Citation: St. John v. Belair Insurance Company Inc., 2024 ONLAT 22-011768/AABS

Licence Appeal Tribunal File Number: 22-011768/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:

Stevie St. John

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Shahzad Ayub, Counsel

For the Respondent:

Sivan Bune, Counsel

HEARD: By way of written submissions

OVERVIEW

1Stevie St. John (“the Applicant”) was involved in an automobile accident on November 25, 2016, and sought benefits from Belair Insurance Company Inc. (“the Respondent”) 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 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 a minor injury as defined in section 3 of the Schedule and subject to treatment with the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit for a minor injury?

ii. Is the Applicant entitled to medical benefits recommended by VIP Health Care Clinic Ltd. As follows:

i. $2,614.17 for a chiropractic treatment plan, dated March 19, 2022;

ii. $2,000.00 for a physical assessment plan, dated September 24, 2022; and

iii. $7,600.00 for a hyperbaric oxygen treatment plan, dated September 27, 2022?

iii. Is the Respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed the payment of benefits to the Applicant?

iv. Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that the Applicant has not met his onus to demonstrate entitlement to the benefits claimed.

4No interest or award is payable.

BACKGROUND

5The Applicant’s submissions do not address the merits of his claims.

6The Applicant claims entitlement to the treatment and assessment plans in dispute on a purely statutory basis. He submits that the Respondent’s insurer’s examination (“IE”) report by Dr. I. Chaudhry, physician, dated September 14, 2022, is void ab initio because, according to him, it was procured with improper notice. As a result, the Applicant submits, the Respondent’s denials of the benefits claimed are insufficient because the denials reference the IE in question as the medical basis for the denial. To the Applicant, the denials are void of a medical basis once the IE report is considered void, therefore entitling him to the treatment and assessment plans in dispute.

7The Respondent submits that it responded to the Applicant’s requests for treatment in a manner consistent with the Schedule. It further submits that the Applicant’s injuries fall within the MIG and that the treatment and assessment plans in dispute are not reasonable and necessary as a result of the accident.

ANALYSIS

Dr. Chaudhry’s IE report

8I find the IE report of Dr. Chaudhry to be relevant and refuse the Applicant’s request to strike it from the hearing record. Contrary to the Applicant’s submissions, the report is not void ab initio.

9Section 44 of the Schedule provides the Respondent with the ability to examine an insured person for the purpose of determining if that person is or continues to be entitled to a benefit. The Respondent’s ability to request IEs is not absolute. It must follow the notice requirements outlined in the section and must not exercise this right more than reasonably necessary.

10The remedy for an improperly requested IE is that the Applicant is not required to attend the subject IE. The Tribunal has consistently held that the restriction on proceedings provided in section 55(2) of the Schedule do not apply when the insured person fails to attend an IE because the notice was insufficient. This is because the notice provisions outlined in section 44 of the Schedule permit an insured person to weigh whether to subject themselves to the inherently intrusive exercise of an insurer’s examination in order to claim a benefit. Notice of an IE is important because it provides the relevant information, namely the medical and other reasons for the decision, to permit the insured person to make that decision to attend.

11Participating in the IE renders the notice provisions to be moot. By participating in the IE, the Applicant has implied that he understands the scope and nature of the examination and agrees to the examination to continue with the benefits claims process. Considering the timing of the argument being made, the Applicant’s position that the IE notice was unclear or failed to comply with the Schedule is disingenuous. Striking the report following the Applicant’s attendance, on the basis that the notice was improper, would be a disproportional remedy. Accordingly, I will allow Dr. Chaudhry’s IE report to be part of the hearing record.

Minor Injury Guideline (“MIG”)

12The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

13Section 38(8) of the Schedule provides that the Respondent shall reply to a treatment and assessment plan within 10-busines days of receipt of that plan and provide all the medical and other reasons why it refuses to pay the benefit. Section 38(9) of the Schedule provides that the Respondent must also advise the Applicant if it believes that the MIG applies.

