Lamba v. TD General Insurance Company, 2024 CanLII 81202

Citation: Lamba v. TD General Insurance Company, 2024 ONLAT 22-006317/AABS

Licence Appeal Tribunal File Number: 22-006317/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:

Rajan Lamba

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Christopher Evans

APPEARANCES:

For the Applicant: Vismay Merja, Counsel

For the Respondent: Bhagwant Chohan, Counsel

HEARD: By way of Written Submissions

OVERVIEW

1Rajan Lamba, the applicant, was involved in an automobile accident on June 28, 2020 and sought benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). He was denied benefits by TD General Insurance Company, the respondent, and filed this application with the Licence Appeal Tribunal.

2The preliminary issue is whether s. 55(1)2 of the Schedule bars the application from being heard on the merits because the applicant did not attend two insurer’s examinations. The substantive issues are whether the applicant is limited to $3,500 in benefits because he sustained a predominantly minor injury and whether he is entitled to psychological services, a psychological assessment, an award under s. 10 of Regulation 664: Automobile Insurance, and interest.

RESULT

3Section 55(1)2 of the Schedule does not bar the application from being heard on the merits.

4The applicant has not established that he is entitled to more than $3,500 in medical and rehabilitation benefits.

5The applicant is not entitled to the benefits in dispute, interest, or an award under s. 10 of Regulation 664.

THE APPLICATION IS NOT BARRED FROM BEING HEARD ON THE MERITS

6On November 22, 2023, the respondent moved for an order barring the application from being heard on the merits pursuant to s. 55(1)2 of the Schedule. The Tribunal ordered that the motion will be heard together with the substantive issues.

7Rule 15.1 of the Licence Appeal Tribunal Rules, 2023 provides that submissions in support of a motion must not exceed six double-spaced pages in length. The Notice of Motion to be Heard at Scheduled Event provides that the applicant’s submissions on the motion are limited to six double-spaced pages. Both parties’ submissions exceed those page limits. I have consequently not read past the sixth page of either.

The parties’ positions

8Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if their insurer has provided them with notice in accordance with the Schedule that it requires an examination under s. 44, but they have not complied with that section. Sections 55(2) and (3) provide that the Tribunal may permit an insured person to apply despite s. 55(1)2 and may impose terms and conditions on a permission.

9On March 28, 2023, the respondent provided a notice requiring the applicant to attend two insurer’s examinations. It submits that s. 55(1)2 bars the application because the applicant did not attend those examinations.

10The applicant makes four arguments:

1. The notice did not provide adequate reasons for the insurer’s examinations;
2. The insurer’s examinations were not reasonably necessary, and the respondent commissioned them only to strengthen its case for this application;
3. The respondent issued the notice after he filed the application; and
4. If the Tribunal finds that s. 55(1)2 does apply, it should exercise its discretion under s. 55(2) to hear the application on the merits.

Analysis

11I agree with the applicant that the March 28, 2023 notice did not provide adequate reasons for the insurer’s examinations.

12Section 44(5)(a) of the Schedule provides that if an insurer requires an examination, it shall give the insured person a notice setting out “the medical and any other reasons for the examination.” The respondent must establish that the notice complies with that requirement for s. 55(1)2 to apply. The Schedule is consumer protection legislation and barring an application from being heard on the merits is a drastic remedy. The Tribunal strictly construes the notice requirements of s. 44(5) and examines closely whether a notice complies with s. 44(5)(a) according to the following principles:

1. At the very least, the insurer’s medical and any other reasons should include specific details about the insured person’s condition forming the basis of the insurer’s decision, or, alternatively, identify information about the insured person’s condition that the insurer does not have but requires. The insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies.
2. When the insurer takes the position that the insured person sustained predominantly minor injuries, it should explain what the insured person’s medical conditions are and why they do not justify removal from the Minor Injury Guideline (“MIG”).
3. The insurer’s medical and any other reasons should be clear and sufficient to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
4. Boilerplate statements do not provide a principled rationale to which an insured person can respond. In essence, such statements constitute no reasons at all.

Coladonato v Aviva Insurance Company, 2023 CanLII 42651 (ON LAT) at paras 8-13; M.B. v Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) (Reconsideration) at para 26; Hedley v Aviva Insurance Company of Canada, 2019 ONSC 5318 (Div Ct) at para 18.

13In the March 28, 2023 notice, the respondent gave the following reasons for requiring the insurer’s examinations:

Thank you for submitting the clinical notes and records provided on your behalf by your legal representative. Based on a review of the medical evidence documented by a health practitioner before and after the accident and the previous insurer's examination report dated February 15, 2022, we are unable to determine if your current and/or pre-existing medical condition is sufficient to exclude you from the Minor Injury Guideline.

In order to assist us with this determination, you are required to be examined by an assessor(s) chosen by the insurer.

14I find that these are boilerplate statements that did not enable the applicant to understand why the respondent required the insurer’s examinations. The respondent does not state what it considers the applicant’s “current and/or pre-existing medical condition” to be and why it is unable to determine whether those conditions are sufficient to exclude him from the MIG. The first sentence quoted above hints that the clinical notes and records provided by the applicant were the impetus for the insurer’s examinations. The respondent does not, however, explain what information in those clinical notes and records led it to decide that the insurer’s examinations were necessary and why. It makes only a vague statement that its decision was based on the medical evidence documented by an unspecified health practitioner “before and after the accident” and a previous insurer’s examination report.

15As the respondent did not provide adequate reasons for the insurer’s examinations, I find that s. 55(1)2 of the Schedule does not bar the application from being heard on the merits. It is therefore unnecessary to consider the applicant’s other arguments.

SUBSTANTIVE ISSUES

16The substantive issues in dispute are:

1. 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 MIG limit?
2. Is the applicant entitled to $3,491.39 for psychological services, proposed by Injury Management in a treatment plan/OCF-18 (“plan”) submitted on May 10, 2021 and denied on May 11, 2021?
3. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Injury Management in a plan submitted on September 23, 2021 and denied on October 4, 2021?
4. Is the respondent liable to pay an award under s. 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
5. Is the applicant entitled to interest on any overdue payment of benefits?

THE APPLICANT IS LIMITED TO $3,500 IN MEDICAL AND REHABILITATION BENEFITS

17Section 18(1) of the Schedule provides that an insured person who sustains an impairment that is predominantly a minor injury is limited to $3,500 in medical and rehabilitation benefits. Minor injuries are subject to the treatment framework in the MIG.

18A minor injury is defined in s. 3 of the Schedule 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. This definition does not include psychological impairments, but it does include the psychological sequelae of a minor injury.

19Section 18(2) of the Schedule provides that an insured person with a predominantly minor injury is not subject to the $3,500 limit on benefits if they have a documented pre-existing medical condition that will prevent them from achieving maximal recovery from the minor injury if they are subject to the limit or limited to the goods and services authorized under the MIG.

20The onus is on the applicant to prove that his injuries are not subject to treatment under the $3,500 limit on benefits and the MIG: Scarlett v Belair Insurance, 2015 ONSC 3635 (Div Ct) at para 24.

21The applicant alleges that he sustained a psychological impairment due to the accident, or, in the alternative, that he has a pre-existing medical condition within the meaning of s. 18(2).

The applicant did not sustain a psychological impairment due to the accident

22The applicant relies on an assessment conducted by Neha Saxena, a registered social worker, under the supervision of Leanne Wagner, a psychological associate. Ms. Saxena and Ms. Wagner opined that the applicant suffers from at least two mental health disorders due to the accident. The respondent relies on an assessment by Dr. Lawrence Tuff, a psychologist, who opined that the applicant’s post-accident psychological state was entirely the result of his pre-accident depression.

