Citation: John v. Economical Insurance Company, 2024 ONLAT 21-014025/AABS

Licence Appeal Tribunal File Number: 21-014025/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:

Stephon John

Applicant

and

Economical Insurance Company

Respondent

DECISION

VICE-CHAIR:

Christopher Climo

APPEARANCES:

For the Applicant:

Tal Eshel, Counsel

For the Respondent:

Ainsley Shannon, Counsel

Written Hearing:

By Way of Written Submissions

OVERVIEW

1Stephon John, the applicant, was involved in an automobile accident on March 2, 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, Insurer, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2The Tribunal issued a Motion Order on consent dated April 24, 2023 to convert from a videoconference hearing to a written hearing as the issue of income replacement benefit had been withdrawn.

PRELIMINARY ISSUE

3Is the applicant barred from proceeding to a hearing pursuant to section 56 of the Schedule for the substantive issues 4, 5, and 6 listed below because the applicant failed to commence an application within two years of being denied the benefit?

SUBSTANTIVE ISSUES

4The 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 MIG?

ii. Is the applicant entitled to $3,133.06 for physiotherapy services, proposed by Complete Balance Health Centre in a treatment plan/OCF-18 submitted June 14, 2021 and denied October 28, 2021?

iii. Is the applicant entitled to $1,009.67 for chiropractic services, proposed by Complete Balance Health Centre in a treatment plan/OCF-18 submitted July 5, 2021 and denied October 29, 2021?

iv. Is the applicant entitled to $2,200.00 for an orthopedic assessment, proposed by Scarborough Physiotherapy and Rehabilitation Centre in a treatment plan/OCF-18 submitted June 21, 2019 and denied July 3, 2019?

v. Is the applicant entitled to $2,198.79 for a psychological assessment, proposed by Scarborough Physiotherapy and Rehabilitation Centre in a treatment plan/OCF-18 submitted June 20, 2019 and denied July 3, 2019?

vi. Is the applicant entitled to $1,977.05 for chiropractic services, proposed by Mackenzie Medical Rehabilitation in a treatment plan/OCF-18 submitted July 23, 2019 and denied August 1, 2019?

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

RESULT

5I find that:

i. The applicant is statute-barred from proceeding with substantive issues 4, 5 and 6 pursuant to s. 56 of the Schedule.

ii. The applicant is outside of the MIG because her psychological symptoms and impairments are not within the definition of a “minor injury” in s.3 of the Schedule.

iii. The applicant is entitled to $3,133.06 for physiotherapy services.

iv. The applicant is entitled to $1,009.67 for chiropractic services.

v. Interest is owing on overdue benefits in accordance with s. 51 of the Schedule.

ANALYSIS

Preliminary Issue

6I find that the applicant is statute-barred from proceeding with substantive issues 4, 5 and 6 pursuant to section 56 of the Schedule.

7Section 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 running of the limitation period, the insurer must provide clear and unequivocal notice of a refusal to pay benefits.

8Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G. (“LAT Act”) allows the Tribunal to extend a limitation period prescribed by the Schedule. In considering whether to exercise its discretion to extend the limitation period, the Tribunal must consider the following four factors set out in Manuel v. Registrar, 2012 ONSC 1492 (“Manuel”), to determine if the justice of the case requires the extension:

i. A bona fide intention to appeal within the limitation period;

ii. The length of delay;

iii. Prejudice to the other party; and

iv. Merits of the appeal.

9Manuel directs a holistic analysis of these factors; no single factor is determinative. It is the applicant’s onus to establish that there are reasonable grounds for granting an extension.

10The applicant submits that the respondent failed to provide a denial in writing for issues 4 and 6 and for issue 5 that the two-year time period commenced on the most recent denial of date of April 8, 2020 and not the initial denial date of July 5, 2019. The applicant further submits that the denials were based on the MIG and that if the Tribunal disagree with the MIG limitation, the denials are no longer valid. In the alternative, the applicant submits that the Tribunal has the authority under Section 7 to extend the limitation period even if the application was brought after the limitation period.

11The respondent submits that written denials were provided for all three treatment plans to the applicant, the treatment facility and applicant’s counsel. The respondent further submits that the letter of April 8, 2020 was a confirmation of the July 5, 2019 denial following assessment of additional medical evidence provided by the applicant and does not reset the two-year limitation period.

12I find that the respondent did provide written denials for issue 4 (July 4, 2019), issue 5 (July 5, 2019) and issue 6 (August 1, 2019) that complied with the notice requirements under section 38(8) of the Schedule. I agree with the respondent’s position that their obligation to consider new information does not reset the limitation period of the original denial. If that was the case, applicants could continuously reset the limitation period by providing additional information to the respondent and the limitation period of section 56 would be moot.

13I disagree with the applicant’s position that should the Tribunal find that the MIG does not apply, then the initial denials are no longer valid and the question of whether they are statute barred is no longer relevant. The trigger under Section 56 is the respondent’s refusal to pay the amount claimed. I have found that the denials were made in compliance with section 38(8) of the Schedule, so they are valid. The fact that the Tribunal may subsequently find that an applicant is entitled to a benefit does change the fact that the respondent complied with their obligations under section 38(8), which is what triggers the limitation period.

14The applicant submits that the intention to appeal was demonstrated by the fact that she remained active on the claim and continued to attend treatment and apply for benefits, and that these issues were included in a previous application that was withdrawn to “not waste the time of resources of the respondent, counsel, and the Tribunal.” The applicant further submits that the delay is not excessive, and the respondent is not prejudiced. The applicant further submits that the appeal is not without merit as the treatment plans are reasonable and necessary.

15I find no basis to extend the limitation period under Section 7 of the LAT Act. Turning to the Manuel factors, with respect to the existence of a bona fide intention to appeal, the applicant had included these issues in a prior application which she chose to withdraw so was aware of them. The applicant did not include these issues in the current application dated November 16, 2021. The applicant did not add these issues until the case conference on November 18, 2022, which was over three years after the denials. This does not indicate a bona fide intention to appeal within the limitation period and the delay is excessive. The respondent is prejudiced if they are unable to rely on the limitation periods in the Schedule. The applicant has not produced any new evidence or argument on the merits of the appeal but simply submits that, in their view, the disputed treatment plans were reasonable and necessary. If the applicant had disputed the denials within two years that assertion could have been tested. To extend the limitation period based solely on the applicant’s view on the merits of the disputed issues would render the limitation period moot.

The Minor Injury Guideline (“MIG”)

16I find that the applicant has established on a balance of probabilities that her injuries are outside of the MIG because her psychological symptoms and impairments are not within the definition of a “minor injury” in the Schedule.

17The MIG establishes a framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3(1) of the Schedule as, “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms, “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are defined in the Schedule.

18An 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.

19The applicant submits that she should be removed from the MIG based on psychological impairments. In support of this claim, she relies on a psychological assessment report from Ms. Fahimeh Aghamohseni, Psychologist dated July 25, 2019. Ms. Aghamohseni concluded the applicant met the criteria for (i) Major Depressive Disorder, Single Episode: (ii) Somatic Symptom Disorder; and (iii) Specific Phobia, situational type, vehicular based on the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders Fifth Edition (DSM-5).

20The respondent submits that the applicant did not complain of psychological symptoms in her appointments with Brampton Urgent Care (March to August 2019) and one appointment with her family doctor, Dr. D. N. Kuzmar, in April 2019. The respondent also submits that neither practitioner diagnosed a psychological condition nor made a referral. The respondent relies on a psychological assessment report from Dr. Arnold Rubenstein, Psychologist dated August 9, 2019. Dr. Rubenstein concluded that there as no evidence which would warrant any diagnosis according to criteria set out in the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM-IV).

21I find the report of Ms. Aghamohseni to be comprehensive and persuasive. The examination included five psychological tests that supported her conclusions that the applicant had psychological impairments under DSM-5 that warranted removal from the MIG as follows:

i. Beck Depression Inventory–II (BDI-II); score of 46 – severe depression

ii. Beck Anxiety Inventory (BAI): score of 32 – severe anxiety

iii. Davidson Trauma Scale (DTS): difficulties ranging from “A little bit” to “Extremely”

iv. Pain Patient Profile (P-3): average or above average difficulties and

v. Symptom Checklist 90-R (SCL-90-R): mild through severe difficulties

22I assign less weight to the report of Dr. Rubenstein. In that assessment, the applicant completed a Pain Patient Profile (P-3) test whose results were consistent with the test administered by Ms. Aghamohseni. Dr. Rubenstein noted that the results “might suggest clinically significant levels of affective and somatic distress”. In the face of that conclusion, Dr. Rubenstein then relies on a Structured Inventory of Malingered Symptomatology (SIMS) test which he says makes it “difficult if not impossible to lend validity to other test scores”. Rather than administer any of the other standard psychological tests, Dr. Rubenstein jumped right to a test designed show an applicant is feigning or exaggerating symptoms, which in my view makes his report less compelling.

23In an addendum report dated March 30, 2020 Dr. Rubenstein stated that the diagnosis of Ms. Aghamohseni was not adequately supported as it relied “almost exclusively on the subjective reporting of the claimant”. I disagree with that conclusion as the diagnosis was based on five psychological tests which are designed to measure psychological symptoms. By their very design, a psychological test requires input from the individual being tested.

24I see little merit in the argument that the applicant did not complain of psychological systems and was not diagnosed with a psychological condition by Brampton Urgent Care or her family doctor, Dr. D. N. Kuzmar. The clinic notes and records show that the applicant attended Brampton Urgent Care for her physical symptoms. There were no clinical notes and records provided for Dr. Kuzmar, but a letter dated March 8, 2021 notes he was not involved in any substantial manner in the ongoing management of this claim.

25I find that the applicant is removed from the MIG for psychological reasons.

26The applicant also submits that she should be removed from the MIG based on chronic pain. As I have found that she is removed from the MIG for psychological reasons, I do not need to address whether she should be removed from the MIG based on chronic pain.

The applicant is entitled to $3,133.06 for physiotherapy services, proposed by Complete Balance Health Centre in a treatment plan/OCF-18 submitted June 14, 2021.

The applicant is entitled to $1,009.67 for chiropractic services, proposed by Complete Balance Health Centre in a treatment plan/OCF-18 submitted July 5, 2021.

27The submissions of the applicant and the respondent had the same reasons for and against both treatment plans. As such I have dealt with them together.

28The applicant submits that the treatment plans were denied based on the MIG and that no medical reasons were provided for the denials. The applicant submits that if she is removed from the MIG, the respondent’s denials are no longer valid. I disagree. Despite removal from the MIG, the applicant must still prove that a treatment plan is reasonable and necessary if she seeks funding above the MIG limit.

29The applicant submits that the denials by the respondent were not proper as they relied on section 44 examinations from 2019 and did not request additional records, a statutory declaration or attendance at an IE to determine the reasonableness and necessity of these benefits. I find that the denials were valid as they were made in compliance with the Schedule. Sections 33 and 44 of the Schedule provide the respondent with options to obtain information to determine if an applicant is entitled to a benefit. The respondent is not obligated to seek additional information if they believe the information that they already possess is sufficient for the denial.

30To receive payment for a treatment or assessment plan under s. 15 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and how the overall costs of achieving them are reasonable.

31The applicant submits that the goals of treatment, which are pain reduction, increasing strength and range of motion, and a return to the activities of normal living, are legitimate and achievable. The applicant argues that the treatments plans are therefore reasonable and necessary.

32In support of this position, the applicant relies on the clinical notes and records of Dr. Krystyna Prutis, Physiatrist dated January 5, 2021 which diagnosed the applicant with chronic low back pain as a result of the motor vehicle accident and recommended core strengthening exercises, acupuncture, deep tissue massages, and the use of a TENS machine. The applicant also relies on the clinical notes and records of Dr. Prutis dated February 17, 2022 which observed reduced lumbar lordosis, weakness of the right foot everters and extensor hallucis longus, decreased sensation to pinprick on lateral aspect of right thigh, calf, dorsum of right foot, and reduced range of motion of her lumbar spine. Dr. Prutis again diagnosed chronic low back pain, as the result of the motor vehicle accident” and noted that the progression of her clinical presentation supported a diagnosis of L4-L5 radiculopathy.

33The applicant also relies on the orthopedic evaluation of Dr. Getahun. As neither party submitted a copy of that evaluation, I assign no weight to it.

34The respondent submits that the treatment plans are not reasonable and necessary. The respondent submits that the applicant has returned to work at a hair salon (as per clinical notes and records of Dr. James Fung, Chiropractor dated June 19, 2021) and that Dr. Prutis did not refer the applicant to a pain specialist or a pain clinic, did not recommend injections and did not prescribe pain medication. The respondent also submits that applicant has not seen Dr. Prutis, or any other doctor, for accident-related treatment since February/March 2022.

35In support of this position, the respondent relies on the report of Dr. Levy dated May 29, 2019 which noted no evidence of a sprain, strain, radiculopathy and an addendum dated March 30, 2020 which notes no change in his opinion based on additional information. The respondent also relies on an MRI report from Dr. Robert Kurtz dated November 27, 2020, which was commissioned by Dr. Prutis, which noted no evidence of disc herniation, nerve root impingement, spinal stenosis or myelopathy. The respondent relies on the clinical notes and records of Dr. Mark Byers, Neurologist, who saw the applicant on March 18, 2022 on a referral from Dr. Prutis. Dr. Byers noted strength was excellent, stressed gait is normal and screening neurological examination is normal.

36The applicant has consistently complained of back pain since the accident. I find notations of back pain in the clinical notes and records of Brampton Urgent Care, Mackenzie Medical Rehabilitation Centre, Dr. Kuzmar, Dr. Prutis and Complete Balance Health Centre. I also find mentions of back pain in the reports of Dr. Levy, Ms. Aghamohseni and Dr. Rubenstein.

37I acknowledge the results of the November 27, 2020 MRI and the March 18, 2022 clinical notes and records of Dr. Byers. The fact that these results do not seem to diagnose the cause of the back pain does not mean it does not exist. While Dr. Prutis did not refer the applicant to a pain specialist or a pain clinic, did not recommend injections and did not prescribe pain medication, she did recommend diagnose chronic back pain and recommend various forms of therapy.

38The applicant received physiotherapy at Mackenzie Medical Rehabilitation Centre in 2019 and chiropractic services at Complete Balance Health Centre in 2021. The progress reports of both clinics indicated increased range of movement in neck and lower back and for Complete Balance good sleep and feeling energized.

39Physiotherapy and chiropractic services have achieved the goals that the applicant seeks in the current treatment plans. I find that the plans are a reasonable cost to meet the goals.

40I find that the applicant has met her onus to prove that both treatment plans are reasonable and necessary.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that the applicant is entitled to two of the treatment plans, interest is payable by the respondent on those treatment plans.

ORDER

42For the reasons outlined above, I find that:

i. The applicant is outside of the MIG because her psychological symptoms and impairments are not within the definition of a “minor injury” in the Schedule.

ii. The applicant is entitled to $3,133.06 for physiotherapy services for the OCF-18 dated June 14, 2021, plus interest in accordance with s.51 of the Schedule.

iii. The applicant is entitled to $1,009.67 for chiropractic services for the OCF-18 dated July 5, 2021, plus interest in accordance with s.51 of the Schedule.

iv. The applicant is statute-barred from proceeding with substantive issues 4, 5 and 6 pursuant to s. 56 of the Schedule.