Mohammad Akram v. Intact Insurance, 2024 CanLII 138

Citation: Akram v. Intact Insurance, 2024 ONLAT 21-005914/AABS

Licence Appeal Tribunal File Number: 21-005914/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:

Mohammad Akram

Applicant

and

Intact Insurance

Respondent

DECISION

ADJUDICATOR: Ludmilla Jarda

APPEARANCES:

For the Applicant: Shahzad Ayub, Counsel

For the Respondent: Ada Lika, Counsel

HEARD: By Written Submissions

OVERVIEW

1Mohammad Akram (the “applicant”) was involved in an automobile accident on February 12, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied benefits by Intact Insurance (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 $2,200.00 for a psychological assessment, proposed by The Life Clinic 2.0 in a treatment plan/OCF-18 (“treatment plan”) submitted on October 8, 2019 and denied on November 12, 2020?
3. Is the applicant entitled to $6,852.50 for psychological services, proposed by The Life Clinic 2.0 in a treatment plan submitted on August 25, 2020 and denied on March 17, 2021?
4. Is the applicant entitled to interest on any overdue payment of benefits?

3The respondent also introduced in its written hearing submissions a claim for costs against the applicant.

RESULT

4For the reasons that follow, I find that:

1. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
2. The applicant is not entitled to the disputed treatment plans nor interest.
3. The respondent is not entitled to costs.

PROCEDURAL ISSUE

The applicant failed to comply with the written hearing submissions deadline ordered by the Tribunal

5The respondent requests that the Tribunal dismiss the application on the basis that the applicant failed to comply with the written hearing submissions deadline set by the Case Conference Report and Order (“CCRO”) dated December 14, 2022 and the Notice of Written Hearing dated December 30, 2022. While the CCRO and subsequent notice ordered the applicant to serve and file his written hearing submissions and evidence by no later than August 2, 2023, the applicant’s written hearing submissions and evidence were not delivered until Friday, August 4, 2023 at 6:25 pm. As a result of delivering submissions after working hours and during a long weekend, service of the applicant’s written hearing submissions and evidence is deemed to have occurred on Tuesday, August 8, 2023.

6The respondent submits that if the Tribunal considers the applicant’s written hearing submissions and evidence that it would be unduly prejudiced as the applicant’s late delivery reduced the time the respondent had to prepare its submissions. The respondent argues that accepting the applicant’s submissions would be contrary to the principles of procedural fairness.

7The applicant did not respond to the respondent’s request to dismiss the application, despite having the opportunity to do so. As such, the applicant’s position is unknown.

8The respondent has not directed me to any authority that would allow me to dismiss the application without a hearing on the merits. Further, given the applicant’s blatant breach of the Tribunal’s order, it falls within my discretion to determine whether to consider the applicant’s late-filed written hearing submissions and evidence (see: Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 23(1) and 25.0.1).

9In the circumstances, I am prepared to consider the applicant’s late-filed written hearing submissions and evidence, and I do not find that doing so is contrary to procedural fairness. Here, the respondent had the opportunity to respond to the applicant’s submissions, and it exercised its participatory rights by delivering responding written hearing submissions and evidence. This is consistent with the principles of procedural fairness.

ANALYSIS

The Minor Injury Guideline (“MIG”)

10Section 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.”

11An 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 their 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. In all cases, the burden of proof lies with the applicant.

12The applicant submits that he suffers from a psychological impairment that warrants his removal from the MIG.

13The respondent submits that the applicant’s accident-related injuries are minor and that he can be treated within the MIG. The respondent further submits that the applicant has not provided sufficient medical documentation to justify his removal from the MIG. The respondent relies on an insurer examination psychology assessment report and an addendum report both completed by Dr. Andrea Kilgour, psychologist, and dated October 26, 2020 and March 3, 2021, respectively, as well as an insurer examination general practitioner assessment report dated September 23, 2022 completed by Dr. Allan Kopyto, physician.

The applicant did not sustain injuries that warrant removal from the MIG

14I find that the applicant failed to prove, on a balance of probabilities, that he suffers from injuries that are not predominantly minor in nature as defined in the Schedule. Therefore, he remains within the MIG and its $3,500.00 limit on treatment.

15The applicant has presented no evidence in his hearing submissions supporting his argument that he should be removed from the MIG. The only medical evidence before me has been adduced by the respondent. As a result, I find that the applicant has not met his evidentiary burden.

16I find that there is insufficient evidence to support that the applicant sustained a psychological impairment as a result of the accident. Although the applicant reported experiencing feelings of anxiety and depression since the accident to his former family physician, Dr. Ishan Waraich, on February 13, 2019 and March 12, 2019, no diagnosis was provided and no recommendation was made addressing the applicant’s psychological complaints.

17The applicant later complained of anxiety to his current family physician, Dr. Farhat Nadeem Khan. Based on a clinical note dated November 12, 2019, Dr. Khan did not provide a diagnosis, but he recommended that the applicant participate in cognitive behaviour therapy and provided the applicant with the contact information for Access Mental Health. However, the applicant declined to participate in cognitive behaviour therapy, and there is no evidence that the applicant contacted Access Mental Health.

18I also find the psychological assessment report dated August 21, 2020 completed by Dr. Sharifzadeh to be unpersuasive evidence of an accident-related psychological impairment. Dr. Sharifzadeh diagnosed the applicant with post-traumatic stress disorder (severe range), major depressive disorder (single episode, in the severe range, with severe anxious distress), anxiety disorder due to another medical condition (PTSD and pain from accident-related injury), and somatoform disorder. However, there is no information in the applicant’s medical records to suggest that the applicant was suffering from emotional distress in the months following the accident. Dr. Sharifzadeh did not review the applicant’s medical records, and he heavily relied on the applicant’s self-reporting.

19Additionally, Dr. Kilgour’s report noted validity concerns associated with the applicant’s reporting. She found that the applicant’s clinical presentation and verbal self-report were not consistent with the psychometric results, which suggested a severe degree of psychopathology. Further, the symptoms validity indices suggested that the applicant engaged in a response bias such that he over-endorses symptoms. Due to psychometric evidence of symptom magnification and several sources of inconsistencies, the applicant’s self-report could not be taken at face value.

20Moreover, I accept Dr. Kilgour’s conclusion that given that the applicant reported to his family physician on July 22, 2019 that he was doing well and it was documented that he experienced no psychological distress, any psychological symptoms that the applicant may be experiencing are not temporally or causally related to the accident.

21I further find that the respondent’s evidence supports that the applicant sustained soft-tissue injuries within the minor injury definition under s. 3 of the Schedule. Based on the applicant’s own reporting, although emergency medical services attended the scene of the accident, he did not require any medical attention, and he was able to walk home after the accident. He subsequently consulted his family physician, Dr. Waraich, and was diagnosed with cervical strain, lumbar strain, and right shoulder sprain. Dr. Waraich recommended physiotherapy and massage therapy and prescribed a muscle relaxant and pain medication. The applicant later complained of pain to his right shoulder and low back to his new family physician, Dr. Khan, but he did not report any further neck pain. When Dr. Kopyto assessed the applicant, he concluded that the applicant sustained musculoligamentous strains to the neck, right shoulder, and back as a result of the accident and his prognosis for a full recovery was good.

22The applicant has not provided any medical evidence or submissions to support that he was unable to achieve maximal medical recovery within the MIG as a result of a pre-existing condition. Likewise, the applicant did not provide any medical evidence or submissions to support that he developed chronic pain with functional limitations and that he was precluded from treatment under the MIG.

23Accordingly, 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.

The Treatment Plans

24When an insurer denies a treatment plan, s. 38(8) of the Schedule requires that the insurer reply to a treatment and assessment plan within 10 business days, identifying the goods and services it will or will not pay for and provide the medical and all other reasons for its decision.

25If the insurer believes that the MIG applies to the insured person’s impairment, s. 38(9) of the Schedule provides that the notice under s. 38(8) must so advise the insured person.

26Section 38(11) provides the consequences of an insurer’s failure to comply with s. 38(8) and 38(9) of the Schedule, which includes the insurer being prohibited from taking the position that the insured person has an impairment to which the MIG applies and the obligation to pay for the goods and services incurred by the applicant starting on the 11th business day and ending on the day a compliant notice is provided.

27The applicant submits that the respondent is required to pay for the treatment plans in dispute pursuant to s. 38(11) of the Schedule. The applicant states that the respondent did not provide sufficient medical and other reasons as required by s. 38(8) of the Schedule in its denial letters. Further, the denial letter for the treatment plan for psychological services was not denied within 10 business days after it was submitted as required by the Schedule. The applicant relies on M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT), Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 and Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318.

