Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 22-004513/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:
Prakaashanand Audho
Applicant
and
Certas Home and Auto Insurance
Respondent
DECISION
ADJUDICATOR:
Samia Makhamra
APPEARANCES:
For the Applicant:
Shahzad Ayub, Counsel
For the Respondent:
Yann Grand-Clement, Counsel
HEARD:
By Written Submissions
OVERVIEW
1Prakaashanand Audho, the applicant, was involved in an automobile accident on October 30, 2016, 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, Certas Home and Auto Insurance, 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 a minor injury as defined in s. 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (“MIG”) and the $3,500.00 funding limit for treatment of minor injuries?
ii. Is the applicant entitled to medical benefits as follows:
a) $3,641.03 for a psychological treatment plan submitted by Imperial Medical Assessments Inc., dated January 25, 2022;
b) $2,750.72 for a chiropractic treatment plan submitted by Activa Mississauga, dated June 29, 2021; and
c) $2,486.00 for a psychological assessment plan submitted by Imperial Medical Assessments Inc., dated November 11, 2019?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the applicant precluded from claiming entitlement to the psychological treatment plan dated January 25, 2022?
RESULT
3The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
4It is unnecessary for me to consider the reasonable and necessary nature of the disputed treatment plans as they propose goods and services outside the MIG and the $3,500.00 funding limit.
5The applicant is precluded from claiming entitlement to the psychological treatment plan dated January 25, 2022 pursuant to s. 20(1)(a) of the Schedule because the treatment plan was submitted more than five years after the accident.
6The applicant is not entitled to interest as there are no benefits owing.
ANALYSIS
The applicant’s impairments fall within the MIG
7I find that the applicant’s injuries from the subject accident are minor.
8Section 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”.
9An 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 in 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 or proof lies with the applicant.
10Based on the submissions and evidence, I find that the applicant’s injuries from the subject accident are minor. This is clear from the clinical notes and records of the family physician, Dr. Clement Wong, who saw the applicant on November 21, 2017, and described the impairments from the accident as soft tissue injuries (left pain in the neck and headache). Dr. Wong prescribed Advil and physiotherapy. At a follow-up visit in January 2017, the applicant complained of left neck and shoulder pain. Later that same year, Dr. Wong noted that the applicant had returned to work as a driver. In addition, there is no evidence of pre-existing impairments that were exacerbated by the subject accident, or evidence of a psychological impairment.
11The applicant did not file submissions in this regard. The respondent relies on the notes from the applicant’s family doctor, Dr. Clement Wong, for its position that the applicant’s injuries are minor. It also submits there are no pre-existing documented impairments that were made worse by the subject accident, and no psychological impairment.
12In summary, I find that the applicant’s impairments from the subject accident fall within the MIG.
The applicant is not entitled to the treatment plans for chiropractic treatment and psychological assessment
13I do not need to consider the reasonable and necessary nature of these treatment plans as they propose goods and services outside the MIG and the $3,500.00 funding limit.
The respondent’s denial letters comply with s.38 of the Schedule
14The applicant did not file submissions on the reasonable and necessary nature of the treatment plans in dispute. Instead, he focused his submissions entirely on whether the respondent’s denial letters comply with the Schedule. In summary, he argues that the respondent’s denial letters, or explanation of benefits (EOB), disregard the OCF-18s as medical evidence, and do not provide reasons for denying the treatment plans in accordance with s. 38 of the Schedule. As a result, the applicant argues the respondent is prohibited from taking the position that the MIG applies, and the treatment plans are therefore payable.
15Section 38(8), (9) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan within ten business days. Section 38(9) requires that if the insurer takes the position that the MIG applies, it must include this information in the notice. Section 38(11) sets out that if the insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies, and it must pay for any incurred treatment expenses until such time that it gives notice that complies with section 38(8).
16The treatment plan for chiropractic treatment was dated June 29, 2021, and was for $2,750.72. On July 1, 2021, the respondent sent the applicant an EOB with this treatment plan. In the EOB, the respondent indicated that the applicant’s injuries from the subject accident were minor, within the MIG, and that there was no compelling medical information to support non-minor injuries or a direct causal relationship between the recommendations in the treatment plan and the injuries sustained in the accident. I find the respondent’s EOB of July 01, 2021 to be a proper notice in accordance with s. 38(8) of the Schedule as it makes reference to the applicant’s injuries and provides medical and other reasons for the denial.
17The treatment plan for a psychological assessment was dated November 11, 2019, and was in the amount of $3,641.03. On November 26, 2019, the respondent sent the applicant an EOB noting that it had been more than three years since the accident, that the applicant had returned to work since, that there were no psychological complaints noted in the family doctor’s notes and records, and that the applicant’s injuries were categorized as under the MIG. I find the respondent’s EOB of November 26, 2019 to be a proper notice in accordance with s. 38(8) of the Schedule because it makes reference to the applicant’s complaints to his family doctor, to his injuries as under the MIG, and provides medical and other reasons for the denial.
18In summary, I find that the respondent’s denial letters with respect to the treatment plans for chiropractic treatment and for a psychological assessment are compliant with s. 38 of the Schedule. I find that they were provided within ten business days from receipt, and also provided the applicant with sufficient reasons.
Is the Applicant precluded from claiming entitlement to the psychological treatment plan dated January 25, 2022?
19I find that the applicant is precluded from claiming entitlement to the treatment plan for psychological treatment pursuant to section 20(1)a of the Schedule because it was submitted past the 5-year mark from the date of loss.
20Section 20(1) a of the Schedule states:
20.(1) Subject to subsection (2), no medical, rehabilitation and attendant care benefit is payable for expenses incurred,
(a) more than 260 weeks after the accident, in the case of an insured person who was at least 18 years of age at the time of the accident.
21The date of loss is October 30, 2016. This means that the applicant (who is not catastrophically impaired) had until the end of October 2021 to submit treatment plans. Given that the treatment plan for psychological treatment was submitted in January 2022, the applicant is precluded from claiming entitlement.
ORDER
22For the reasons outlined above, I order the following:
The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
It is unnecessary for me to consider the reasonable and necessary nature of the disputed treatment plans as they propose goods and services outside the MIG and the $3,500.00 funding limit.
The applicant is precluded from claiming entitlement to the psychological treatment plan dated January 25, 2022 because the treatment plan was submitted more than five years after the accident, pursuant to s. 20(1)(a) of the Schedule.
The applicant is not entitled to interest as there are no benefits owing.
Released: May 16, 2024
Samia Makhamra
Adjudicator