Sidorela Ulaj v. Wawanesa Mutual Insurance Company, 2024 CanLII 72663

Citation: Ulaj v. Wawanesa Mutual Insurance Company, 2024 ONLAT 22-004524/AABS

Licence Appeal Tribunal File Number: 22-004524/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:

Sidorela Ulaj

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Shahzad Ayub, Counsel

For the Respondent: Leah Burlock, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sidorela Ulaj, the applicant, was involved in an automobile accident on May 29, 2020 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, Wawanesa Mutual Insurance Company, 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 an income replacement benefit in the amount of $400.00 per week from November 26, 2020 to ongoing?

iii. Is the applicant entitled to $3157.39 for chiropractic services, proposed by Alma Rehabilitation in a treatment plan dated July 23, 2021?

iv. Is the applicant entitled to $3341.87 for psychological services, proposed by Alma Rehabilitation in a treatment plan dated July 26, 2021?

v. Is the applicant entitled to $1995.33 for psychological services, proposed by Alma Rehabilitation in a treatment plan dated March 26, 2021?

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

RESULT

3I find that:

i. The applicant is not entitled to an income replacement benefit.

ii. The applicant has not established that her accident-related impairments warrant removal from the MIG.

iii. The applicant is not entitled to the treatment plans in dispute or interest.

ANALYSIS

Income Replacement Benefit (“IRB”)

4I find that the applicant has not established entitlement to IRBs. Nor has the applicant established that IRBs should be payable pursuant to s. 36(4) and s. 36(6) of the Schedule.

Substantive Entitlement to IRBs

5To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

6The applicant has not provided any submissions on her substantive entitlement to IRBs. She does not refer to s. 5(1) of the Schedule or the substantial inability test. The applicant further has not provided any details of her employment or explained how any accident-related impairments have affected her ability to perform her workplace tasks. No medical evidence has been led to establish the extent of the applicant’s accident-related impairments. Rather, in her submissions the applicant states that her analysis is focused exclusively on s. 36(4) and s. 36(6) of the Schedule. Without any submissions or evidence on the s. 5(1) test for entitlement, the applicant has not met her onus to prove a substantive entitlement to IRBs.

Procedural requirements of s. 36(4) of the Schedule

7I find that the applicant has not established that IRBs are payable due to non-compliance with s. 36(4) of the Schedule.

8Section 36(4) of the Schedule states that within ten business days after an insurer receives an application and a completed disability certificate (“OCF-3”) for IRBs, 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).

9The applicant submitted a completed OCF-3 on November 16, 2020. By way of letter dated November 24, 2020, the respondent confirmed receipt of the OCF-3 and requested the applicant’s attendance at s. 44 examinations to determine her entitlement to IRBs. The applicant attended the requested s. 44 examinations, and in subsequent correspondence dated February 8, 2021, the respondent denied the applicant’s claim for IRBs relying on its s. 44 reports.

10The applicant submits that the respondent’s initial November 24, 2020 correspondence is non-compliant with s. 36(4) of the Schedule. She argues that in her OCF-3, her chiropractor “expressly certified” that the applicant was substantially unable to complete the essential tasks of her employment. As such, the applicant argues that the respondent was required to expressly rebut the “certified medical evidence” contained in the OCF-3, in its November 24, 2020 denial. However, she submits that the respondent has provided no “medical and any other reason” for the requested s. 44 examinations, let alone the required express rebuttal. Therefore, the applicant argues that IRBs are payable pursuant to the mandatory “shall pay” provision of s. 36(6).

11She further argues that this non-compliance was not rectified by the subsequent February 8, 2021 correspondence. The applicant submits that all of the s. 44 reports were improperly obtained, since the November 24, 2020 letter is similarly non-compliant with s. 44(5) of the Schedule. As such, she argues that the respondent should not be permitted to rely on any of the improperly procured s. 44 reports. The applicant submits that since the February 8, 2021 denial relied on these reports, it was similarly non-compliant with the Schedule, and IRBs should be payable on an ongoing basis.

12I am not persuaded by the applicant’s argument that the respondent’s correspondence is non-compliant with s. 36(4) and s. 44(5) of the Schedule.

13In its November 24, 2020 letter, the respondent stated that it was requiring a s. 44 examination, as it had not been provided with medical documentation identifying the applicant’s ongoing work-related disability. It stated that it required a s. 44 examination to determine whether the applicant was substantially unable to perform the essential tasks of her employment. The respondent further made a s. 33(1) request for the applicant’s Record of Employment, pay statements, all post-tax accident earnings, 2019 Tax Return and Notices of Assessment and clinical notes and records of her family doctor. No information has been provided as to whether and when the s. 33 request was fulfilled.

14With respect to the reason for the requested s. 44 examination, I agree with the respondent that an insurer is not required to fabricate medical reasons when an applicant has not provided medical evidence. It cites the Tribunal decision Hamad v Travelers Insurance, 2021 CanLII 64246 (ONLAT) in support of its argument. The facts of Hamad are similar to the case at hand, where a claimant submitted an OCF-3 supporting entitlement to a specified benefit, but no other medical documentation was provided. The insurer in that case similarly requested the claimant’s attendance at a s. 44 examination, with the stated reason being that the insurer did not have sufficient medical information to make a determination on entitlement. The Tribunal found that the notice provided a principled rationale for the examination, based “fairly on the applicant’s file” as the insurer was only provided with limited medical evidence. I find the reasoning in Hamad to be persuasive.

