Licence Appeal Tribunal File Number: 21-011679/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:
Graciela Cruz
Applicant
and
Western Assurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Justin Mariani, Paralegal
For the Respondent:
Colleen Mackeigan, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Graciela Cruz, the applicant, was involved in an automobile accident on February 23, 2019 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, Western Assurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
2The preliminary issue to be decided is:
- Is the applicant barred from proceeding to a hearing with the following treatment plans because the applicant did not dispute the denial within the 2-year time limitation for the following benefits:
i. $3,696.50 for physiotherapy services, denied March 15, 2019; and
ii. $1,977.05 for physiotherapy services, denied August 21, 2019?
SUBSTANTIVE ISSUES
3The substantive 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 limit and in the Minor Injury Guideline (“MIG”)?
ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from March 23, 2019 to February 23, 2021?
iii. Is the applicant entitled to the physiotherapy services proposed by Mackenzie Medical Rehabilitation Inc., as follows:
a. $3,696.50, in a treatment plan (“OCF-18”) denied March 15, 2019;
b. $1,977.05, in an OCF-18 denied August 21, 2019; and
c. $1,384.70, in an OCF-18 denied October 3, 2019?
iv. Is the applicant entitled to $2,527.80 for a chronic pain assessment, proposed by Princeton Hills Medical Assessment in an OCF-18 denied March 24, 2021?
v. Is the respondent liable to pay an award under s. 10 of Regulation 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
4On the preliminary issue, I find that the applicant is not barred from proceeding with the two OCF-18s for physiotherapy services denied March 15, 2019 and August 21, 2019.
5On the substantive issues, I find that:
i. The applicant has not met her onus of proving accident-related impairments that warrant removal from the MIG;
ii. The applicant is entitled to the following two OCF-18s, plus interest in accordance with s. 51 of the Schedule, as a result of the respondent’s failure to comply with s. 38(8) of the Schedule:
a. OCF-18 in the amount of $3,696.50, denied March 15, 2019;
b. OCF-18 in the amount of $1,977.05, denied August 21, 2019;
iii. The applicant is not entitled to the remaining OCF-18s in dispute;
iv. The applicant is entitled to payment of a non-earner benefit from April 1, 2019 to October 19, 2019, plus interest in accordance with s. 51 of the Schedule. The applicant is not entitled to the benefit for the remaining period claimed; and
v. The respondent is not liable to pay an award under Regulation 664.
ANALYSIS
preliminary issue
6The respondent submits that the applicant failed to dispute the OCF-18s denied on March 15, 2019 and August 21, 2019 within the two-year limitation period stipulated in s. 56 of the Schedule. It further argues that the Tribunal should not exercise its discretion to extend the limitation period pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999.
7The applicant does not dispute that the application was brought outside the limitation period. However, she submits that in order for the two-year limitation in s. 56 to be triggered, the respondent must provide a proper notice of denial. The applicant submits that the denials for both OCF-18s were non-compliant with s. 38(8) and s. 44(5) of the Schedule, as they failed to provide “medical and any other reasons” as per T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT).
8I agree with the applicant that the respondent’s denial letters were not proper notices of denial, and as such, the limitation period specified in s. 56 of the Schedule was not triggered. I find the decisions cited by the applicant on this point to be persuasive, see Robinson v. Aviva Insurance Company, 2023 CanLII 40082 (ONLAT), 18-004441 v. Certas Home and Auto Insurance Company, 2019 CanLII 72198 (ONLAT) and 17-004556 v. Aviva Insurance Canada, 2018 CanLII 13157 (ONLAT).
9The denial letters dated March 15, 2019 and August 21, 2019 simply provide a general statement that the applicant’s injuries appear to fall within the MIG or that the MIG applies to “your impairment”. There is no reference to the applicant’s specific impairments or medical condition. I find that the language is vague and boilerplate wording and is not sufficient to allow the applicant to make an informed decision to either accept or dispute the respondent’s decision.
10I am not persuaded by the respondent’s argument that the general reference to the MIG is a “sufficient and compliant” denial. In support of its position, the respondent references Tribunal decision 17-001522 v Travelers, 2018 CanLII 112133 (ON LAT). I agree with the respondent that at paragraph 18 of the decision, the Tribunal found that similar language did comply with s. 38(8) of the Schedule. However, the subsequent reconsideration of this decision, D.S. v. Travelers Insurance, 2019 CanLII 94018 (ON LAT) permitted the applicant’s request for reconsideration and found that the general reference to the MIG was in fact non-compliant with s. 38(8).
