Licence Appeal Tribunal File Number: 23-001475/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:
Zaire Wanzambi
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Justin Mariani, Paralegal
For the Respondent:
Emily Schatzker, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Zaire Wanzambi, the applicant, was involved in an automobile accident on January 30, 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 the respondent, Co-Operators General 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 $3,782.56 for chiropractic services, proposed by HealthMax Physiotherapy in a treatment plan submitted on December 7, 2021?
iii. Is the applicant entitled to $110.00 for other goods and services, proposed by HealthMax Physiotherapy by way of an invoice submitted on November 19, 2021?
iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and she is therefore subject to treatment within the MIG.
4The applicant is entitled to the treatment plan for $3,782.56 for chiropractic services as a result of the respondent’s failure to comply with s. 38(8), once incurred and properly invoiced, plus interest pursuant to s. 51.
5The applicant is not entitled to the invoice for $110.00 in dispute.
6The respondent is not liable to pay an award.
ANALYSIS
Application of the Minor Injury Guideline
7I find that the applicant has not met her burden of proving, on a balance of probabilities, that her injuries warrant removal from the MIG.
8Section 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.”
9An 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.
10Although the applicant mentions some psychological symptoms in her submissions, she does not make the argument that she should be removed from the MIG due to a psychological impairment. In any event, I find that there is no compelling evidence that the applicant sustained a psychological impairment that would remove her from the MIG. The applicant’s chiropractor, Dr. Dina Icatar, noted in a treatment plan dated November 4, 2021, that she was suffering from driving anxiety. However, as a chiropractor, Dr. Icatar is not qualified to make a psychological diagnosis. I do not give any weight to her opinion with respect to the applicant’s psychological condition. There is also a record from the applicant’s family physician, Dr. Nageswary Muraleethan, from October 1, 2021, when the applicant reported being nervous when driving. No diagnosis or referral was made, the extent of her nervousness was not discussed further, and this was not mentioned again by Dr. Muraleethan. I find that the evidence does not persuade me that the applicant sustained a psychological impairment as a result of the accident such that she should be removed from the MIG.
11The applicant indicates that she submitted a treatment plan for a chronic pain assessment which was denied, although that treatment plan is not an issue in dispute before me. Despite mentioning it, she does not make the argument that she should be removed from the MIG due to chronic pain. For the sake of completeness, I have reviewed the entirety of the evidence before me and, for the reasons below, find that there is no compelling evidence that the applicant is suffering from chronic pain with functional impairments such that she should be removed from the MIG.
12The respondent relies on N.J. v. TD General Insurance Company, 2020, CanLII 57413, where the Tribunal stated that ongoing pain alone does not remove the applicant from the MIG; it must be continuous or be chronic pain syndrome, and must be accompanied by functional impairment or disability. Further, a diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than sequelae. Although I am not bound by that decision, I find it persuasive.
13In this case, the applicant has not been diagnosed with chronic pain or chronic pain syndrome. She only visited Dr. Muraleetharan a handful of times, and the last record mentioning pain was from April 12, 2022. The records indicate that her pain was not severe, and she had a full range of motion. The applicant relies generally on the treatment plans, OCF-24, and OCF-3 submitted by Dr. Icatar as evidence of her medical condition. Although there is a note in the OCF-3 of April 13, 2021, that the applicant had to reduce hours at two of her jobs and she tried to bring on a helper for her baking business, there is no further information regarding the timeframe for this, the extent of the reduction in hours, or what kinds of tasks she was unable to complete. Further, although the treatment plans and OCF-24 indicate that the applicant is limited in her activities of daily life, there are no specific details regarding what activities are affected or to what extent. I am accordingly not persuaded by these documents. I find that there is a lack of compelling medical evidence that the applicant suffers from chronic pain with functional impairments.
14Additionally, the applicant does not point to evidence of any physical injuries that are inconsistent with the MIG definition in the Schedule. Dr. Icatar diagnosed sprains and strains, and during the few times the applicant visited Dr. Muraleetharan, he did not make a specific diagnosis other than “pain”. I find that there is no compelling evidence before me that the applicant sustained a physical injury outside of those listed in the MIG definition.
15The only clear argument the applicant makes in support of her claim that she should be removed from the MIG is that she sustained headaches as a result of the accident, and that headaches are not explicitly described under the MIG definition in the Schedule. While the word “headache” is not listed in the definition of the MIG, headaches are symptoms that may be considered “clinically associated sequelae” to one of the injuries mentioned in the definition. The applicant has not provided any evidence that her headaches stem from an injury not listed in the MIG definition.
16I accordingly find that the applicant has not met her burden in proving, on a balance of probabilities, that she has sustained an injury that would remove her from the MIG.
17As I have found that the applicant should not be removed from the MIG, I need not engage in an analysis as to whether this treatment plan is reasonable and necessary. However, the applicant submits that the respondent’s denial of the treatment plan was not compliant with s. 38(8) of the Schedule.
18Under s. 38(8), an insurer has the obligation to, within 10 business days after it receives a treatment plan, provide an insured person with a notice identifying the medical and all of the other reasons why the insurer finds the treatment plan not to be reasonable and necessary.
19If the insurer fails to give a notice in accordance with s. 38(8) in connection with a treatment plan, the following rules found in s. 38(11) apply: (a) the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies, and (b) 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).
20On December 20, 2021, the respondent denied the treatment plan for chiropractic services submitted on December 7, 2021. It explained that the treatment plan was denied because the applicant’s “injuries fall within the SABS definition of minor injury” and that the $3,500.00 limit had been reached. The respondent noted that it was in possession of the applicant’s medical records and there was only one post-accident entry. It explained that, while the entry referred to headaches, this was not substantial enough to warrant removal from the MIG.
21The applicant relies on T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373. Although I am not bound by this decision, I find the Tribunal’s reasoning persuasive:
An insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation service the Schedule’s consumer protection goal.
22I agree with the respondent that the letter described the applicant’s condition based on the medical records it had at the time, and the notice was not deficient in that regard. However, the respondent’s letter did not describe the MIG, explain how the applicant’s injuries fit within that definition, or identify the section of the Schedule where the MIG definition was located. The respondent has not directed me to any previous correspondence that defined the MIG. I find that an unsophisticated person would not understand what the respondent was referring to or why their injuries were being classified as minor, and therefore this notice was not compliant with s. 38(8).
23While the parties did not refer me to the case of Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200, I am bound by it. The Divisional Court ruled that where an insurer fails to provide a proper s. 38(8) notice and does not cure the deficiency before the Tribunal has adjudicated the dispute in favour of the insured, then the insured can proceed to consume the disputed OCF-18. The insurer shall pay for that disputed OCF-18 in accordance with s. 38(15) and cannot cure their defective denial.
24There is no evidence before me that the deficient denial letter was ever cured. I accordingly find that this treatment plan is payable pursuant to s. 38(11) once incurred and properly invoiced by the applicant.
Invoice for $110.00
25An invoice for $110.00 from HealthMax was denied on December 16, 2021, as the MIG limits had been exhausted. The applicant did not explain on what grounds she believes she is entitled to this invoice. As she has failed to address this invoice substantively in her submissions, I find that she has not met her burden in proving that she is entitled to it.
Interest
26Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest is applicable on the treatment plan for chiropractic services.
Award
27The 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. I find that the applicant is not entitled to an award.
28The applicant did not make any submissions regarding her entitlement to an award. It is well established that an award should not be ordered just because an insurer made an error or an incorrect decision. In order to attract a s. 10 award, the insurer’s conduct must rise to the level of being excessive, imprudent, stubborn, inflexible, unyielding or immoderate. I have not been directed to evidence that respondent acted in such a manner, and therefore I find that the applicant has not proven her entitlement to an award.
ORDER
29The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and she is therefore subject to treatment within the MIG.
30The applicant is entitled to the treatment plan for $3,782.56 for chiropractic services as a result of the respondent’s failure to comply with s. 38(8), once incurred and properly invoiced, plus interest pursuant to s. 51.
31The applicant is not entitled to the invoice for $110.00 in dispute.
32The respondent is not liable to pay an award.
Released: December 10, 2024
Rachel Levitsky
Adjudicator