Citation: Zurkiyeh v. Economical Insurance Company, 2024 ONLAT 21-007996/AABS

Licence Appeal Tribunal File Number: 21-007996/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:

Mohammed Zurkiyeh

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Meghan Fyall, Counsel

For the Respondent:

Ainsley Shannon, Counsel

HEARD:

By way of written submissions

1Mohammed Zurkiyeh, the applicant, was involved in an automobile accident on June 4, 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, Economical 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 limit and in the Minor Injury Guideline?

ii. Is the applicant entitled to attendant care benefits of $1,596.46 per month for the period from August 18, 2019 to-date and ongoing?

iii. Is the applicant entitled to medical and rehabilitation benefits as follows:

a. $2,200.00 for an in-home assessment plan by ARCG Inc., dated July 22, 2019;

b. $2,200.00 for a psychological assessment plan by ARCG Inc., dated September 4, 2019;

c. $3,419.09 for an occupational therapy treatment plan by ARCG Inc., dated September 6, 2019;

d. $2,404.76 for an occupational therapy treatment plan by Innovative Occupational Therapy Services, dated February 23, 2021;

e. $1,300.00, less $1,143.70 approved by the respondent, for a physiotherapy treatment plan by Meadowvale Physical Medicine, dated October 15, 2019; and

f. $3,431.94 for an occupational therapy treatment plan by Innovative Occupational Therapy Services, dated August 26, 2021?

iv. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

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

3In their submissions the parties confirmed that the issue of non-earner benefits and the preliminary issues listed in the Case Conference Report and Order dated July 19, 2022 (“CCRO”) were withdrawn by the parties.

RESULT

4I find that:

i. The applicant is removed from the Minor Injury Guideline;

ii. The applicant is not entitled to attendant care benefits;

iii. The applicant has established that the following treatment plans (“OCF-18s”) are reasonable and necessary:

a. OCF-18 dated July 22, 2019 in the amount of $2,200.00 for an occupational therapy assessment;

b. OCF-18 dated August 26, 2021 in the amount of $3,431.94 for occupational therapy treatment;

iv. The following treatment plans are payable pursuant to s. 38(11)2 of the Schedule;

a. OCF-18 dated September 4, 2019 for a psychological assessment;

b. OCF-18 dated September 6, 2019 in the amount of $3,419.09 for occupational therapy treatment;

c. OCF-18 dated February 23, 2021 in the amount of $2,404.76 for occupational therapy treatment;

d. Outstanding balance of OCF-18 dated October 15, 2019 ($1,300.00, less $1,143.70 approved by the respondent);

v. The applicant is entitled to interest in accordance with s. 51 of the Schedule; and

vi. The respondent is not liable to pay an award.

PROCEDURAL ISSUES

5In his reply submissions, the applicant raised the issue of the respondent’s late-filed submissions. The applicant submits that the respondent filed its submissions four days late, in violation of the timeline prescribed in the CCRO. He requests that the Tribunal disregard the respondent’s submissions as the late-filing is a blatant disregard for Tribunal Orders.

6The applicant’s request to exclude the respondent’s submissions is denied.

7The applicant has not led any evidence or provided submissions as to the prejudice he has suffered as a result of the two-business day delay. While I appreciate that the applicant had less time to prepare his reply materials, I find that excluding the respondent’s submissions and evidence in this manner would be unduly prejudicial and contrary to procedural fairness. The applicant has provided comprehensive reply submissions and materials in response to the respondent’s hearing materials. However, by striking the entirety of the respondent’s hearing submissions and evidence, it would effectively be barred from participating in these proceedings.

ANALYSIS

Minor Injury Guideline (“MIG”)

8Section 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.”

9An 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 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.

10The applicant submits that he should be removed from the MIG due to his post-accident neuropathy, his chronic pain, head injury and psychological impairments.

The applicant is removed from the MIG due to his head injury

11The applicant submits that he sustained a head injury as a result of the accident. He relies on the June 27, 2019 clinical note and record (“CNR”) entry of his family physician, Dr. Sheldon Silver. At this visit, Dr. Silver diagnosed the applicant with a head injury, noting the applicant’s reports of dizziness, memory impairment and pressure on his right eye. In addition to the head injury diagnosis, Dr. Silver ordered a CT scan of the head. In the months post-accident the applicant continued to report the pressure behind his right eye and was referred to an ophthalmologist in September 2019.

