Licence Appeal Tribunal File Number: 22-005695/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:
Sonia McPherson
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Amanda Marshall
APPEARANCES:
For the Applicant:
Tal Eshel, Counsel
For the Respondent:
Natalie Maltz, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Sonia McPherson, the applicant, was involved in an automobile accident on October 21, 2017, 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 the treatment plans in dispute because the respondent determined that her accident-related impairments fell under the Minor Injury Guideline (“MIG”). The applicant disagreed and submitted an application to the Tribunal for resolution of the disputes.
PRELIMINARY ISSUES
2The respondent raised the following preliminary issue;
i. Is the applicant barred from proceeding with the application for failure to commence the application within two years from the respondent’s denials pursuant to section 56 of the Schedule.
3I have addressed the preliminary issue in my analysis below.
ISSUES
4The issues in dispute are:
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?
Is the applicant entitled to $2,200.00 for a neurological assessment, proposed by ALCAT Assessments Inc. in a treatment plan submitted September 30, 2019?
Is the applicant entitled to $2,200.00 for a chronic pain assessment, proposed by Oshawa Physiotherapy & Rehabilitation Centre in a treatment plan submitted September 27, 2019?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find the applicant filed her claim for the treatment plans in dispute beyond the two-year limitation period. I exercise the Tribunal’s discretion under section 7 of the LAT Act to extend the limitation period and allow the applicant to proceed with her claim.
6The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG.
7I find the respondent’s denials of the disputed treatment plans do not comply with s. 38 (8) of the Schedule.
8Pursuant to s. 38(11) of the Schedule, the applicant is entitled to payment for the treatment plans in dispute, plus interest in accordance with s.51 of the Schedule.
ANALYSIS
Parties’ positions
9The respondent submits that the applicant received proper notices and is out of time to dispute her claim for the treatment plans in dispute, having done so beyond the two-year limitation period noted in s. 56 of the Schedule. Moreover, the respondent contends there are no reasonable grounds for an extension under s. 7 of the Licence Appeal Tribunal Act, 1999 (“LAT Act”) and the application should be dismissed.
10The applicant argues that she should not be barred from proceeding with her application under s. 56 of the Schedule for the treatment plans as the respondent failed to comply with s. 38(8) as the neurological assessment treatment plan was responded to more than 10 business days after the receipt of the assessment plan, and the denial letters for each of the disputed plans failed to provide medical and other reasons for the denial.
Law
11Section 56 of the Schedule provides that an application to dispute a denial of a benefit shall be commenced within two years of the insurer’s refusal to pay. To trigger the start of the limitation period, the insurer’s notice refusing to pay the claimed benefit must meet the test enunciated by the Supreme Court of Canada in Smith v Co-Operators General Insurance Co., 2002 SCC 30, in that the insurer’s denial must be clear and unequivocal and permit the insured to decide whether to challenge the denial. The denial must use straightforward and clear language, be directed to an unsophisticated person, describe the applicable dispute resolution process and the time limit governing the dispute resolution process.
12Section 7 of the LAT Act allows the Tribunal to extend the limitation period in certain circumstances if it is satisfied that there are reasonable grounds for applying for the extension and for granting relief. There are four factors set out in Manuel v Registrar, 2012 ONSC 1492, that the Tribunal weighs in determining whether the justice of the case requires an extension be granted:
i. the existence of a bona fide intention to appeal within the appeal period;
ii. the length of the delay;
iii. prejudice to the other party; and
iv. the merits of the appeal.
13The four Manuel factors are not strict elements of a test that must each be met in order to grant an extension of time, but rather they act as a guide to determining the just decision in each case. Statutory limitation periods are to be given effect except in circumstances where a strict application of the time limit would work an injustice. The onus is on the applicant to establish reasonable grounds for an extension under s. 7 of the LAT Act.
14Section 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 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.” An 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 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. In all cases, the burden of proof lies with the applicant.
15Under section 38(8) of the Schedule, the insurer must provide the insured person with notice within ten business days after its receipt of the treatment plan which goods, services, assessments, and/or examination it agrees to pay for, which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.
16If an insurer fails to give notice in accordance with s. 38(8), under s. 38(11) the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies and must pay for all incurred goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day until such time that it gives a valid denial.
Preliminary Issue Analysis
Calculation of Time for the Two-Year Limitation
17Under normal circumstances, the two-year time limit to dispute the denial of the treatment plan for a neurological assessment would be October 17, 2021, and the two-year limit to dispute the chronic pain assessment would be October 3, 2021. However, on March 20, 2020, Ontario enacted O. Reg. 73/20. This regulation suspended limitation periods retroactively from March 16, 2020, and was repealed on September 14, 2020. This regulation was in force for 183 days and extends any running limitations by the same number of days.
18When extending the denials by 183 days, the end of the limitation period to dispute the denial of the chronic pain assessment changes to April 4, 2022 and the neurological assessment to April 18, 2022.
19The applicant submitted the application on May 17, 2022. I find that the applicant was not within the two-year limitation period for either treatment plan when she filed her application.
Section 7 of the LAT Act
Bona fide intention to appeal within the appeal period
20The applicant submits that her intention to appeal within the appeal period is demonstrated by the fact the claim remained active as she continued to attend treatment and apply for benefits.
21The respondent submits that the applicant has not demonstrated a bona fide intention to appeal within the time limits as assertions that the claim was active is not evidence of the intention to appeal the denied treatment plans.
22I am not persuaded by the applicant’s position. The applicant has not directed me to anything within her submissions that suggests she intended to file an application within the time limits. Therefore, I do not find there was a bona fide intention to dispute the decisions before the Tribunal.
Length of delay
23The applicant submits that the length of the delay beyond the limitation period is not significant.
24The respondent argues that the applicant submitted her application more than 30 days late and failed to provide any explanation or evidence for missing the deadline.
25There have been no reasons given or explanation provided as to why the applicant was late in submitting the application. I find the applicant had ample time to submit her application and therefore, find the length of the delay excessive.
Prejudice
26The applicant submits that there is no significant delay that would cause any prejudice to the respondent. The applicant provided updated medical records to the respondent and the respondent should have revisited the treatment plans. However, dismissing the claim would significantly prejudice the applicant.
27The respondent argues that the documents were provided beyond the five-year period to claim benefits and only done so to facilitate the appeal process. As such the respondent was hindered in adjusting the file.
28While the respondent suggests the applicant submitted medical records late, I am not privy to when the applicant submitted medical records to the respondent. However, I find that there is some degree of prejudice to the respondent to have to defend its denials that are over the limitation period.
Merits of the case
29The applicant contends the denial notices were not proper as the respondent responded to the neurological assessment more than 10 business days after the plan was submitted, and the respondent did not provide medical and other reasons for denying either of the treatment plans in dispute.
30The respondent submits that the responses were provided in time and were clear and unequivocal with sufficient reasons such that even an unsophisticated person could comprehend. The respondent further submits that the applicant did not indicate that the denials were improper until now.
31In reviewing the Explanation of Benefits (“EOB”) for the two treatment plans in dispute, I find that applicant has shown there is merit to her case.
32All four factors do not need to be satisfied to grant an extension to use the Tribunal’s discretion to extend the limitation period under section 7 of the LAT Act. While I find that the applicant did not have a bona fide intention to appeal, the length of time it took for the applicant to submit the application was excessive, and there is some prejudice to the respondent if the application was allowed past the two year limitation, after reviewing the EOBs, I find that there are merits to the appeal and an injustice would be served by barring the applicant from proceeding with her application. I therefore exercise my discretion under s. 7 of the LAT Act to extend the limitation period. I now turn to the merits of the dispute.
Minor Injury Guideline
33I find that the applicant has not demonstrated that her accident-related impairments warrant removal from the MIG.
34The applicant submits that her injuries are not minor as post-accident she suffered from post-traumatic tension and cervicogenic headaches and has been diagnosed with depression and chronic pain syndrome.
35The respondent argues that the applicant has not provided sufficient medical evidence to demonstrate that she should be removed from the MIG.
36I agree with the respondent. Based on the evidence presented, the applicant sustained injuries that fall within the Schedule’s definition of a minor injury. There is no evidence of a chronic pain or a psychological impairment as a result of the accident.
Minor Injuries
37There is minimal evidence to support that the applicant suffered anything other than soft-tissue injuries.
38The applicant’s family physician, Dr. Mounir Noor’s clinical notes and records (“CNRs”) show the applicant visited her family doctor three times from October 23, 2017 to January 3, 2018. The handwritten notes are mostly illegible. Only the October 23, 2017 references the accident and pain in her neck, back, and right shoulder.
39Upon review, the Disability Certificate (“OCF-3”) of November 2, 2017 was completed by a physiotherapist and records the applicant’s injuries as headache, other sleep disorders, sprain/strain of the cervical spine, thoracic spine, right shoulder joint, and radiculopathy of cervical spine. The injuries listed are injuries that fall within the definition of minor.
40In suggesting that she should be taken out of the MIG, the applicant relies on the December 19, 2019 neurological assessment of Dr. Lance Majl, neurologist. Dr. Majl assessed the applicant and found that the applicant’s headache, neck, and back pain are as a result of damage to the C1-3 facet joints, periosteum, and ligaments or trauma to the greater occipital nerves attributed to the accident.
41I place little weight on Dr. Majl’s report. Dr. Majl’s conclusions are based on the applicant’s self-reporting, and a review of Dr. Noor’s CNRs, the OCF-3 and an OHIP summary. No other tests or diagnostic imaging was reviewed or conducted.
Psychological Impairment
42I find the applicant does not suffer from a psychological impairment as a result of the accident.
43The applicant asserts that she developed depression from the accident and relies on Dr. Nayyar Razvi’s chronic pain assessment of December 19, 2019.
44In my opinion, Dr. Razvi’s assessment is lacking in substance. Dr. Razvi completed his report after reviewing the CNRs from Dr. Noor, the OCF-3, and the OHIP summary and information from the applicant’s self-reporting. While the applicant mentioned she suffers from a depressed mood, no formal testing was conducted to reach the conclusion that the applicant suffers from a psychological condition. The records do not indicate that the applicant mentioned a psychological condition to any other practitioner, nor was she ever referred to a mental health professional.
Chronic Pain
45I find the applicant does not suffer from chronic pain as a result of the accident.
46The applicant relies on Dr. Razvi’s chronic pain assessment as well as the assessment by Dr. Bhavin Patel, general practitioner, dated November 12, 2021.
47The American Medical Association’s Guides to the Evaluation of Permanent and Impairment, 6th Edition (2008), pp 23-24 (AMA Guides) identify six criteria as “major” characteristics of chronic pain syndrome, with three required to establish chronic pain syndrome:
the use of prescription drugs beyond the recommended duration and/or abuse of or dependence on prescription drugs or other substances;
excessive dependence on health care providers, spouse, or family;
secondary physical deconditioning due to disuse and/or fear-avoidance of physical activity due to pain;
withdrawal from social milieu, including work, recreation, or other social contacts;
a 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
the development of psychosocial sequelae after the initial incident, including anxiety, fear avoidance, depression, or nonorganic illness behaviors.
48The AMA Guides are not binding on the Tribunal and are not incorporated into the Schedule for chronic pain purposes. The Tribunal has adopted the use of the AMA Guides as an interpretative tool for evaluating chronic pain claims and I see no reason why I should deviate from that.
