Licence Appeal Tribunal File Number: 22-009000/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:
Ahmed Ahmed
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Rachel Levitsky
APPEARANCES:
For the Applicant:
Rajiv Kapoor, Paralegal
For the Respondent:
Michael Rattray, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ahmed Ahmed, the applicant, was involved in an automobile accident on January 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, Security National 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 $248.76 ($1,298.58 less $1,049.82 partially approved) for chiropractic services from Health Max Etobicoke in a treatment plan submitted September 14, 2020 and denied September 14, 2020?
(iii) Is the applicant entitled to $5,031.43 for chiropractic services from Health Max Etobicoke in a treatment plan submitted October 31, 2020 and denied February 2, 2021?
(iv) Is the applicant entitled to $2,200.00 for a psychological assessment from Premier Medical Health Centre Inc., in a treatment plan submitted October 7, 2021 and denied October 21, 2021?
(v) Is the applicant entitled to $2,200.00 for a chronic pain assessment from Premier Medical Health Centre Inc., in a treatment plan submitted April 4, 2022 and denied April 12, 2022?
(vi) Is the applicant entitled to $3,641.09 for psychological services from Premier Medical Health Centre Inc., in a treatment plan submitted July 5, 2022 and denied July 8, 2022?
(vii) Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
(viii) Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained psychological impairments as a result of the accident, and he is accordingly removed from the MIG.
4The applicant is not entitled to the remaining $248.76 for chiropractic services from Health Max Etobicoke, in a treatment plan submitted September 14, 2020.
5By virtue of s. 38(11)2, the treatment under the plan for $5,031.43 for chiropractic services from Health Max Etobicoke, submitted October 31, 2020, is payable by the respondent upon proof that treatment under the plan has been incurred.
6The applicant is entitled to $2,200.00 for a psychological assessment from Premier Medical Health Centre Inc., in a treatment plan submitted October 7, 2021.
7The applicant is entitled to $2,200.00 for a chronic pain assessment from Premier Medical Health Centre Inc., in a treatment plan submitted April 4, 2022.
8The applicant is entitled to $3,641.09 for psychological services from Premier Medical Health Centre Inc., in a treatment plan submitted July 5, 2022.
9The respondent is not liable to pay an award.
10The applicant is entitled to interest on any overdue benefits.
PROCEDURAL ISSUES
Applicant’s Productions
11The respondent submits that a number of documents were served on December 11, 2023, well past the production deadline set out in the Case Conference Report and Order (“CCRO”). The respondent seeks to exclude those documents, and in the alternative requests that I draw an adverse inference and place substantially less weight on the documents.
12The CCRO of April 21, 2023, specifies that various medical records were to be provided no later than 60 calendar days after the case conference, which took place on April 17, 2023. The deadline for the production of those documents was accordingly June 16, 2023. By July 16, 2023, the parties were to have exchanged all other documents not previously disclosed upon which they intended to rely at the hearing.
13The documents at issue are as follows:
i. Records from Etobicoke General Hospital from January 28, 2020 to August 9, 2020;
ii. Records from Etobicoke General Hospital from August 10, 2020 to December 5, 2023;
iii. Records from Premier Medical Health Centre from January 29, 2019 to October 31, 2023; and
iv. Decoded OHIP summary from January 1, 2017 to October 19, 2023.
14Rule 9.4 of the Common Rules of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission states that if a party fails to comply with any Rule or Order with respect to disclosure, that party may not rely on the document as evidence, without the consent of the Tribunal.
15I decline to exclude items (i), (ii), and (iii) above. The records at (i) were served on the respondent on June 26, 2023, only 10 days after the production deadline, but before the second deadline. I find that the records are relevant, and there is no evidence of prejudice to the respondent by virtue of the records being served 10 days late. I accordingly find that the applicant may rely on these records at the hearing.
16The records at (ii) contain a 2 page CT scan from March 4, 2023, which was served on the respondent on December 11, 2023. However, the CT scan report was also included in the records of the applicant’s family physician, which the respondent is not seeking to have excluded. I find there is no reason to exclude it where it was already properly produced to the respondent. Finally, the contents of (iii) had already been provided to the respondent; it includes the s. 25 assessments provided in 2022, and the treatment plans that had previously been submitted directly to the insurer which are at issue in this dispute, and which were included elsewhere in the applicant’s medical brief.
17An OHIP summary was served on June 26, 2023, but it only contained records up to August 9, 2020. The decoded OHIP summary at (iv) was served on December 11, 2023. The applicant argues that the OHIP summary’s probative value outweighs the prejudice suffered by the respondent, if any. However, he does not specifically refer to any part of the OHIP summary in his submissions. He only states “the medical evidence is relevant to the substantive issues in dispute”. The applicant has not explained why this document has value, or how he will be prejudiced if it is excluded from this hearing.
18I do not agree with the applicant’s assertion that if the respondent took issue with the late productions, it should have brought a motion pursuant to Rule 15 and not ambushed him in its submissions. The applicant has not directed me to any authority that a procedural issue such as this must be raised by way of motion. Further, the applicant was able to respond fully with respect to this issue in his reply submissions, so I do not find that there was a lack of procedural fairness in this instance. If anything, if the applicant knew that he could not meet the deadlines set out in the order, he could have requested an extension of time by way of a motion.
19I find that under the circumstances, the updated decoded OHIP summary shall be excluded from the hearing.
Respondent’s Surveillance Report
20The applicant submits that the Surveillance Report of Intrepid Investigations, dated July 21, 2023, should be excluded from this hearing as the respondent failed to provide any of the corresponding video footage, contrary to the Tribunal’s production order.
21I decline to exclude the report from this hearing, as there is no evidence that the respondent breached the order in producing the report itself. Further, the respondent has not had an opportunity to address this issue as the applicant first raised it in his reply submissions. However, without the accompanying video footage, I assign very little weight to the report on its own.
Log Notes
22In his reply submissions, the applicant argues that the respondent neglected to provide unredacted log notes from August 12, 2022 to April 17, 2023, and requests that the respondent produce the unredacted log notes to me, as it is relevant to the issue of an award.
23This request is declined. Firstly, the respondent has not had an opportunity to respond to it, as it was first raised in the applicant’s reply submissions. Secondly, if the applicant is requesting the production of certain documents, it is not appropriate to do so in the middle of a written hearing. If the applicant wished to request further documentation from the respondent, the appropriate course of action would have been to bring a motion prior to the hearing.
ANALYSIS
Application of the Minor Injury Guideline
24Section 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.”
25An insured may be removed from the MIG if they can establish on a balance of probabilities 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.
26The applicant submits that he suffers from a psychological impairment and chronic pain with functional impairments, and therefore does not belong in the MIG. The respondent disagrees.
27I find that the applicant suffers from a psychological impairment such that he should be removed from the MIG.
28The applicant relies on the report of Dr. Leon Steiner, psychologist, who assessed the applicant on June 14, 2022. Dr. Steiner noted that the applicant is sad most of the time, would prefer to spend time by himself, and was more distant from his friends and family. He had intrusive memories of the accident, and avoided passing the accident scene. He had increased irritability and an exaggerated startle response. He was nervous and anxious in a vehicle, and avoided vehicular travel when possible. He thought about the accident frequently when in a car. The applicant’s score on the Generalized Anxiety Disorder 7-Item Scale showed mild anxiety. The Patient Health Questionnaire scores depicted mild depression. On the Pain Catastrophizing Scale, he had elevated scores for rumination about his pain and helplessness. Dr. Steiner diagnosed the applicant with Major Depressive Disorder, Single Episode, Moderate, Specific Phobia, Situational (in-vehicular type), and Somatic Symptom Disorder with Predominant Pain, Moderate. He opined that the applicant’s symptoms did not fall within the MIG.
29The respondent relies on the s. 44 report of Dr. Fabio Salerno, who assessed the applicant on March 10, 2021. The applicant reported to Dr. Salerno that he had some irritability and frustration since the accident. Although he continued to drive, he reported that he felt nervous and looked around all the time. He avoided driving near the site of the accident whenever possible. As a passenger, he would scan the road and caution the driver. Dr. Salerno administered a number of tests. The results of the Depression Anxiety Stress Scale suggested moderate depressed mood, moderate anxiety, and moderate stress. On the Accident Fear Questionnaire, he obtained a score within the “Phobia” range, and endorsed that he sometimes avoided driving and travelling as a passenger due to fear or distress. On the Pain Catastrophizing Scale, Dr. Salerno opined that his score suggests that pain catastrophizing is a “significant psychological factor mediating his recovery.” His score on the Modified Somatic Perception Questionnaire exceeded the cutoff, and was within the range of individuals that had identified as feigning pain and somatic related disability. However, Dr. Salerno stated “I am in no way implying or opining that Mr. Ahmed is feigning any symptoms whatsoever.” Dr. Salerno concluded that the applicant’s symptoms fall below a DSM-5 diagnostic threshold, and do not remove him from the MIG.
30I prefer the conclusions in the report of Dr. Steiner to that of Dr. Salerno. While the applicant failed one validity test, Dr. Salerno did not necessarily attribute this to the applicant feigning his symptoms. The applicant also had valid scores on the Depression Anxiety Stress Scale, Performance Validity Measure, and the Pain Patient Profile. I do not find that it was appropriate to discount all of the applicant’s reported symptoms and all of the other testing that was completed because of one failed validity test. Even excluding a diagnosis, I find that his reported symptoms are sufficient to remove him from the MIG.
31The respondent points out that the applicant did not report any psychological impairments to his family physician following the accident. It would certainly strengthen the applicant’s position if there were corroborating reports of psychological difficulties within his medical records. However, I do not find that the lack of such records is detrimental to the applicant’s case, especially where he reported similar psychological difficulties to both assessors. I find that the two reports corroborate each other.
32I find that on a balance of probabilities, the applicant has established that he should be removed from the MIG.
Are the treatment plans payable because of a breach of s. 38(8)?
33S. 38(8) of the Schedule states that within 10 business days after it receives a treatment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments, and examinations that it does not agree to pay for, and the “medical reasons and all of the other reasons” why the insurer does not consider them to be reasonable and necessary. The consequences of failing to comply with the notice requirements for each treatment plan are indicated in s. 38(11): the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies, and the insurer shall pay for the goods and services in the treatment plan starting on the 11^th^ business day after the insurer received the application, and ending when proper notice is provided.
34The applicant submits that the respondent breached s. 38(8) with respect to the treatment plans listed above as issues (iii), (iv), (v), and (vi). I find that the denial letter was insufficient with respect to the treatment plan at issue (iii), and it is therefore payable if incurred by operation of s. 38(11)2. I find that the denial letters for issues (iv), (v), and (vi) were compliant with s. 38(8).
35With respect to issue (iii), the applicant submits that the respondent failed to mention the applicant’s medical conditions in its denial letter of February 2, 2021. He submits that the respondent used boilerplate language that did not consist of medical rationale. He argues that because the requirements of s. 38(8) were not met, under s. 38(11), the treatment plan is payable in full.
36An insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Further, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the denial.
37I find that the respondent breached the requirements of s. 38(8) in its letter of February 2, 2021. The letter stated that the applicant’s injuries met the definition of a minor injury, and that no medical information had been received to date to indicate that his injuries were not minor in nature. The respondent also indicated that a s. 44 assessment would be arranged. I agree with the applicant that the language used in this letter was boilerplate and non-specific. It did not refer to the applicant’s injuries, or any documents it had reviewed to determine that his injuries were minor. Further, it did not specify what kind of assessment it required, or what information it was seeking that the assessment would help determine.
38The respondent has not pointed me to correspondence that cures the deficient letter. I find that, pursuant to s. 38(11)2, the treatment plan is payable by the respondent upon proof that treatment under the plan has been incurred.
39With respect to issues (iv), (v), and (vi), the applicant submits that the respondent’s denial letters failed to identify the goods, services, assessments and examinations described in the treatment plans. I do not agree. The denial letters for issues (iv) and (v) refer to the authors of the treatment plans, and their dates. The letters also included copies of the OCF-18 Faxback Sheets, which sets out the services proposed in the treatment plans. I find that the respondent identified the goods, services, assessments, and examinations described in those treatment plans.
40In his reply submissions, the applicant makes new arguments with respect to the denial letters, namely that the respondent failed to adhere to the principles outlined in the decision of Varriano v. Allstate, 2021 ONSC 8242. It is not appropriate to make new arguments in reply submissions, as this does not allow for the other party to respond, which offends the principle of procedural fairness. I am not prepared to consider the new submissions made on reply.
Are the treatment plans reasonable and necessary?
41To receive payment for a treatment and assessment plan under s. 15 and 16 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 that the overall costs of achieving them are reasonable.
Issue (ii) - $248.76 ($1,298.58 less $1,049.82 partially approved) for chiropractic services
42I find that the remainder of this treatment plan is not payable.
43The applicant submitted a treatment plan for chiropractic services from Health Max Etobicoke in the amount of $1,049.82 on September 14, 2020, which was partially approved in the amount of $1,298.58. The respondent advised that it was denying the remaining $248.76 because some of the services exceeded the maximum hourly rate for chiropractic therapy.
44The applicant submits that the services described carried a fixed price, and were not chiropractic services. He argues that the respondent incorrectly applied the maximum hourly rate for chiropractic therapy and physiotherapy to these services.
45The services in question were for shockwave therapy at $200.00 per session, and laser therapy at $150.00 per session. The therapies were to be administered by a chiropractor, whose hourly fixed rate is $112.81 pursuant to the Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“Guideline”). The Guideline states that “expenses related to professional services include all administration costs, overhead, and related costs, fees, expenses, charges and surcharges” and “insurers are not liable for other costs that have the result of increasing the effective hourly rates in the Guideline.”
46The applicant has failed to establish why laser and shockwave therapy carry fixed prices. Submissions are not evidence. I find that the cost of the use of the shockwave and laser therapy machines, if any, would be considered “overhead”, and would be encapsulated by the chiropractor’s hourly rate.
Issue (iv) - $2,200.00 for a psychological assessment
47I find that the applicant is entitled to this assessment.
48The purpose of the psychological assessment was to identify the factors that affected the applicant, and prepare a treatment plan to address and treat him if necessary. Dr. Steiner prepared a pre-screening report that he attached to the treatment plan, and he opined that the applicant appears to have sustained psychological injuries as a result of the accident, which warranted professional intervention. As I have indicated above, I accept that the applicant sustained a psychological impairment as a result of this accident. Further, the respondent felt it was reasonable to obtain its own assessment. A psychological assessment was accordingly reasonable and necessary, and the cost is within the limit prescribed by s. 25(5)(a) of the Schedule.
Issue (v) - $2,200.00 for a chronic pain assessment
49I find that the applicant is entitled to this assessment.
50The treatment plan proposed an assessment by a specialist in the diagnosis and treatment of chronic pain disorders in order to determine the appropriate course of treatment and management of unresolved pain arising from the accident.
51The applicant ultimately attended the assessment with Dr. Getahun on June 9, 2022. Although Dr. Getahun did not ultimately diagnose chronic pain syndrome or recommend participation in a chronic pain program, the question before me here is not whether the assessment was reasonable and necessary.
52The applicant reported to Dr. Getahun, Dr. Steiner, and all s. 44 assessors that he continued to experience pain, mainly to his lower back and left shoulder. I find that his reports were largely consistent. With respect to his functionality, he reported taking frequent breaks at work, and was unable to assist with the heavier housekeeping tasks. He used to jog almost every day, but was unable to do so anymore. He was also restricted in his ability to pray on the floor, and had to instead pray on a chair at the mosque.