28In response, the respondent submits that its denial letters provided sufficient medical and other reasons as required by s. 38(8) of the Schedule. Further, while the respondent acknowledges that its denial letter for the treatment plan for psychological services was untimely, it argues that it is not required to pay for the treatment plan as it delivered a compliant notice on the 11th business day, and the applicant did not incur the treatment plan during the period of non-compliance. The respondent relies on Aviva General Insurance Company v. Catic, 2022 ONSC 6000.

The disputed treatment plans are not payable under s. 38(11) of the Schedule

29I find that the applicant has failed to demonstrate, on a balance of probabilities, that the disputed treatment plans are payable pursuant to s. 38(11) of the Schedule.

30I am not persuaded by the applicant’s submissions that the respondent’s denial letters failed to provide sufficient medical and other reasons as required by s. 38(8) of the Schedule.

31At paragraph 26 of M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT), the Tribunal indicated as follows:

In my view, an insurer satisfies its obligation to provide its “medical and any other reasons”, whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, 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 serve the Schedule’s consumer protection goal.

32I have reviewed the respondent’s denial letters, and I find that the reasons provided clearly indicate the medical reasons, including specific details about the applicant’s condition forming the basis of the respondent’s decision, or information about the applicant’s condition that it does not have but requires to make a determination of whether the treatment plan is reasonable and necessary. Moreover, the reasons provided are sufficient to allow the applicant to make an informed decision to either accept or dispute the respondent’s decision. The medical and other reasons contained in the respondent’s denial letters are consistent with the Schedule and M.B. v. Aviva Insurance Canada.

33I further find that the respondent is not prohibited from taking the position that the applicant has an impairment to which the MIG applies under s. 38(11)1 of the Schedule. There is no evidence that the respondent did not comply with s. 38(9) of the Schedule. Indeed, all the denial letters indicate that the respondent believes that the applicant’s injuries are subjected to the MIG in accordance with the Schedule.

34Finally, I find that the respondent is not required to pay for the treatment plan for psychological services. Although a compliant notice was provided on the 11th business day after the treatment plan was submitted to the respondent, there is no evidence that the applicant incurred the treatment plan during the period of non-compliance. Correspondingly, in Aviva General Insurance Company v. Catic, 2022 ONSC 6000, the Divisional Court held at paragraph 18 that s. 38(11)2 of the Schedule operates so as to compel an insurer who fails to provide statutory notice under s. 38(8) to pay for all of the items listed in the treatment plan, but only if they are incurred and only for the period during which any denial notice remains outstanding.

35Accordingly, the applicant has failed to establish that the treatment plans are payable pursuant to s. 38(11) of the Schedule. Moreover, having determined that the applicant’s injuries fall within the MIG, the applicant is not entitled to the disputed treatment plans because they propose treatment outside of the MIG and the $3,500.00 funding limit for a minor injury.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Given that no benefits are overdue, no interest is payable.

Costs

37Pursuant to Rule 19.1 of the Licence Appeal Tribunal Act, 2023, costs may be ordered where a party has acted unreasonably, frivolously, vexatiously, or in bad faith.

38In its written hearing submissions, the respondent sought costs against the applicant in the amount of $1,000.00. The respondent submits that the applicant was aware of the filing deadline, and despite reminders from the respondent, the applicant filed its written hearing submissions and evidence nearly a week late without providing a reasonable explanation. The respondent argues that the Tribunal has previously awarded costs due to an applicant’s late filing of their submissions and relies on E.M. v. Pembridge Insurance Company, 2020 CanLII 14476 (ON LAT) (“E.M.”).

39The applicant did not respond to the respondent’s request for costs in his reply submissions, despite having the opportunity to do so. As such, the applicant’s position is unknown.

40It is well established that the test to award costs represents a high bar. Though I acknowledge that the respondent has been inconvenienced by the applicant’s actions, I am not satisfied that the test under Rule 19 has been met in the circumstances. Further, although costs were awarded in E.M., I find that the E.M. decision is distinguishable to the case at hand, and I am not bound by E.M.

41Accordingly, I decline to make an order for costs against the applicant.

ORDER

42For the reasons outlined above, I find that:

1. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
2. The applicant is not entitled to the disputed treatment plans nor interest.
3. The respondent is not entitled to costs.

43The application is dismissed.