Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-000147/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:
Ran Chen
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Aylina Dhanji, Counsel
For the Respondent:
Adam Fox, Counsel
Francesco Bruno, Articling Student
HEARD:
By way of written submissions
OVERVIEW
1Ran Chen, the applicant, was involved in an automobile accident on August 18, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was denied benefits by the respondent, Certas Home and Auto Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
3The 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 (“MIG”)? Note: The applicant submitted that $3,200.25 in medical benefits has been paid.
ii. Is the applicant entitled to $2,200.00 for the cost of a psychological assessment, proposed by Somatic Assessments and Treatment Clinic in a treatment plan, submitted September 29, 2021?
iii. Is the applicant entitled to $173.61 ($1,318.90 less $1,145.39 approved) for physiotherapy services, proposed by Good Health Wellness Centre Inc. in a treatment plan dated October 4, 2021?
iv. Is the applicant entitled to $2,419.10 for physiotherapy services, proposed by Good Health Wellness Centre Inc. in a treatment plan submitted on November 10, 2021?
v. Is the applicant entitled to interest on any overdue payment of benefits?
vi. 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
4I find that the applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
5I find that the applicant is not entitled to the treatment plans in dispute beyond the $3,500.00 MIG funding limit on treatment.
6I find that as no benefits are payable, no interest is owing.
7I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.
PROCEDURAL ISSUES
Late Submission of Medical Documents
8The respondent submits that “some of the applicant’s documents” were produced after the deadline set by the Adjudicator in the Case Conference Report and Order dated August 2, 2023. The respondent, however, did not provide a list of the documents that were alleged produced late or request any specific relief.
9Due to the lack of submissions and the lack of particulars provided for the relief sought, all of the applicant’s documents submitted with the hearing submissions will be considered in rendering my decision.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
a) The Minor Injury Guideline
10I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain or from a psychological impairment arising from the accident and, as a result, her injuries fall within the MIG.
11Section 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.”
12An 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 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.
13The applicant argues that she should be removed from the MIG because she sustained chronic pain and/or a psychological impairment as a result of the accident.
b) The applicant does not suffer from chronic pain that would remove her from the MIG
14I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain that would remove her from the MIG.
15The applicant submits that she should be removed from the MIG because she suffers from chronic pain. She states that she has ongoing pain in her leg, back, lower back, neck and shoulders which has been documented by her treating providers.
16To support her position, the applicant relies upon the CNRs of Dr. C.F. Chiu, family physician, the CNRs from Goodhealth Wellness Centre, the treatment plans from Goodhealth Wellness Centre and the treatment plan completed by Dr. Sharleen McDowall, psychologist, dated September 29, 2021.
17The respondent submits that the CNRs of Dr. Chiu, are entirely illegible and therefore should have no weight in the Tribunal’s decision in determining the applicant’s injuries. The respondent relies on the Medical Records Documentation guidelines published by the College of Physicians and Surgeons of Ontario (“CPSO”) which state that physician’s documentation in the medical record must be legible, accurate and complete. The applicant did not address the submissions of the respondent in respect to Dr. Chiu’s CNRs and the applicant did not file reply written hearing submissions.
18I am persuaded by the Tribunal decisions in Washington v. The Personal, 2024 CanLII 4279 (ON LAT) and Javed v. Royal & Sun Alliance Insurance Company of Canada, 2024 CanLII 6514 (ON LAT) relied on by the respondent, where the Tribunal found that documents or records that are illegible, are unpersuasive and unhelpful.
19I agree with the respondent that the CNRs of Dr. Chiu are illegible and therefore unpersuasive. I will afford these CNRs no weight in my decision as a result.
20Upon review of the CNRs from Goodhealth Wellness Centre where the applicant attended for treatment, it appears from the records that the applicant attended from August 21, 2021 to February 5, 2022. However, these handwritten notes are also illegible, other than the dates of the services provided, and therefore I am unable to consider the contents of these CNRs.
21The treatment plans from Goodhealth Wellness Centre list the applicant’s injuries as “WAD 1 with neck pain, strain and sprain of the lumbar spine, strain and sprain of the shoulder joint, rotator cuff capsule and injury of ulnar nerve at upper arm level.” The injuries listed, however, are all injuries that fall within the definition of minor. There is no mention of chronic pain.
22The applicant also relies upon the treatment plan prepared by Dr. McDowall, psychologist, dated September 29, 2021, to support that she physically suffered from pain in her neck, shoulder, back and arms. I place little weight on Dr. McDowall’s description of the applicant’s physical injuries as she is a psychologist and not qualified to make a physical diagnosis. In addition, it does not appear that she states that any injuries are “chronic,” and she does not provide a functional analysis of the applicant’s condition.
23The applicant also relies on the decision of C.G. v. The Guarantee Company of North America, 2020 CanLII 63599 (ON LAT) (“C.G. v. The Guarantee”), where the Tribunal held that “Chronic pain is a condition that persists for three to six months, and a formal diagnosis of chronic pain is not required to remove from the MIG.” The applicant submits that she has had ongoing back pain for over two years since the accident.
24While the decision in C.G. v. The Guarantee cited by the applicant states that a formal diagnosis of chronic pain is not required to remove the applicant from the MIG, the applicant has not provided any evidence that she has ongoing pain or that she has a corresponding functional impairment as a result of the accident.
25For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers from chronic pain as a result of the accident and therefore she is not removed from the MIG on this basis.
c) The applicant does not suffer from psychological injuries that would remove her from the MIG
26I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological impairment that would remove her from the MIG.
27The applicant submits that she suffers a psychological impairment as a result of the accident. She relies on the treatment plan dated September 29, 2021, prepared by Dr. McDowall, psychologist, who opined that she has a “post-accident psychological impairment.” She submits that the pre-screening completed by Mandy Fang, social worker, revealed that the applicant is struggling with anxiety, irritability, frustration, depression and fatigue. The treatment plan recommended a psychological assessment.
28The respondent submits that there is no independent corroborating evidence provided to support a finding that the applicant sustained a psychological impairment. In addition, there is no medical evidence to support why the applicant went for a psychological pre-screen with Ms. Fang, who did not complete any clinical testing as part of the pre-screen and is also not qualified to make a psychological diagnosis.
29I find the psychological pre-screen report by Ms. Fang, unpersuasive and give it little weight. I agree with the respondent that the pre-screen report fails to outline why the pre-screen telephone interview was sought out as there were no prior psychological complaints noted by any other medical practitioner. In addition, there was no clinical testing performed. There is no information in the applicant’s treatment records with Goodhealth Wellness Centre to indicate that she suffers from symptoms of a psychological injury which would warrant a psychological pre-screen interview and psychological testing. Further, the contents of the screening inventory and the results of it are not included in the pre-screen report, further diminishing the overall persuasiveness of the document.
30I also disagree with the applicant’s submissions that the respondent is required to commission an Insurer’s Examination (“IE”) with each denial of benefits. I recognize that the respondent has not provided an expert opinion on the applicant’s psychological health. However, the burden of proving an accident-related psychological condition to be removed from the MIG, rests with the applicant, not the respondent to disprove it.
31For all of the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she sustained a psychological impairment as a result of the accident and therefore she is not removed from the MIG on this basis.
The applicant is not entitled to the treatment plans in dispute beyond the $3,500.00 MIG limit
32The applicant’s submissions indicate that $3,200.25 of the approved treatment plans has been paid.
33As I have found that the applicant remains within the MIG, I am not required to determine whether the services set out in the treatment plans dated September 29, 2021, October 4, 2021 and November 10, 2021 are reasonable and necessary.
a) The respondent’s denials are compliant with s. 38(8) of the Schedule
34As an alternative argument, the applicant submitted that she is entitled to the disputed treatment plans because the respondent’s denials did not comply with the requirements in s. 38(8) of the Schedule.
35I find that the respondent’s denials of the treatment plans complied with s. 38(8) of the Schedule and, therefore, the applicant is not entitled to the treatment plans on this basis.
36Sections 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.
37Section 38(8) provides that an insurer shall respond to a treatment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does not agree to pay for. The insurer must provide medical and all other reasons why it has determined that the treatment plan is not reasonable and necessary.
38If an insurer fails to comply with its obligations under s. 38(8) of the Schedule, the following consequences under s. 38(1) of the Schedule are triggered:
i. The insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies; and
ii. The insurer must pay for all goods, services, assessments and examinations described in the treatment 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).
b) The respondent’s denial of the September 29, 2021 treatment plan
39I find that the respondent complied with s. 38(8) of the Schedule in respect to its denial of the treatment plan, dated September 29, 2021.
40The applicant submits that the respondent failed to comply with s. 38(8) of the Schedule when it denied the September 29, 2021 treatment plan for a psychological assessment. The applicant claims that the April 13, 2022 Explanation of Benefits (“EOB”) letter was too vague to constitute a valid medical reason for refusing to pay the treatment plan for a psychological assessment.
41The April 13, 2022 EOB that the applicant is relying upon does not pertain to the September 29, 2021 treatment plan. The denial letter for the September 29, 2021 treatment plan was dated October 1, 2021. The applicant made no submissions regarding the October 1, 2021 EOB and s. 38(8) of the Schedule.
42Therefore, because the April 13, 2022 EOB letter does not apply to the September 29, 2021 treatment plan, being one of the treatment plans in dispute in this matter, the applicant’s claim that the September 29, 2021 treatment plan is payable as a result of the respondent’s non-compliance with s. 38(8) of the Schedule is denied.
c) The respondent’s denial of the November 20, 2021 treatment plan
43I find that the respondent complied with s. 38(8) of the Schedule in respect to its denial of the treatment plan, dated November 20, 2021.
44The applicant submits that the respondent did not respond to the treatment plan for physiotherapy, dated November 10, 2021, within the 10-business day window that is required by s. 38(8) of the Schedule. The evidence shows that the respondent responded to this treatment plan on December 2, 2021.
45I find that the applicant has not provided me with evidence or information as to when the November 20, 2021 treatment plan was submitted to the respondent for consideration. While the treatment plan is dated November 10, 2021, the applicant did not provide any evidence to support a finding as to when the treatment plan was submitted, such as the HCAI submission log.
46Therefore, I find that the applicant has not provided sufficient evidence and therefore the applicant’s claim that the November 20, 2021 treatment plan is payable as a result of the respondent’s non-compliance with s. 38(8) of the Schedule is denied.
Interest
47As no benefits are payable, no interest is owing.
Award
48The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits.
49The applicant is not entitled to an award under s. 10 of Reg. 664 because the applicant only provided case law on the test for an award and did submit any evidence or make submissions as to how the respondent unreasonably withheld or delayed the payment of benefits.
ORDER
50For the reasons outlined above, I find:
i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plans in dispute beyond the $3,500.00 MIG limit funding limit on treatment;
iii. As no benefits are owing, no interest is payable;
iv. The respondent is not liable to pay an award under s. 10 of Reg. 664; and
v. The application is dismissed.
Released: November 22, 2024
Melanie Malach
Adjudicator