49I do not find that the applicant has three or more criteria of the characteristics of chronic pain syndrome and, therefore, removal from the MIG is not warranted. My reasons are as follows:
a. The applicant takes a daily medication for osteoarthritis unrelated to her accident-related injuries. As such, I do not find that the applicant was reliant on prescription medications.
b. The clinical notes and records submitted do not indicate that she visits with healthcare professionals regularly. As such, I find she is not reliant on healthcare providers. Moreover, she reported she continues with self-care activities with some restrictions.
c. The applicant has reported that she has limitations around physical activities. Dr. Ravzi’s assessment indicates that her reflex, strength and sensation distally are within normal limits. Dr Patel’s report does not mention or attribute any of the applicant’s pain to the accident.
d. In terms of withdrawing from social milieu, the applicant continues to work, albeit part-time, with no comments provided by either doctor on how the applicant’s condition has impacted her relationships with family or friends.
e. While she mentioned during the chronic pain assessment that she suffers from a depressed mood, no formal testing was conducted to reach the conclusion that the applicant suffers from a psychological condition.
50Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it is my understanding the limits of the MIG have been exhausted. Therefore, an analysis of whether the treatment and assessment plans in dispute are reasonable and necessary under s. 16 is not required. However, the applicant contends the denial notices are deficient. My review is below.
Denial notices and consequences according to s. 38(8) and s. 38(11)
51I find the respondent has not met the requirements of s. 38(8) of the Schedule with regards to the denial notices for both treatment plans in dispute.
Neurological treatment plan dated September 30, 2019 in the amount of $2,200.00
52The applicant argues that the plan was responded to outside of the 10-business day window on October 17, 2019. The applicant further submits that the denial did not properly refer to the medical and any other reasons for the denial.
53The respondent submits the treatment plan was dated September 30, 2019, submitted to the respondent on October 15, 2019, EOB with reasons for denying the treatment plan was sent on October 17, 2019.
54I note that the treatment plan was dated September 30, 2019, however, the applicant did not provide a complete copy of the treatment plan showing the submission date. Upon review, the respondent provided a copy of the treatment plan in its submissions which confirms it is dated September 30, 2019, with a Health Claims for Auto Insurance stamp showing a submission date of October 15, 2019, and a copy of the EOB dated October 17, 2019. Therefore, I find that the respondent responded to the treatment plan within 10 business days of submission.
55However, I do not find that the respondent’s reasons for the denial were in accordance with s. 38(8). The EOB lists the treatment plan being denied, however, the medical and other reasons for the denial are unclear. The reason for the denial is documented as the applicant’s current medical injuries do not warrant the assessment and that more medical documentation is required to substantiate it. However, the respondent has not listed the applicant’s injuries nor refers to them specifically.
56I find the respondent did not provide a proper denial. Moreover, as the respondent failed to give proper notice in accordance with s. 38(8), s. 38(11) is triggered, and the neurological assessment is payable as well as interest pursuant to s. 51 of the Schedule. The respondent may not issue a compliant denial after this hearing: see Aviva v Suarez, 2021 ONSC 6100 at para. 36.
Chronic pain assessment in the amount of $2,200.00
57The applicant submits that the denial for the chronic pain assessment failed to provide medical and other reasons.
58The respondent submits that a proper denial was provided to the applicant on October 3, 2019.
59I do not find that the respondent’s reasons for the denial were in accordance with s. 38(8). Although the respondent references the MIG and that the applicant’s injuries are considered minor, it does not include specific details of the applicant’s medical condition nor mention what her minor injuries are.
60Similarly, as with the above neurological assessment, I find the respondent did not provide a proper denial when responding to the chronic pain assessment. As the respondent failed to give proper notice in accordance with s. 38(8), s. 38(11) is triggered and the treatment is payable as well as interest pursuant to s. 51 of the Schedule. Likewise, Aviva v Suarez applies.
ORDER
61For the reasons outlined above, I find that:
i. Pursuant to s. 7 of the LAT Act, I grant the applicant an extension to apply to dispute the treatment plans at issue.
ii. The applicant has not demonstrated that her accident-related impairments warrant removal from the MIG.
iii. The respondent’s denials for each of the treatment plans fail to comply with s. 38(8) of the Schedule. Pursuant to s. 38(11), the applicant is entitled to payment for the neurological assessment and the chronic pain assessment, plus interest in accordance with s. 51 of the Schedule.
Released: July 18, 2024
Amanda Marshall
Adjudicator