The accident and the applicant’s recovery

23The applicant’s mental health deteriorated dramatically in the months leading up to the accident. The clinical notes and records of Dr. Janmeet Sandhu, his family doctor, state that he suffered from depression with anxiety and insomnia starting in early 2020. Other medical records indicate that his depression and anxiety were chronic conditions. Dr. Sandhu’s clinical note of June 9, 2020—19 days before the accident—states that he had recently been to the emergency room three times.

24When the police attended the scene of the accident, they took the applicant to Brampton Civic Hospital. He was admitted and received psychiatric treatment there for one month. A July 28, 2020 report by Dr. Naushad Noorani—one of the applicant’s treating doctors—states that the applicant described the accident as a suicide attempt. Dr. Noorani noted that he continued to have suicidal thoughts after being admitted and that he initially lacked the motivation to get out of bed. Dr. Noorani diagnosed him with “[m]ajor depressive disorder, severe, recurrent, anxious distress.”

25After being discharged, the applicant received ongoing care from Dr. Rupinder Johal. Dr. Johal’s April 30, 2021 progress report also describes the accident as a suicide attempt. It notes that the applicant’s driver’s licence was suspended after Dr. Noorani reported to the Ministry of Transportation that he had engaged in deliberate self-harm using his vehicle.

26The applicant’s mental health improved after the accident:

1. Dr. Noorani’s report states that over the course of the applicant’s stay at Brampton Civic Hospital his suicidal thoughts improved, he got out of bed, he began to participate in activities and talk with other patients, and his sleep and affect improved. Dr. Noorani reported that he was “reasonably stable” when he was discharged and that there were no safety concerns.
2. Dr. Johal’s progress report states that the applicant “has been doing well with respect to his mood” for the past few months and that he “denied any suicidal thoughts or ideations today during assessment.” The applicant asked her to write a letter stating that his mental health was stable for the purposes of a criminal proceeding arising from the accident. She noted that she would give him a letter stating that “he has been stable from a mental health perspective and has been following treatment recommendations” and that “[t]here are no acute safety concerns at this point.” Dr. Johal also noted that the applicant’s family doctor had reinstated his driver’s licence.
3. Dr. Sandhu’s clinical notes from October 20, 2020 to September 9, 2022 describe the applicant’s mental health as stable and his mood as “fine” or “OK.”

27I find that the accident was the result and not the cause of the applicant’s mental health crisis. The “major depressive disorder, severe, recurrent, anxious distress” diagnosed by Dr. Noorani was a pre-accident condition. Whether the accident contributed to the applicant’s post-accident psychological symptoms is a matter of speculation. If it did, I find that on a balance of probabilities those symptoms were sequelae of minor injuries and not a freestanding psychological impairment given his recovery after the accident.

28The applicant argues that the accident was not a suicide attempt and that his post-accident psychological state was therefore the result of the accident. He cites the accounts of the accident he provided to Ms. Saxena on July 2, 2021, to Dr. Tuff on December 15, 2021, and to Dr. Arshi Ali, his treating psychotherapist, on June 7, 2022. I find that the accident was a suicide attempt for three reasons:

1. It is consistent with the deterioration of the applicant’s mental health in the months leading up to the accident and his three visits to the emergency room;
2. It explains why the applicant was admitted to the hospital immediately after the accident and received psychiatric treatment there for one month; and
3. I prefer the applicant’s account to Dr. Noorani over his accounts to Ms. Saxena, Dr. Tuff, and Dr. Ali because he provided the former shortly after the accident and the latter one to two years later.

The Saxena-Wagner and Tuff assessments

29Ms. Saxena and Ms. Wagner diagnosed the applicant with major depressive disorder and “somatic symptom disorder, with predominant pain, persistent,” and opined that he also showed signs of having generalized anxiety disorder. They concluded that the accident was the cause of those conditions as follows:

It is my opinion that Mr. Lamba's diagnosis is a direct consequence of his motor vehicle accident on June 28, 2020. My opinion is based on the fact that he was functioning relatively well prior to the accident. He is reporting pain in [his] neck and shoulders and recurring numbness in his feet. His physical limitations have resulted in an inability to perform his usual household chores and he currently requires assistance with many tasks. In addition, he experiences vehicular anxiety and his mood has declined in general.

30Ms. Saxena and Ms. Wagner state the following elsewhere in the report:

The results of testing are consistent with the clinical interview data and therefore provide a valid representation of Mr. Lamba's psychological functioning. His test scores suggest that he has been experiencing increased emotional distress since the accident, mostly in the form of symptoms of depression, anxiety and post traumatic stress. It is clear that Mr. Lamba's emotional status post-accident is worse than it was prior to the accident.

31I do not accept Ms. Saxena and Ms. Wagner’s opinion that the accident caused the applicant’s major depressive disorder and possible generalized anxiety disorder. Their summary of the clinical notes and records of Dr. Sandhu and Brampton Civic Hospital notes the following:

1. The applicant was experiencing depression and anxiety in the months leading up to the accident;
2. The applicant was admitted to the hospital on the day of the accident;
3. Dr. Alan Kaplan—another doctor at Brampton Civic Hospital—described the accident as a suicide attempt in a July 7, 2020 progress report; and
4. The applicant’s mental health was stable after he was discharged from the hospital.

Despite being aware of this very compelling evidence, Ms. Saxena and Ms. Wagner do not acknowledge that the applicant had any mental health conditions before the accident and do not consider whether and to what extent those conditions were responsible for the state of his post-accident mental health. Ms. Saxena and Ms. Wagner also make no attempt to reconcile this evidence with their conclusions that the applicant “was functioning relatively well prior to the accident,” that “his mood has declined in general,” that “he has been experiencing increased emotional distress since the accident,” and that his “emotional status post-accident is worse than it was prior to the accident.”

32I do not accept Ms. Saxena and Ms. Wagner’s opinion that the applicant suffers from somatic symptom disorder with predominant pain due to the accident. They appear to rely on the applicant’s self-report that he has experienced ongoing pain since the accident and the results of tests that asked him to describe whether and how pain interferes with day-to-day activities. I find that the applicant was not a reliable informant for the following reasons:

1. There is no indication in Brampton Civic Hospital’s records that the applicant sustained any injuries in the accident or had any pain;
2. The applicant did not report having pain to Dr. Sandhu at any of his nine post-accident appointments between October 20, 2020 and September 9, 2022;
3. A year had passed since the accident by the time of Ms. Saxena and Ms. Wagner’s assessment; and
4. The applicant reported to Ms. Saxena that he did not have a history of depression.

33The applicant cites the results of tests administered by Dr. Tuff. According to Dr. Tuff’s report, the applicant’s answers to one test were invalid, his answers to another were of questionable validity, and his answers to the remainder were valid. His scores on those remaining tests were very high. His total score on the Clinical Assessment of Depression fell within the “very significant clinical risk” range, his score on the Pain Patient Profile suggested above-average depression, anxiety, and somatization levels relative to chronic pain patients and significantly elevated levels compared to the general community, and his score on the Pain Disability Index fell in a very high range relative to pain patients. These results do not establish that the applicant sustained a psychological impairment due to the accident. They describe the applicant’s mental health issues at the time he completed them and do not shed light on whether the accident caused those issues. As discussed above, I do not accept that the accident caused the applicant’s pain-related symptoms.

Conclusion

34The applicant has not established that he sustained a psychological impairment due to the accident.

Section 18(2) of the Schedule does not apply

35The applicant argues that his pre-accident depression is a pre-existing medical condition within the meaning of s. 18(2). The respondent argues that there is no evidence this condition prevented him from achieving maximal recovery from his accident-related injuries subject to the $3,500 limit on benefits and the goods and services authorized under the MIG.

36I agree with the respondent. The applicant has not shown that his pre-existing depression impaired his recovery from any accident-related injuries. To the contrary, he recovered from an episode of catastrophically poor mental health. Dr. Noorani believed that his mental health was stable and posed no safety concerns when he was discharged from the hospital one month after the accident. Dr. Johal and Dr. Sandhu found that he continued to be stable over the months and years following.

Conclusion

37As the applicant has not established that he sustained a psychological impairment due to the accident or that section 18(2) of the Schedule applies, he has not established that he is entitled to more than $3,500 in medical and rehabilitation benefits.

THE APPLICANT IS NOT ENTITLED TO THE PSYCHOLOGICAL SERVICES AND PSYCHOLOGICAL ASSESSMENT IN DISPUTE

38The March 16, 2023 Case Conference Report and Order states that the applicant had not yet exhausted the $3,500 limit on benefits and that the parties will identify the amount remaining in their submissions. As the parties have not done so, I must consider whether the applicant is entitled to the psychological services and psychological assessment in dispute.

39I find that the applicant is not entitled to the psychological services proposed in the treatment plan submitted on May 10, 2021. Section 14 of the Schedule provides that an insurer is liable to pay medical benefits to or on behalf of an insured person who sustains an impairment “as a result of an accident.” Section 15 of the Schedule likewise provides that medical benefits shall pay for all reasonable and necessary expenses incurred by or on behalf of the insured person “as a result of the accident” for psychological services, among others. I have found that the applicant did not sustain a psychological impairment as a result of the accident. If he experienced any psychological sequelae, there is no indication that they had persisted when he submitted the treatment plan almost a year after the accident. It may well be that the applicant would benefit from ongoing psychological treatment for his depression. However, the respondent is not liable to pay for that treatment because his depression did not result from the accident.

40I find that the applicant is not entitled to the psychological assessment proposed in the treatment plan submitted on September 23, 2021. He must establish that there is a reasonable possibility he has the condition the assessment will investigate and the assessment is reasonable and necessary in the circumstances: 17-0045098/AABS v Certas Home and Auto Insurance, 2018 CanLII 13412 (ON LAT) at para 15. The analysis is the same as for the psychological services in dispute. I have found that the applicant did not sustain a psychological impairment due to the accident. If he experienced any psychological sequelae, there is no indication that they had persisted when he submitted the treatment plan more than a year after the accident.

41The applicant argues that because the respondent commissioned an insurer’s examination from a psychologist, it stands to reason that a psychological assessment is reasonable and necessary for him as well. He cites L.F.B. v Intact Insurance Company, 2021 CanLII 48377 (ON LAT) at para 11 and Rathakrishnan v Aviva Insurance Company, 2023 CanLII 50585 (ON LAT) at para 35 in support of that submission. I disagree. If an insurer chooses to obtain an examination at its own expense, nothing prevents the insured person from doing the same. It does not necessarily follow that the insured person’s proposed examination must be reasonable and necessary. The fact that the insurer commissioned its own examination may be probative—as the Tribunal found in L.F.B. and Rathakrishnan—but it is not dispositive.

THE APPLICANT IS NOT ENTITLED TO AN AWARD

42Section 10 of Regulation 664 provides that in addition to awarding the benefits and interest to which an insured person is entitled under the Schedule, the Tribunal may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award with interest if the insurer unreasonably withheld or delayed payments.

43As the applicant is not entitled to the benefits in dispute, he is not entitled to an award.

THE APPLICANT IS NOT ENTITLED TO INTEREST

44Section 51 of the Schedule provides that an insurer shall pay interest on overdue payments of benefits. As that no benefits are payable, the applicant is not entitled to interest.

ORDER

45The applicant has not established that he is entitled to more than $3,500 in medical and rehabilitation benefits.

46The applicant is not entitled to the benefits in dispute, interest, or an award under s. 10 of Regulation 664.

47The application is dismissed.