Christopher Samuel v. Co-operators General Insurance Company, 2024 CanLII 49029

Licence Appeal Tribunal

Citation: Samuel v. The Co-operators, 2024 ONLAT 22-004078/AABS Licence Appeal Tribunal File Number: 22-004078/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:

Christopher Samuel Applicant

and

Co-operators General Insurance Company Respondent

Decision

Adjudicator: Samia Makhamra

Appearances: For the Applicant: Yalda Aslamzada, Counsel For the Respondent: Laura Emmett, Counsel

Heard: By written submissions

OVERVIEW

1Christopher Samuel, the applicant, was involved in an automobile accident on January 29, 2021, 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”)? Note: The parties agree the MIG limits have been exhausted.

ii. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from March 23, 2022, to date and ongoing?

iii. Is the applicant entitled to $2,200.00 for physiotherapy services, proposed by Essential Physio Rehab in a treatment plan/OCF-18 (“plan”) submitted on September 14, 2021?

iv. Is the applicant entitled to $4,501.58 for chiropractic and massage services, proposed by Essential Physio Rehab in a plan submitted on August 10, 2021?

v. Is the applicant entitled to $2,200.00 for an orthopaedic assessment, proposed by Essential Physio Rehab in a plan submitted on May 18, 2021?

vi. Is the applicant entitled to $3,281.98 for chiropractic services, proposed by Essential Physio Rehab in a plan submitted on February 11, 2021?

vii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Pivotal Medical Assessments in a plan submitted on December 20, 2021?

viii. 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?

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

RESULTS

3The applicant is not entitled to an income replacement benefit.

4The respondent failed to respond to the applicant’s treatment plan for chiropractic services for $3,281.98, proposed by Essential Physio Rehab, within the period prescribed by section 38(8) of the Schedule. Accordingly, pursuant to section 38(11)1, the respondent is prohibited from maintaining its position that the applicant is subject to the MIG for this treatment plan only.

5The applicant is not entitled to the treatment plans in dispute.

6The respondent is not liable to pay an award.

7The applicant is not entitled to interest as there are no overdue benefits.

ANALYSIS

The applicant is not entitled to an income replacement benefit

8I find that the applicant is not entitled to an income replacement benefit. I am persuaded by the results of s. 44 assessments which found that the applicant did not meet the eligibility test. In addition, I have no submissions or evidence from the applicant to challenge the findings of these assessments.

9To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

10The applicant attended a s. 44 physiatry assessment with Dr. Raymond Zabieliauskas on January 29, 2022. Dr. Zabieliauskas noted that there were no residual impairments from the subject accident and that the applicant’s injuries were minor. Dr. Zabieliauskas concluded that the applicant could safely perform the essential tasks of his previous employment and did not meet the substantial inability test for IRBs.

11The applicant attended a second s. 44 assessment with Dr. Gerry Dancyger, psychologist, on February 18, 2022. Dr. Dancyger noted that from a psychological perspective, there was no valid or objective evidence of an accident-related impairment and that the applicant could be treated within the MIG. On this basis, Dr. Dancyger concluded that the applicant did not suffer a substantial inability to perform the essential tasks of his employment.

The respondent’s denial of IRBs complied with the Schedule

12The applicant did not file submissions on eligibility to IRBs. Instead, he focused on the respondent’s denial which he claims did not comply with the Schedule. I disagree. I find that the respondent’s denial letters complied with the Schedule.

13The applicant submits that the respondent’s letters denying IRBs are deficient with respect to s. 36 of the Schedule. Section 36 requires an insurer to, within 10 days of receiving an OCF-3 (a disability certificate), 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. I disagree with the applicant’s allegation that the notices given were deficient. I find that the respondent’s denial letters are compliant with s. 36. The next paragraphs set out the correspondence between the applicant and the respondent from the time IRBs were approved until they were denied effective March 23, 2022. Nothing in this correspondence indicates a breach of section 36 by the respondent.

14On February 11, 2021, the respondent received an OCF-3 dated February 4, 2021, completed by Ashley Narula, chiropractor. On February 25, 2021, the respondent replied to the OCF-3 and indicated that the applicant was eligible for IRBs. Subsequently, the respondent paid the applicant IRBs in the amount of $400.00 per week until March 23, 2022.

15In a letter dated September 28, 2021, the respondent advised the applicant that it required him to attend s. 44 assessments to determine his continued eligibility for IRBs and provided a Notice of Examination (NOE).

16When the applicant did not attend the s. 44 assessments, the respondent sent two more letters dated December 14, 2021 and December 23, 2021. The applicant attended a s. 44 physiatry assessment with Dr. Raymond Zabieliauskas on January 29, 2022, and a s. 44 assessment with Dr. Gerry Dancyger on February 18, 2022. Again, the reports of these assessors did not support continued eligibility to IRBs.

17In a letter dated March 17, 2022, the respondent advised the applicant that according to the s. 44 reports of Dr. Zabieliauskas and Dr. Dancyger, he was no longer eligible for IRBs effective March 23, 2022.

The notice of examination (NOE) was sufficient

18I find that the respondent’s NOE offered sufficient reasons for the applicant to attend the s. 44 examinations.

19According to s. 44(5) of the Schedule, the Insurer is required to give the applicant a notice setting out the following:

a) The medical and any other reasons for the examination;

b) Whether the attendance of the insured person is required at the examination;

c) The name of the person or persons who will conduct the examination, any regulated health profession to which they belong and their titles and designations indicating their specialization, if any, in their professions; and,

d) If the attendance of the insured person is required at the examination, the day, time and location of the examination and, if the examination will require more that on day, the same information for the subsequent days.

20The applicant submits that the respondent’s notices failed to comply with the mandatory requirements of s. 44(5) because they did not identify medical and any other reasons why the applicant is required to attend the assessments, as stated in the Tribunal’s reconsideration decision M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT Reconsideration). The respondent disputes this assertion.

21In the NOE the respondent stated the following:

"Our reason for arranging this examination is to better understand how your car accident caused or contributed to the current impairments and limitations you indicate you are experiencing. We would also like to obtain a second medical opinion as to whether your impairment from the accident is predominately a minor injury as defined under the terms of the Statutory Accident Benefits Schedule.

We also believe your injury to be considered a minor injury at this time as we do not have any compelling medical evidence on file that would suggest that your injuries are chronic in nature or otherwise outside of the Minor Injury Guideline. We will also assess if the Treatment and Assessment Plan OCF-18 is considered reasonable and necessary. As well as to determine your continued eligibility for the Income Replacement Benefit and further explore how your functional complaints affect your ability to perform your pre-accident work activities. Given the length of time since this accident occurred and the medical information provided to us, we are not satisfied the above Treatment Plan (OCF-18) has given us enough information or justification to accept that it is reasonable and necessary or to create a link between your need for the goods and services described and the injuries you sustained in the motor vehicle accident. We do not have any compelling medical documentation on file that would suggest that your injuries do not appear to be minor in nature."

22I find that the respondent provided sufficient medical and other reasons. In the NOE the respondent mentioned the applicant’s current medical status in that his injuries from the accident were minor and fell in the MIG, its intention to have a second medical opinion as to his impairments, and that it did not have any compelling medical records that suggested the injuries were not minor in nature. Given that the applicant was in the MIG, I find that the respondent’s reasons for the examinations were sufficient and specific to the applicant and complied with the requirements in s. 44.

Section 38 and treatment plan for chiropractic services for $3,281.98

23I find that the respondent failed to provide its denial letter within 10 business days as prescribed by section 38(8). The treatment plan was submitted on February 11, 2021 and the respondent’s denial letter was provided on March 1, 2021, which is effectively the 11th business day from receipt.

24Section 38(8) requires the insurer to notify the insured person of its decision of whether or not to pay the claimed benefits within 10 business days after it receives a treatment plan. Section 38(11) sets out that if the insurer fails to comply with subsection (8), it is prohibited from taking the position that the MIG applies, and it must pay for any incurred treatment expenses starting on the 11th business day after the day the insurer received the treatment plan, and ending on the day the insurer gives a proper notice.

25Accordingly, the respondent is prohibited from maintaining its position that the MIG applies with respect to this treatment plan only. However, as I have not been provided with evidence that the treatment plan in question has been incurred, there are no amounts owing to the applicant for this treatment plan.

The applicant is not entitled to the remaining treatment plans

26To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

27In this case, the applicant did not file submissions on the reasonable and necessary nature of treatment plans iii, iv, v, and vii. With no submissions or evidence in support of these treatment plans, I find that they are not reasonable and necessary.

Section 38 and the respondent’s denial letters

28I find that the respondent’s denial letters comply with the Schedule. I find that they were provided within 10 business days from receipt of the treatment plans and also provided the applicant with sufficient reasons.

29Regarding treatment plan iii, it was submitted to the respondent on September 24, 2021, and the respondent replied to it on September 28, 2021. In its denial letter, the respondent referenced the treatment plan, advised that the applicant was in the MIG, that it did not have medical records to support the treatment plan, and required the applicant to provide updated clinical notes and records. The respondent also required the applicant to undergo section 44 assessments to better understand how the subject accident contributed to the impairments the applicant was alleging. Accordingly, I find that the denial complies with section 38.

30I find that the respondent’s denials of treatment plans iv and vii were similarly compliant with section 38. First, they were provided within 10 business days from receipt: treatment plan iv was submitted on August 10, 2021 and the denial was provided on August 24, 2021; treatment plan vii was submitted on December 20, 2021 and the denial was provided on January 5, 2022. Secondly, the respondent provided sufficient reasons for the denials, in that the applicant was in the MIG, there were no medical records to support the treatments, and the respondent required him to attend section 44 assessments.

31Regarding treatment plan v, I find that the denial letter complied with section 38. The treatment plan was provided on May 18, 2021 and the denial was provided on June 1, 2021, which is within 10 business days from receipt. The respondent’s reasons for the denial are sufficient in that it referenced the orthopedic assessment, it advised that the applicant’s injures were minor, and that it had no medical records to support the assessment.

The insurer is not liable to pay an award

32The applicant is seeking an award under s. 10 of O. Reg. 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.

33In examining whether an insurer’s conduct in withholding or denying a benefit warrants an award, the case law is well established that, the insurer’s behaviour must be seen as “excessive, imprudent, stubborn, inflexible, unyielding, or immoderate”.

34I do not find that an award is payable. The respondent properly paid benefits within the MIG, and there are no other benefits owed to the applicant.

ORDER

35For the reasons outlined above, I order the following:

1. The applicant is not entitled to an income replacement benefit.

2. The respondent failed to respond to the applicant’s treatment plan for chiropractic services for $3,281.98, proposed by Essential Physio Rehab, within the period prescribed by section 38(8) of the Schedule. Accordingly, pursuant to section 38(11)1, the respondent is prohibited from maintaining its position that the applicant is subject to the MIG for this treatment plan only.

3. The applicant is not entitled to the treatment plans in dispute.

4. The respondent is not liable to pay an award.

5. The applicant is not entitled to interest as there are no overdue benefits.