Goldsmith v. The Personal Insurance Company, 2024 CanLII 115410

Citation: Goldsmith v. The Personal Insurance Company, 2024 ONLAT 22-010101/AABS

Licence Appeal Tribunal File Number: 22-010101/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:

Eitan Goldsmith

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR: Nadia Mauro

WRITTEN SUBMISSIONS:

Applicant: Maziar Mortezaei, Counsel

Respondent: Aly Pabani, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Eitan Goldsmith, the applicant, was involved in an automobile accident on September 3, 2020, 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, The Personal 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:

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 $2,434.61 for chiropractic treatment proposed by Dr. Rob Tarulli of Health ProWellness, in an OCF-18 submitted February 8, 2021?
3. Is the applicant entitled to $3,556.29 for psychological treatment proposed by Dr. Fahimeh Aghamohseni of Health ProWellness, in an OCF-18 submitted April 12, 2021?
4. Is the applicant entitled to $2,200.00 for psychological assessment proposed by Dr. Fahimeh Aghamohseni of Health ProWellness, in an OCF-18 submitted December 16, 2020?
5. Is the applicant entitled to interest on any overdue payment of benefits?
6. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

3The applicant's injuries are predominantly minor and, therefore, are within the MIG.

4The applicant is entitled to expenses incurred under the disputed OCF-18s pursuant to s. 38(11) of the Schedule, plus interest.

5The respondent is not liable to pay an award.

ANALYSIS

The applicant's injuries are predominantly minor

6I find that the applicant has not proven, on a balance of probabilities, that his accident-related injuries warrant removal from the MIG.

7Section 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. 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."

8An 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 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.

9The applicant submits that he should be removed from the MIG because of serious psychological impairments and physical injuries as a result of the accident.

a) Psychological injuries

10I find that the applicant has not proven, on a balance of probabilities, that he has sustained psychological impairments as a result of the accident that warrants his removal from the MIG.

11The applicant submits that he has suffered from psychological injuries as a result of the accident, such as Major Depressive Disorder with anxious stress, Somatic Symptom Disorder with predominant pain, and Vehicular Phobia. To support his position, the applicant replies upon the s. 25 psychological assessment report of Dr. Fahimeh Aghamohseni, psychologist, dated March 27, 2021, of which states as a result of these diagnoses, the applicant requires treatment outside of the MIG. The applicant further argues that the respondent failed to provide evidence to the contrary.

12The respondent argues that the s. 25 psychological report of Dr. Aghamohseni, should not be given weight. The respondent argues that Dr. Aghamohseni was assisted by Ms. Shelbie-Rae Thompson, (Qualifying) Registered Psychotherapist, and there is no indication of the level of involvement of each professional during the assessment, no document or medical file review was performed, and the report establishes minimal levels of alleged psychological impairment. Moreover, the respondent submits that the applicant has not complained of any psychological related impairment to his other treating practitioners.

13I give little weight to the report of Dr. Aghamohseni, as I am not pointed to any corroborating evidence that would substantiate this assessor's findings. I agree with the respondent and its reliance upon the Tribunal's decision in Jaroo v. Economical Mutual Insurance Company 2023, CanLII 122914 (ON LAT), in that I find the report of Dr. Aghamohseni to be less credible as it is not substantiated by contemporaneous medical records from the applicant's treating practitioners. Despite presenting to Dr. Afrooz Drakhshan, a walk-in practitioner, with accident-related complaints on September 5, 2020, the applicant did not report any psychological complaints. I am also not pointed to any compelling evidence of psychological impairment in the clinical notes and records (CNRs) of Health-Pro Wellness. For example, a CNR of Health-Pro Wellness, dated September 26, 2020, indicated that the applicant reported his stress levels were high at work. On June 17, 2023, a chiropractic re-assessment report of Health-Pro Wellness indicated that the applicant reported "stress with his recovery." I am not directed to additional or compelling psychological complaint within these CNRs. As such, I do not find that these CNRs from Health-Pro Wellness corroborate the severity of the accident-related psychological impairments, as reported and diagnosed by Dr. Aghamohseni. I am also not directed to any further compelling medical evidence from any other practitioner that opines on accident-related psychological complaints.

14Moreover, I also agree with the respondent that Dr. Aghamohseni's report neither comments on nor indicates a review of the applicant's medical file. In this respect, Dr. Aghamohseni's report is conducted largely on the basis of the applicant's self-reports. I also note inconsistent conclusions within the report of Dr. Aghamohseni when compared to the responses of the applicant. For example, Dr. Aghamohseni's report indicated that the applicant stated, "I feel okay" when driving, but then Dr. Aghamohseni reports the applicant feels "a heightened sense of anxiety and described hypervigilant behaviours as a driver." In the next sentence, the applicant rated his driving anxiety at 2/10 and stated, "I think I feel normal with the driving part." However, Dr. Aghamohseni concludes at the end of her report that the applicant has specific phobia, situational type, vehicular. As such, I find that Dr. Aghamohseni's diagnosis is not supported by the applicant's reported feelings with respect to driving. In a broader sense, I find that Dr. Aghamohseni's diagnoses do not correlate with the applicant's reports to other health care practitioners nor does Dr. Aghamohseni's report rely on any contemporaneous medical records.

15As I have given little weight to Dr. Aghamohseni's report for the reasons set out above and the applicant has not provided any other evidence of psychological complaints arising from the accident, I find that the applicant has not proven, on a balance of probabilities, that he has sustained a psychological impairment that would warrant removal from the MIG.

b) Physical injuries

16I find that the applicant has not proven, on a balance of probabilities, that his physical injuries warrant removal from the MIG.

17The applicant submits that as a result of the accident, he has suffered serious physical injuries such as headaches, neck pain, and back pain. The applicant relies on a Disability Certificate (OCF-3), completed by Dr. Thao Bui of Health-Pro Wellness dated September 15, 2020. This OCF-3 reported the applicant's accident-related impairments as: whiplash with complaint of neck pain, headache, sprain/strain of the cervical spine, sprain/strain of the thoracic spine, sprain/strain of the lumbar spine, sprain/strain of the sacroiliac joint, dizziness and giddiness, and reaction to severe stress, unspecified.

18The applicant's physical injuries, as described in paragraph 17, all fall within the definition of a minor injury as defined by the Schedule. Despite a further OCF-3, completed by, Dr. Rob Tarulli, chiropractor, of Health-Pro Wellness, dated February 10, 2022, the applicant's reported accident-related physical injuries and impairments are consistent with the September 15, 2020 OCF-3, and again fall within the definition of a minor injury. I am not directed to any further compelling evidence that substantiates a non-minor physical injury.

19Given the above, I find that applicant has not proven, on a balance of probabilities, that he has suffered from accident-related physical impairments that warrant removal from the MIG.

20As I have found the applicant is not removed from the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary as the applicant has exhausted the MIG limit funding.

21However, the applicant submits that for all the OCF-18s in dispute, the respondent failed to discharge its statutory obligations pursuant to the Schedule and used boilerplate responses for all denials.

The denial letters are non-complaint with s.38(8) of the Schedule

22I find that the respondent's denial letters dated February 12, 2021, April 21, 2021, and December 18, 2020, are not complaint with s. 38(8) of the Schedule.

23Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

24If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.
2. 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).

25The denial letter dated February 12, 2021, for the OCF-18 for chiropractic treatment, in the amount of $2,434.61, submitted on February 8, 2021, stated:

"I have reviewed your medical file and compare your injuries to the Minor Injury Guideline (MIG). It has been determined that your injuries are consistent with the MIG. There is no compelling medical evidence to support otherwise. I have paid the maximum funds allowed in MIG and you have now exhausted your MIG limits of $3500."

26The denial letter dated April 21, 2021, for the OCF-18 for psychological treatment in the amount of $3,556.29, submitted on April 12, 2021, stated:

"I have reviewed your medical file and compare your injuries to the Minor Injury Guideline (MIG). It has been determined that your injuries are consistent with the MIG. There is no compelling medical evidence to support otherwise. I have paid the maximum funds allowed in MIG and you have now exhausted your MIG limits of $3500."

27The denial letter dated December 18, 2020, for the OCF-18 for psychological assessment, in the amount of $2,200.00, submitted on December 16, 2020, stated:

"I have reviewed your medical file/injuries and compared them to the Minor Injury Guideline (MIG), your injuries are consistent with Minor Injury Guideline which is subject to $3500 maximum limits. I have already paid the maximum limits. There is no compelling medical evidence to support this proposal. Therefore this treatment plan is not reasonable, necessary and essential for the injuries you sustained in this accident."