11The Tribunal held in the reconsideration decision that the language contained in the denial did not provide a “medical reason”, there was no specific reference to the applicant’s medical condition or diagnosis and the denial was not clear and sufficient enough to allow an unsophisticated person to make an informed decision about whether to dispute the decision. The reconsideration decision further noted that referencing the lack of “compelling evidence” does not meet the minimal standard of missing but required information. As such, I find that the decision cited by the respondent supports the applicant’s position that the denial notices were non-compliant with the s. 38(8) and s. 44(5) of the Schedule.
12As I have found that the limitation period was not triggered due to non-compliant denials, the applicant may proceed to the substantive portion of the hearing with the OCF-18s denied on March 15, 2019 and August 21, 2019.
SUBSTANTIVE ISSUES
MINOR INJURY GUIDELINE
13Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured 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.”
14An insured 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 if they are kept within 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.
15The applicant submits that she should be removed from the MIG on the basis of a pre-existing impairment and psychological condition.
The applicant has not established pre-existing impairments warranting removal from the MIG
16While the medical record does establish that the applicant suffered from headaches and migraines in 2017 and 2018, the applicant has not met the additional requirement under s. 18(2) of the Schedule. Namely, the applicant has not provided sufficient medical evidence from a treating medical practitioner that acknowledges that her history of migraines impacted on her ability to achieve maximum medical recovery under the MIG.
17I agree with the respondent that the clinical notes and records (“CNRs”) of the applicant’s family physician Dr. Weinstock-Goldberg do not evidence ongoing headache complaints after the initial period post-accident. Immediately after the accident the applicant reported headaches in the hospital and to Dr. Weinstock-Goldberg. However, the next reference to any headaches was almost two years later on December 29, 2020 when the applicant reported that she had COVID and her main symptom was a headache. There is no reference to the accident in this CNR entry. The applicant then reported in November 2021 that work stress was making her headaches worse. I find that the medical record does not establish that the accident exacerbated the applicant’s pre-existing migraines outside of the initial period post-accident or prevented the applicant from recovering from any accident-related impairments.
18I further am not persuaded by the applicant’s argument that the respondent’s s. 44 assessments support her removal from the MIG on the basis of pre-existing impairments. The applicant points to the respondent’s s. 44 neurology assessments where Dr. Angel stated that the applicant’s pre-existing migraines increased the risk of prolongation of migraine triggered by the accident. The applicant appears to be arguing that this finding alone warrants removal from the MIG. I disagree.
19In his December 4, 2019 report, Dr. Angel found that the accident exacerbated the applicant’s pre-existing migraines. However, Dr. Angel further noted that the applicant’s neurological exam was normal, that there were no objective findings, that this was a purely subjective entity, and that the applicant’s headaches fall within the MIG. The onus rests with the applicant to provide sufficient evidence that her pre-existing migraines, triggered by the accident, meant that her ongoing symptoms could not be treated within the MIG.
20However, the medical record, particularly the CNRs of Dr. Weinstock-Goldberg, do not establish ongoing post-accident headaches or migraines. The applicant attended at her family physician’s office regularly in the years post-accident for unrelated medical issues. However, the applicant does not direct me to ongoing reports or treatment for post-accident headaches/migraines or an opinion that her prior medical history prevented recovery within the MIG. As such, I find that the applicant has failed to establish that her pre-existing medical condition warrants removal from the MIG.
The applicant has not established that she suffers from an accident-related psychological impairment warranting removal from the MIG
21The applicant has not met her onus to prove that she suffered a psychological impairment as a result of the accident. The only evidence the applicant refers to on this point is the respondent’s s. 44 psychological assessment report of Dr. Lau. The applicant argues that Dr. Lau’s findings of “severe” anxiety as per the Beck Anxiety Inventory are inconsistent with his conclusion that she suffered “at most” from chronic adjustment difficulty, but at a subclinical level, as a result of the accident.
22I do not agree with the applicant that Dr. Lau’s s. 44 assessment supports a finding of an accident-related psychological impairment. Dr. Lau found that there was no psychological diagnosis as a result of the accident. He noted the applicant’s reports of mood fluctuation and crying, but cited that the applicant reported that this was due to a recent misunderstanding with her daughter. The applicant further reported to Dr. Lau that she was uncertain as to what has caused her moodiness, but that it could be menopause. Dr. Lau was clear in his assessment that he did not find that the applicant suffered from an accident-related psychological impairment.