12The respondent disputes that the applicant sustained a head injury or a concussion as a result of the accident. It points to the ambulance records which note that the applicant reported that he did not hit his head, and argues that Dr. Silver’s notations were based solely on the applicant’s self-reports and that Dr. Silver did not make any further findings of a head injury. The respondent further submits that the applicant reported that the ophthalmologist had told him that there “was nothing to worry about” and argues that the applicant did not continue to report post-concussive symptoms. It cites two Tribunal decisions, Cruz v Certas Direct Insurance Company, 2022 CanLII 120017 (ON LAT) and Gill v. Travelers Insurance, 2021 CanLII 37845 to argue that the singular notation of a head injury and the lack of hospital records do not support a finding of a concussion or head injury.

13I find that the applicant has met his onus to prove that he sustained a head injury as a result of the accident. I do not agree with the respondent that Dr. Silver only referred to a “head injury” once, solely based on the applicant’s self-reports. Rather, on June 27, 2019 Dr. Silver noted the applicant’s symptoms, provided the head injury diagnosis and referred the applicant for a CT scan. Although the CT scan did not reveal any unusual findings, Dr. Silver still subsequently provided a Disability Certificate (“OCF-3”) on July 16, 2019, where “head injury” was the first listed accident-related injury. As the applicant’s treating family physician, I place significant weight on Dr. Silver’s diagnosis.

14The applicant also continued to report right eye pressure throughout August and September 2019. Although the applicant subsequently reported that his ophthalmologist stated that there was “nothing to worry about”, I note that this does not necessarily preclude a head injury diagnosis.

15I further agree with the applicant that the decisions cited by the respondent are distinguishable from the present matter. In Cruz v. Certas, the Tribunal found that the family physician had only raised the possibility of a concussion, rather than providing a concussion diagnosis. In the present matter Dr. Silver clearly provided a diagnosis of a head injury. Further, unlike in the present matter, the claimant in Cruz had not been referred for any follow-up diagnostic imaging. Similarly, in Gill v. Travelers, the Tribunal noted that the OCF-3 provided by the family physician did not refer to a concussion. This can similarly be distinguished from the case at hand.

16Rather, I agree with the applicant’s cited case, Kolanski v TD Insurance Meloche Monnex, 2021 CanLII 30824 (ON LAT), that a head injury is not included in the definition of a “minor injury” under the Schedule. As such the MIG does not apply to the treatment of the applicant’s accident-related injuries.

17Sections 14 and 15 of the Schedule set out that an insurer shall pay for all reasonable and necessary expenses incurred by or on behalf of an insured person as a result of an accident. The applicant has the onus of proving on a balance of probabilities that the treatment plans are reasonable and necessary because of the accident.

18The applicant provided limited submissions on whether the treatment plans in dispute were reasonable and necessary. Rather, the bulk of his arguments centred on the procedural requirements of s. 38(8) of the Schedule. The applicant submits that all of the respondent’s notices were non-compliant with s. 38(8) of the Schedule, as they solely referenced the MIG and used boilerplate language. As a result, the applicant argues that the treatment plans are payable pursuant to s. 38(11) of the Schedule. The respondent did not provide submissions on the treatment plans in dispute or on whether its denial letters complied with s. 38(8) of the Schedule.

OCF-18 dated July 22, 2019 for an in-home occupational therapy assessment is reasonable and necessary

19The applicant argues that the medical evidence establishes that he suffered from functional restrictions after the accident impairing his ability to perform activities of daily living. He further submits that an occupational therapy assessment can be obtained not just for the purposes of assessing attendant care needs, but also to determine the devices or treatment a claimant might need in their recovery. He cites the Tribunal decision Moravcikova v Aviva Insurance Company of Canada, 2023 CanLII 40089 (ON LAT), in support of his claim. The respondent did not provide any submissions on the treatment plan in dispute.

20I find that the applicant has established that the proposed assessment is reasonable and necessary. At the time the OCF-18 was submitted, the applicant was reporting significant pain and neuropathy in his right hand to Dr. Silver. He was wearing a splint and reported worsening pain and functional restrictions over the next few months. Dr. Silver also noted in his OCF-3, provided around the time of the OCF-18 submission, that the applicant was unable to do his housekeeping and had moved back to his parents’ home. I further note that assessments are, by their nature, speculative and that the purpose of an assessment is to determine if a condition exists. I find that the applicant has established that there is a reasonable possibility of functional impairment to warrant the occupational therapy assessment.

OCF-18 dated August 26, 2021 for occupational therapy services is reasonable and necessary

21The applicant submitted an OCF-18 dated August 26, 2021 for eight sessions of occupational therapy services, together with preparation and document support activity, including file research and medical document review. In support of his claim, the applicant relies on a progress report from his occupational therapist, who advised that the applicant was still experiencing physical, cognitive and emotional problems as a result of the accident.

