Cruz v. Western Assurance Company, 2024 CanLII 20670

Citation: Cruz v. Western Assurance Company, 2024 ONLAT 21-009004/AABS

Licence Appeal Tribunal File Number: 21-009004/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:

Liliana Cruz Applicant

and

Western Assurance Company Respondent

DECISION

VICE-CHAIR: Terry Hunter

APPEARANCES:

For the Applicant: Justin Mariani, Paralegal

For the Respondent: Colleen Mackeigan, Counsel

HEARD: In Writing

OVERVIEW

1Liliana Cruz, the applicant, was involved in an automobile accident on February 23, 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, Western Assurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The applicant was the sole occupant of the vehicle, she was on maternity leave at the time of the accident. The applicant returned to work following the accident.

PRELIMINARY ISSUE

3The preliminary issue before me is whether the applicant is barred from bringing this application to a hearing for the treatment plans (OCF18s) listed below as issues ix, x and xi because the applicant failed to appeal the denials within the two-year time limitation.

4The respondent submits that the applicant did not attempt to add these issues to her Tribunal application prior to the case conference, which occurred almost one month after the two-year limitation set out under section 56 of the Schedule expired. The applicant did not dispute that the limitation period had expired.

5The applicant, instead, argues that the respondent failed to provide the necessary medical reasons for denying the disputed OCF-18s, and, as a result, can not rely on the two-year time limitation. I agree. The Tribunal and the courts, have established that, denial notices must provide valid medical and any other reasons in order trigger the limitation period.¹

6The denials provided for three OCF-18s in question are almost identical and simply state that the Minor Injury Guideline (“MIG”) applies. The denials do not refer to the medical information that the respondent reviewed in making its decision. The denials also do not identify the applicant’s medical condition or impairments and/or explain why they fell within the MIG.

7The September 29, 2020 denial of the OCF-18 listed as issue #ix states that “based on review of the material provided to date”, your treatment should be subject to the limits to the “Minor Injury” Coverage”. The disputed amount of this OCF-18 is $84.70.

8The October 13, 2020 denial of the OCF-18 listed as issue #x states that “based on a review of the information and medical documentation provided to date, injuries sustained in the MVA were treatable within the MIG.” The disputed amount of this OCF-18 is $855.00.

9Similarly, the October 13, 20202 denial of the OCF-18 listed as issue #xi states “based on our review of the information and medical documentation provided to date, the MIG applied to impairments sustained and was subject to the $3500.00 limits.” The disputed amount of this OCF-18 is $677.02.

10I find that the denials provided for all three OCF-18s are best described as boiler plate and contain essentially the same generic reasons. Because of their deficiencies, the denials do not trigger the two-year time limitation period. The applicant is therefore not statute-barred from including them in this hearing.

ISSUES

11The 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 limit?

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from March 22, 2019 to February 22, 2021?

iii. Is the applicant entitled to $3,696.50 for physiotherapy services, proposed by MacKenzie Medical Corporation in a treatment plan/OCF-18 (“plan”) submitted March 5, 2019 and denied March 14, 2019?

iv. Is the applicant entitled to $1,300.00 for physiotherapy services, proposed by MacKenzie Medical Corporation in an OCF-18 submitted September 4, 2019 and denied September 13, 2019?

v. Is the applicant entitled to $2,260.00 for psychological services, proposed by Princeton Hills Medical Assessments Inc. in an OCF-18 submitted September 13, 2019, and denied September 26, 2019?

vi. Is the applicant entitled to $2,260.00 for physiotherapy services, proposed by Princeton Hills Medical Assessments Inc. in a OCF-18 submitted January 11, 2021 and denied January 12, 2021?

vii. Is the applicant entitled to $1,417.70 for chiropractic services, proposed by MacKenzie Medical Corporation in a OCF-18 submitted November 9, 2020 and denied November 10, 2020?

viii. Is the applicant entitled to $2,635.40 for chiropractic services, proposed by MacKenzie Medical Corporation in a OCF-18 submitted November 30, 2020 and denied December 6, 2020?

ix. Is the applicant entitled to $84.70 ($1,384.70 less $1,300.00 approved) for chiropractic services, proposed by MacKenzie Medical Corporation in a OCF-18 submitted September 28, 2020 and denied September 29, 2020?

x. Is the applicant entitled to $855.00 for chiropractic services, proposed by MacKenzie Medical Corporation in a OCF-18 submitted October 5, 2020 and denied October 13, 2020?

xi. Is the applicant entitled to $677.02 ($1,977.02 less $1,300.00 approved) for chiropractic services, proposed by MacKenzie Medical Corporation in a OCF-18 submitted September 28, 2020 and denied September 29, 2020?

xii. Is the applicant entitled to $1,394.70 for chiropractic services, proposed by MacKenzie Medical Corporation in a OCF-18 submitted November 9, 2020?

xiii. Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

12The applicant is not time barred from proceeding with issues #ix, x, and xi.

13The applicant’s injuries are predominately minor in nature.

14Except for issue #xi, the applicant is entitled to the disputed OCF-18’s subject to the incurred provisions of section 38(11)2 of the Schedule.

15Interest is not payable, and the applicant is not entitled to an award.

NON-EARNER BENEFITS (NEBS)

16In her submissions, the applicant withdrew the issue of her ongoing entitlement to NEBs as an issue to be determined at the hearing.

17Due to the applicant’s withdrawal of the NEB issue, I no longer have jurisdiction to consider this issue and make no determination about her ongoing entitlement this benefit.

THE APPLICANT’S INJURIES FALL WITHIN THE MIG

18I must decide whether the applicant’s injuries are defined as predominantly minor by the Schedule and thus subject to a $3,500 treatment limit, which the applicant has already exhausted.

19Section 3(1) of the Schedule defines a minor injury as “one or more of a sprain, strain, whiplash associated disorder, […] and includes any clinically associated sequelae to such an injury.”

20The applicant has the burden of establishing that her injuries fall outside the MIG. The applicant directed me to no evidence and made no direct submissions as to why she should be removed from the MIG. The evidence submitted by the applicant was limited to 1 of 2 disability certificates (OCF-3’s), an OCF-23 and the disputed OCF-18’s.

21The applicant’s almost total lack of submissions and direction to evidence that would take her out of the MIG was fatal. In her submissions the applicant summarizes the OCF-18s and critiques the respondent’s two section 44 assessments but fails to direct me as to how this evidence takes her out of the MIG. The applicant makes fleeting reference to her psychological injuries but fails to argue or establish that they were significant enough to remove her from the MIG.

22In her submissions the applicant refers to two disability certificate (OCF-3s), the initial one dated March 2, 2019, and a second one dated November 30, 2020.

23However, the applicant’s document brief only contained the March 2, 2019 OCF-3 completed by N. Bhowmik, D.C. This OCF-3 lists the applicant’s injuries as:

Dislocation, sprain and strain of joints and ligaments of lumbar spine and pelvis, sprain and strain of thoracic spine, sprain and stain of cervical spine, Injury of peripheral nerves of neck, sprain and strain of shoulder joint, tension-type headache, disorders of initiating and maintaining sleep (insomnia), stress not elsewhere classified.

24I find that the OCF-3 submitted by the applicant clearly establishes that she sustained soft tissue injuries and associated sequalae, which fall squarely within the MIG.

25As the applicant has failed to discharge her onus of establishing that her injuries fall outside the MIG, it is unnecessary for me to assess the medical evidence submitted by the respondent. The respondent submitted two insurer examinations (IEs), one conducted by Dr. Jay McGrory, psychologist, and another by Dr. Alfonse March, MD. Both IEs concluded that the applicant’s injuries do not fall outside the MIG.

26Although I have determined that the applicant’s injuries fall within the MIG and the MIG limit has been exhausted by the applicant, I must still determine if the applicant is entitled to the disputed OCF-18s as she argues that the denials were deficient.

Sufficiency of Denials for Disputed OCF18’s

27The applicant’s hearing submissions focus almost exclusively on the sufficiency of the respondent’s reasons for denying the disputed OCF-18’s.

28In terms of the sufficiency of the denials, the applicant argues that the denial notices issued by the respondent do not comply with the requirements of section 38(8) of the Schedule, because they fail to provide the required medical reasons. Due to the deficiency of the denials, the applicant argues that all the disputed OCF-18’s must be funded. The applicant points to section 38(11) of the Schedule which states the following:

38(11) If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. 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).

29The respondent’s submissions regarding the sufficiency of its denial are broad, vague, and highly generalized. They did not specifically address the medical or any other reasons given for the denial of each of the OCF18’s in dispute. Essentially the respondent asserts that the denials are complaint with the Schedule. The respondent argues that it is sufficient for the denials to say that the applicant’s injuries fall within the MIG, particularly because it had little medical documentation to refer to or base its reasons on. The respondent points out the applicant only submitted two OCF-3s, the disputed OCF-18s and no clinical notes and records to support her claim. As a result, of the limited amount of medical documentation provided by the applicant, the respondent submits that its medical reasons were sufficient. I do not agree.

30The standard for sufficient notice is contained in T.F. v. Peel Mutual Insurance Company². In her decision, Executive Chair Lamoureux states, at paragraph 19:

[…] 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.

31I have reviewed each of the denials provided the respondent and find they do not meet the standard set in T.F. v. Peel Mutual Insurance Company. The March 19, 2019 denial of the OCF-18 for $3,696.00 in physiotherapy listed above as issue #iii states “the description of injuries listed by your health practitioner appear to fall within the definition of a “minor injury” as defined in the SABS”.

32The September 13, 2019, denial of the OCF-18 for $1,300.00 in physiotherapy listed as #iv states “as based on review of the information and medical documentation provided to date, we believe that the Minor Injury Guideline (MIG) applies to your impairment”.

33The January 12, 2021, denial of the OCF-18 for $2,260.00 in psychological treatment listed as issue #v states “after reviewing the medical file there does not appear to be any pre-existing condition that would prevent the claimant from achieving maximal medical recovery if subjected to the $3500.00 limit.”

34The January 12, 2021, denial of the OCF-18 for $2,260.00 in physiotherapy listed as issue #vi is identical to one given for issue #v. The respondent also stated that it “awaits clinical notes records on behalf of your practitioner to address if further assessment or treatment necessary to assist with your medical recovery”.

35The November 10, 20202, denial of the OCF 18 for $1,417.70 for chiropractic treatment listed as issue #vii is identical to that provided for issue #iii.

36The December 6, 2020, denial of the OCF-18 for $2,635.40 in chiropractic treatment listed as issue #viii states a section 44 assessment is required but no reasons for requesting the assessment is provided.

37The reasons for the denials of the OCF-18s listed as issues #ix,x and xi are contained in paragraphs 6, 7 and 8, above.

38The denial of the OCF-18 for $1,394.70 in chiropractic treatment listed as issue # xii was not submitted by the applicant. The applicant argues that although it is not included in its document brief it is likely this denial was the same as the respondent’s other denials and did not include the necessary medical reasons.

39I find that all the denials provided for the OCF-18s in identified as issues iii-xi do not comply with s. 38(8) of the Schedule. The denials state that the applicant’s injuries fall within the MIG but fail to explain how the respondent came to that conclusion. The denials do not clearly refer to the medical documents the respondent reviewed in reaching its decision. They also fail to identify any information about the applicant’s condition despite this information being provided in the initial OCF-3 submitted by the applicant. For these reasons, I find that the denials do not meet the minimum standard required by the Schedule and the case law.

40The denial of issue #v states that the applicant does not have a pre-existing condition that would remove her from the MIG. This is a conclusion rather than a medical reason. The respondent failed to provide any context or explanation for how it came to this conclusion or provide any context as it why it was relevant to its decision. The information provided by the respondent was therefore not sufficient to enable an unsophisticated person to understand the denial or to decide whether to dispute it.

41The respondent also fails to tell the applicant what information it needs to properly assess whether the applicant’s injuries fall outside the MIG. The denial of issue #v states that it awaits CNRs from the applicant’s medical practitioner, it does not however make a specific request for those records or provide an explanation as it why the CNRs are relevant or necessary for the respondent to makes it determination. Again, I find this does not meet the minimal standard set out by Executive Chair Lamoureux in T.F. v. Peel Mutual Insurance Company, as it is something that an unsophisticated person would not be able to understand.

42Without having the actual denial before me, I am unable to conclude that the respondent failed to provide the necessary medical or any other reasons with regards the OCF-18 listed as issue #xii. As a result, I find that the applicant is not entitled to the treatment proposed in this plan.

43In summary, I find that the OCF-18s listed as issues iii-xi are payable once incurred, due to the respondent’s non-compliance with s. 38(8), but the OCF-18 listed as #xii is not.³

Interest

44Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there is no evidence that the applicant has incurred any of the disputed OCF-18’s, I find that they are not overdue and that no interest is payable.

Award

45The applicant sought an award under s. 10 of Reg. 664 because the respondent failed to provide the necessary medical reasons for denying the disputed OCF-18s. Under section 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that the unreasonably withheld or delayed the payment of benefits.

46I am not prepared to grant the applicant an award. The only reason the respondent is required to pay the disputed OCF-18s is because it made an error. I find no reason to conclude that this error was deliberate or done with any malicious intent, and thus cannot conclude that the delay was unreasonable. The applicant’s inability to establish that her injuries fall outside the MIG, confirms my finding that an award is not merited in this case.

ORDER

47I order that the plans identified as issues iii-xi are payable once incurred.

48The applicant is not entitled to the plan for chiropractic services identified above as issue #xii.

49I find that the applicant’s injuries fall within the MIG and that the applicant is not entitled to an award and interest is not payable.

Footnotes

1. 1Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 and T.F. v Peel Mutual Company, 2018 CanLII 39373
2. 2D.S. v Travelers Insurance, 2019 (17-001522/AABS), para 33-48
3. 3M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT)