Citation: Hussain v. Pembridge Insurance, 2024 ONLAT 22-003605/AABS

Licence Appeal Tribunal File Number: 22-003605/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:

Ammaar B. Hussain

Applicant

and

Pembridge Insurance

Respondent

DECISION

VICE-CHAIR:

Brett Todd

APPEARANCES:

For the Applicant:

Shahzad Ayub, Counsel

For the Respondent:

Tiffany Lan, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

OVERVIEW

1Ammaar B. Hussain (the “applicant”) was involved in a motor vehicle accident on October 27, 2018 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). Pembridge Insurance (the “respondent”) held the applicant within the Minor Injury Guideline (“MIG”) and denied certain benefits. The applicant applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

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 limit of the MIG?

2. Is the applicant entitled to $3,313.47 for chiropractic services, proposed by Health One Markham Inc. in a treatment plan/OCF-18 (“plan”) submitted February 12, 2021?

3. Is the applicant entitled to $2,516.36 for an occupational therapy assessment, proposed by Health One Markham Inc. in a treatment plan submitted February 9, 2021?

4. Is the applicant entitled to $2,743.37 for psychological services, proposed by Imperial Medical Assessments Inc. in a treatment plan submitted June 26, 2020?

5. Is the applicant entitled to $2,486.00 for a psychological assessment, proposed by Imperial Medical Assessments Inc. in a treatment plan submitted March 30, 2020?

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

3In the applicant’s submissions, he withdrew issues #6 and #7 as listed in the Case Conference Report and Order (“CCRO”) dated February 22, 2023 that set this matter down for a written hearing. I have removed them from the issues in dispute above.

4The respondent notes in its submissions that $280.55 remains under the MIG limit of $3,500.00. As this has not been challenged by the applicant—who did submit reply submissions, in which he could have addressed this issue—I accept the respondent’s position that the MIG has not been exhausted. However, as this $280.55 is less than the value of the treatment plans in dispute, I accept that the MIG has been functionally exhausted. The applicant must demonstrate that he warrants removal from the MIG if he is to be entitled to the treatment plans in dispute listed above on the basis of their being deemed reasonable and necessary.

RESULT

5I find that:

i. The applicant has failed to demonstrate that he suffers from injuries outside of the minor injury definition in the Schedule. He remains within the MIG and its $3,500.00 limit on treatment.

ii. As I have found that the applicant remains within the MIG, which has been functionally exhausted, he is not entitled to the treatment plans in dispute, nor interest.

iii. The applicant has failed to demonstrate that the denial notices for the treatment plans in dispute contravene s. 38(8) of the Schedule. He is not entitled to these treatment plans on this basis, as well.

PROCEDURAL ISSUE

6In reply submissions, the applicant submits that as the respondent failed to respond to the s. 38(8) notice issues raised in his initial submissions, the respondent “has waived any entitlement to argue that the arguments raised [in the reply] are ‘novel’ and therefore inappropriate to adduce in reply submissions.”

7The applicant then uses his reply to challenge the insurer examination (“IE”) reports that the respondent relies upon in its written submissions, arguing that they were improperly procured due to flawed notices of examination (“NoE”) and their results should be voided ab initio. The applicant also claims that the respondent’s approach in its submissions relying on medical reasons such as those provided in the IEs confirms that the treatment plans were improperly denied, as those medical reasons provide a “striking contrast” with the lack of detail and information in the denial notices.

8There is no notation in Tribunal records that the respondent responded to these reply submissions.

9Regardless, I find that the applicant has introduced a new argument in his reply submissions. He did not note any issues with the NoEs for these IEs—which, based on a review of the IE reports in question, the applicant attended—in initial submissions. If I were to consider whether the respondent’s IE reports were improperly procured, the respondent would be unfairly denied the ability to defend against this argument in this hearing.

10I also do not concur with the applicant’s argument that he should be able to introduce this new topic in reply submissions because the respondent did not address the s. 38(8) issues raised in the applicant’s initial submissions. I fail to see how the respondent’s decision to focus its submissions on the medical evidence opens the door to the introduction of a novel argument in reply that improper NoEs constitute grounds for the voiding of the resultant IE reports.

11For the reasons cited above, I am not considering the sections of the applicant’s reply submissions regarding the NoEs and the IEs in question. I specifically exclude section (B.) of the reply that includes paragraphs 6 through 8, but also any other reference to this issue in the reply.

ANALYSIS

The Minor Injury Guideline (“MIG”)

12Section 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 minor injuries. 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.”

13An insured person may be removed from the MIG if it can be established that his or her accident-related injuries fall outside of the MIG. In addition, an insured person can be removed from the MIG due to a pre-existing injury or condition. This factor, combined with compelling documentation and medical evidence indicating that the injury and/or condition precludes recovery if kept within the MIG, can result in an insured person being removed from the MIG, pursuant to s. 18(2) of the Schedule. The Tribunal has further determined that chronic pain with a functional impairment may warrant an insured person’s removal from the MIG, as may a psychological impairment.

14The burden is on the applicant to show, on a balance of probabilities, that his injuries fall outside of the MIG.

15Here, the applicant provides no argument or medical evidence regarding the MIG. Instead, he relies on the position that the four denial notices of the treatment plans in dispute were in contravention of s. 38(8) of the Schedule. Therefore, the consequences of s. 38(11) apply, meaning that the insurer is prohibited from taking the position that the applicant has an impairment to which the MIG applies, and that the insurer shall pay for the treatment plans in dispute.

16For the above reasons, the applicant seeks an order that the respondent is prohibited from continuing to take the position that the MIG applies to the applicant and that it pay each of the disputed treatment plans, along with interest.

17The respondent counters by submitting that the applicant’s accident-related injuries fall within the MIG. It provides an argument wholly based on medical evidence, without providing any comment on the s. 38(8) position of the applicant. It relies primarily on a critique of the applicant’s clinical notes and records (“CNRs”) and two IE reports dated March 31, 2021—a physiatrist report completed by Dr. Melody Nguyen, physiatrist, (with a paper review dated April 28, 2021); and a psychological report completed by Dr. Tatiana Dumitrascu, psychologist. Accordingly, the respondent requests that the application be dismissed.

18I agree with the respondent. The applicant remains within the MIG and he is not entitled to the treatment plans, nor interest. My full analysis follows.

Applicability of the MIG

19I find that the applicant has failed to establish that he suffers from any injury, impairment, or pre-existing condition that is not covered in the minor injury definition of the Schedule.

20As noted above, the applicant’s submissions do not refer to any medical reasons that would warrant his removal from the MIG. He focuses entirely on the denial notices of the four treatment plans in dispute and submits that “both the MIG issue and the interest issue are resolved as a consequence of the resolution of the OCF-18 issues.”

21I do not agree. The MIG determination and any issue regarding the possible improper denial notices are two separate matters. Each requires its own analysis.

22The consequences of failing to provide a denial notice in accordance with s. 38(8) trigger the consequences of s. 38(11) and mandate that an insurer is prohibited from taking the position that an “insured person has an impairment to which the MIG applies” and that the insurer “shall pay for all goods, services and assessments described in the treatment and assessment plan.” But this provision applies only to the treatment plans themselves. Section 38(11) means that an insurer cannot use the MIG as a position for denying such an improperly denied treatment plan; it does not mean that the applicant is removed from the MIG.

23While the applicant cites Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 in his submissions, he notes only how that decision affirmed the requirement for an insurer to comply with s. 38(8) and that the consequences of s. 38(11) were mandatory. The applicant does not refer to what, in my view, is one of the main points of Zheng, Cai—its confirmation at paragraph 21 that s. 38 refers to the specific treatment plan in question and s. 38(11) does not impose a permanent prohibition on an insurer with regard to a MIG determination. In short, an improper denial does not result in an applicant being removed from the MIG.

24In summary, the applicant has failed to make submissions on the medical evidence regarding the MIG determination. As a result, he cannot meet his burden. Further, pursuant to Zheng, Cai, he cannot be removed from the MIG as the result of any contraventions of s. 38(8), even if I were to determine that such contraventions took place.

25I am also persuaded by the medical evidence of the respondent. Both of the IE reports dated March 31, 2021 and the additional physiatry paper review dated April 28, 2021—which each involved a clinical interview with the applicant and a comprehensive review of the applicant’s CNRs and other medical documents—indicate that the applicant sustained injuries as a result of the accident that fall within the MIG.

26Dr. Nguyen, who assessed the applicant regarding the chiropractic services treatment plan listed as issue #2 above, found that he suffered soft-tissue back sprains and strains as a result of the accident. The physiatrist also opined that any back pain that developed more than two-to-five months post-accident, as claimed by the applicant during a clinical interview, was unlikely to be related to the subject accident. Dr. Nguyen concluded that the applicant suffered injuries considered minor as defined by the Schedule and denied the treatment plan in question. She reiterated these findings in her paper review of additional medical documentation provided by the applicant.

27Dr. Dumitrascu assessed the applicant specifically in relation to the psychological services treatment plan listed as issue #4 above. She found no evidence that the applicant suffered from any accident-related psychological impairments and denied the treatment plan. Nothing in Dr. Dumitrascu’s report indicates that the applicant sustained any psychological impairment as a result of the accident that would fall outside of the MIG definition of a minor injury.

28For the reasons detailed above, the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment.

Denial notices according to s. 38(8) and s. 38(11)

29I find that the respondent has met the requirements of s. 38(8) of the Schedule with regard to the denial notices of the four disputed treatment plans. The applicant is not entitled to these plans, nor interest.

30As I have referenced above, the applicant’s written submissions for this hearing are dedicated to the argument that the respondent failed to meet the requirements of s. 38(8). The applicant agrees that these four notices were provided within the 10-business-day deadline as established by s. 38(8), but argues that the insurer failed to provide “the medical reasons and all of the other reasons why the insurer considers any good, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.” As a result, the applicant holds that s. 38(11) applies and the respondent is mandated to pay for these treatment plans.

31Further, the applicant relies on Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882; M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT); 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT); 17-003774/AABS v. Aviva Canada Inc., 2018 CanLII 84051 (ON LAT); M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT); and Zheng, Cai.

32The applicant takes the position that these decisions and reconsideration decisions establish that a denial notice must possess a minimum of five “denial notice conditions” to meet the criteria for a proper notification under s. 38(8). The applicant sets forth a table listing a total of six conditions involving: a principled rationale expressly set out in the denial notice; accurate information in the denial notice; specific details about the insured person’s condition that form the basis for the denial; all applicable reasons for the denial; clarity and transparency so that an unsophisticated person can understand the denial reasons and make an informed decision is response; and a fair rationale that is not arbitrary.

33The applicant argues that all four treatment plans in dispute here were “certified by duly qualified medical professionals” to contain accurate information, that they propose reasonable and necessary treatment, and that the applicant’s impairments are not predominantly minor injuries. As a result, the applicant claims that each of these certified plans “constitutes a sound until proven otherwise, rebuttable presumption” that requires “an insurer to actually rebut (if not, refute) said presumption, on the basis of fair and principled reasons” that were not provided by the insurer in these four instances. The applicant holds that the respondent provided only “bald statements” without any reference to any substantiating medical evidence.

34These notices read as follows:

i. The denial letter dated February 12, 2021 for the chiropractic treatment plan listed as issue #2 details that the applicant’s injuries suggest that he sustained sprains and strains categorized under the MIG, that the recommended treatment is being denied because it would exceed the MIG limit of $3,500.00, and that another treatment plan approved nearly two years earlier had not been incurred to date.

ii. The denial letter dated February 2, 2021 for an occupational therapy treatment plan listed as issue #3 notes very similar details and reasons as those noted above. The denial is based primarily on the explanation that the applicant suffered minor injuries as a result of the accident and would be held within the MIG. As a result, the plan was again being denied because it would result in exceeding the $3,500.00 MIG limit. This notice also referenced s. 25(2) of the Schedule, which establishes that an insurer is not required to pay for an assessment or examination conducted in the home of an insured person unless the insured person has sustained an impairment that is not a minor injury.

iii. Both of the denial letters regarding the psychological services treatment plan listed as issue #4 and the psychological assessment listed as issue #5, dated March 31, 2021 and June 26, 2020, respectively, reference the MIG limit again. Both also go into added specifics regarding insufficient medical information on file demonstrating that the applicant suffers from a psychological impairment. In these letters, the insurer requests added information from Imperial Medical Assessments and CNRs from the applicant’s family doctor in order to make a more informed final decision.

35In its submissions, the respondent does not comment on the s. 38(8) issue. It devotes the majority of its written argument to the MIG determination, only briefly touching on the treatment plans.

36Despite the respondent’s silence on the improper denial notice issues raised by the applicant, I find that the respondent’s notices meet the criteria established in s. 38(8) of the Schedule.

37As detailed above, the applicant takes a novel approach in challenging these denial notices. By my determination, he makes a two-pronged argument, arguing that the denial of a certified treatment plan must be based on a medical opinion made in rebuttal and that the letters themselves do not include adequate rationale and information in accordance with the table of criteria that the applicant has included in his submissions.

38First, I find that the applicant has failed to demonstrate that an insurer must rebut treatment plans in denial notices with contrary medical opinions. For example, he states in paragraph 16 of his written submissions that a certified treatment plan “constitutes a sound until proven otherwise, rebuttable presumption regarding the determinations made therein.” The applicant further suggests throughout his initial submissions that sufficient denial notices must include such rebuttals of treatment plans.

39However, I fail to see any requirement that an insurer must take this rebuttal step in order to meet denial notice requirements. In my view, this position moves the bar higher than that which has been established and clarified in prior Tribunal reconsiderations such as M.B. v. Aviva, 16-003316/AABS v. Peel, and 17-003774/AABS v. Aviva. Accordingly, the insurer was under no obligation to provide such rebuttals and therefore cannot fail to meet the sufficient notice standard on this basis.

40Second, I find that the denial reasons as cited in the four notice letters at the centre of this dispute meet the criteria as outlined in M.B. v. Aviva, 16-003316/AABS v. Peel, and 17-003774/AABS v. Aviva. Most notably, I refer to paragraph 26 of M.B. v. Aviva, in which it is noted that “medical and any other reasons” should include specific details about the insured person’s condition that formed the basis for the insurer’s decision, and that its reasons “should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.”

41The respondent’s four denial notices meet this standard. Each of the notices contains specific information about the applicant’s medical condition along with details about the rationale behind the insurer’s decision to deny each treatment plan in question. In my view, an unsophisticated person would be able to make an informed decision to accept or dispute the insurance company’s decision regarding each of these plans.

42Therefore, the applicant is not entitled to the treatment plans in dispute, nor interest, on the basis of any contraventions of s. 38(8).

ORDER

43The application is dismissed and I find that:

i. The applicant has failed to demonstrate that he suffers from injuries outside of the minor injury definition in the Schedule. He remains within the MIG and its $3,500.00 limit on treatment.

ii. As I have found that the applicant remains within the MIG, which has been functionally exhausted, he is not entitled to the treatment plans in dispute, nor interest.

iii. The applicant has failed to demonstrate that the denial notices for the treatment plans in dispute contravene s. 38(8) of the Schedule. He is not entitled to these treatment plans on this basis, as well.