22I find that the applicant has met his onus to prove that the proposed occupational therapy services are reasonable and necessary. The applicant’s occupational therapist (“OT”) assessed the applicant, and noted the applicant’s functional impairments impacting his activities of daily living. She recommended continued services, including pain management strategies, relaxation and coping strategies, and safe physical movement strategies. The respondent did not provide submissions on this treatment plan, or direct me to evidence refuting the findings of the applicant’s OT. I find that the evidence submitted by the applicant establishes that the course of occupational therapy services was reasonable and necessary.

OCF-18 dated September 4, 2019 for a psychological assessment is payable pursuant to s. 38(11) of the Schedule

23I find that the respondent’s denial letter dated September 23, 2019 was non-compliant with s. 38(8) of the Schedule.

24I agree with the applicant that the respondent did not provide a “medical and any other reason” for the denial in its correspondence. The reason provided was confusing and inaccurate. In its denial the respondent initially stated that the OCF-18 was not reasonable and necessary as the applicant had not attended scheduled s. 44 examinations. The respondent then stated that once it receives confirmation that the applicant was willing to attend the examination, it will withdraw its denial “if the reports received warrants it”. The respondent then goes on to state in the letter that they are “not requesting you to attend an insurer examination under Section 44”. However, the applicant submits that no s. 44 psychological IE had ever been scheduled by the respondent, and that the first such Notice of Examination (“NOE”) was provided two years later. As such, I find that the respondent’s September 23, 2019 denial was non-compliant with s. 38(8) of the Schedule.

25The applicant submits that the respondent’s subsequent denial letter, sent after the psychological IE, was also non-compliant with s. 38(8) of the Schedule. However, from my review of the materials, it does not appear that either party has submitted this second denial letter as evidence in this written hearing. As such, I am unable to determine whether the subsequent correspondence rectified the respondent’s initial non-compliance with s. 38(8) from its original September 23, 2019 letter. Regardless, I find that the applicant has still established that the OCF-18 is payable pursuant to s. 38(11) of the Schedule.

26Even if the respondent’s second denial letter was compliant with s. 38(8) of the Schedule, the applicant had already incurred the OCF-18 for a psychological assessment. The applicant had obtained a s. 25 psychological report on October 4, 2019, well before the respondent had even requested the applicant’s attendance at the s. 44 psychological examination. Per the Divisional Court decision in Aviva General Insurance v. Catic, 2022 ONSC 6000 (“Catic”), the respondent is liable to pay for an OCF-18 if a non-compliant notice was provided, but only if the services were incurred and only for the period during which any denial notice remains outstanding. The applicant has led evidence that the OCF-18 was incurred before a compliant denial notice was provided. As such, I find that the OCF-18 is payable pursuant to s. 38(11).

OCF-18 dated September 6, 2019 for occupational therapy services in the amount of $3,419.09 is payable pursuant to s. 38(11) of the Schedule

27The respondent initially denied the treatment plan by way of the denial letter dated September 23, 2019. As previously noted above, the stated reason in the September 23, 2019 denial was non-compliant with s. 38(8) of the Schedule, particularly since no s. 44 examination had previously been requested by the respondent with respect to this OCF-18. The respondent subsequently requested a General Practitioner’s IE, and in a follow-up letter dated January 9, 2023, denied the OCF-18.

28The applicant submits that the subsequent denial is also non-compliant with the Schedule, as the reason provided was non-specific and did not properly address whether the OCF-18 was reasonable and necessary. The January 9, 2023 letter stated that since Dr. Khan did not change his opinion after reviewing consultation reports and diagnostic imaging, that the applicant had not sustained a non-minor injury, all of the listed treatment plans were not reasonable or necessary as the applicant’s injuries remained within the MIG. The applicant argues that the respondent’s IE assessor Dr. Khan had never been asked to review the listed OCF-18s for their reasonableness and necessity. Rather Dr. Khan had only been asked to advise if the plans were reasonable and necessary if the applicant’s injuries were found to fall outside of the MIG. The respondent did not provide any submissions on the issue of s. 38(8) non-compliance.

29I agree with the applicant that the January 9, 2023 letter did not provide a “medical and all of the other reason” for the denial. Although it references Dr. Khan's IE report, from my review of the report Dr. Khan did not consider whether the proposed treatment plans were reasonable and necessary, but rather said that the question was “not applicable” as the injuries were deemed to be MIG. No further reference was provided to the reasonableness and necessity of the proposed treatment. As such, I agree with the applicant that the denial letter’s reference to Dr. Khan’s report did not properly address whether the OCF-18 was reasonable and necessary.

30Given that no other correspondence from the respondent was submitted with respect to this OCF-18, the respondent no longer has the opportunity to issue a proper denial notice, as a decision has been rendered regarding this benefit (see Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200) (“Suarez”). In Suarez, the Divisional Court ruled that where an insurer fails to provide a proper s. 38(8) notice and does not cure the deficiency before the Tribunal has adjudicated the dispute in favour of the insured, then the insured can proceed to incur the disputed OCF-18.