23The applicant has not led any medical evidence to refute Dr. Lau’s findings. The CNRs of Dr. Weinstock-Goldberg do not support a claim of an accident-related psychological impairment. Despite attending at her family physician’s office numerous times in the years post-accident, the applicant does not direct me to any CNR entry where she reported psychological symptoms as a result of the accident. More than two years post-accident in November 2021, the applicant reported “work-related stress”. I have not been directed to any other evidence of reports of any psychological symptoms or a psychological diagnosis.
24As such, the applicant has not established removal from the MIG on psychological grounds.
25The applicant has confirmed in her submissions that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
26However, as an alternative argument the applicant argues that all of the treatment plans in dispute are payable, as the respondent did not comply with its statutory notice requirements.
OCF-18 in the amount of $3,696.50 for physiotherapy services
27As previously noted in the section on preliminary issues, I found that the denial notice with respect to the March 15, 2019 OCF-18 did not provide sufficient medical reasons and was not compliant with the Schedule. I further agree with the applicant that since a subsequent compliant notice was not provided by the respondent, the respondent is now unable to cure this non-compliance. As such, the OCF-18 is payable pursuant to s. 38(11) of the Schedule.
OCF-18 in the amount of $1,977.05 for physiotherapy services
28In considering the preliminary issues, I similarly found that the Explanation of Benefits (“EOB”) with respect to the August 7, 2019 OCF-18 did not provide sufficient “medical and any other reasons”. However, the respondent sent a subsequent EOB after the completion of s. 44 assessments. I find that this EOB dated January 6, 2020 cured the previous non-compliance.
29The January 6, 2020 correspondence denied the August 7, 2019 OCF-18 on the basis of the respondent’s s. 44 physiatry, neurology and psychology assessments. The EOB specified that the reports found that the applicant’s injuries fell within the MIG. I find that the reference and inclusion of the s. 44 reports and statement of the assessors’ conclusions are a sufficient medical reason for the denial.
30As such, as per the Divisional Court decision in Aviva General Insurance v. Catic, 2022 ONSC 6000 (“Catic”), the respondent would be liable to pay for the OCF-18, but only if the services were incurred and only for the period during which any denial notice remains outstanding. The applicant has led evidence that the OCF-18 in the amount of $1,977.05 has been incurred during the period of non-compliance. As such, I find that the OCF-18 is payable pursuant to s. 38(11).
OCF-18 in the amount of $1,384.70, for physiotherapy services
31I find that the respondent’s initial notice dated September 27, 2019 was non-compliant with the Schedule. The correspondence did not provide a medical and any other reason for the proposed assessment, but simply provided a definition of a minor injury and stated that the respondent took the position that treatment should be subject to the limits of MIG coverage. No detail was provided as to the applicant’s specific medical condition or as to what documentation the respondent lacked but still required.
32However, as previously noted, the respondent’s subsequent EOB dated January 6, 2020 cured the previous non-compliance. As such, as per Catic the respondent would only be liable to pay for this OCF-18 if it was incurred during the period of non-compliance. The applicant has led no evidence that the physiotherapy services were incurred. As such she has not established that the OCF-18 is payable pursuant to s. 38(11) of the Schedule.
OCF-18 in the amount of $2,527.80 for a chronic pain assessment
33The applicant has not established that the OCF-18 dated February 24, 2021 for a chronic pain assessment is payable pursuant to s. 38(11).
34I find that the respondent’s correspondence dated March 24, 2021 complied with s. 38(8) of the Schedule. The letter expressly referenced the s. 44 physiatry, neurology and psychology assessment reports. It summarized the assessors’ findings and concluded that all three assessors found that the applicant’s accident-related impairments fell within the MIG. This was a clear and unequivocal denial with sufficient medical and other reasons provided. The respondent’s denial contains straightforward and clear language, sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
35As such the applicant has not established that the respondent is liable to pay for this OCF-18.
Non-Earner Benefits (“NEBs”)
36The applicant has not established entitlement to NEBs. However, I find that NEBs are payable for the period from April 1, 2019 to October 19, 2019 due to the respondent’s non-compliance with s. 36(4) of the Schedule.
Substantive Entitlement to NEBs
37Section 12(1) of the Schedule provides that an insurer shall pay an NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident.
