Javed v. Royal & Sun Alliance Insurance Company of Canada, 2024 CanLII 6514

Citation: Javed v. Royal & Sun Alliance Insurance Company of Canada, 2024 ONLAT 21-009555/AABS

Licence Appeal Tribunal File Number: 21-009555/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:

Rizwan Javed

Applicant

and

Royal & Sun Alliance Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Applicant: Stanislau Petrushkevich, Articling Student

For the Respondent: Anju Sharma, Counsel

HEARD: By way of written submissions

OVERVIEW

1Rizwan Javed, the applicant, was involved in an automobile accident on April 14, 2018, 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, Royal & Sun Alliance Insurance Company of Canada, 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 (“MIG”) limit?

ii. Is the applicant entitled to medical benefits and cost of examination expenses proposed by Toronto Healthcare Clinic Inc in the following treatment plans/OCF-18s:

a) $1,823.12 for physiotherapy submitted August 19, 2019;

b) $2,000.00 for a chronic pain assessment submitted August 22, 2019;

c) $1,240.00 for physiotherapy submitted June 26, 2020; and

d) $900.00 for shockwave treatment submitted December 22, 2020?

iii. 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?

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

RESULT

3For the following reasons, I find:

i. The applicant has not established that his impairments arising from the accident fall outside of the MIG.

ii. The applicant is entitled to payment for the OCF-18s proposed by Toronto Healthcare Clinic for physiotherapy in the amount of $1,832.12, and $2,000.00 for the chronic pain assessment, plus interest, because the respondent’s denials did not comply with s. 38(8) and (9) of the Schedule.

iii. The applicant is not entitled to the two OCF-18s proposed by Toronto Healthcare Clinic in the amount of $1,240.00 for physiotherapy submitted June 26, 2020; or $900.00 for shockwave treatment submitted December 22, 2020.

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

ANALYSIS

The applicant’s impairments fit within the MIG

4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. 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.”

5An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on balance of probabilities that hid accident-related impairments fall outside of the MIG.

6The applicant argues that his impairments do not fit within the definition of a minor injury because he had a pre-existing medical condition that would prevent him from achieving maximum medical recovery within the MIG. He also argues that he suffers from a chronic pain condition which warrants MIG removal. He relies on two disability certificates (OCF-3s), the clinical notes and records (“CNRs”) of Dr. Hirsch, his family doctor, and the Toronto Healthcare Clinic. The applicant also maintains that the insurer examination (“IE”) report of Dr. Mula, general practitioner, supports his position that he suffers from chronic pain.

7The respondent argues that the applicant’s accident-related impairments fall within the MIG. It submits that the applicant has not met his onus in providing compelling medical evidence to support that any pre-existing medical condition would prevent him from achieving maximum medical recovery within the MIG. Nor has he provided sufficient evidence to support that this condition was exacerbated as a result of the accident. It submits that the pre- and post-accident medical records of his family doctor and treating clinic do not support his position. It relies on the decoded OHIP summary, and the IE reports of Dr. Mula and Dr. Saghatoleslami, psychologist, dated July 19, 2020, who both determined that the applicant’s accident-related impairments fit within the MIG. I agree.

Pre-existing Condition

8The applicant has not provided compelling medical evidence of a pre-existing condition which would prevent him from achieving maximum medical recovery within the MIG.

9The applicant submits that he had a history of back and neck pain and anxiety, which were severely exacerbated by the accident. He relies on three entries in his family doctor’s CNRs. One from September 2015 which notes neck pain, one from January 2016 which notes anxiety and one from May 2016, which notes back pain.

10I find the above-noted CNRs significantly pre-date the accident and do not support that he had any ongoing medical issues in the time period preceding the accident. I also find that the sparse CNRs from two years pre-accident do not constitute compelling medical evidence of a pre-existing condition that would prevent him from achieving maximum medical recovery in the MIG. What I find lacking in this case was a report or opinion of an expert or his family doctor opining that these conditions were still present prior to the accident, were exacerbated by the accident or would prevent him from achieving maximum medical recovery within the MIG. This is the test that must be met.

11I also agree with the respondent that the post-accident CNRs of the family doctor do not support that any of these conditions were exacerbated by the accident. In fact, these records along with the records of the Toronto Healthcare Clinic are not at all helpful to the applicant’s position because they are not legible. Moreover, the applicant was inconsistent in his reports to IE assessors that he did not have any medical issues pre-accident which was also confirmed on the various insurance forms submitted to the respondent.

12For the above-noted reasons, the applicant has not met his onus in proving on a balance of probabilities that he had a pre-existing condition which would prevent him from achieving maximum medical recovery within the MIG.

