Citation: Alajame v. Co-operators General Insurance Company, 2024 ONLAT 22-003870/AABS

Licence Appeal Tribunal File Number: 22-003870/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:

Najieh Alajame

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Ulana Pahuta

APPEARANCES:

For the Applicant:

Justin Mariani, Paralegal

For the Respondent:

Amanda Lennox, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Najieh Alajame, the applicant, was involved in an automobile accident on January 23, 2020, 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 limit (“MIG”)?

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from February 20, 2020 to date and ongoing?

iii. Is the applicant entitled to $3,582.56 for chiropractic services, proposed by HealthMax Physiotherapy, in a treatment plan (“OCF-18”) dated February 24, 2021?

iv. Is the applicant entitled to $3,582.56 for chiropractic, physiotherapy and massage services, proposed by HealthMax Physiotherapy, in an OCF-18 dated March 30, 2022?

v. 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?

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

RESULT

3I find that:

i. The applicant has not met her onus to prove that her accident-related impairments warrant removal from the MIG;

ii. The applicant is entitled to payment of the OCF-18 dated March 30, 2022, plus interest in accordance with s. 51 of the Schedule;

iii. The applicant is not entitled to the OCF-18 dated February 24, 2021;

iv. The applicant is entitled to payment of an NEB from May 7, 2020 until February 9, 2021, plus interest in accordance with s. 51 of the Schedule. The applicant is not entitled to the benefit for the remaining period claimed;

v. The respondent is not liable to pay an award under O. Reg. 664.

PROCEDURAL ISSUE

4On October 27, 2023 the respondent filed a Notice of Motion seeking to exclude the applicant’s Particulars of Special Award filed with the Tribunal on October 10, 2023 or in the alternative, that it be permitted an opportunity to file a three-page sur-reply in response. The respondent’s motion is denied, and the applicant’s Particulars of Special Award will be included in this written hearing record.

5The respondent does not dispute that it failed to produce its adjuster’s log notes to the applicant in accordance with the production deadline in the Case Conference Report and Order dated January 6, 2023 (“CCRO”). Instead, it appended the log notes to its responding submissions for this written hearing, and invited the applicant to address the log notes as part of her reply submissions. The applicant did not address the log notes in her reply submissions dated September 29, 2023, arguing that there was not sufficient time, there were page limitations and that this was not the function of a reply. The applicant then subsequently filed separate submissions on the s. 10 award with the Tribunal on October 10, 2023.

6The respondent submits that these additional submissions should be excluded, as the applicant chose not to address the log notes in her reply. It further argues that the additional submissions are duplicative and that the applicant had not been granted permission to file such submissions by the Tribunal. Finally, the respondent submits that it will be significantly prejudiced by the inclusion of the submissions on the award, as it will not be able to respond and present its case fully and fairly.

7I am not persuaded by the respondent’s argument. The respondent argues that procedural fairness requires that a party be able to respond to the position taken against it. However, in the matter at hand, it was the respondent’s non-compliance with the production order in the CCRO which created the necessity for the applicant to file her additional submissions on the s. 10 award. The CCRO specified that the applicant was to provide particulars of any s. 10 award claim within 30 days of receipt of the adjuster’s log notes. The applicant received the adjuster’s log notes with the respondent’s submissions on September 22, 2023. Given the limited amount of time provided for reply submissions, I am persuaded by the applicant’s argument that she required additional time to consider the new evidence.

8Further, the respondent states that it will be unable to adequately respond to the applicant’s position on the award if the additional submissions are accepted. However, whether the applicant addressed the newly provided adjuster’s log notes in her reply submissions or by way of subsequent additional submissions, neither situation would contemplate further responding submissions from the respondent. As such, the applicant’s submissions on Particulars of Special Award will be considered as part of this written hearing. The respondent’s request for a sur-reply is denied.

ANALYSIS

Minor Injury Guideline

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 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’s injuries do not warrant removal from the MIG

11I find that the applicant has not met her onus to demonstrate that her accident-related impairments warrant removal from the MIG.

12The applicant provided limited submissions on the grounds for her removal from the MIG. Rather, the applicant’s submissions focussed mainly on the sufficiency of the respondent’s denial notices for the various treatment plans. The applicant makes the further argument that the respondent had approved $4,859.25 in treatment (outside of the MIG limit) and that it had misrepresented the position of her health care provider in its correspondence, by claiming that the provider had indicated that her injuries were minor and treatable within the MIG. Finally, the applicant submits that the respondent failed to follow through with its stated intention to conduct an insurer’s examination (“IE”).

13I am not persuaded that the applicant’s various arguments establish a basis for her removal from the MIG. The applicant has not provided any authority or caselaw to support the position that the fact that the respondent approved treatment plans outside MIG limits, failed to conduct an IE or misrepresented her treatment provider’s assessment of her injuries would warrant removal from the MIG. Rather, the Schedule is clear that the applicant must provide evidence of an accident-related injury that is not included in the minor injury definition in s. 3(1). The applicant has not met this onus.

14In terms of physical impairments, the applicant has not established any non-minor accident-related injuries. She does not direct me to any CNR entry from her family physician to establish physical impairments outside of soft-tissue strains and sprains of the neck, shoulder, back and arms. No diagnostic imaging to show accident-related physical injuries has been provided. Although the applicant makes reference to some reports of headaches and radiculopathy post-accident, she does not direct me to any specific evidence of ongoing headache or radiculopathy complaints, referrals to a neurologist or investigation by her family physician. The applicant further has failed to provide updated CNRs beyond August 6, 2021.

15Without any specific submissions on which accident-related physical impairments would warrant removal from the MIG, I am unable to find that the applicant has met her onus on this ground.

16The applicant further has not provided any specific submissions on the ground of chronic pain. The only reference to chronic pain in the applicant’s submissions is in an OCF-18 from her chiropractor referencing chronic and recurrent pain as a barrier to treatment. However, the applicant does not direct me to a chronic pain diagnosis from her family physician, referral to a pain specialist or evidence of functional limitations. The applicant further has not provided any submissions on whether she meets the AMA Guides 6th Edition criteria for assessing chronic pain. As such, the applicant has not met her onus to prove chronic pain.

17With respect to psychological impairments, the applicant submits that she suffers from accident-related sleep disorders and fatigue. The OCF-23 further makes reference to “changes in mood and affect”. However, the applicant has not provided any specific submissions on these psychological symptoms. She does not direct me to CNR entries where her family physician linked these symptoms to the accident, referred her for psychological treatment or made a psychological diagnosis. Without any specific submissions or evidence on this issue, I find that the applicant has not established a basis for removal from the MIG on the ground of psychological impairments.

18The respondent has led evidence that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.

19However, as an alternative argument, the applicant submits that the OCF-18s in dispute are payable, due to the respondent’s non-compliance with the requirements of s. 38 of the Schedule.

OCF-18 in the amount of $3,582.56 for chiropractic services, dated February 24, 2021

20I find that the applicant has not established that the OCF-18 dated February 24, 2021 is payable pursuant to s. 38(11) of the Schedule.

21The applicant argues that the respondent failed to provide a medical and other reason for the denial in its correspondence dated March 18, 2021. She submits that the respondent simply stated that the applicant’s injuries were consistent with the “minor injury” definition, but did not specify what her injuries were. However, the applicant does not dispute that the respondent had not been provided with any contemporaneous medical records until December 10, 2021. As such, I note that at the time the denial was sent the respondent was limited in its ability to provide a medical reason.

22Further, in its March 18, 2021 letter the respondent specified the information it did not have but required, including family physician CNRs, CNRs from any other health practitioner and a decoded OHIP summary. I agree with the respondent that if it had not been provided any medical evidence by the applicant, it would be unable to specify a medical reason for the denial. As such, the appropriate course of action was to request the needed documentation, which it did. I find the decision cited by the respondent, Krzweski v. CUMIS General Insurance, 2023 CanLII 17715 (ON LAT) to be persuasive on this point.

23As such, I find that the applicant has failed to establish that the respondent’s notice was non-compliant with s. 38 of the Schedule.

OCF-18 in the amount of $3,582.56 for chiropractic services, dated March 30, 2022

24I agree with the applicant that the correspondence with respect to this OCF-18 is not compliant with s. 38(8) of the Schedule and as such, the OCF-18 is payable pursuant to s. 38(11).

25The April 13, 2022 letter did not provide any medical and other reason for the denial, but rather, included a boilerplate statement that it believes the applicant’s injuries are consistent with the minor injury definition. However, at this point the respondent was already in receipt of medical evidence from the applicant. As such, it would have been able to provide some detail as to the applicant’s medical condition. The respondent did not specify what information it had reviewed in coming to its determination. Further, unlike in the March 18, 2021 letter, it did not specify what information it still required.

26Instead, the respondent stated that it required a second opinion and that it would be conducting a s. 44 examination. However, no such assessment was ever scheduled. As such, I agree with the applicant that the notice failed to specify a medical and other reason for the denial, did not request any additional information, but instead, confusingly requested a s. 44 assessment that was never scheduled. I find that this denial was non-compliant with s. 38(8).

27I have not been provided with any evidence of a subsequent compliant notice. Accordingly, the respondent is no longer able to cure its defective notice and the OCF-18 is payable pursuant to section 38(11), once the respondent receives the invoice demonstrating that the treatment plan has since been incurred, (see Aviva v. Suarez, 2021 ONSC 6200 at paras. 37 to 39).

Non-Earner Benefits

28I find that the applicant has not established entitlement to non-earner benefits (“NEBs”). However, I find that NEBs are payable for the period from May 7, 2020 to February 9, 2021 due to the respondent’s non-compliance with s. 36(4) of the Schedule.

Substantive Entitlement to NEBs

29Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.

30The applicant has not provided any specific submissions on her substantive entitlement to NEBs. The entirety of the applicant’s submissions on this issue are predicated on non-compliance with s. 36(4) of the Schedule. The only reference to a complete inability to carry on a normal life that the applicant references in her submissions is found in the OCF-3 dated March 5, 2020 prepared by her chiropractor. The applicant does not direct me to any other medical evidence supporting her claim for NEBs.

31Rather the Activities of Daily Living Form prepared by the applicant did not support a complete inability to carry on a normal life and specified that post-accident the applicant continued all of her personal care, mobility, childcare, laundry and shopping activities. The applicant reported being able to partially complete her meal prep and cleaning. There was no activity that the applicant identified that she could not do post-accident, that she could pre-accident. The applicant does not direct me to any medical opinion, outside of the OCF-3, supporting a complete inability to carry on a normal life. As a result of the lack of submissions and evidence on this issue, outside of any period of non-compliance with s. 36(4), I find that the applicant is not entitled to NEBs.

Procedural requirements of s. 36(4)

32Section 36(4) of the Schedule states that within ten business days after an insurer receives an application and a completed OCF-3 for NEBs, the insurer shall:

i. Pay the specified benefit;

ii. Give the applicant a notice explaining the medical and any other reasons why the insurer does not believe the applicant is entitled to the specified benefit and, if the insurer requires an examination under s. 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

iii. Send a request to the applicant under s. 33(1) or s. 33(2).

33The applicant does not dispute that she is not entitled to payment of NEBs prior to submission of her OCF-3. The respondent has led evidence that the OCF-3 was submitted through HCAI on May 7, 2020. As such, any entitlement period to NEBs would begin on May 7, 2020.

34The respondent sent a response letter on May 11, 2020. I agree with the applicant that this correspondence failed to comply with s. 36(4). It stated that while the applicant was eligible for NEBs, the respondent required that the applicant complete the activities of daily living form (“ADLF”) to indicate how she suffered a complete inability to carry on a normal life. However, the respondent concedes that this request was not made pursuant to s. 33 of the Schedule. As such, it is not in compliance with s. 36(4)(c). The notice further did not provide any medical and other reasons for the denial or request a s. 44 examination. I find that the May 11, 2020 response letter does not meet the requirements of s. 36(4).

35However, I find that the respondent’s subsequent correspondence dated January 14, 2021 was compliant with s. 36(4) of the Schedule. The respondent requested a number of documents pursuant to s. 33 of the Schedule, including the ADLF. A deadline of January 29, 2021 was provided. When the applicant did not provide the requested ADLF, the respondent held the applicant in non-compliance on February 9, 2021. Given that the January 14, 2021 letter rectified the May 11, 2020 non-compliance, I find that the applicant is entitled to payment of NEBs from May 7, 2020 (when her OCF-3 was submitted) until February 9, 2021.

36The applicant submits that she provided the ADLF on February 12, 2021, upon which the respondent sent a notice dated March 9, 2021. I find that the March 9, 2021 correspondence was compliant with s. 36(4) of the Schedule. The respondent noted receipt of the Statutory Declaration and the completed ADLF. It noted that the completed form did not support the applicant’s complete inability to continuously carry on her normal activities. The respondent further detailed the test for an NEB and concluded that the applicant was not entitled to an NEB.

37I agree with the respondent that the March 9, 2021 notice was a clear and unequivocal denial. I further find that it provided a medical and “any other reason”, namely, that the completed ADLF confirms that the applicant does not suffer a complete inability to carry on a normal life. As previously noted the ADLF form was a comprehensive checklist of the applicant’s pre-accident vs. post-accident daily activities. The applicant’s self-reports in the form clearly indicated that she did not suffer from a complete inability to carry on a normal life. The March 9, 2021 correspondence specified the test for NEBs and clearly indicated that the applicant did not meet the complete inability test for NEB entitlement. As such, I find that this notice was compliant with s. 36(4) of the Schedule.

38Although the applicant cites a number of Tribunal decisions in support of her position that the notice was deficient, I find that they are distinguishable. The language contained in the notices cited in Wu v Aviva General Insurance Company, 2023 CanLII 50592 (ON LAT), S.V. v Aviva Insurance Canada, 2020 CanLII 40332 (ON LAT), and Mahhamoud v Aviva General Insurance, 2022 CanLII 11144 (ON LAT) differs from that in the March 9, 2021 notice. As such, I find these decisions to be of limited persuasive value.

39The applicant further cites 18-004441 vs. Certas Home and Auto Insurance Company, 2019 CanLII 72198 (ONLAT). Although the language in the notice cited in 18-004441 is somewhat similar, the adjudicator highlighted the fact that the notice did not reference the applicant’s “activities” and that simply stating “you do not meet the test of complete inability” was very ambiguous. In the present matter, I do not find that there is such ambiguity. In its May 11, 2020 and January 14, 2021 correspondence, the respondent requested the completion of the ADLF expressly to indicate how the applicant suffered a complete inability to carry on a normal life. The applicant completed this form, and in the March 9, 2021 notice, the respondent determined that the ADLF confirms that the applicant does not suffer a complete inability to carry on a normal life. There was no ambiguity as to the purpose of the ADLF and I find the notice to be a clear and unequivocal denial.

40Given that the January 14, 2021 and the March 9, 2021 notices were both compliant with s. 36(4) of the Schedule, I find that the applicant is only entitled to payment of NEBs for the period of non-compliance, from May 7, 2020 until February 9, 2021.

Interest

41The applicant is entitled to interest in accordance with s. 51 of the Schedule for the OCF-18 dated March 30, 2022 for chiropractic services as well for payment of NEBs from May 7, 2020 until February 9, 2021.

Award

42The 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. I find that the applicant has failed to establish a basis for an award. The threshold for an award is high.

43She submits that the respondent failed to properly adjust her file, failed to provide compliant denial notices, misrepresented her treatment provider’s statements, failed to schedule a s. 44 examination and failed to produce the adjuster’s log notes in accordance with the CCRO.

44Although I have found that the applicant is entitled to payment of the OCF-18 dated March 30, 2022 and a limited period of NEBs due to non-compliance with s. 36 and s. 38 of the Schedule, I am not persuaded that these actions were excessive impudent, stubborn, unyielding or immoderate. With respect to the failure to schedule a s. 44 examination, I agree with the respondent that an insurer is not under an obligation to conduct such an assessment. Finally, while I acknowledge that the respondent did not provide its adjuster’s log notes in accordance with the deadline in the CCRO, the applicant was afforded additional time to review and particularize her claim. Upon review of the log notes, I do not find that the entries establish actions that meet the high threshold for an award. As such, I decline to order an award.

ORDER

45I find that:

i. The applicant has not met her onus to prove that her accident-related impairments warrant removal from the MIG;

ii. The applicant is entitled to payment of the OCF-18 dated March 30, 2022, plus interest in accordance with s. 51 of the Schedule;

iii. The applicant is not entitled to the OCF-18 dated February 24, 2021;

iv. The applicant is entitled to payment of an NEB from May 7, 2020 until February 9, 2021, plus interest in accordance with s. 51 of the Schedule. The applicant is not entitled to the benefit for the remaining period claimed;

v. The respondent is not liable to pay an award under O. Reg. 664.