Licence Appeal Tribunal

Citation: Sediqi v. BelairDirect Insurance Company, 2024 ONLAT 23-000344/AABS

Licence Appeal Tribunal File Number: 23-000344/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:

Khaleda Sediqi

Applicant

and

BelairDirect Insurance Company

Respondent

DECISION

ADJUDICATOR: Dina Mejalli-Willis

APPEARANCES:

For the Applicant: Julia Logoutova, Paralegal

For the Respondent: Adam O’Brodovich, Counsel

HEARD: By way of written submissions

OVERVIEW

1Khaleda Sediqi, the applicant, was involved in an automobile accident on November 13, 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, BelairDirect Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant withdrew her claim for the non-earner benefit and by Motion Order dated February 29, 2024, the applicant’s request to change the format of the hearing, from a videoconference hearing to a written hearing, was granted.

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 $2,100.00 for a psychology assessment, proposed by 2430307 Ont. LTD in a treatment plan/OCF-18 (“plan”) dated December 22, 2021?

iii. Is the applicant entitled to $2,227.73 for physiotherapy services, proposed by 2430303 Ont. INC. in a plan dated July 20, 2022?

iv. Is the applicant entitled to $2,000.00 for an orthopaedic assessment, proposed by 2430307 Ont. LTD. in a plan dated July 20, 2022?

v. Is the applicant entitled to $1,050.56 for an exercise program, proposed by 2430307 Ont. LTD. in a plan dated July 20, 2022?

vi. Is the applicant entitled to $1,690.81 for physiotherapy services, proposed by 2430303 Ont. INC. in a plan dated September 7, 2022?

vii. Is the applicant entitled to $2,300.00 for a chronic pain assessment, proposed by 2430307 Ont. LTD. in a plan dated September 7, 2022?

viii. Is the applicant entitled to $3,185.19 for physiotherapy services, proposed by 2430303 Ont. INC. in a plan dated September 7, 2022?

ix. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is subject to the MIG as she sustained minor injuries.

5By virtue of s. 38(11)2, the treatment under the plans noted at paragraph 3(iii), (vi), (vii) and (viii) above are payable by the respondent upon proof that the treatment under such plans have been incurred after the 11^th business day on which the treatment plan was submitted.

6The applicant is not entitled to the treatment under the plans noted at paragraph 3(ii), (iv) and (v) above.

7The applicant is entitled to interest on any overdue benefits.

ANALYSIS

Application of the Minor Injury Guideline

8I find that the applicant has not demonstrated, on a balance of probabilities, that she suffers from an injury or condition that warrants removal from the MIG.

9Section 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.”

10An 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.

11The applicant submits that she does not belong in the MIG and relies on the clinical notes and records of Dr. Al-Hellawi, family physician which reference the symptoms of the applicant since the collision to March 1, 2024. Such recorded symptoms include headaches, pain in the back, neck, right leg and knee joints, depressed mood, nightmares, irritability, chronic pain and arthritis.

12The applicant also relies on the insurer’s assessment by Dr. Saunders, Psychologist, dated April 12, 2022, in which the assessor provides a clinical profile of the applicant as a person with significant unhappiness, moodiness and, tension placing her at an increased risk for self-harm. The applicant notes that despite such a profile, Dr. Saunders opines that “the claimant’s accident-related diagnosis is a mild elevation in symptoms that does not meet clinical criteria for impairment”.

13Lastly, the applicant relies on the insurer’s assessment by Dr. Silver, General Physician, dated April 27, 2022, in which the assessor concludes that the applicant suffers from mechanical neck pain, mechanical back pain and symptoms suggestive of right patellofemoral pain syndrome. Dr. Silver recommends that the applicant return to a short course of rehabilitative therapy to manage her pain symptoms with implementation of a stretching and strengthening program.

14The respondent submits that the only evidence that the applicant has produced to advance her argument that she should be removed from the MIG are the clinical notes and records of Dr. Al-Hellawi. The respondent argues that there is no compelling medical evidence that the applicant’s injuries take her out of the MIG or that she had a pre-existing medical condition that would prevent her from achieving maximal recovery if she is left in the MIG.

15I agree with the respondent that there is no compelling medical evidence that would take the applicant out of the MIG. Dr. Al-Hellawi’s records only once make reference to “chronic pain” on August 16, 2022. They do not reference a functional impairment. This evidence is not enough to satisfy me that the applicant suffers from chronic pain with a functional impairment that warrants removal from the MIG.

16Further, I find that Dr. Al-Hellawi’s records which mention “depressed mood” on four occasions in the two plus years post-accident, is not enough to demonstrate a psychological impairment caused by the accident that warrants removal from the MIG. I make this finding, especially, in light of, the references to anxiety and stress pre-accident and a pre-accident prescription for Cipralex by her family physician.

17I also find that the insurer’s assessments of Dr. Saunders and Dr. Silver do not support the applicant’s claim that she has sustained an injury or condition that is not predominantly minor in nature. While the applicant references these assessments in her submissions, such references must be considered in the context of each of the assessor’s entire report.

18I find that during Dr. Saunders assessment of the applicant, the Personality Assessment Inventory (“PAI”), which is used to identify psychiatric symptoms and diagnostic opinions regarding psychopathology, was only one of three psychological tests conducted by the assessor on the applicant. While Dr. Saunders did note the applicant’s PAI profile is of a person with significant unhappiness, moodiness, and tension, he also found that she portrayed herself in an unduly negative light resulting in over representation of the extent and degree of significant test findings. Further psychological testing performed during the assessment also concluded that the applicant showed a mild elevation in depressive symptoms and anxiety symptoms. Hence, I find that in diagnosing the applicant, Dr. Saunders considers all the psychological test results and concludes that, from a psychological perspective, the applicant suffered a mild elevation in symptoms that do not meet clinical criteria for impairment.

19Furthermore, I find that during Dr. Silver’s assessment of the applicant on April 12, 2022, he performed a physical examination during which the applicant demonstrated several non-organic signs and reports of very non-specific pain complaints. While Dr. Silver does recommend that the applicant engage in a short course of rehabilitative therapy for management of her pain symptoms, he also recommends that the applicant learn the difference between hurt versus harm as pain avoidant behaviours may be slowing her recovery. More importantly, I find that while Dr. Silver does recognize that the applicant experiences physical pain symptoms, he concludes that her prognosis for her accident-related musculoskeletal injuries is good.

20Therefore, while I find that the evidence does establish that the applicant has suffered from some post-accident physical and psychological sequelae, in my view, the evidence does not establish, on a balance of probabilities, that the applicant suffers from an injury or condition that would take the applicant outside of the MIG.

21As I have found that the applicant has suffered minor injuries and is subject to the MIG, I do not need to address the reasonable and necessary nature of the treatment plans in dispute. I will now turn to the applicant’s arguments in relation to entitlement pursuant to s. 38 of the Schedule.

Are the treatment plans payable because of a breach of s. 38(8)?

22Section 38(8) of the Schedule provides that within 10 business days after the insurer receives a treatment plan, it shall give the insured a notice that identifies the good, services, assessments, and examinations that it does not agree to pay for, and the “medical reasons and all of the other reasons” why the insurer does not consider them to be reasonable and necessary. If the insurer fails to provide the requisite denial, then pursuant to s. 38(11)2, the insurer is required to pay for all goods and services described in the treatment plan that are incurred during the period from the 11^th business day after the treatment plan was submitted until a proper denial is provided.

23The “medical reasons” for denying a treatment plan, should, at the very least, engage the specific details about the insured’s condition forming the basis for the insurer’s decision, identify information about the insured’s condition that the insurer doesn’t have but requires and be adequate to allow an unsophisticated person to understand the decision and make an informed decision in response.

24I will address each treatment plan and its compliance with s. 38(8) below.

Issue (ii) – Treatment plan for $2,100.00 for a psychology assessment

25The applicant argues that the denial letter of April 22, 2022, is vague, non-specific and does not provide any explanation as to why the psychological symptoms of the applicant fit the description of minor injury. The applicant does not make submissions with respect to the date of the denial and there is no evidence before me with respect to the date. The applicant only disputes the sufficiency of the contents of the denial letter. The respondent did not address the issue of s.38(8) in its submissions.

26Based on the evidence that is before me, I find that the respondent’s letter of April 22, 2022, is in compliance with the requirements of s. 38(8). The denial letter is clear that the denial of the treatment plan for a psychological assessment is based on the medical report of Dr. Saunders completed on March 30, 2022, and his findings that the applicant does not suffer from any psychological impairments that would remove the claimant from the MIG.

27For these reasons, I find that the denial letter is not vague or non-specific regarding the medical reasons for the denial. Therefore, the respondent is not prohibited from taking the position that the applicant’s injuries fall within the MIG with respect to this treatment plan.

Issue (iii) – Treatment plan for $2,227.73 for physiotherapy services submitted on July 25, 2022

28The applicant argues that the denial letter of August 8, 2022, breached the requirements of s. 38(8) because the respondent advised that it was scheduling an insurer’s examination by paper review but did not provide further correspondence outlining the results of such examination.

29Again, the respondent did not address the issue of s. 38(8) in its submissions and did not point me to any correspondence addressing the results of the paper review.

30While the respondent replied to the treatment plan within 10 business days after receipt, by way of denial letter dated August 8, 2022, I find that the denial letter of August 8, 2022, is not compliant with all the requirements of s. 38(8). The letter vaguely lists the goods and services as “all items as outlined in part 12 of the Treatment and Assessment Plan in the amount of $2,227.73”.

31The letter also determines the applicant’s injuries to be predominately minor and schedules an insurer’s examination by paper review. The medical and other reasons provided is that there was no medical documentation received to date to suggest that the applicant’s injuries fall outside of the MIG. I also find that the general assertion that there is no medical documentation to support removal from the MIG offers no medical reason. It is an unsupported conclusion. The respondent did not point to the specific medical documentation, and the relevant points therein, to support the basis for the respondent’s decision to deny the treatment plan and seek an insurer examination. There was also no follow up by the respondent, to provide the applicant with the paper review and their resulting decision on this treatment plan as is required by ss. 38(13) and (14).

32The respondent did not point me to correspondence that cures the deficient letter of August 8, 2022. Therefore, I find that per s. 38(11)2, the treatment plan for physiotherapy services is payable by the respondent upon proof that the treatment plan, which was submitted on July 25, 2022, has been incurred after the 11^th business day on which the treatment plan was submitted.

Issue (iv) – Treatment plan for $2,000.00 for an orthopaedic assessment

33The applicant argues that the denial letter of September 12, 2022, did not compare the applicant’s injuries to the MIG, was not clear and unequivocal and misled the applicant as there was no explanation about whether a contusion to the knee was considered minor in nature. The applicant does not make submissions with respect to the date of the denial and there is no evidence before me with respect to the date. The applicant only disputes the sufficiency of the contents of the denial letter.

34Based on the evidence that is before me, I find that the denial letter of September 12, 2022, is compliant with the requirements of s. 38(8). The letter stated that the respondent was in receipt of the paper review completed by Dr. Silver dated September 1, 2022, and that based on such report, the applicant sustained soft tissue injuries that keep her within the MIG. I therefore find that the respondent advised the applicant that her sustaining soft tissue injuries was the medical reason for the denial. It also provided the report of Dr. Silver as the basis for its decision.

35While the denial letter did not explicitly state that a contusion to the knee is considered minor in nature, it did provide the definition of “minor injury” to include contusions and clinically related symptoms. Therefore, I do not agree with the applicant that the denial letter is unclear, unequivocal or misleading. As the denial letter is compliant with section 38(8), the respondent is not prohibited from taking the position that the applicant’s injuries fall within the MIG with respect to this treatment plan.

Issue (v) – Treatment plan for $1,050.56 for an exercise program

36The applicant argues that the denial letter of September 13, 2022, is not compliant with s. 38(8) because it states that the denial was based on the paper review of Dr. Silver whose report never addressed the treatment plan for an exercise program. The applicant does not make submissions with respect to the date of the denial and there is no evidence before me with respect to the date. The applicant only disputes the sufficiency of the contents of the denial letter.

37Based on the evidence that is before me, I find that the respondent’s denial letter of September 13, 2022, is compliant with the requirements of s. 38(8). The letter advised the applicant that she has suffered minor injuries per the opinion of Dr. Silver as stated in his report of September 1, 2022. This is the medical reason for the denial of the treatment plan for an exercise program. The respondent also provided Dr. Silver’s report to the applicant with the denial letter, as the basis for its decision.

38While the denial letter of September 13, 2022, says that Dr. Silver assessed the treatment plan for an exercise program when he did not, when read in the context of the entire letter, the respondent still makes it clear to an unsophisticated person that the reason for the denial is that the applicant’s injuries are minor in nature and the basis for their position is the medical opinion of Dr. Silver. As the denial letter is compliant with section 38(8), the respondent is not prohibited from taking the position that the applicant’s injuries fall within the MIG with respect to this treatment plan.

Issue (vi) – Treatment plan for $1,690.81 for physiotherapy services submitted on September 9, 2022

39The applicant argues that the denial letter of September 23, 2022, breached section 38(8) because the respondent failed to clearly identify the services the respondent refused to pay for, the injuries that the applicant sustained and compare the injuries to the MIG.

40While the respondent replied to the treatment plan within 10 business days after receipt by way of denial letter dated September 23, 2022, I find that this denial letter is not compliant with the requirements of s. 38(8). This letter did not specify the good and services that the treatment plan recommended but rather listed them vaguely as “As part 12 of the enclosed Treatment and Assessment Plan in the amount of $1690.81”.

