Citation: Nema v. Co-operators General Insurance Company, 2024 ONLAT 22-003867/AABS

Licence Appeal Tribunal File Number: 22-003867/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:

Marwan Nema

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

1Marwan Nema, 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 to be decided in the hearing 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 limit?
2. Is the applicant entitled to a non-earner benefit of $185.00 per week from February 20, 2020 to January 23, 2022?
3. Is the applicant entitled to $2,466.38 for chiropractic services, proposed by HealthMax Physiotherapy, in a treatment plan (“OCF-18”) dated February 24, 2022?
4. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

3In his submissions the applicant confirmed that issues 3 and 4 as listed in the Case Conference Report and Order (“CCRO”) dated January 6, 2023 are no longer issues in dispute.

RESULT

4I find that:

i. The applicant sustained predominantly minor injuries as defined by the Schedule; ii. The applicant is entitled to payment of the OCF-18 dated February 24, 2022 plus interest in accordance with s. 51 of the Schedule; iii. The applicant is entitled to payment of a non-earner benefit 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; and iv. The respondent is not liable to pay an award.

PROCEDURAL ISSUE

5On 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 alternatively, requesting permission to file a sur-reply in response. The respondent’s motion is denied. The applicant’s Particulars of Special Award will be included in this written hearing record and the respondent is denied leave to file a sur-reply.

6The respondent concedes that it inadvertently did not produce its adjuster’s log notes to the applicant in accordance with the production deadline in the CCRO. Rather, it included the log notes with its responding submissions for this written hearing on September 22, 2023. The applicant did not address the log notes in his reply submissions, arguing that there were time and page constraints and that this was not the function of a reply. The applicant then subsequently filed separate Particulars of Special Award with the Tribunal on October 10, 2023.

7The respondent submits that the applicant did not seek leave from the Tribunal to file these submissions and that they are duplicative. It argues 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.

8The respondent’s motion to exclude the submissions is denied. Although the respondent argues that procedural fairness requires that a party be able to respond to the position taken against it, in the matter at hand, it was the respondent’s non-compliance with the CCRO which created the necessity for the additional s. 10 submissions. 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 and provided particulars within 30 days. Given the limited amount of time provided for reply submissions, I am persuaded by the applicant’s argument that additional time was required to consider the new evidence.

9Further, I am not persuaded by the respondent’s argument that it will be unable to adequately respond to the applicant’s position on the award if the additional submissions are accepted. Whether the applicant addressed the newly provided adjuster’s log notes in his 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

Applicability of 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 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 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.

12I find that the applicant has not met his onus to prove that his accident-related impairments warrant removal from the MIG.

Physical Impairments

13With respect to physical impairments, I find that the applicant has not established injuries that require treatment beyond the MIG funding limits.

14Other than soft-tissue strains and sprains which fall within the definition of a “minor injury” the only accident-related physical impairment the applicant has established is a left shoulder injury. The applicant relies on a left shoulder ultrasound conducted soon after the accident to argue that he sustained a full thickness tear of the supraspinatus and infraspinatus tendon. He further argues that the left shoulder rotator cuff tear was confirmed in April 2021 with a subsequent ultrasound and that at that time, he received steroid injections in his left shoulder for the pain.

15With respect to the shoulder injury, I find that the applicant has not established a non-minor physical impairment. Although the applicant relies on the January 28, 2020 ultrasound to argue that he had sustained a full thickness tear, which would remove the applicant from the MIG, I note that this ultrasound specified that it was a “suspicion” of full-thickness tearing. The report further suggested that an MRI be conducted to rule out the possibility of full-thickness rotator cuff tendon tears. The applicant has not submitted evidence that such an MRI was conducted.

16A second ultrasound was conducted on April 14, 2021 and found a partial thickness tear of the subscapularis tendon with tendinosis. The applicant has not directed me to any additional evidence or opinion from his treating physician that he sustained a complete tear. A partial tear of the applicant’s subscapularis tendon with surrounding tendinosis fits within the definition of a “minor injury”. Although the applicant’s treating chiropractors reference “full tears” of the left shoulder, I find that this is not supported by the diagnostic imaging or medical clinical notes and records (“CNRs”).

Pre-existing medical conditions

17The applicant has not established a pre-existing condition warranting removal from the MIG.

18The applicant submits that he suffers from a pre-existing left knee injury, including a complete ACL tear, a lumbar compression fracture, chronic pain, high blood pressure and difficulty with physical exercise. The applicant references his OCF-23 and a number of OCF-18 forms, where his chiropractors state that these various conditions would preclude his recovery within the MIG.

19Although the applicant’s chiropractors stated that these pre-existing conditions are sufficient to remove him from the MIG, I agree with the respondent that the applicant has failed to provide sufficient medical evidence for removal on this ground. Firstly, the respondent submits that the applicant has not produced key medical records in contravention of the production orders in the CCRO. The applicant does not dispute that he has failed to provide his complete ODSP file or updated records from his family doctor. No explanation was provided by the applicant for non-compliance with the Tribunal order on the ODSP file. The applicant submits that he made best efforts to obtain his updated family doctor’s CNRs.

20In my view, the ODSP file is relevant particularly on the issue of pre-existing impairments. It would provide insight into the extent of any aggravation of pre-existing impairments by the accident. I note that in the ODSP form dated October 1, 2020 contained in Dr. El Bawab’s CNRs, the impairments of hypertension, exercise intolerance, chronic back pain stemming from a compression fracture, chronic knee pain and ACL full thickness tear and obesity were all identified. All of these impairments were noted to have been “continuous” for “1 year or more”, thereby pre-dating the accident. There is no reference to these impairments having been aggravated due to the subject accident. Rather, Dr. El Bawab linked the applicant’s exercise intolerance, back and knee pain to his weight. The only reference to the accident in the ODSP form was with respect to the applicant’s “shoulder pain post MVA”.

21Further, in a February 1, 2021 CNR entry, Dr El Bawab referred the applicant to a back pain doctor noting that he had gained weight from staying home and was unable to move around outside due to the weather and his allergy. In a subsequent February 6, 2021 entry Dr. El Bawab encouraged weight loss and more activity. The applicant does not direct me to any opinion from his family physician that the listed pre-existing impairments preclude recovery within the MIG.

Chronic pain

22I do not find that the applicant has met his onus to prove accident-related chronic pain.

23Although the medical evidence shows that the applicant suffered from chronic pain to the back and left knee, he has not established that this pain was caused or aggravated by the subject accident. The applicant was referred to a chronic pain clinic on February 5, 2021, for “ten years” of lower back pain. The CNRs of Dr. El Bawab further indicate numerous pain complaints about the applicant’s left knee pre-accident. However, the applicant did not complain of left knee pain after the accident, until May 1, 2020, where the applicant stated that he was not sure what he did, but he “moved” and started the pain again.

24The only pain complaint that is linked to the subject accident is the applicant’s left shoulder pain. However, the applicant does not direct me to any chronic pain diagnosis for his left shoulder by his treating physicians. I agree with the respondent that a chronic pain diagnosis would be beyond the scope of practice of a chiropractor. Nor has the applicant provided any submissions or evidence to establish that he met any of the American Medical Association’s Guides criteria for a diagnosis of chronic pain for his left shoulder impairment.

25Without specific submissions on the issue of chronic pain, I find that the applicant has not met his onus to prove accident-related chronic pain.

The applicant has not established a basis for removal from the MIG due to the respondent’s deficient notices

26In his submissions, the applicant raises the additional argument that the respondent has not “clearly and unequivocally” informed the applicant that the MIG applies. He argues that the respondent’s correspondence throughout the claim has been inconsistent and confusing and that in fact, the respondent had removed him from the MIG before “reinstating” him.

27In a notice dated November 9, 2020 the respondent partially approved an OCF-18, stating that:

…pursuant to the Statutory Accident Benefit Schedule, you have been removed from Minor Injury due to a due to a technicality on the insurer’s part as we were late in responding to this Treatment and Assessment Plan (OCF-18). This now increases your Medical, Rehabilitation and Attendant Care limits to $65,000.

28However, by subsequent letter dated January 14, 2021 in relation to a different OCF-18, the respondent advised:

We believe the MIG applies to your impairments. Please note that even though this treatment was approved, your injuries are still considered that of a Minor injury and the MIG cap of $3500 still applies.

29With respect to the OCF-18 in dispute, the respondent denied the plan on March 2, 2022, citing the MIG. The applicant argues that the respondent cannot remove him from the MIG, only to “reinstate” MIG status 16 months later.

30The respondent submits that the applicant was only removed from the MIG with respect to the singular OCF-18 on November 9, 2020 as a result of the late notice contravening s. 38 of the Schedule. The respondent argues that s. 38(11) requires insurers to treat specific treatment plans outside of the MIG, if a non-compliant notice is given. However, the respondent cites Tribunal caselaw to argue that the limitation imposed by s. 38(11) relates only to the specific OCF-18 in dispute, and not to the entirety of the claim.

31I do not find that the applicant has established that he has been permanently removed from the MIG by the respondent. While I agree with the applicant that the respondent’s notice dated November 9, 2020 referenced the applicant’s removal from the MIG “due to a technicality” and an increased limit to $65,000, the respondent subsequently clarified this position two months later. In its January 14, 2021 correspondence, despite partially approving the treatment plan, the respondent stated that it believed that the MIG applied to the applicant’s injuries.

32I agree with the applicant that the various notices are confusing and contradictory. However, he does not direct me to any authority or caselaw to support the position that an applicant may be permanently removed from the MIG as a result of contradictory notices. Rather, section 18(2) of the Schedule holds that a claimant may be removed from the MIG if they can establish that their accident-related injuries fall outside of the definition of a “minor injury” or that they have a documented pre-existing injury which precludes recovery within the MIG. Even in the November 9, 2020 notice, the respondent did not state that it believed that the applicant suffered from non-minor accident-related impairments. Although an insurer may agree to remove a claimant from the MIG, in the present matter the respondent is disputing that it agreed to remove the applicant outside of the singular treatment plan.

33In his submissions, the applicant argues that nowhere in the Schedule is it stated that a respondent can “cure” or “retract” a MIG removal. However, similarly, the applicant has also not provided any reference to a provision in the Schedule that holds that an insured is permanently removed from the MIG even if the insurer reconsidered a procedural removal made pursuant to s. 38(11). The burden of proof to establish a removal from the MIG rests with the applicant. Although the applicant argues that s. 38(11) is not applicable in this situation, he does not direct me to any other provision of the Schedule that would be applicable.

34In my view, the confusing and contradictory notices would properly be considered when determining the sufficiency of the individual notices pursuant to s. 38 of the Schedule. However, that would relate to the specific treatment plans, rather than the complete removal from the MIG. Further, such behaviour by the respondent may be considered in the context of an award if there was evidence that the behaviour led to an unreasonable withholding or delayed payments. The applicant did not provide any submissions on whether equitable remedies would be applicable in the present case. As such, equitable remedies will not be considered.

35For the foregoing reasons, I find that the applicant has not established a procedural basis for his removal from the MIG.

36The 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 his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plan.

37However, as an alternative argument, the applicant submits that the OCF-18 in dispute is payable due to the respondent’s non-compliance with the requirements of s. 38 of the Schedule.

OCF-18 dated February 24, 2022 in the amount of $2,466.38 for chiropractic services

38I agree with the applicant that the notice with respect to the February 24, 2022 OCF-18 is non-compliant with s. 38(8) of the Schedule and as such, the OCF-18 is payable pursuant to s. 38(11).

39The March 16, 2022 correspondence denied the treatment plan, stating that the applicant’s injuries were “consistent with the Minor Injury definition”. The respondent did not identify the applicant’s injuries or provide any detail as to the medical condition forming the basis for its decision. I find the language used to be boilerplate and lacking “medical and any other reasons”. Further, the respondent did not specify what information it lacked but still required.

40In its notice, the respondent further stated that it required a second opinion and that it would be conducting a s. 44 examination. However, no such examination 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) as such, is payable pursuant to s. 38(11).

Non-Earner Benefits (“NEBs”)

41The applicant has not established entitlement to 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

42Section 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.

43The applicant has not provided any specific submissions on his substantive entitlement to NEBs. The applicant did not provide any details of his pre-accident activities or demonstrate how his participation in those activities has been limited as a result of the accident. There are no submissions on which activities were most important to him, how he is prevented from engaging in the activities he normally engaged in pre-accident or evidence of the frequency and time commitments of his pre-accident activities, as required by Heath v. Economical, 2009 ONCA 391 and in many NEB cases at the Tribunal, such as 16-003141 v. Aviva Insurance Canada, 2017 CanLII 46352 (ONLAT). In the absence of this information, it is difficult to compare the applicant’s pre and post-accident capabilities with respect to the activities he ordinarily engaged in or valued.

44Further, I agree with the respondent that the medical evidence does not establish a complete inability to carry on a normal life as a result of the accident. The CNRs of Dr. El Bawab establish that the applicant’s pre-accident activities were already limited due to his pre-existing chronic back and knee pain, compression fracture, hypertension and weight. The applicant has not directed me to any evidence that post-accident he suffered greater restrictions in his daily activities or a complete inability to carry on a normal life. Without any specific submissions on this issue, I find that the applicant has not established substantive entitlement to NEBs.

Procedural requirements of s. 36(4) of the Schedule

45I find that the applicant is entitled to payment of NEBs 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.

46Section 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:

a) Pay the specified benefit;

b) 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

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

47The applicant submits that NEBs should be found payable for the duration of the claimed period, arguing that all of the respondent’s notices were non-compliant with s. 36(4) of the Schedule. I disagree. I find that the applicant has only established the respondent’s non-compliance with s. 36(4) for the period from May 7, 2020 to February 9, 2021.

48The applicant submits that the respondent’s initial correspondence dated March 16, 2020 was not a proper denial in accordance with s. 36(4), as it did not either: pay the benefit, provide medical and other reasons for the denial, secure an IE or make a request under s. 33 of the Schedule. However, I find that the applicant has not established non-compliance with s. 36(4) of the Schedule.

49Section 36(4) is clear that an insurer must provide a notice in compliance with subsections (a),(b) and (c), “within 10 business days after the insurer receives the application and completed disability certificate”. At this time, the applicant had not yet submitted a disability certificate (“OCF-3”), and the March 16, 2020 letter specifically stated that he was not entitled to NEBs until receipt of the OCF-3. As such, the particular notice requirements specified in s. 36(4)(a)(b) and (c) are not engaged until the applicant provides a completed OCF-3. Further, pursuant to s. 36(1) of the Schedule, there is no entitlement to a specified benefit like an NEB until the applicant provides a completed OCF-3.

50The respondent acknowledges that the completed OCF-3 was received on May 7, 2020. As such, the entitlement period for NEBs would begin on May 7, 2020. The respondent then sent a notice on May 11, 2020 which I agree with the applicant is non-compliant with s. 36(4) of the Schedule. The letter simply requests that the applicant complete an Activities of Normal Living Form (ANLF) to indicate how he suffers a complete inability to carry on a normal life. However, the request was not made pursuant to s. 33 of the Schedule, as required by s. 36(4)(c). A s. 33 request was not made until January 14, 2021.

51The January 14, 2021 correspondence referenced the previously requested ANLF, but properly requested the form pursuant to s. 33 of the Schedule. As such, I find that this notice complies with s. 36(4)(c) of the Schedule. When a completed ANLF was not provided, the applicant was held in non-compliance on February 9, 2021. The respondent sent follow-up correspondence requesting the ANLF on April 23, 2021, June 17, 2021 and August 25, 2021. The applicant has not submitted a completed form to date.

52The applicant submits that he was not required by s. 33 to complete the ANLF, since at that point the respondent had various OCF forms supporting his claim and an OHIP summary confirming his prior health. I find that the information requested in the ANLF was reasonably requested in this particular case to assist the respondent in determining the applicant’s entitlement to NEBs given the information it had on file. Further, the applicant has not directed me to any evidence that he reached out to the respondent to dispute the need for an ANLF.

53Given that the January 14, 2021 notice was 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.

Award

54The 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.

55The applicant submits that he is entitled to an award as the respondent failed to properly adjust his file in good faith, failed to provide compliant denial notices, failed to schedule any s. 44 examinations, failed to produce the adjuster’s log notes in accordance with the CCRO and mis-handled his claim to medical benefits by removing him from the MIG and then re-introducing the MIG.

56I am not persuaded that an award is justified with respect to a delay or unreasonable withholding of NEBs. Although the applicant argues that the respondent failed to schedule a s. 44 examination, I agree with the respondent that an insurer is not under an obligation to conduct such an assessment. Further, while I acknowledge that the respondent provided one notice that was non-compliant with s. 36(4) of the Schedule, a breach of the notice provisions of s. 36 in my opinion, would not automatically entitle an applicant to an award, without evidence of unreasonable withholding or delay. I do not see evidence of such unreasonable conduct with respect to NEBs. The respondent’s non-compliant notice requested documentation to assess the applicant’s claim to NEBs without citing s. 33. However, even when the subsequent compliant notice was provided properly citing s. 33, the applicant still did not provide the requested information, despite a number of follow-up requests.

57Further, while I agree with the applicant that the respondent’s correspondence relating to a number of prior treatment plans and the MIG was confusing and contradictory, he has not established how such correspondence resulted in the unreasonable withholding or delayed the payment of benefits. The denial notices implying that the applicant was out of the MIG relate to OCF-18s that are not presently in dispute and appear to have been paid by the respondent. As such, it cannot be said that those payments were withheld or delayed.

58Finally, I find that the applicant has not established that an award is warranted with respect to the OCF-18 dated February 24, 2022. Although I have found that this OCF-18 is payable due to non-compliance with s. 38(8), this was due to the lack of a medical reason. However, a technical breach of the notice provisions of s. 38 would not automatically entitle an applicant to an award, without evidence of unreasonable withholding or delay. The applicant has not led sufficient evidence of such a delay.

Interest

59The applicant is entitled to interest in accordance with s. 51 of the Schedule for the OCF-18 dated February 24, 2022 for chiropractic services as well for payment of NEBs from May 7, 2020 until February 9, 2021.

ORDER

60I find that:

i. The applicant has not met his onus to prove that his accident-related impairments warrant removal from the MIG; ii. The applicant is entitled to payment of the OCF-18 dated February 24, 2022, plus interest in accordance with s. 51 of the Schedule; iii. 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; iv. The applicant is not entitled to an award.