Licence Appeal Tribunal File Number: 22-005293/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:
Wendy Stavely
Applicant
and
Western Assurance Company
Respondent
DECISION
ADJUDICATOR: Tanjoyt Deol
APPEARANCES:
For the Applicant: Rajiv Kapoor, Paralegal
For the Respondent: David Koots, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Wendy Stavely, (the “applicant”) was struck by a snowplough on January 4, 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 Western Assurance Company (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE
The respondent is raising a new preliminary issue of whether the applicant is barred from pursuing her claim for accident benefits pursuant to section 61
2On January 30, 2023, the parties attended the Case Conference and on consent determined the issues in dispute, which included: whether the MIG is applicable, entitlement to three treatment plans, interest, and an award. On February 24, 2023, the Case Conference Report and Order (“CCRO”) was released and reflected that only these issues were in dispute for this hearing. Nowhere in this CCRO, was there any indication that the respondent intended to raise a preliminary issue under s. 61 of the Schedule.
3Despite this not being a live issue in dispute in the CCRO, the respondent chose to dedicate a significant portion of its submissions to the issue of whether the applicant was barred from proceeding under s. 61. The respondent also appears to allude to the fact that the applicant submitted her application with “delay”, however it did not advise what relief it was seeking with respect to this.
4The applicant objected to the respondent raising this preliminary issue despite it not being listed as an issue in dispute on the CCRO. She argues that this behaviour by the respondent amounts to “trial by ambush”. Furthermore, the applicant submits that while the respondent had initially raised its intention to raise a preliminary issue under s. 61 in its Response by an Insurance Company (“Response”), it took no steps to add this issue at the case conference or immediately thereafter. As such, she was under the impression that this hearing only pertained to the substantive issues in dispute and not a preliminary issue hearing under s. 61.
5I find that it would be highly prejudicial to the applicant if the respondent was allowed to raise this new preliminary issue in this hearing as the applicant was deprived of the opportunity to fully consider and prepare for this issue in advance of the hearing. I am alive to the fact that the respondent noted in its Response that it intended to raise this preliminary issue at the case conference, however the CCRO is silent on this, and it appears that this issue was not raised. The respondent also did not address in its submissions whether this issue was raised at the Case Conference nor did it bring a motion to add this issue in advance of the hearing. Neither did the respondent direct me to evidence to support that it advised the applicant that it intended to raise this issue for this hearing after the issuance of the CCRO. As such, I agree with the applicant that this amounts to trial by ambush.
6I further acknowledge that the applicant did have the opportunity to address s. 61 in her reply submissions, however I am unable to determine whether she was provided with an opportunity to make a full or adequate response. As noted in the Divisional Court decision of Certas Direct Insurance Company v. Gonsalves, 2011 ONSC 3986 at paragraph 8 “fundamental to any administrative process, is the requirement that it be fair. At its most basic, procedural fairness requires that a party have an opportunity to be heard and that it be able to respond to the position taken against it.” I am bound by the Divisional Court’s reasoning and find that if this preliminary issue was to be added at this time, it would be procedurally unfair to the applicant.
7Considering the purpose of the Schedule is to provide accident benefits to individuals while balancing the parties’ rights to a fair adjudication of their dispute, I have therefore decided to disallow the new issue raised by the respondent. In these circumstances, I find that it is unfair to the applicant who had a fairly short time to consider and respond to the new issues. I find that it would be procedurally unfair to require the applicant to defend against an issue that was not listed in the Order.
8If any party wishes to have new issues added, it should be done before the hearing to allow the other party the chance to respond accordingly. It affords the other party the chance to challenge the issues or concede to issues before the hearing. This will ensure just results and provides for procedural fairness. At this juncture, the respondent cannot expect to add new issues to a proceeding without proper notice or the permission of the Tribunal. I will not be granting the respondent permission to add this new preliminary issue to the hearing.
ISSUES
9The 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”)?
ii. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Novo Medical Services in a treatment plan/OCF-18 (“OCF-18”) dated July 30, 2021?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. 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?
