Citation: Chehab v. TD General Insurance Company, 2024 ONLAT 22-010102/AABS

Licence Appeal Tribunal File Number: 22-010102/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:

Talal Chehab

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Tanjoyt Deol

APPEARANCES:

For the Applicant: Yalda Aslamzada, Counsel

For the Respondent: Rui (Ricky) Shen, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Talal Chehab (the “applicant”), was involved in an automobile accident on June 29, 2021, 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 TD General Insurance Company (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:

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 $3,313.39 for physiotherapy services, proposed by Physiomed Roytec in a treatment plan (“OCF-18”) dated June 23, 2022?
3. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by TE Rehabilitation Services in an OCF-18 dated May 24, 2022?
4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3I find that:

i. The applicant has not demonstrated that he suffers from injuries outside of the minor injury definition in the Schedule. He remains within the MIG and its $3,500.00 limit on treatment.

ii. The applicant is entitled to the OCF-18s, dated May 24, 2022 and June 23, 2022, for a psychological assessment and physiotherapy services, plus interest in accordance with s. 51 of the Schedule.

ANALYSIS

The applicant remains within the MIG

4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”

5An 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 from any accident-related 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.

6In all cases, the burden of proof lies with the applicant.

7Here, the applicant provides no argument or medical evidence regarding the MIG. Instead, he argues that the insurer’s examination notice (“IE notice”) dated January 24, 2022, was non-compliant with s. 44(5) of the Schedule. Therefore, he argues that the insurer cannot rely upon the general practitioner and psychological assessments because they were improperly procured and therefore were void ab initio. Thus, the applicant argues that as the respondent cannot rely on these IE reports to deny the OCF-18s in dispute, it follows that the respondent was non-compliant with s. 38(8). Hence, the consequences of s. 38(11) apply, meaning that the insurer is prohibited from taking the position that the applicant has an impairment to which the MIG applies, and that the insurer shall pay for the OCF-18s in dispute.

8For the reasons, the applicant seeks an order that the respondent is prohibited from continuing to take the position that the MIG applies to his claim and that it pay each of the disputed treatment plans, along with interest.

9The respondent counters by submitting that the applicant’s accident-related injuries fall within the MIG. It argues that the applicant has not met his onus to establish he should be removed from the MIG as he made no arguments with respect to this.

s. 38(11) and the MIG

10I find that the applicant has not proven on a balance of probabilities that he suffers from any injury, impairment, or pre-existing condition that is not covered in the minor injury definition of the Schedule.

11As noted above, despite the MIG being a live issue in dispute, the applicant’s submissions are silent with respect to whether his impairments are classified within the MIG or not. In his submissions he concedes that his analysis is focussed exclusively on the procedural requirements of s. 38(8), s. 38(11), and ss. 44(1) and 44(5) of the Schedule. He further argues that under s. 38(11), the respondent is no longer entitled to argue that the MIG applies because it was non-compliant with s. 38(8).

12I do not agree. The MIG determination and any issue regarding the possible improper denial notices are two separate matters. Each requires its own analysis.

13The consequences of failing to provide a denial notice in accordance with s. 38(8) trigger the consequences of s. 38(11) and mandate that an insurer is prohibited from taking the position that an “insured person has an impairment to which the MIG applies” and that the insurer “shall pay for all goods, services and assessments described in the treatment and assessment plan.” But this provision applies only to the treatment plans themselves. Section 38(11) means that an insurer cannot use the MIG as a position for denying such an improperly denied treatment plan; it does not mean that the applicant is removed from the MIG.

14While the applicant cites Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (“Zheng, Cai”) in his submissions, he notes only how that decision affirmed the requirement for an insurer to comply with s. 38(8) and that the consequences of s. 38(11) were mandatory. The applicant does not refer to what, in my view, is one of the main points of Zheng, Cai—its confirmation at paragraph 21 that s. 38 refers to the specific treatment plan in question and s. 38(11) does not impose a permanent prohibition on an insurer with regard to a MIG determination. In short, an improper denial does not result in an applicant being removed from the MIG.

15In summary, the applicant has failed to make submissions on the medical evidence regarding the MIG determination. As a result, he cannot meet his burden. Further, pursuant to Zheng, Cai, he cannot be removed from the MIG as the result of any contraventions of s. 38(8), even if I were to determine that such contraventions took place. Thus, the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment.

16As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.

17However, the applicant submits that all the denial letters, contain fatal deficiencies under s. 38(8). He further submits that as the respondent’s IE notice, dated January 24, 2022, was non-compliant with s. 44(5), it cannot rely on the IEs because they were improperly procured and therefore are void. To support this interpretation, the applicant relies on the previous Tribunal decisions of Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ONLAT) and Zafar v. Intact Insurance Company, 2024 CanLII 125 (ON LAT).

18The respondent argues that its denial letters, dated May 31, 2022, and July 7, 2022, were compliant with s. 38(8) of the Schedule because it provided adequate medical reasons. It further argues that the IE notice, dated January 24, 2022, was in relation to an OCF-18 not in dispute for this application. In any event, the respondent takes the position it was compliant with s. 44(5) of the Schedule, and that excluding IE reports is not a remedy provided under s. 44(5).

19I acknowledge that both parties made extensive submissions on whether the respondent can rely on its IE reports to deny the OCF-18s in dispute if the IE notice was non-compliant with s. 44(5). However, I do not need to consider these submissions as I find that the denial letters, dated May 31, 2022, and July 7, 2022, were non-compliant with s. 38(8) of the Schedule as it did not provide adequate medical reasons to deny the OCF-18s. Regardless of whether the IE reports are excluded or not, the fact remains that the denial letters do not comply with s. 38(8), for the reasons set out below.

(a) Denial Letter, dated May 31, 2022, for a psychological assessment

20I find that the denial letter, dated May 31, 2022, was non-compliant with s. 38(8) of the Schedule. Thus, the OCF-18 for a psychological assessment is payable under s. 38(11) of the Schedule once incurred and properly invoiced by the applicant, as the respondent did not cure the deficient notice prior to this hearing.

21Sections 38(8) and (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 of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan within ten business days. Pursuant to s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.

22In the May 31, 2022, denial letter, the respondent provided the following reason for denying the OCF-18:

Based on the insurer's examination report to determine the applicability of the minor injury guideline it was opined that there was no formal psychological diagnosis and no psychological treatment was recommended in relation to the subject motor vehicle accident.

Based on the above rationale, we will not pay for the above goods services and/or assessments and the OCF-18 will not be subject to an insurer examination. If you have compelling evidence of a pre-existing condition that has been documented before the accident that might exempt you from treatment under the Minor Injury Guideline, please forward it for our review and consideration.

Your claim remains subject to the Medical and Rehabilitation limit of $3,500.00. This amount is inclusive of the treatment received within the Minor Injury Guideline.

23I find that this denial letter does not comply with the requirements under s. 38(8) of the Schedule as it failed to provide adequate medical reasons to deny the disputed OCF-18, nor did it identify that it was denying an OCF-18 for a psychological assessment. Indeed, upon review of the denial letter, there is no indication of what kind of OCF-18 is being denied. Rather, the denial letter stated that the respondent had received an OCF-18, dated May 24, 2022, for “goods, services, and/or assessments” but neither the amount nor the type of assessment is identified.

24While the respondent referenced an IE report, it did not adequately advise the applicant why the psychological assessment is not reasonable and necessary. As noted above, there is no reference to a psychological assessment. Further, the respondent did not identify which IE report stated this conclusion, nor did it enclose a copy of the IE report it is relying upon with the denial letter. In my view, the applicant was entitled to know which IE formed the basis of the insurer’s opinion, and why the conclusion that there was no formal psychological diagnosis rendered the proposed psychological assessment not reasonable and necessary.

25For example, was the psychological assessment not reasonable and necessary because there was no formal psychological diagnosis or because the applicant remained in the MIG, which is not clearly set out in this denial letter. As such, the denial letter is vague and does not provide adequate reasons to the applicant on why the proposed services are being denied based on an unidentified IE report. Therefore, I find that this denial letter is not clear enough to allow an unsophisticated person to make an informed decision as to whether to accept or dispute the denial.

26Consequently, I find that the respondent’s denial letter dated May 31, 2022, is non-compliant with s. 38(8), and the respondent has not pointed me to correspondence that cures this deficient denial letter.

27While I have found that the denial letter was non-compliant with s. 38(8), this does not equate to the respondent having an obligation to provide “very good reasons” or that an OCF-18 is a “rebuttable presumption”, which the respondent has to rebut in its denial letter, as argued by the applicant. If such a standard was applied, it would run afoul the principles outlined in 17-003774/AABS v. Aviva Canada Inc., 2018 CanLII 84051 (ON LAT) because it would expect an adjuster to articulate something resembling a medical opinion, which would be naive and impractical.

28Instead, a contextual approach should be applied and if the reasoning offers a principled rationale based fairly on an insured’s file, then the requirements of s. 38(8) are met. Here, as noted above, this standard was not met because the respondent did not identify what type of assessment was being denied and why it was not reasonable and necessary based on the medical evidence contained in the applicant’s file. In my view, referring to an unidentified assessment does not offer a principled rationale based fairly on the applicant’s file, as I have discussed above.

29In conclusion, I find that the OCF-18 for a psychological assessment to be payable with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.

(b) Denial Letter, dated July 7, 2022, for an OCF-18 for physiotherapy services

33I find that the OCF-18 for physiotherapy services is payable under s. 38(11) of the Schedule once incurred and properly invoiced by the applicant, because the respondent was non-compliant with s. 38(8) and did not cure this deficient notice prior to the hearing.

34In the July 7, 2022, denial letter, the respondent provided the following reason for denying the OCF-18:

In the opinion of the physical assessor the injuries sustained are uncomplicated myofascial sprain/strain injuries. There is no evidence of a radiculopathy, myelopathy, osseous fracture or complete tendon tear that would exclude the claimant's injuries from the definition of a minor injury.

Your claim remains subject to the Medical and Rehabilitation limit of $3,500.00. This amount is inclusive of the treatment received within the Minor Injury Guideline.

We will reconsider our position on receipt of any additional compelling evidence that indicates you have a pre-existing medical condition that was documented before the accident and will prevent you from achieving maximal recovery if subject to the $3,500 limit.

35I find that this denial letter is non-compliant with s. 38(8), because again it did not identify which type of goods, services or assessments were being denied, as there is no reference to the OCF-18 being for physiotherapy services or the amount. Instead, the respondent vaguely wrote that it had received an OCF-18, dated June 23, 2022, for “goods, services, and/or assessments.”

36Further, the respondent did not identify which physical assessor made this determination, nor did it tender a copy of the IE report it is relying upon in its denial letter. Critically, the respondent did not address why the proposed physiotherapy services were not reasonable and necessary based on this unidentified IE report. Moreover, the OCF-18 was in the amount of $3,313.39, which is within the monetary quantum available under the MIG limits, which the respondent conceded to its denial letter by stating that the applicant’s claim was subject to the MIG limits of $3,500.00. Yet the denial letter provides no rationale on why the OCF-18 is not payable within the $3,500.00 limit.

37I acknowledge the respondent’s position that in the decision in Hardy-MacDonald v. Wawanesa Mutual Insurance Company, 2021 CanLII 50776 (ON LAT), the Tribunal determined that it did not require specific reference to a medical condition for an insurer’s reasons to be adequate pursuant to s. 44(5) of the Schedule, since the insurer identified information that it required about the insured’s condition, that it did not have.

38While that may be true, in the facts before me, the denial letter did not even identify the information about the insured’s condition that the insurer did not have but required. As such, I find that the respondent did not comply with s. 38(8) of the Schedule. This also does not serve the Schedule’s consumer protection goal.

39Accordingly, the provisions set out in s. 38(11) of the Schedule are triggered, and as such, the OCF-18 for physiotherapy services is payable, with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.

The respondent is not liable to pay an award

40I find that the applicant has not established that the respondent unreasonably withheld or delayed payment of the OCF-18s for a psychological assessment and physiotherapy services.

41Pursuant to section 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the 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 these criteria.

42The applicant argues that the respondent’s denials were fundamentally inconsistent with the purpose of the Schedule, as it ignored legislative intent by treating the OCF-18s as they do not exist, and that the IEs were a fishing expedition.

43The respondent argues that the applicant’s submissions about the IEs being a fishing expedition is without merit as no evidence has been put forward to support this, like the adjuster log notes.

44First, I find that the applicant has not established that an award is warranted as a result of the respondent being non-compliant with s. 38(8). Although I have found that these OCF-18s are payable due to non-compliance with s. 38(8), a technical breach of the notice provisions of s. 38 would not automatically entitle an applicant to an award, without evidence of unreasonable withholding or delay. In this regard, the applicant has not made specific submissions or referred me to evidence to support this.

45Second, the applicant has not established that the respondent ignored the OCF-18s. While I agree that the particular services and assessment were not identified in the denial letters, I do not agree that this means the respondent ignored the OCF-18s because I have not been referred to evidence to support such a conclusion.

46Finally, the applicant did not direct me to evidence to support his arguments of the respondent conducting a fishing expedition. It is well-settled that submissions are not evidence.

47Based on all these reasons, I find on a balance of probabilities that an award is not payable.

ORDER

48For the reasons outlined above, I find that:

i. The applicant has not demonstrated that he suffers from injuries outside of the minor injury definition in the Schedule. He remains within the MIG and its $3,500.00 limit on treatment.

ii. The applicant is entitled to the OCF-18s, dated May 24, 2022 and June 23, 2022, for a psychological assessment and physiotherapy services, plus interest in accordance with s. 51 of the Schedule.