15Although the applicant relies on the Tribunal decision Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ONLAT) to argue that the Tribunal has found such language to be deficient, I find that this decision is distinguishable. The notice in Taksali identified the reason for the requested s. 44 examination as being “the disability period appears to be inconsistent with the diagnosis or mechanism of injury”. In my view, this stated reason is very different from the present case, where the respondent clearly identified the fact that the applicant had not provided medical documentation identifying a work-related disability and that an assessment was required to determine whether she was substantially unable to perform the essential tasks of her employment.

16Further, I do not agree with the applicant that the OCF-3 alone is satisfactory “certified medical evidence” to unequivocally establish a rebuttable presumption of an insured’s entitlement to a benefit. The Tribunal has consistently held that an OCF-3 alone is not sufficient to establish entitlement to a specified benefit. The applicant does not dispute the respondent’s submissions that at the time of its November 24, 2020 notice, she had not provided additional medical information in support of her claim. I note that the correspondence further made a s. 33 request for documentation, including the clinical notes and records of the applicant’s family doctor.

17Moreover, the applicant argues in her submissions that the respondent’s reasons are non-compliant with the Schedule because in its correspondence, the respondent did not expressly rebut the information in the OCF-3 with “very good reasons”. However, without any additional medical documentation I do not see how an insurer could provide such detailed reasons. As such, I agree with the respondent that its November 24, 2020 notice provided sufficient “medical and any other reasons” for the requested examination and was compliant with s. 36(4) and s. 44(5) of the Schedule.

MINOR INJURY GUIDELINE

18Section 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.”

19An 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.

The applicant has not established grounds for her removal from the MIG

20The applicant has not provided any substantive submissions or led medical evidence to establish accident-related impairments warranting removal from the MIG. In her submissions she concedes that her analysis is focussed exclusively on the procedural requirements of s. 38(8) and s. 38(11) of the Schedule. However, MIG determination is a separate issue from that of non-compliance with s. 38. The burden of proof lies with the applicant to establish that she suffers from an impairment that falls outside of the definition of a “minor injury”.

21The only medical evidence before me is the s. 44 assessment reports submitted by the respondent and notes from the applicant’s family doctor diagnosing soft tissue injuries. The respondent’s physiatrist Dr. Boulias found that the applicant had sustained only soft-tissue injuries and did not require any facility-based treatment. Soft-tissue injuries fall within the definition of a “minor injury”. Dr. Dumitrascu, the respondent’s psychological assessor found that the applicant did not sustain any accident-related psychological impairments.

22Given the lack of submissions and medical evidence from the applicant as to the issue of MIG determination, I find that she has not met her burden to prove accident-related impairments warranting removal from the MIG.

23The parties confirmed at the case conference 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.

24However, as an alternative argument the applicant argues that all of the treatment plans in dispute are payable, as the respondent did not comply with s. 38(8) of the Schedule and as such, should be payable pursuant to s. 38(11).

Procedural requirements of s. 38(8) of the Schedule

25I find that the respondent’s denial notices for the three treatment plans (“OCF-18s”) comply with s. 38(8) of the Schedule. As such, the applicant has not established that these plans are payable pursuant to s. 38(11).

26The respondent denied the two psychological OCF-18s by way of letters dated April 12, 2021 and July 27, 2021. The denial letters expressly referenced the s. 44 assessment report of Dr. Dumitrascu and her findings that that there was no evidence of a psychological impairment or DSM-5 diagnosis. Dr. Dumitrascu found that the MIG applies and that no psychological treatment was required. The OCF-18 for chiropractic services was denied by way of letter dated July 27, 2021. The respondent again referenced its s. 44 report of Dr. Boulias, who found that the applicant had sustained only soft-tissue injuries as a result of the accident, and held the applicant within the MIG.

27In her submissions, the applicant argues that all of the denial letters are deficient, as the respondent was relying on “improperly procured” insurer’s examination reports and therefore all such reports are void. As I have previously found that the respondent’s November 24, 2020 correspondence complied with s. 44(5) of the Schedule, it is unnecessary for me to address the applicant’s argument as to whether the s. 44 reports were improperly procured.

28The applicant further makes the additional argument, similar to her argument with respect to IRBs, that the OCF-18s themselves have been certified by duly qualified medical professionals that the proposed treatment is reasonable and necessary. As such, the applicant argues that a rebuttable presumption has been created in favour of the treatment that the respondent must rebut with “very good”, fair and principled reasons.

29I do not agree with the applicant that a “rebuttable presumption” is created simply by the submission of an OCF-18. Moreover, when I review the denial letters provided by the respondent in response to the treatment plans, I find that they comply with s. 38(8) of the Schedule and the principles set out in 17-003774/AABS v. Aviva Canada Inc., 2018 CanLII 84051 (ONLAT), cited by the applicant.

30The respondent’s denial letters provided specific reference to the applicant’s medical condition, being soft tissue injuries, or the lack of a psychological impairment, which formed the basis for the respondent’s decision. I find that the reasons cited by the respondent were clear and sufficient enough to allow an unsophisticated person to make an informed decision as to whether to dispute the decision.

31Therefore, the applicant has not established that the respondent’s denial notices were non-compliant with s. 38(8) of the Schedule or that the OCF-18s are payable pursuant to s. 38(11).

Interest

32Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are owing, no interest is payable

ORDER

33The application is dismissed and I find that:

i. The applicant is not entitled to IRBs.

ii. The applicant remains within the MIG and the $3,500.00 limit on treatment.

iii. The applicant is not entitled to the OCF-18s in dispute or interest.