14Pursuant to section 38(11)1 of the Schedule, the Respondent’s failure to comply with section 38(8) and 38(9), preclude it from taking the position that the Applicant sustained an impairment to which the MIG applies, and it must pay for all goods and services incurred during the period starting on the 10th business day and ending on the day a compliant notice is provided.

15The Applicant made no submissions and advanced no arguments on the merits of his claim. He submitted no evidence to support his claims for the benefits in dispute. Instead, his entire argument for entitlement to the benefits is based on what he perceives to be the Respondent’s failure to comply with the notice provisions in section 44 of the Schedule.

Statutory compliance with section 38 and 44 of the Schedule

16I find that the Respondent complied with section 38 of the Schedule when it responded to the Applicant’s requests for benefits. I find that the Respondent was untimely with one response, but it provided a compliant denial when it did and there is no evidence before me to indicate that the Applicant incurred any goods and services during the period of non-compliance.

17The Respondent denied funding for the treatment plan dated March 19, 2022, received by the Respondent on June 22, 2022, by letter dated July 12, 2022. The letter dated July 12, 2022, is untimely because it was sent more than 10 business days after receipt of the treatment plan, contrary to section 38(8) of the Schedule. As a result, the Respondent is not permitted to deny funding for this plan on the grounds that the Applicant is subject to the MIG.

18The Respondent sent the Applicant a second denial letter, dated September 20, 2022, enclosing the IE report by Dr. I. Chaudhry, physician, curing the improper denial provided on July 12, 2022. The Respondent, in that letter, maintained it’s position that the Applicant sustained a minor injury as a result of the accident. More importantly, and in compliance with the Schedule, the Respondent advised that no amount is approved and that the treatment and assessment plan dated March 19, 2022 is not reasonable and necessary as a result of the accident. It highlighted that the assessment by Dr. Chaudhry found no neurological or radicular findings and that any amounts above the MIG would not be reasonable and necessary. The letter referred to and included notice of the Applicant’s right to dispute the decision.

19In a letter dated September 30, 2022, the Respondent denied funding for the treatment and assessment plans dated September 24 and 27, 2022. The letter confirms that the Respondent determined that the MIG applies to the Applicant and advises that it has insufficient compelling evidence of a pre-existing medical condition which would preclude the Applicant’s recovery if subject to the MIG. The letter also refers to the IE report by Dr. Chaudhry and reiterates the opinion in the report – that the Applicant sustained a minor injury as a result of the accident. The letter referred to and included notice of the Applicant’s right to dispute the decision.

20In a letter dated December 1, 2022, the Respondent advised the Applicant that it continues to characterize his impairments as a minor injury based on the IE report of Dr. Chaudhry, dated October 28, 2022. The letter highlights that the assessor found no objective neurological deficits in relation to the subject accident and that the bone scan is not reasonable and necessary. The letter referred to and included notice of the Applicant’s right to dispute the decision.

21Overall, the Respondent’s denial letters comply with the Schedule. The letters provide the medical and other reasons for the denials. For the plan dated March 19, 2022, the Respondent initially provided an unclear denial but cured it when it advised that the examination by Dr. Chaudhry revealed no objective neurological or radicular findings indicating anything beyond a minor injury and that the plan itself was deemed not to be reasonable and necessary. For the plans dated September 24 and 27, 2022, the Respondent advised that they were denied on the basis that the Applicant sustained a minor injury, and the plans propose goods and services beyond the MIG.

Interest

22Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Having determined that no benefits are payable, it follows that no interest is payable.

Award

23The applicant sought an award under section 10 of Regulation 664. Under section 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.

24Having concluded that the Applicant is not entitled to any benefits, it follows that no benefits were unreasonably withheld or delayed and thus, no award is payable.

CONCLUSION ORDER

25The Applicant has not demonstrated that he sustained an injury that is not included in the minor injury definition. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.

26The Applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services that fall outside the MIG.

[27]

28No interest or award is payable.

29The application is dismissed.