38The applicant has not provided any specific submissions on her substantive entitlement to NEBs. No details were provided as to her pre-accident activities or to demonstrate how her participation in those activities has been limited as a result of the accident. The applicant further has not provided submissions on which activities were most important to her, how she is prevented from engaging in the activities she normally engaged in pre-accident or evidence of the frequency and time commitments of her pre-accident activities, as required by Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 and in many NEB cases at the Tribunal, such as 16-003141 v. Aviva Insurance Canada, 2017 CanLII 46352 (ONLAT). In the absence of this information, I am unable to compare the applicant’s pre and post-accident capabilities with respect to the activities she ordinarily engaged in or valued.
39Without any specific submissions on this issue, I find that the applicant has not established a complete inability to carry on a normal life as a result of the accident.
Procedural requirements of s. 36(4) of the Schedule
40I find that the applicant is entitled to payment of NEBs for the period from April 1, 2019 to October 19, 2019, due to the respondent’s non-compliance with s. 36(4) of the Schedule. The applicant concedes that her OCF-3 was not provided until April 1, 2019. Therefore there was no entitlement to NEBs prior to this date.
41Section 36(4) of the Schedule states that within ten business days after an insurer receives an application and a completed OCF-3 for NEBs, the insurer shall:
a) Pay the specified benefit;
b) 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 and, if the insurer requires an examination under s. 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
c) Send a request to the applicant under s. 33(1) or s. 33(2).
42I find that the respondent’s initial EOB dated April 1, 2019 did not comply with s. 36(4).
43Section 34 is clear that if the benefit is being denied, “medical and any other reasons” must be provided. I agree with the applicant that the language contained in the EOB was confusing and did not provide a clear and unequivocal denial. While the EOB expressly stated that the applicant was not entitled to an income replacement benefit (“IRB”) or a caregiver benefit, the language with respect to NEBs was unclear. While I agree with the respondent that its explanation was placed in the “Not Eligible” section, the explanation itself was contradictory.
44The EOB noted that the applicant’s OCF-3 supported an eligibility to NEBs. However, it went on to state that as she had returned to work, she was not disabled from her employment tasks and as a result, NEBs “may not” be applicable. No other reason was provided for the denial. I find that the language was unclear and did not meet the requirements of s. 36(4). While IRBs and Caregiver benefits were expressly denied, no such clear denial was provided for NEBs.
45However, the respondent’s subsequent correspondence did comply with s. 37(1) of the Schedule. In the EOB dated October 19, 2019, the respondent requested the applicant’s attendance at an insurer’s examination to determine whether she suffered a complete inability to carry on a normal life as a result of the accident. I find that the reasons provided by respondent for the s. 44 assessment were clear and cured the previous non-compliance. As such, I find that the applicant has only established that NEBs are payable from April 1, 2019 to October 19, 2019, due to the respondent’s non-compliance with s. 36(4) of the Schedule.
Award
46The applicant sought an award under s. 10 of Regulation 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. The applicant submits that she is entitled to an award as the respondent failed to comply with s. 36(4) of the Schedule and unreasonably relied on its s. 44 assessment reports to keep her within the MIG.
47Although I have found that the applicant is entitled to payment of two OCF-18s and a limited period of NEBs due to non-compliance with s. 36 and s. 38 of the Schedule, I am not persuaded that these actions were excessive, impudent, stubborn, unyielding or immoderate. I do not find that this procedural non-compliance meets the high threshold for an award. Further, although the applicant submits that she was unreasonably held within the MIG, I similarly found that the applicant failed to establish that her accident-related impairments warranted removal from the MIG.
Interest
48The applicant is entitled to interest in accordance with s. 51 of the Schedule for the OCF-18 in the amount of $3,696.50, the OCF-18 in the amount of $1,977.05, as well for payment of NEBs from April 1, 2019 to October 19, 2019.
ORDER
49I find that:
i. The applicant has not met her onus of proving accident-related impairments that warrant removal from the MIG;
ii. The applicant is entitled to the following two OCF-18s, plus interest in accordance with s. 51 of the Schedule:
a. OCF-18 in the amount of $3,696.50 denied March 15, 2019;
b. OCF-18 in the amount of $1,977.05 denied August 21, 2019;
iii. The applicant is not entitled to the remaining OCF-18s in dispute;
iv. The applicant is entitled to payment of NEBs from April 1, 2019 to October 19, 2019, plus interest in accordance with s. 51 of the Schedule. The applicant is not entitled to the benefit for the remaining period claimed;
v. The respondent is not liable to pay an award under Regulation 664.
Released: July 15, 2024
Ulana Pahuta
Adjudicator