Licence Appeal Tribunal File Number: 22-011413/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:
Busra Besparmak Asmazoglu
Applicant
and
Certas Direct Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Justin Mariani, Paralegal
For the Respondent:
Norma Barron, Counsel
Written Hearing:
By way of written submissions
OVERVIEW
1Busra Besparmak Asmazoglu, the applicant, was involved in an automobile accident on March 18, 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, Certas Direct Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES IN DISPUTE
Preliminary Issue
2The following preliminary issue will be addressed at this hearing:
i. Is the applicant barred from proceeding with her claim for non-earner benefits and the medical and rehabilitation benefits in dispute because she failed to commence her application within two years after the respondent’s refusal to pay the amount claimed?
Substantive 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”) limit?
ii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from April 15, 2019, to March 18, 2021?
iii. Is the applicant entitled to $396.50 ($3,696.50 less $3,300.00 approved) for chiropractic services from Mackenzie Medical Rehabilitation Centre proposed by Ryan Pagnanelli in a treatment plan dated June 25, 2019?
iv. Is the applicant entitled to $1,977.05 for chiropractic services from Mackenzie Medical Rehabilitation Centre proposed by Laura Tummonds in a treatment plan dated August 5, 2019?
v. Is the applicant entitled to $1,384.70 for chiropractic services from Mackenzie Medical Rehabilitation Centre proposed by Sai Lam Rudi Chan in a treatment plan dated November 12, 2019?
vi. Is the applicant entitled to $1,384.70 for chiropractic services from Mackenzie Medical Rehabilitation Centre proposed by Laura Tummonds in a treatment plan dated September 23, 2019?
vii. Is the applicant entitled to $2,569.40 for chiropractic services from Mackenzie Medical Rehabilitation Centre proposed by Ryan Pagnanelli in a treatment plan dated June 12, 2020?
viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
Preliminary Issue
4The applicant did not dispute the denials pertaining to the any of the treatment plans or the NEB within two years of receiving valid notice pursuant to s. 56 of the Schedule. She is accordingly statute barred from proceeding with her claim for those benefits.
Substantive Issues
5The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and she is therefore subject to treatment within the MIG.
6The respondent is not liable to pay an award.
7As no payments are overdue, the applicant is not entitled to interest.
ANALYSIS
Preliminary Issue
8I find that the applicant is statute barred from proceeding with her claim for the treatment plans and NEB.
9Section 56 of the Schedule states that an application to the Tribunal in respect of a benefit shall be commenced within two years after an insurer’s refusal to pay the amount claimed.
10It is not disputed by the parties that the applicant applied to the Tribunal for a determination of the issues in dispute on October 20, 2022, which was later than two years after the respondent provided the denial letters to the applicant for the NEB and treatment plans.
11The applicant, however, submits that the denial letters do not constitute sufficient notice in accordance with s. 36(4)(b) and s. 38(8) of the Schedule, and therefore the denials cannot be relied upon to trigger the limitation period.
12Section 36, which pertains to NEBs, states that within 10 business days of receiving an application and completed OCF-3, the insurer shall either pay the specified benefit, send a request under s. 33, or give the applicant notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the benefit and, if the insurer requires an examination under s. 44, advise the applicant of the requirement for an examination.
13Section 38, which pertains to medical and rehabilitation benefits, states that within 10 business days of receiving a treatment plan, the insurer shall give the insured person notice outlining the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.
14The wording of s. 56 is different from s. 36(4)(b) or s. 38(8). The only requirement for the time limit of s. 56 to be triggered is that the insurer must refuse to pay the amount claimed. Section 56 does not require medical or any other reasons in order for the limitation period to begin.
15In order for a denial notice to trigger s. 56, it must comply with the principles set out in Smith v. Co-operators General Insurance Co., 2002 SCC 30 (“Smith”). According to Smith, the information in a denial notice must be provided in straightforward and clear language, directed towards an unsophisticated person. The information should also include a description of the most important points of the dispute resolution process, and the relevant time limits that govern the process.
16Further, the Court of Appeal in Sietzema v. Economical Mutual Insurance Company, 2014 ONCA 111, stated that clear and unequivocal notice by an insurer of ineligibility for benefits was sufficient to trigger the limitation period, despite the fact that the insurer gave legally incorrect reasons for the ineligibility. The Court stated that the limitation period begins to run when the claim is refused. Although the parties did not refer to this case in their submissions, I am bound by it.
17The applicant’s submissions focus on the insufficient reasons provided by the respondent in each of the denial letters. However, the applicant does not argue that the letters were not clear and unequivocal, did not provide information about the dispute resolution process, or did not provide information about the limitation period.
18For the reasons that follow, I find that all of the denial letters provided clear and unequivocal notice that the respondent refused to pay for the benefits at issue. As the applicant applied to the Tribunal for dispute resolution more than two years after the denial letters, she is barred from proceeding with her claims for the NEB and treatment plans in dispute.
Non-earner benefit
19The denial letter of July 5, 2019, states that the respondent reviewed an OCF-3, and determined that the applicant was not entitled to NEBs as the medical documentation on file did not support that she suffered a complete inability to carry on a normal life. It then requested medical records from the applicant’s family physician in order to determine her initial entitlement to the benefit. The letter included a document entitled “Your Right to Dispute”, which explained how to file a dispute with the Tribunal and that the applicant had a two-year time limit to do so.
