Licence Appeal Tribunal File Number: 22-011956/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:
Venujan Vijayakulan
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Shahzad Ayub, Counsel
For the Respondent: Ranisha Fernando, Counsel
HEARD: By way of written submissions
OVERVIEW
1Venujan Vijayakulan, the applicant, was involved in an automobile accident on July 11, 2018, 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 Home and Auto 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 Minor Injury Guideline (“MIG”) limit?
ii. Is the applicant entitled to psychological services in the amount of $2,200.00, proposed by TE Rehabilitation Services in a treatment plan dated April 1, 2021?
iii. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that:
i. The applicant has not established that his accident-related impairments warrant removal from the MIG;
ii. The applicant is not entitled to the treatment plan in dispute or interest; and
iii. The respondent is not liable to pay an award.
ANALYSIS
MINOR INJURY GUIDELINE
4Section 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.”
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 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.
The applicant did not sustain injuries that warrant removal from the MIG
6The applicant has not provided any substantive submissions or led medical evidence relating to the grounds for his removal from the MIG. The only evidence tendered by the applicant relating to his accident-related impairments, is a copy of the OCF-18 in dispute which contains the summary of a psychological pre-screening interview. He submits that the results of the pre-screening indicated that he was dealing with emotional difficulties that were worsening his physical pain and causing impairment to his emotional and personal life.
7The respondent submits that the applicant has not demonstrated that his injuries fall outside of the MIG. It relies on three s. 44 assessments, including a psychological assessment. In the December 3, 2018 psychological assessment report, Dr. Bradbury found that the applicant did not meet the DSM-5 criteria for any psychological impairment and that the applicant reported that he did not feel as though he suffered from any significant psychological concerns that would necessitate psychological evaluation. The respondent further submits that the clinical notes and records (“CNRs”) of the applicant’s family doctor, chronic pain clinic, and physiotherapy clinic all reveal that the applicant did not complain of any accident-related impairments. Rather, the applicant reported impairments due to a subsequent July 11, 2022 accident and an assault.
8I find that the applicant has not met his onus to prove that he has sustained accident-related impairments warranting removal from the MIG.
9The applicant has not provided any submissions or directed me to evidence that as a result of the accident he sustained a non-minor physical impairment, that he developed chronic pain as a result of the accident, or that he suffered from a pre-existing injury which precluded recovery from an accident-related injury if he was kept within the MIG. The only evidence tendered by the applicant with respect to a psychological impairment is the OCF-18 with a pre-screening interview. I do not find that this evidence alone establishes a psychological impairment warranting removal from the MIG. The respondent’s s. 44 assessor found that the applicant did not meet the DSM-5 criteria for any psychological impairment, and the CNRs of the applicant’s family physician did not reveal any accident-related psychological complaints, diagnoses or referrals for treatment.
10As such I find that the applicant has not satisfied his onus to prove, on a balance of probabilities, that his injuries warrant removal from the MIG.
11As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plan.
12However, as an alternative argument the applicant argues that the treatment plan in dispute is payable pursuant to s. 38(11) of the Schedule, since the respondent did not comply with the notice requirements in s. 38(8).
Procedural requirements of s. 38(8) of the Schedule
13The applicant submits that the respondent did not provide sufficient medical and other reasons as required by s. 38(8) of the Schedule, in its denial letter dated May 18, 2021. Further, he argues that the denial letter was not provided within 10 business days after it was submitted as required by the Schedule. The applicant relies on the Ontario Court of Appeal decision Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882 to argue that the Schedule is remedial and constitutes consumer protection legislation, and as such, inadequate reasons violate the principles set out in Tomec. He further relies on Tribunal decisions M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT), 17-003774/AABS v. Aviva Canada Inc., 2018 CanLII 84051 (ON LAT) and Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707, in support of his position.
14I find that the respondent’s denial notice for the treatment plan complies with s. 38(8) of the Schedule. As such, the applicant has not established that the OCF-18 is payable pursuant to s. 38(11). In the May 18, 2021 letter, the respondent stated that the OCF-18 for a psychological assessment was not approved, as the applicant’s injuries are categorized as Minor Injuries. The notice further referenced the report of Dr. Bradbury dated December 3, 2018, her findings that the applicant’s injuries fall within the MIG and that she was unable to identify any accident related psychological impairment.
15The respondent’s notice specifically refers to the applicant’s medical condition, being the lack of a psychological impairment, which formed the basis for its decision. It cites Dr. Bradbury’s psychological IE report and findings. The reasons cited by the respondent contained clear and straightforward language and were sufficient enough to allow an unsophisticated person to make an informed decision as to whether to dispute the decision. The denial letter also complies with s. 38(9) of the Schedule, since it indicates that the respondent believes that the applicant’s injuries are subjected to the MIG.
16Further, I do not agree with the applicant’s submissions that the denial notice was given well-outside the ten business day timeline in violation of s. 38(8). The respondent’s denial letter was issued on May 18, 2021. Although the OCF-18 was dated April 1, 2021, a review of the OCF-18 form shows that it was submitted on May 14, 2021. As such, the respondent’s denial notice was provided well-within the ten business day timeline.
17Accordingly, the applicant has not established that the respondent’s denial notice was non-compliant with s. 38(8) of the Schedule or that the OCF-18 is payable pursuant to s. 38(11).
Interest
18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable
Award
19The applicant sought an award under s. 10 of Regulation 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. Having concluded that the applicant is not entitled to any benefits, it follows that no benefits were unreasonably withheld or delayed and thus, no award is payable.
ORDER
20For the reasons outlined above, I find that:
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 disputed treatment plan nor interest;
iii. The respondent is not liable to pay an award.
21The application is dismissed.
Released: December 9, 2024
Ulana Pahuta
Adjudicator```