Chronic Pain

13I find the impairments listed on the OCF-3s and OCF-18s support that the applicant sustained strain and sprain type injuries to his thoracic, lumbar, and cervical spine which fit within the MIG.

14Further, as already highlighted above, the CNRs of the family doctor and clinic are not helpful because they are not legible. In fact, the only legible portion of the family doctor’s CNRs are the dates of his visits which establishes that his first visit to the family doctor following the accident was January 15, 2021, which is almost three years post-accident. He attended four more times between that date and November 18, 2022, and the reasons for his visits are unclear. In my view, the gap in time in which he first visited his family doctor post-accident and sporadic visits thereafter do not support that he suffers from chronic pain as a result of any accident-related impairment.

15The applicant maintains that the Tribunal’s case law on chronic pain supports his position that he should be removed from the MIG. For example, the Tribunal’s decisions in 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT); 17-000835 v Aviva General Insurance Canada, 2018 CanLII 83520 [T.S. v Aviva General Insurance Canada], determined that any pain that persists longer than six months is sufficient to establish a chronic pain condition which warrants removal from the MIG. However, what I find the applicant has not mentioned is that the case law supports that any chronic pain must have an adverse impact on function, which he has not proven in this case. Crucially, the only evidence which discusses his post-accident function are the IE reports which note that he returned to work as a contractor, is independent with his personal care and carries out his housekeeping and home maintenance tasks. This evidence supports the respondent’s position that the applicant has not proven that he has chronic pain which warrants removal from the MIG.

16In his submissions the applicant also contends that he meets three out of the six criteria for chronic pain listed in the American Medical Association Guides, which has been used as a guide by this Tribunal in analyzing whether an insured suffers from chronic pain. The six criteria include: 1. Use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs and other substances; 2. Excessive dependence on health care providers, spouse, or family; 3. Secondary physical deconditioning due to disuse and or avoidance of physical activity due to pain. 4. Withdrawal from social milieu, including work, recreation, or other social contracts. 5. Failure to restore pre-injury function after a period of disability, such that the physical capacity is insufficient to pursue work, family, or recreational needs; and 6. Development of psychological sequelae after the initial incident, including anxiety, fear, avoidance, depression, or nonorganic illness behaviours. I note submissions are not evidence, and the applicant has not submitted any evidence to prove that he meets any of the above six criteria.

17Finally, the applicant submits that the IE report of Dr. Mula supports his position that his accident-related impairments do not fit within the MIG. However, I find that the doctor’s report supports the opposite, as the doctor diagnosed strain and sprain injuries to the cervical, thoracic, and lumbar spine as a result of the accident, which are impairments that fit within the s. 3 definition of minor injuries, subject to the MIG. I accept this opinion because it is consistent with the medical evidence (or lack thereof) before me.

18The applicant has not met his onus in proving on a balance of probabilities that he suffers from chronic pain as a result of the accident that would remove him from the MIG. Since I have determined that the applicant sustained a minor injury, he is not entitled to claim further benefits because the MIG limits have been exhausted. However, the applicant also argues that the respondent is liable to pay for the OCF-18s because the respondent’s denials did not comply with s. 38(8) of the Schedule, which I will address now.

Respondent’s Non-Compliance with s. 38 of the Schedule

19I find the respondent did not comply with s. 38(8) and (9) of the Schedule in its denial of two of the OCF-18s in dispute and as a result it must pay for them.

20Section 38(8) of the Schedule sets out that within 10 business days of receipt of a treatment plan, insurers are required to provide an insured with a notice, identifying the goods and services described in the treatment plan that it agrees to pay for and the medical and any other reasons why it considers the goods and services to be not reasonable and necessary. In addition, if an insurer believes that the MIG applies it shall indicate so in its denial pursuant to s.38(9). The consequence of an insurer’s failure to comply with s. 38(8) and (9) is that the benefits are payable as set out in s.38(11). If an insurer fails to advise that it believes that the MIG applies, then an insurer must pay the benefit.

21The applicant submits that the respondent failed to comply with s. 38(8) in its denial of all of the OCF-18s in dispute. In particular, it failed to provide a medical reason or provide specifics as to the documents that it had received or what information it required. He asserts that an insurer has an obligation to provide meaningful reasons for denials to allow an insured to challenge a decision.

22The respondent argues that all of its denials complied with section 38(8) of the Schedule. It relies on the Court of Appeal decision in Varriano v. Allstate Insurance Company of Canada, 2023 ONCA 78 in support of its position that insurers do not need to include medical and other reasons for denying a benefit.