RESULT
10I find that:
i. The applicant is removed from the MIG as she sustained a concussion from this accident.
ii. The applicant is entitled to the OCF-18, dated July 30, 2021, for a psychological assessment, plus interest in accordance with s. 51 of the Schedule.
iii. The respondent is not liable to pay an award.
ANALYSIS
The Minor Injury Guideline
11Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”
12An 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 any accident-related minor injury 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.
13In all cases, the burden of proof lies with the applicant.
14The applicant argues that she sustained a concussion, chronic pain, psychological injuries and that her pre-existing conditions would prevent recovery within the MIG limits. As such, she seeks an order confirming that her injuries do not fall within the MIG.
15The respondent provided no submissions in response to this, instead, as noted above, it largely made submissions on s. 61 of the Schedule.
16I find that the applicant has proven on a balance of probabilities that she was diagnosed with a concussion by Dr. Martin Hove, ophthalmologist on May 7, 2018, and as such, is removed from the MIG. As I have decided that the applicant is removed from the MIG on the basis of a concussion, I do not need to consider whether the other grounds will remove her from the MIG. As an aside, I would like to point out that I found the applicant’s submissions on chronic pain highly persuasive.
The applicant is removed from the MIG as she was diagnosed with a concussion from this accident
17I find that the applicant has established that she was diagnosed with a concussion as a result of this accident, which removes her from the MIG.
18Concussions and post-concussive syndrome, if established, fall outside the MIG because the MIG relates only to “minor injuries”, as defined in section 3(1) of the Schedule and neither condition is in the definition. However, in order to be removed from the MIG, the applicant must present evidence that demonstrates that as a result of the accident, she suffered a concussion or post-concussive syndrome.
19The applicant summarized an entry of Dr. Hove’s dated May 7, 2018, where she was diagnosed with a concussion without loss of consciousness.
20As already noted above, the respondent did not address the MIG, nor this diagnosis by Dr. Hove.
21The applicant was diagnosed with a concussion, which is clearly established in the record of Dr. Hove, dated May 7, 2018. Indeed, on May 7, 2018, Dr. Hove noted in his records, that the applicant had been involved in the subject accident which resulted in ongoing headaches. As such, under the impression section of his record, he wrote “Concussion Without Loss of Consciousness (Jan 2018). In my interpretation, Dr. Hove diagnosed the applicant with a concussion and attributed it to the accident, as “Jan 2018” is the month the subject accident took place, and there is no reference to any other cause for the concussion in this record. Significantly, the entry only discusses that the applicant has been having ongoing headaches since this accident.
22Notably, the respondent also did not refer me to evidence that rebuts the diagnosis of a concussion made by Dr. Hove, nor did it make any submissions that undermine this diagnosis.
23Accordingly, I find that the applicant has met her evidentiary onus to demonstrate that she sustained a concussion as a result of the accident, and as this condition is not within the Schedule’s definition of “minor injury,” she is removed from the MIG.
Conclusion
24Since the applicant is removed from the MIG, she can apply for medical and rehabilitation benefits above the MIG limits. I now turn to whether she is entitled to the OCF-18 for a psychological assessment, under s. 38(8).
The respondent was non-compliant with s. 38(8) of the Schedule with respect to the OCF-18, for a psychological assessment, dated July 30, 2021
25I find that the denial letter, dated August 24, 2021, was non-compliant with s. 38(8) of the Schedule.
26Sections 38(8) and (11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a treatment plan within ten business days. Pursuant to s. 38(11), if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.
27The applicant submits that this denial letter is in direct violation of s. 38(8) as it does not provide any medical reasons or other applicable rationale for denying the OCF-18. She argues that the denial letter is vague and opaque.
28The respondent submits that when this OCF-18 was denied, it only had the denied OCF-18 and an OCF-1 in its possession, and as such it was denied on this basis, as the applicant’s injuries were in the MIG. It also argues that it made a request for updated records.