41Moreover, the denial letter of September 23, 2022, did not give any details about the applicant’s condition at all. The letter simply states that the goods and services recommended are substantially similar in nature to those in the plan submitted by E Paul Bruni (DC) on July 20, 2022. The respondent stated that the July 20, 2022, plan was denied based on the insurer report of Dr. Sliver dated September 1, 2022, and this plan was being denied based on the findings in the same insurer examination report. I find that this denial letter would leave an unsophisticated person wondering what it is about their condition that formed the basis for the insurer’s denial.

42The respondent did not point me to correspondence that cures the deficient letter of September 23, 2022. Therefore, I find that per s. 38(11)2, the treatment plan for physiotherapy is payable by the respondent upon proof that the treatment plan, which was submitted on September 9, 2022, has been incurred after the 11^th business day on which the treatment plan was submitted.

Issue (vii) – Treatment plan for $2,300.00 for a chronic pain assessment submitted on October 18, 2022

43The applicant argues that the denial letter of October 31, 2022, did not comply with section 38(8) in that it did not describe the services the respondent refused to pay and that the letter is misleading.

44While the respondent replied to the treatment plan within 10 business days after receipt, by way of a denial letter dated October 31, 2022, I find that this denial letter is not compliant with the requirements of s. 38(8). In this denial letter, the respondent states that this plan recommends goods and services that are substantially similar to those submitted in a plan by Paul Bruni (DC) on July 20, 2022. The respondent also states that the July 20, 2022, plan was denied based on an insurer examination completed by Dr. Silver dated September 1, 2022, and that this plan is being denied based on the findings of such insurer examination.

45I find that the denial letter of October 31, 2022, did not give any details about the applicant’s condition at all. This denial letter would leave an unsophisticated person wondering what it is about their condition that formed the basis for the insurer’s denial and why this plan for a chronic pain assessment is similar to the plan submitted by Paul Bruni (DC) on July 20, 2022.

46The respondent did not point me to correspondence that cures the deficient letter of October 31, 2022. Therefore, I find that per s. 38(11)2, the treatment plan for a chronic pain assessment, which was submitted on October 18, 2022, is payable by the respondent upon proof that the treatment plan has been incurred after the 11^th business day on which the treatment plan was submitted.

Issue (viii) – Treatment plan for $3,185.19 for physiotherapy services submitted on April 19, 2022

47The applicant argues that the denial letter of May 4, 2022, does not comply with section 38(8) because it failed to list the services the respondent refused to pay for, the injuries sustained by the applicant and compare such injuries to the MIG.

48I find that the denial letter of May 4, 2022, was not in compliance with the requirements of s. 38(8). First, the respondent did not reply to the denial letter within 10 business days after receipt of the treatment plan for physiotherapy services.

49Second, the denial letter did not specify the goods and services that the treatment plan recommends, did not make any reference to the applicant’s particular condition and used boilerplate language when it provided the medical and other reasons for the denial by stating “[b]ased on the documentation and information we have on file; it appears the injuries you have sustained at the time of the accident fall within the Minor Injury Guideline. There is insufficient compelling evidence such as pre-existing injuries or conditions or medical documentation to suggest that the accident injuries fall outside of the Minor Injury Guideline.”

50Finally, I find that while the letter requested further documentation, it was inconsistent as to the type of documentation it needed to assist in determining the applicant’s entitlement to benefits outside of the MIG. In the medical reasons section, it states that the respondent requires the notes of the general practitioner and the hospital while at the end of the letter it states that the respondent requires the records of the hospital and 2430307 Ontario Ltd. I find that this would be confusing to an unsophisticated person who is left wondering what information they are to provide.

51The respondent did not point me to correspondence that cures the deficient letter of May 4, 2022. Therefore, I find that per s. 38(11)2, the treatment plan for physiotherapy services, which was submitted on April 19, 2022, is payable by the respondent upon proof that the treatment plan has been incurred after the 11^th business day on which the treatment plan was submitted.

Interest

52Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest in accordance with s. 51.

ORDER

53For the reasons outlined above, I find that:

i. The applicant has failed to prove that her injuries are not predominantly minor such that she should be removed from the MIG;

ii. By virtue of s. 38(11)2, the treatment under the plans noted at paragraph 3(iii), (vi) (vii) and (viii) above are payable by the respondent upon proof that the treatment under such plans have been incurred after the 11^th business day on which the treatment plan was submitted;

iii. The applicant is not entitled to the treatment plans in paragraph 3(ii), (iv) and (v) above; and

iv. The applicant is entitled to interest on any overdue benefits pursuant to s. 51 of the Schedule.