31As such, I find that, pursuant to s. 38(11)2, the treatment plan is payable by the respondent upon proof that treatment under the plan has been incurred.

OCF-18 dated February 23, 2021 for occupational therapy services in the amount of $2,404.76 is payable pursuant to s. 38(11) of the Schedule

32The applicant submits that to date, the respondent has not provided any explanation for the denial of the OCF-18 dated February 23, 2021. He argues that he has only ever received a copy of the OCF-18 itself, with the “Do not approve” box checked off by the adjuster on February 25, 2021. The respondent did not provide any submissions on this treatment plan.

33Given that the respondent has not tendered any evidence or provided any submissions that a denial notice was provided to the applicant with respect to this OCF-18, I find that the respondent is non-compliant with s. 38(8) of the Schedule. As such, the OCF-18 dated February 23, 2021 is payable pursuant to s. 38(11) once incurred and properly invoiced by the applicant.

Outstanding amount of OCF-18 dated October 15, 2019 for physiotherapy treatment is payable pursuant to s. 38(11) of the Schedule

34The applicant submitted an OCF-18 in the amount of $1,300.00 for physiotherapy treatment. The respondent partially approved the treatment plan by way of letter dated October 28, 2019, up to the MIG limit.

35I find that the respondent’s correspondence did not comply with s. 38(8) of the Schedule. I agree with the applicant that the only reason for the partial denial was that the MIG limit had been reached. No reference was provided to the applicant’s medical condition, rather, the respondent simply stated that the monetary limit was met. However, no reason was provided as to why the applicant was being held within the MIG. As such, the October 28, 2019 letter did not provide a “medical and all of the other reason” for the partial denial and was non-compliant with s. 38(8) of the Schedule.

36Given that the respondent has not tendered any evidence that this non-compliance was cured, I find that the OCF-18 dated October 15, 2019 is payable pursuant to s. 38(11) of the Schedule once incurred and properly invoiced by the applicant.

Attendant Care Benefits (“ACBs”)

37I find that the applicant has not established entitlement to ACBs.

38The applicant has not provided any specific submissions or directed to me evidence as to why attendant care services are reasonable and necessary. Rather, the applicant’s sole argument on the issue of ACBs is that the respondent had improperly denied the applicant’s Form 1 on the basis that the applicant’s injuries fell within the MIG. The applicant argues that no medical reason or other reason was provided for the denial, and since he is no longer within the MIG, attendant care benefits must be approved and paid.

39I am not persuaded by the applicant’s argument. Under s. 42(13)(b) of the Schedule, the respondent was required to provide the medical and any other reasons for why it was refusing to pay ACBs. While I agree with the applicant that he is not longer subject to the MIG, even if I were to find that a sufficient reason for the denial was not provided, the applicant does not direct me to any statutory provision which holds that ACBs are payable if a denial is non-compliant with s. 42 of the Schedule. Unlike ss. 38(11), s. 42 of the Schedule does not contain any provision requiring an insurer to pay ACBs until a proper denial is made. The applicant’s request to deem ACBs payable for a breach of s. 42(13)(b) would read into the Schedule a remedy that is not provided.

40Without any submissions from the applicant on his substantive entitlement to ACBs or why they are reasonable and necessary, I find that the applicant has not established entitlement to ACBs.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the treatment plans in dispute in accordance with s. 51.

Award

42The applicant sought an award under s. 10 of Regulation 664. He submits that the respondent improperly held him within the MIG for 4.5 years, failed to provide sufficient reasons for its denials of all of the OCF-18s pursuant to s. 38(8) of the Schedule, and failed to produce requested adjuster’s log notes. 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.

43I do not find that the applicant has established a basis for an award. With respect to the respondent’s failure to provide adjuster’s log notes, the applicant has not led evidence of any efforts he made to obtain the requested notes prior to this hearing, whether by way of follow-up requests or a motion. Although the applicant argues that the respondent improperly held him within the MIG, it did so on the basis of its insurer’s examinations. While I ultimately determined that the applicant sustained non-minor injures, I do not find the respondent’s reliance on its IE assessments to meet the high threshold for an award.

44Finally, even though I found that the respondent failed to comply with its obligations under s. 38(8) of the Schedule, this finding in and of itself does not amount to an unreasonable withholding or delay of payment of benefits. In my view, the “shall pay” consequences of s. 38(11) serve as an appropriate punitive result for non-compliance with s. 38(8), and an additional overlapping award is not warranted.

ORDER

45For the foregoing reasons I find that: