Licence Appeal Tribunal File Number: 22-004627/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:
Timothy Smith
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR:
Samia Makhamra
APPEARANCES:
For the Applicant:
Dino Ranchan Pius, Counsel
For the Respondent:
Adrienne Bramson, Counsel
Heard by written submissions
OVERVIEW
1Timothy Smith, the applicant, was involved in an automobile accident on January 26, 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, Allstate 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 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 $2,198.88 for a psychological assessment, proposed by All Health Medical in a treatment plan dated April 14, 2020?
iii. Is the applicant entitled to $2,260.00 for a chronic pain assessment, proposed by All Health Medical in a treatment plan dated November 24, 2020?
iv. Is the applicant entitled to $3,733.86 for physiotherapy services, proposed by Newmarket Health & Wellness Center Inc. in a treatment plan dated August 10, 2021?
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
3The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.
4The respondent failed to respond to the applicant’s claim in the treatment plan for physiotherapy services in the amount of $3,733.86, dated August 10, 2021, within the 10-day period prescribed by s. 38(8). 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.
5It is unnecessary for me to consider the reasonable and necessary nature of the treatment plans for a psychological assessment and a chronic pain assessment, as they propose goods and services outside the MIG and the $3,500.00 funding limit.
6The Insurer is not liable to pay an award.
7The applicant is not entitled to interest as there are no overdue benefits.
ANALYSIS
The applicant’s injuries fall within the MIG
8I find that the applicant’s injuries from the subject accident fall within the MIG.
9Section 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”.
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 from their minor injury if they are kept with 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.
11I am persuaded by the reports of two assessors who conducted s. 44 assessments to determine the applicability of the MIG and found that the applicant’s injuries were minor.
12Dr. Seyed Hosseini, physiatrist, examined the applicant on January 27, 2021. Dr. Hosseini’s assessment also included whether the treatment plan for a chronic assessment was reasonable and necessary; this is the treatment plan in dispute in the amount of $2,260.00, dated November 20, 2020. Dr. Hosseini diagnosed lumbar strain/sprain and concluded that the applicant’s injuries were minor.
13Dr. Ralph Lubbers, psychologist, examined the applicant on September 25, 2020. Dr. Lubbers’ assessment also included whether the treatment plan for a psychological assessment was reasonable and necessary; this is the treatment plan in dispute in the amount of $2,198.88, dated April 14, 2020. Dr. Lubbers’ assessment did not reveal the presence of a clinically significant psychological/mental health condition as a result of the subject accident.
14Both assessors examined the applicant in person, reviewed the medical records available to them, and, on the basis of their assessments, provided their conclusions that the applicant’s injuries were minor. In addition, there is no other evidence that the applicant’s injuries are not minor. For example, there are no records of a family doctor or treatment providers indicating that the injuries from the accident are not minor in nature.
15The applicant submits he should be removed from the MIG because of a psychological impairment and chronic pain. In addition, the applicant submits that the respondent has failed to comply with the notice provisions in s. 38 of the Schedule when it failed to respond within the prescribed 10-day period, which has an impact on whether the MIG applies. I will address each of these arguments in the paragraphs below.
Psychological impairment
16The applicant submits he has psychological impairments which remove him from the MIG. He argues his psychological injuries were confirmed by Dr. Kershner who conducted an initial intake and, as a result, recommended the treatment plan for a psychological assessment in the amount of $2,198.88, dated April 14, 2020, that is in dispute. Dr. Kershner provided a provisional diagnosis of adjustment disorder with mixed anxiety and depressed mood, and specific phobia, situational. The respondent disputes this position on the basis that there is no evidence of a psychological impairment.
17I am not persuaded by Dr. Kershner’s report and provisional diagnosis as it is based solely on the applicant’s reporting. In addition, there is no contemporaneous medical documentation from any other treatment providers that supports a psychological impairment as a result of the accident.
Chronic pain
18The applicant submits he has chronic pain based on an OCF-3 provided by Dr. Lima on August 5, 2021. Dr. Lima indicated that the applicant’s symptoms were chronic in nature, increasing recovery time.
19I am not persuaded that the applicant suffers from chronic pain. The OCF-3 of August 5, 2021 is not sufficient evidence to demonstrate chronic pain. Importantly, there is no other medical record or evidence of a functional impairment, or to support the claim of chronic pain.
The respondent breached s. 38(8) regarding the treatment plan for physiotherapy services dated August 10, 2021
20I find that the respondent breached s. 38(8) of the Schedule when it responded to the treatment plan for physiotherapy services in the amount of $3,733.86, dated August 10, 2021, 17 days, instead of 10 days, after the plan was submitted.
21Section 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 to that treatment plan.
22The applicant submitted the treatment plan for physiotherapy services on August 10, 2021 and the respondent denied it on September 2, 2021, 17 days after it was submitted. As such, I find that the respondent breached s. 38(8) of the Schedule as it failed to respond within 10 business days. Accordingly, the respondent is prohibited from taking the position that the MIG applies with respect to this treatment plan, pursuant to s. 38(11). However, as I have not been provided with evidence that this treatment plan was incurred during the period in which the respondent’s denial was outstanding, there are no amounts owing to the applicant for this treatment plan.
23Importantly, contrary to the applicant’s submissions, the respondent is prohibited from taking the position that the MIG applies with respect to this treatment plan only. In other words, its breach of s. 38(8) and the remedy in s. 38(11) only applies to this treatment plan.
The applicant is not entitled to the treatment plans for a psychological assessment and a chronic pain assessment
24It is unnecessary for me to consider the reasonable and necessary nature of the disputed treatment plans for a psychological assessment and chronic pain as they propose goods and services outside the MIG and the $3,500.00 funding limit.
The insurer is not liable to pay an award
25The 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.
26In 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”.
27I do not find that an award is payable in this case. The respondent properly paid benefits within the MIG, and there are no other benefits owed to the applicant.
ORDER
28For 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.
The respondent failed to respond to the applicant’s claim in the treatment plan for physiotherapy services in the amount of $3,733.86, dated August 10, 2021, within the 10-day period prescribed by s. 38(8). 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.
It is unnecessary for me to consider the reasonable and necessary nature of the treatment plan for a psychological assessment and chronic pain assessment that are in dispute, as they propose goods and services outside the MIG and the $3,500.00 funding limit.
The respondent is not liable to pay an award.
The applicant is not entitled to interest as there are no overdue benefits.
Released: June 4, 2024
Samia Makhamra
Adjudicator