Gomes v. Belair Insurance Company Inc., 2024 CanLII 94126

Licence Appeal Tribunal

Citation: Gomes v. Belair, 2024 ONLAT 22-003954/AABS

Licence Appeal Tribunal File Number: 22-003954/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:

Donovan Gomes

Applicant

and

Belair Insurance Company Inc.

Respondent

DECISION

ADJUDICATOR: Lisa Holland

APPEARANCES:

For the Applicant: Joshua Meshack, Counsel

For the Respondent: Adam O'Brodovich, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Donovan Gomes, the applicant, was involved in an automobile accident on January 22, 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 from the respondent, Belair Insurance Company Inc. 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 limit and in the MIG?

ii. Is the applicant entitled to chiropractic services proposed by Revive Health Centres Inc. as follows:

a) $113.71 ($1,289.02 less $1,175.31 approved) in a treatment plan/OCF-18 ("plan") dated May 14, 2020 and partially denied June 8, 2020?

b) $1,289.02 in a plan dated July 20, 2020 and denied August 25, 2020?

c) $1,085.32 in a plan dated September 22, 2020 and denied October 8, 2020?

d) $1,085.32 in a plan dated December 8, 2020 and denied December 29, 2020?

e) $1,085.32 in a plan dated June 14, 2021 and denied July 19, 2021?

f) $1,085.32 in a plan dated August 10, 2021 and denied October 25, 2021?

g) $1,000.71 in a plan dated October 25, 2021 and denied November 12, 2021?

iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. It is not necessary to consider whether the plans for chiropractic services are reasonable and necessary. As a result, there is no entitlement to interest or an award;

4The respondent's denial of treatment plans May 14, 2020, July 20, 2020, September 22, 2020, December 8, 2020, June 14, 2021, August 10, 2021 and October 25, 2021 were proper notice in accordance with s.38(8) of the Schedule and therefore, those treatment plans are not payable pursuant to s.38(11) of the Schedule, and;

5The application is dismissed.

ANALYSIS

Applicability of the MIG

6The applicant makes no submissions or analysis on the issue of his removal from the MIG. The applicant also makes no submissions as to the reasonableness or necessity of the treatment plans in dispute. The applicant's focus in his submissions is on alleged procedural errors made by the respondent and it is suggested that these procedural errors should result in finding the disputed benefits payable. The applicant made no submissions that pertain to substantive entitlement to any of the disputed benefits.

7Therefore, I find the applicant has not met his onus with respect to being removed from the MIG. I find the applicant is subject to the MIG.

Section 38(8) of the Schedule

8Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.

9If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that if an insurer fails to provide proper notice of the reasons for its denial it must pay for all incurred goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8). See Aviva General Insurance Company v. Catic, 2022 ONSC 6000.

10Section 44(5) of the Schedule provides that an insurer shall give notice of an examination with the medical and other reasons for the examination.

11The Tribunal has recognized medical reasons for denial as specific details about the insured's condition forming the basis for the insurer's decision or identifying information about the insured's condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.

Sufficiency of the Respondent's Denial of OCF-18 dated May 14, 2020

12The first treatment plan ("plan") is dated May 14, 2020 for chiropractic services by chiropractor, Dr. Bradley Sugar of Revive Health Centres Inc. The respondent wrote to the applicant on June 8, 2020 denying the benefits, within 10 business days of receiving the plan on May 25, 2020. The applicant submits that it was an improper denial as it was based only on the MIG, and so the denial lacked a medical reason. I find that the June 8, 2020 was a valid denial letter. It indicates that the respondent had not received any compelling medical evidence including any clinical notes and records to support this request for additional treatment. In review of the documents on file, his injuries appeared to be minor as defined by the Schedule and it was unable to determine if the recommendations on the plan are reasonable and necessary.

Sufficiency of the Respondent's Denial of OCF-18's dated July 20, 2020

13The second plan is dated July 20, 2020 for chiropractic services by Dr. Sugar. The respondent wrote to the applicant by letter dated August 25, 2020 denying the benefits on the 14th business day after receiving the plan on August 5, 2020, therefore breaching the 10 business day timeline in s. 38(8) of the Schedule. Pursuant to s.38(11), the insurer shall pay for all goods and services described in the plan starting on the 11th business day until it gives proper notice. Therefore, the applicant would be limited to payment of any services incurred after the 11th business day to August 25, 2020, the day the respondent issues a compliant notice.

14The applicant further submits that it was an improper denial with contradictory language stating that the plan describes predominantly minor injuries, but the health practitioner's records may indicate injuries that fall outside the MIG. I find that the August 25, 2020 letter was a valid denial letter albeit four days late. It indicates that the respondent requested specific medical documents under s.33 of the Schedule to determine the applicant's entitlement to medical and rehabilitation benefits beyond the MIG.

15Given that there is no evidence of what, if any, treatment was incurred on the 11th business day until August 25, 2020, I find the applicant has not met his burden to establish entitlement to any portion of this plan. I find there was a proper denial of the OCF-18 dated July 20, 2020.

Sufficiency of the Respondent's Denial of OCF-18 dated September 22, 2020

16The next plan is dated September 22, 2020 for chiropractic services by Dr. Sugar. The respondent wrote to the applicant by letter dated October 8, 2020 one day late, using the same language as in letter dated June 8, 2020. Pursuant to s.38(11), the insurer shall pay for all goods and services described in the plan starting on the 11th business day until it gives proper notice. Therefore, the applicant would be limited to payment of any services incurred on the 11th business day.

17The applicant submits that it was an improper denial based on a medical review of the file. I find that the October 8, 2020 letter was a valid denial letter. It indicates that on the respondent's review of the medical documents on file, the applicant's injuries appear to be minor as defined in the Schedule and it was unable to determine if the recommendations on the plan are reasonable and necessary, and an insurer's examination was scheduled in accordance with s.44 of the Schedule.

18Since the applicant has not provided evidence of incurred treatment on the 11th business day, or October 8, 2020, I find the applicant has not met his burden to establish entitlement to any portion of this plan.

Sufficiency of the Respondent's Denial of OCF-18 dated December 8, 2020

19A further plan is dated December 8, 2020 for chiropractic services by Dr. Sugar. The applicant makes no submissions regarding this plan. The respondent wrote to the applicant by letter dated December 29, 2020 within 10 business days of receiving the plan on December 13, 2020. The respondent indicates that this plan will be added to the scheduled insurer's examination to review.

20The respondent has specifically requested further information about the applicant's pre-existing condition or other condition that the insurer does not have but requires to determine whether the applicant's injuries fall outside the MIG. There is no evidence that the applicant complied with the respondent's earlier requests for specific medical documentation by September 2, 2020 under s. 33 of the Schedule.

21As such, I find the respondent's reference to the MIG and specific requests for medical documentation and specific reference to the applicant's pre-existing condition were valid denials of the OCF-18's dated May 14, 2020, July 20, 2020, September 22, 2020 and December 8, 2020.

Sufficiency of the Respondent's Denial of OCF-18's dated June 14, 2021

22A further plan is dated June 14, 2021 for chiropractic services by Dr. Sugar. The respondent wrote to the applicant by letter dated July 19, 2021 denying the benefits within 10 business days of receiving the plan on July 6, 2021. The applicant submits that it was an improper denial based on medical review of the file. I find that the July 19, 2021 was a proper denial. It refers to the findings of a s.44 IE report of Dr. Seung-Jung Lee, general practitioner, dated February 23, 2021 that the applicant's soft tissue injuries have resolved and advises the plans are not reasonable and necessary. It further indicates that the respondent requested specific medical documents under s. 33 of the Schedule to determine the applicant's entitlement to medical and rehabilitation benefits beyond the MIG.

Sufficiency of the Respondent's Denial of OCF-18 dated August 10, 2021

23The next plan is dated August 10, 2021 for chiropractic services by Dr. Sugar. The respondent wrote to the applicant by letter dated October 25, 2021 denying the benefits on the 47th business day after receiving the plan on August 18, 2021, therefore breaching the 10 business day timeline in s. 38(8) of the Schedule. Pursuant to s.38(11), the insurer shall pay for all goods and services described in the plan starting on the 11th business day until it gives proper notice. Therefore, the applicant would be limited to payment of any services incurred after the 11th business day to October 25, 2021.

24The applicant submits that it was an improper denial based on medical review of the file. I find that the October 25, 2021 was a proper denial, however, it was 37 days late. The respondent requested further medical evidence of a pre-existing condition or psychological impairment. There is no evidence that the applicant complied with the respondent's earlier request for medical information by August 3, 2021 under s. 33 of the Schedule. An insurer's examination ("IE") was requested to determine if the recommended treatment was reasonable and necessary. A notice of examination dated October 25, 2021 indicates that an insurer's examination was scheduled with Dr. Lee to take place on November 22, 2021.

25Since the applicant has not provided evidence of incurred treatment from the 11th business day until October 25, 2021, when proper notice was provided, I find the applicant is not entitled to any portion of this plan.

Sufficiency of the Respondent's Denial of OCF-18 dated October 25, 2021

26The final plan is dated October 25, 2021 for chiropractic services by Dr. Sugar. The respondent wrote to the applicant by letter dated November 12, 2021, denying the benefits within 10 business days of receiving the plan on October 29, 2021.

27The applicant submits that the respondent's denials were generally improper without providing particulars regarding this plan. I find that the November 12, 2021 was a proper denial. The respondent refers to its correspondence dated February 22, 2021 and the findings of the IE report of Dr. Lee based on the assessment of February 1, 2021, and advises the plans are not reasonable and necessary. The IE report of Dr. Lee dated February 16, 2021 found that the applicant's soft tissue injuries had resolved. The respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision.

28Given that the respondent provided proper notice and no submissions as to whether the applicant's injuries fall outside the MIG, I find that the applicant has not met his burden to establish entitlement to this plan.

Interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since the applicant has not discharged her burden to demonstrate removal from the MIG or entitlement to the plans for chiropractic services, there are no benefits owing and interest does not apply.

Award

30The applicant sought an award under s. 10 of Reg. 664 but did not provide any submissions for an award other than the denial notice did not comply with s. 38(8). 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 an award is not appropriate because although some denial letters were late the respondent did provide proper denials based on reasonable, objective assessments of the applicant conducted pursuant to its rights under the Schedule. However, since the applicant has not provided evidence of incurred expenses during any period of non-compliance, there is no prejudice to the applicant and it cannot be argued that the respondent unreasonably withheld or delayed the payment of benefits. Thus, an award under s.10 of Reg. 664 is not warranted.

ORDER

31For the reasons stated above, I find that:

i. The applicant's injuries are predominantly minor and therefore are subject to treatment within the MIG treatment limit.

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The respondent's denials of the OCF-18's dated May 14, 2020, July 20, 2020, September 22, 2020, December 8, 2020, June 14, 2021, August 10, 2021 and October 25, 2021 were proper notice in accordance with s. 38(8) of the Schedule;

iv. Interest is not payable and an award does not apply, and;

v. The application is dismissed.