OCF-18s for physiotherapy and chronic pain assessment

23I find the respondent must pay for the OCF-18 for physiotherapy in the amount of $1,832.12 submitted August 19, 2019, and $2,000.00 for the chronic pain assessment submitted August 22, 2019, because its notice of denials did not comply with s.38(8) or (9) of the Schedule. As a result, the mandatory “shall pay” provision of s.38(11) applies. Since its response to the above-noted treatment plans are practically identical I have addressed them together.

24In response to the applicant’s submission of the above OCF-18s, the respondent sent two explanations of benefits (EOBs) both dated August 29, 2019, which indicated that it received the OCF-18s and their respective dates. The notice then states that “Based on a review of the information and medical documentation provided to date, we do not agree to pay for the following goods and/or services outlined in the treatment plan.” It further advised that it required the applicant to attend an IE and that further details will follow.

25I agree with the applicant that these denials were boiler plate responses and that they do not comply with s. 38(8) or (9) of the Schedule. For example, there is no medical reason or indication about what information was still required and it did not advise the applicant that the MIG applies pursuant to s. 38(9) of the Schedule. The case law is well established that where a notice of denial is deficient and the insurer fails to advise an insured that the MIG applies, the “shall pay” provision is mandatory, unless the insurer has cured its deficient notice prior to the insured incurring the benefit. Neither party addressed this in their submissions. Nor did the respondent submit evidence to support that that it cured its deficient notice in relation to these OCF-18s.

26I find that the Court of Appeal’s decision in Varriano is distinguishable from the present case, because, that decision dealt with an insurer’s denial of an income replacement benefit because the insured had returned to work. The court determined that under the circumstances the non-medical reason for the denial was sufficient because insurers are not required to fabricate a medical reason where none exists. I find the language of the procedural obligations of an insurer in responding to medical benefits are clearly set out in s. 38(8) and (9) of the Schedule, as are the consequences for non-compliance in s.38 (11).

27For the above reasons, the applicant is entitled to payment of the above-noted OCF-18s.

Subsequent OCF-18s for physiotherapy and shockwave treatment

27I find the respondent’s notice denying the two subsequent OCF-18s complied with s. 38(8) of the Schedule. As a result, the respondent is not liable to pay for these benefits.

28In response to the applicant’s submission of the second OCF-18 for physiotherapy in the amount of $1,240.00, the respondent sent an EOB dated July 2, 2020, which stated “We have reviewed and compared all medical documentation that has been provided, and compared it to the Minor Injury Guideline (MIG) and determined that there is insufficient compelling evidence of a documented pre-existing injury or condition and insufficient medical documentation to persuade us that your accident-related injuries fall outside of the MIG.” It then states that it believes the MIG applies and requested that the applicant submit further clinical notes and records for consideration. Finally, it advised the applicant that it was still waiting for the IE which will assist in assessing his entitlement to the benefit.

29The EOB sent in response to the OCF-18 for shockwave treatment in the amount of $900.00 was almost identical to the above but discussed the results of the IE reports which supported its position that the MIG applies.

30I find the above denials complied with s. 38(8) and (9) of the Schedule as they provided medical reasons for the denials, advised the applicant that the MIG applies and that the medical records submitted to date support same. Further, the respondent requested that the applicant submit additional medical records for its consideration and referenced the results of the IE report in the second notice which supported its position. Therefore, I do not find the applicant is entitled to payment of these OCF-18s.

The applicant is entitled to interest

31Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since I have determined that the applicant is entitled to the two OCF-18s for physiotherapy and chronic pain assessment, the applicant is entitled to payment of interest on any overdue benefits. He is not entitled to payment of interest for the latter OCF-18s.

The applicant is not entitled to an award

32The applicant sought an award under s. 10 of 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 analyzing 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”. I do not find an award is payable as I do not find the respondent unreasonably withheld or delayed payment of any benefits. Further, the respondent’s non-compliance with s.38(8) of the Schedule in providing deficient notices is not grounds for an award because there is no evidence before me that the applicant previously raised the issue with the respondent or that it maintained a stubborn position that was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

ORDER

34For all of the above reasons, I order as follows:

i. The applicant has not established that his impairments arising from the accident fall outside the MIG.

ii. The applicant is entitled to the OCF-18s for physiotherapy in the amount of $1,832.12 submitted August 19, 2019, and $2,000.00 for the chronic pain assessment submitted August 22, 2019, proposed by Toronto Healthcare Clinic, plus interest.

iii. The applicant is not entitled to the two OCF-18s proposed by Toronto Healthcare Clinic in the amount of $1,240.00 for physiotherapy submitted June 26, 2020; or $900.00 for shockwave treatment submitted December 22, 2020.

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