29In the August 24, 2021 denial letter, the respondent advised the applicant that the treatment claimed was not reasonable or necessary for the following reasons:
We have reviewed and compared all medical documentation that has been provided, and compared it further 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 Minor Injury Definition.
30I find that this denial letter did not comply with the requirements pursuant to s. 38(8) of the Schedule as it failed to provide adequate medical reasons to deny the disputed OCF-18. The reasons provided in the notice are insufficient to satisfy the respondent’s obligation under s. 38(8) of the Schedule as no specific details about the applicant’s diagnosis, prognosis, or the detail of the treatment plan was provided. Nor did the respondent identify what information it reviewed in making its determination or what information it required from the applicant. In my view, the respondent’s denial lacked clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denial.
31Contrary to the respondent’s arguments that it only had the disputed OCF-18 and OCF-1 in its possession at this time, neither of these documents were identified in the denial letter, as the basis for the denial. In other words, while the denial letter stated that all medical documentation had been reviewed, it did not identify what this was. In a similar vein, the denial letter did not identify what information it required from the applicant about her condition. This does not serve the Schedule’s consumer protection goal.
32Consequently, I find that the respondent’s denial letter dated August 24, 2021, is non-compliant with s. 38(8), and the respondent has not pointed me to correspondence that cures this deficient denial letter.
33As such, I find that the OCF-18 for a psychological assessment to be payable with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.
The respondent is not liable to pay an award
34I find that the applicant has not established that the respondent unreasonably withheld or delayed payment of the OCF-18 for a psychological assessment.
35Pursuant to section 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the insurer unreasonably withheld or delayed the payment of benefits. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning behaviour, which is excessive, imprudent, stubborn, inflexible, unyielding, or immoderate. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.
36The applicant argues that the respondent relied on its own unsubstantiated opinion and did not conduct any s. 44 insurer’s examinations with respect to the disputed OCF-18 and was non-compliant with s. 38(8). Likewise, she submits that the respondent failed to review her medical documents and failed to adjust the claim in good faith.
37The respondent provided no submissions with respect to this.
38First, I find that the applicant has not established that an award is warranted as a result of the respondent being non-compliant with s. 38(8). Although I have found that this OCF-18 is payable due to non-compliance with s. 38(8), this was due to the lack of a medical reason. However, a technical breach of the notice provisions of s. 38 would not automatically entitle an applicant to an award, without evidence of unreasonable withholding or delay. In this regard, the applicant has not made specific submissions or referred me to evidence to support this.
39Second, although the applicant argues that the respondent failed to schedule a s. 44 examination, I find that an insurer is not under an obligation to conduct such an assessment. The insurer’s examinations available under s. 44 are optional for insurers, not mandatory. To be frank, the respondent has sent numerous correspondence (January 12, 2018, September 20, 2021, March 15, 2022, June 23, 2022, and July 28, 2022) with respect to its WSIB position and s. 61. In my view, it is clear that the respondent did not schedule insurer’s examinations as it was taking the position that under s. 61, the applicant was barred from proceeding with an accident benefits claim.
40Finally, the applicant, did not provide particulars or advise which medical documents, she claims that the respondent ignored. Nor, did she direct me to evidence to support when these records were sent to the respondent. As such, the applicant has not provided evidence, to demonstrate that the respondent disregarded compelling medical evidence which resulted in the respondent unreasonably withholding or delaying payment for the disputed OCF-18.
41In short, I find that the applicant has not established that the respondent’s conduct rises to the threshold to warrant an award, and as such, no award is payable.
ORDER
42For the reasons outlined above, I find that:
i. The applicant is removed from the MIG as she sustained a concussion from this accident.
ii. The applicant is entitled to the OCF-18, dated July 30, 2021, for a psychological assessment, plus interest in accordance with s. 51 of the Schedule.
iii. The respondent is not liable to pay an award.
Released: July 15, 2024
Tanjoyt Deol
Adjudicator