53Dr. Jacqueline Auguste, orthopaedic surgeon, conducted a s. 44 assessment on October 26, 2022 to assess whether a chronic pain assessment was reasonable and necessary. The applicant advised her that he had constant headaches, neck pain and stiffness, intermittent left shoulder pain and stiffness, and lower back pain with most activities. Dr. Auguste diagnosed the applicant with WAD II cervical strain/sprain, left shoulder sprain/strain, and lumbar sprain/strain. She indicated that he had far surpassed the normal healing time of 9-12 weeks for those injuries, but did not provide an explanation for the applicant’s continued pain. She opined that the applicant belonged in the MIG, but did not assess whether the treatment plan in dispute was reasonable and necessary, so her report is not particularly useful in furthering the respondent’s position. If anything, it provides more evidence that the applicant’s pain extended beyond the typical timeframe for sprains and strains and warranted further investigation.
54I find that, on a balance of probabilities, the applicant continued to experience pain with functional limitations, such that further exploration by way of a chronic pain assessment was warranted. I also find that the cost of the treatment plan is reasonable, and it is within the limit prescribed by s. 25(5)(a) of the Schedule.
Issue (vi) - $3,641.09 for psychological services
55I find that this treatment plan is reasonable and necessary.
56The treatment plan proposes 12 sessions of cognitive behavioural therapy, treatment planning, preparation, communication, and the preparation of a progress report. The goal of the treatment plan is to help the applicant return to his pre-accident level of psychological functioning.
57Although the applicant advised Dr. Salerno that he was not interested in psychological treatment, he did so one year prior to the submission of this treatment plan. It is entirely possible that the applicant’s feelings towards the subject may have changed. In any event, whether the applicant chooses to ultimately incur the treatment is not relevant to whether the treatment plan is reasonable and necessary.
58I find that, given the applicant’s psychological condition as indicated above, 12 sessions of cognitive behavioural therapy is reasonable and necessary in order to attempt to assist the applicant. It is well below the 24 sessions initially recommended by Dr. Steiner in his report. I also find that the cost is reasonable in order to achieve the proposed goal.
Interest
59Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that the applicant is entitled to interest in accordance with s. 51.
Award
60The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. I find that the applicant is not entitled to an award.
61The applicant submits that the respondent unreasonably withheld and delayed payments, failed to consider medical information and assess his claim on an ongoing basis, and failed to adhere to the Schedule.
62The threshold for an award is high. In denying the treatment plans in dispute and maintaining its opinion regarding the MIG, the respondent relied on the opinions of its s. 44 assessors. Although ultimately I removed the applicant from the MIG, I do not find that the respondent erred in relying on its assessors. The applicant has not persuaded me that the respondent was inflexible, immoderate, or stubborn in withholding the benefit. Further, aside from making arguments regarding s. 38(8), which I have already addressed, the applicant does not specify how the respondent failed to adhere to the Schedule.
ORDER
64The applicant sustained psychological impairments as a result of the accident, and he is accordingly removed from the MIG.
65The applicant is not entitled to the remaining $248.76 for chiropractic services from Health Max Etobicoke, in a treatment plan submitted September 14, 2020.
66By virtue of s. 38(11)2, the treatment under the plan for $5,031.43 for chiropractic services from Health Max Etobicoke, submitted October 31, 2020, is payable by the respondent upon proof that treatment under the plan has been incurred.
67The applicant is entitled to $2,200.00 for a psychological assessment from Premier Medical Health Centre Inc., in a treatment plan submitted October 7, 2021.
68The applicant is entitled to $2,200.00 for a chronic pain assessment from Premier Medical Health Centre Inc., in a treatment plan submitted April 4, 2022.
69The applicant is entitled to $3,641.09 for psychological services from Premier Medical Health Centre Inc., in a treatment plan submitted July 5, 2022.
70The respondent is not liable to pay an award.
71The applicant is entitled to interest on any overdue benefits.
Released: September 18, 2024
Rachel Levitsky
Adjudicator