicant’s recovery of a minor injury under the MIG. Dr. Gelman concludes that the applicant’s injuries are soft tissue in nature and fall within the definition of minor injury under the Schedule.
40The applicant points to the clinical notes and records her family physician, Dr. Kanjee which includes a radiological examination of her lumbar spine dated January 22, 2020. Although, the results are consistent with a pre-existing back condition of scoliosis, severe multilevel degenerative changes with a severe loss of disc space at L1-2 and L3-4 and longstanding L1 wedge compression fracture, these results do not meet the requirement that the condition be documented before the accident. Dr. Kanjee does not explain whether the applicant had a pre-existing condition in her lumbar spine which would impede recovery of a minor injury if she is kept in the MIG.
The applicant is not entitled to a non-earner benefit (“NEB”)
41I find that the applicant has not established entitlement to an NEB as there is no evidence of her pre- and post-accident functional abilities to support this claim.
42Section 12 (1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.
43Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
44The applicant submits that she did not return to her pre-accident personal care, housekeeping tasks and social activities as the basis for her substantive entitlement to NEBs. The applicant relies on her post-accident surgery records dated January 14, 2022, which are beyond the claim period for NEB. The applicant also relies on an OCF-3 completed by Dr. Tarulli, dated December 17, 2019 which indicated that she was unable to carry on a normal life. The applicant did not provide any details of her pre-accident activities or demonstrate how her participation in those activities has been limited as a result of the accident. There are no submissions on which activities were most important to her, how she is prevented from engaging in the activities she normally engaged in pre-accident or evidence of the frequency and time commitments of her pre-accident activities. In the absence of this information, it is difficult to compare the applicant’s pre- and post-accident capabilities with respect to the activities she ordinarily engaged in or valued.
45I agree with the respondent that the medical evidence does not establish a complete inability to carry on a normal life as a result of the accident. The respondent relied on the IE report by Mr. Livadas which found the applicant was capable of performing all her pre-accident personal care and housekeeping activities. In addition, the respondent argues that Dr. Gelman found that the applicant returned to cooking, and shares grocery shopping and housekeeping tasks with her son. She is also independent with self-care activities. In the absence of any evidence to the contrary, I put greater weight on the IE reports regarding the applicant’s functional abilities after the accident.
Were the respondent’s denials of the treatment plans compliant with Section 38(8) of the Schedule?
46As an alternative argument, the applicant submits that the respondent did not properly deny the disputed treatment plans, in accordance with s. 38(8) of the Schedule.
47Section 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.
48If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that if an insurer fails to provide proper notice of the reasons for its denial it must 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 notice as described in s. 38(8).
49The Tribunal has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or as identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue, along with the relevant section of the Schedule.
Sufficiency of respondent’s denials of OCF-18’s dated December 17, 2019 for physiotherapy services and dated December 17, 2019 for an attendant care assessment
50The applicant submitted two OCF-18’s dated December 17, 2019 for physiotherapy services and an attendant care needs assessment by Health-Pro Wellness. The applicant submits that the denial notices for the OCF-18 dated December 17, 2019 for an attendant care assessment was delivered beyond 10 business days after the respondent received the OCF-18. The applicant further submits that the respondent failed to provide reasonable explanations in its denial notices for the OCF-18s.
51The respondent denied the first plan for physiotherapy services dated December 17, 2019 and the plan dated December 17, 2019 for an attendant care assessment by way of letters dated January 27, 2020. This was within 10 business days after receiving the plans on January 14, 2020.
52In denial letter dated January 27, 2020 regarding the attendant care assessment, the respondent specifically requested the clinical notes and records of the applicant’s general practitioner from 2018 to date, identifying the information it did not have but required to determine entitlement. I am satisfied that the respondent’s reference to the MIG and request for additional medical information in EOBs dated January 27, 2020 was a valid denial of OCF-18’s dated December 17, 2019.
Sufficiency of the respondent’s denial of OCF-18 dated July 21, 2020
53The second plan for physiotherapy services by Health-Pro Wellness is dated July 21, 2020. The respondent wrote to the applicant by letter dated August 10, 2020 denying the benefits on the 13th business day after receiving the plan on July 21, 2020, therefore breaching the 10 business day timeline. Pursuant to s.38(11), the insurer shall pay for all goods and services until described in the plan starting on the 11th business day until it gives proper notice. Therefore, the applicant would be entitled to any services incurred from the 11th business day to August 10, 2020.
54The language used in the denial letters dated January 27, 2020 and August 10, 2020 regarding physiotherapy services is substantially similar, in that the respondent requested compelling medical evidence that the applicant’s injuries are not minor. The respondent stated that the medical documentation received indicates the applicant’s injuries are minor.
55Since the applicant has not provided evidence of incurred treatment from the 11th business day until August 10, 2020, when proper notice was provided, I find the applicant is not entitled to any portion of this plan.
Sufficiency of the respondent’s denial of OCF-18 dated November 3, 2020
56The next plan for physiotherapy services by Health-Pro Wellness is dated November 3, 2020. The respondent wrote to the applicant by letter dated November 27, 2020 denying the benefits on the 13th business day after receiving the plan on November 10, 2020, therefore breaching the 10 business day timeline. Pursuant to s.38(11), the insurer shall pay for all goods and services until described in the plan starting on the 11th business day until it gives proper notice. Therefore, the applicant would be limited to any services incurred from the 11th business day to November 27, 2020.
57In the denial notice dated November 27, 2020 regarding physiotherapy services, the respondent stated they have not received compelling medical evidence that the applicant’s injuries are not minor and they requested specific documents including chiropractic assessment and treatment records, imaging reports from 2019 to date, referrals to specialists and OHIP summary.
58Since the applicant has not provided evidence of incurred treatment from the 11th business day to November 27, 2020, I find the applicant has not met her burden to establish entitlement to any portion of this plan.
59The applicant submits that these letters were improper denials. I find that the denial letters were compliant. The respondent refers to the applicant’s medical condition and requests further documentation, including specific medical records and time periods. The respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.
60Given that the respondent provided proper notice and the applicant has not met her burden of establishing that her injuries fall outside the MIG, I find that the applicant has not demonstrated entitlement to the disputed treatment plans.
Interest
61Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant has not discharged her burden to demonstrate removal from the MIG or entitlement to the plans for physiotherapy services and an attendant care assessment, there are no benefits owing and interest does not apply.
Award
62The 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. I find an award is not appropriate because although some denial letters were late the respondent did provide proper denials based on reasonable, objective assessments of the applicant conducted pursuant to its rights under the Schedule. However, since the applicant has not provided evidence of incurred expenses during any period of non-compliance, there is no prejudice to the applicant and it cannot be argued that the respondent unreasonably withheld or delayed the payment of benefits. Thus, an award under s.10 of Reg. 664 is not warranted.
ORDER
63For the reasons set out above, I find that:
i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG treatment limit;
ii. Any amount that remains within the $3,500.00 MIG limit as of the date of this decision;
iii. The applicant is not entitled to a non-earner benefit in the amount of $185.00 per week from February 1, 2020 to December 11, 2021;
iv. The applicant is not entitled to the treatment plans in dispute;
v. Interest is not payable and an award does not apply, and;
vi. The application is dismissed.
Released: October 29, 2024
Lisa Holland
Adjudicator