20After receiving a second OCF-3, the respondent issued a second denial letter on June 30, 2020, which again stated that the applicant was not entitled to NEBs. It stated: “at this time, the medical documentation on file does not support that you suffer from a complete inability to carry on a normal life.” This letter also included the “Your Right to Dispute” page.
21I find that, although there may have been some ambiguity in the first letter regarding whether the initial entitlement to the benefit had been determined, the second letter was clear and unequivocal that the applicant was not entitled to the benefit. It explained the dispute resolution process and the limitation period. As such, I find that the second letter met the requirements set out in Smith.
22The denial letter of July 3, 2019, stated that the respondent believed that her injures were categorized as “Minor Injury”, the treatment plan was partially approved, and that only $3,300.00 out of the $3,696.50 submitted was approved which was the amount available under “the minor injury coverage”. The letter also provided an explanation of the MIG, as well as a “Your Right to Dispute” page.
23I find that the letter clearly and unequivocally explained that only $3,300.00 of the treatment plan submitted was approved. In my view, an unsophisticated person would understand that the respondent would not be paying the remaining $396.50. The letter also included information about the process to dispute the denial and specified the time limit to do so. I accordingly find that it satisfied the requirements as set out in Smith.
24The denial letters for these treatment plans all stated that the total amount recommended by the treatment provider was not approved. The amount and a description of the treatment plan was set out in each letter. The letters also each included the “Your Right to Dispute” page.
25I find that the denial letters pertaining to these treatment plans satisfied the requirements set out in Smith, as they clearly and unequivocally stated that the treatment plans were not approved, and included information about the dispute resolution process and limitation period.
Substantive Issues
The applicant is not removed from the MIG
26Section 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.”
27An 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.
28The applicant does not make specific submissions about why she should be removed from the MIG. She refers generally to records from Mississauga Health Centre, two disability certificates, and the treatment plans in dispute. She points out that Dr. Ryan Pagnanelli, chiropractor, listed diagnoses of various sprains and strains, headaches, “other sleep disorders”, and “other anxiety disorders” in an OCF-3 of June 20, 2019. She also refers to a treatment plan of the same date by Dr. Pagnanelli, where he made note of “psychological yellow flags” and “history of pre-existing conditions”. Dr. Pagnanelli is a chiropractor and is not qualified to make psychological diagnoses. I accordingly place little weight on this evidence without further corroborating medical documents.
29There are only two records before me from the applicant’s family physician, Dr. Al-Khafaji, regarding the accident. On June 25, 2019, the applicant reported pain mainly in her neck area that disturbed her sleep, mild numbness over her left pain, and mild discomfort of her upper back. She was sent for x-rays of her cervical and thoracic spine, which were normal. On November 12, 2019, the applicant reported to Dr. Al-Khafaji that she had pain in her back, neck, and shoulder.
30Neither of the records of Dr. Al-Khafaji corroborate the psychological symptoms mentioned by Dr. Pagnanelli. I find that the applicant has failed to prove on a balance of probabilities that she should be removed from the MIG as a result of a psychological impairment.
31The applicant underwent a s. 44 assessment with Dr. Sayed Hosseini, physiatrist, on June 19, 2020. She advised him that she was experiencing pain in her back, neck, and shoulders, as well as headaches. Dr. Hosseini diagnosed the applicant with nonspecific post-traumatic headaches, cervical spine sprain and strain, thoracic spine sprain and strain, bilateral shoulder complaint (no positive findings), and questionable left greater trochanteric syndrome. He opined that from a musculoskeletal perspective, the applicant’s impairments fell under the MIG, and that she did not have a pre-existing medical condition that would prevent her from achieving maximum medical recovery if she was subject to the MIG.
32The applicant argues that the report of Dr. Hosseini is not contemporaneous to the treatment plans in dispute. I do not accept that as being relevant to whether the applicant sustained a minor injury in this accident. The applicant also argues that her healthcare practitioner, who was actively following her, “came to a significantly different conclusion”. The applicant did not explain what this conclusion was, or which practitioner she was referring to. In fact, I find that the injuries described by Dr. Al-Khafaji and Dr. Pagnanelli were similar to those described by Dr. Hosseini. Further, the applicant has not provided compelling evidence to contradict Dr. Hosseini’s findings. I find Dr. Hosseini’s report more thorough and persuasive than the records and OCFs relied upon by the applicant, which do not provide a compelling explanation as to why she should be removed from the MIG.
33There is no compelling evidence before me that the applicant had a documented pre-existing condition that would preclude her recovery if kept within the MIG, suffers from chronic pain with functional impairment, or sustained an injury other than those described by the MIG. I find that she has not proven, on a balance of probabilities, that she should be removed from the MIG.
Interest
34Interest is applicable on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have determined that no benefits are payable, I find that the applicant is not entitled to interest.
Award
35The applicant sought an award under s. 10 of Reg. 664. 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. As no benefits are payable, I find that the applicant is not entitled to an award.
ORDER
Preliminary Issue
36The applicant did not dispute the denials pertaining to the any of the treatment plans or the NEB within two years of receiving valid notice pursuant to s. 56 of the Schedule. She is accordingly statute barred from proceeding with her claim for those benefits.
Substantive Issues
37The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and she is therefore subject to treatment within the MIG.
38The respondent is not liable to pay an award.
39As no payments are overdue, the applicant is not entitled to interest.
Released: December 5, 2024
__________________________
Rachel Levitsky
Adjudicator