28The applicant submits that the respondent did not provide any specifics as to the information or documents that are needed for approvals, other than to state the injuries are minor. The applicant further relies on the Divisional Court's decision in Hedley v Aviva Insurance Company of Canada, 2019 ONSC 5318 ("Hedley"), which held that any reasons for denials of benefits must be meaningful to allow the applicant to challenge the decision.

29The respondent submits that all the denial letters are in keeping with the Schedule. The respondent further argues that they advised of the MIG applicability, injuries attributable to the accident, along with inviting the applicant to provide further medical information to support treatment beyond the MIG.

30I agree with the applicant and the decision in Hedley in that the respondent's denial letters are mere boilerplate statements. Not only is this evident by the near identical language used for all the denial letters, but also by the vague statements that do not provide the applicant with any detail. Although the respondent's denial letters state that applicant's injuries fall within the MIG, I find that the denial letters read generic, without pointing to any of the applicant's injuries, diagnoses, or related medical opinion. At a minimum, the letters should have included the listed impairments within the submitted treatment plans.

31What is more, despite the respondent arguing in its submissions that when the applicant submitted each treatment plan in dispute, the applicant had only provided the respondent with an OCF-3, this is not referenced in any of the denial letters. Moreover, the respondent, in its submissions, stated that it has requested CNRs from the applicant's family doctor and walk-in clinic from the outset of the claim, however, the applicant did not provide these CNRs until after the treatment plans in dispute were submitted. Once again, if the respondent sought this information to make its determination, then the respondent should have included in each denial letter that it required same.

32Simply referring to the 'medical file' and that there is no compelling medical evidence, without providing a single reference, is not sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. This also does not serve the Schedule's consumer protection goal.

33Given the foregoing, I find that the respondent's denial letters are not complaint with s. 38(8) of the Schedule. Consequently, pursuant to the provisions set out in s. 38(11), I find that the respondent is liable to pay all expenses that were incurred by the applicant under the treatment plans between the 11th business day after the plan was submitted until the day the respondent cured its deficient notice. If the respondent did not cure its deficient notice prior to this hearing, the applicant may incur these expenses, and provided they are properly invoiced, the respondent is thereafter liable to pay these expenses. To be clear, it is no longer open to the respondent to cure the denials that I have found deficient: Aviva v Suarez, 2021 ONSC 6200 at paras. 35-36.

Interest

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest for any incurred expenses under the OCF-18 for chiropractic treatment, psychological treatment, and psychological assessment.

Award

35I find that the applicant is not entitled to an award pursuant to s. 10 of Reg. 664.

36Pursuant to s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning "behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate." The onus is on the applicant to prove, on a balance of probabilities, that the respondent's conduct meets this criteria.

37The applicant submits that the respondent unreasonably withheld or delayed payments for medical and rehabilitation benefits for treatments and assessments. The applicant argues the respondent did not consider all the medical evidence and failed to assess the applicant's physical and psychological injuries through independent medical assessments to support its denials.

38The respondent submits that no particulars of a special award were provided after the case conference, despite the requirement set out in the case conference report and order dated June 5, 2023, and should therefore be dismissed. The respondent further argues that it did not withhold or delay payments for benefits claimed, and it produced the denial letters in a timely manner, adequately advising the applicant that his injuries fall within the MIG.

39Although I found that the respondent did not comply with s. 38(8) of the Schedule in issues, two, three, and four, I do not find that its conduct rose to the level that would substantiate the applicant's request for an award despite finding that denial letters did not meet the standard of notice required by the Schedule. As such, I find that the insurer's conduct was not the "excessive, imprudent, stubborn, inflexible, unyielding, or immoderate" conduct that I would deem to warrant an award.

ORDER

40I find that:

i. The applicant's injuries are predominantly minor;

ii. The expenses incurred under the treatment plan for chiropractic treatment are payable pursuant to s. 38(11) of the Schedule, plus interest;

iii. The expenses incurred under the treatment plan for psychological treatment are payable pursuant to s. 38(11) of the Schedule, plus interest;

iv. The expenses incurred under the treatment plan for the psychological assessment are payable pursuant to s. 38(11) of the Schedule, plus interest; and

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