Licence Appeal Tribunal File Number: 22-008023/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:
Waleed Maguid
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Lisa Holland
APPEARANCES:
For the Applicant: Michelle Velvet, Counsel
For the Respondent: Nisaa Khan, Counsel
HEARD: By Way of Written Submissions
OVERVIEW
1Waleed Maguid, the applicant, was involved in an automobile accident on July 20, 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 the benefits in dispute from the respondent, Unifund Assurance 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:
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? Note: The parties agree the MIG limits have been exhausted.
Is the applicant entitled to $2,883.20 for physiotherapy services, proposed by Good Health Rehab Centre, in a treatment plan/OCF-18 (“plan”) dated March 11, 2021?
Is the applicant entitled to $3,608.87 for chiropractic services, proposed by Mississauga Health & Wellness, in a plan dated May 17, 2021?
Is the applicant entitled to the assessments proposed by Premier Medical Health Centre Inc., as follows:
(i) $2,200.00 for a Psychological Assessment, in a plan dated January 7, 2022; and
(ii) $2,200.00 for a Chronic Pain Assessment, in a plan dated February 7, 2022?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
In his submissions, the applicant withdrew his claim for income replacement benefits listed in issue 2 of the Case Conference Report and Order (“CCRO”).
RESULT
3The applicant has failed to demonstrate that removal from the MIG is warranted. The parties agree that the MIG limits are exhausted. It is not necessary to consider whether the plans for physiotherapy services, chiropractic services, psychological assessment and chronic pain assessment are reasonable and necessary. They are not payable. As no benefits are owing, no interest is payable.
4The respondent’s denials of the treatment plans complied with s.38(8) of the Schedule and are therefore not payable under s.38(11).
5An award is not payable.
6The application is dismissed.
PROCEDURAL ISSUES
7The applicant served and filed a Notice of Motion with their reply submissions, requesting that the Tribunal admit a progress report from the Pain Care Centre (“PCC”) dated June 1, 2023 and allow the respondent a three-page sur- reply regarding the admission of the document.
8The Tribunal issued a Notice of Motion to be Heard at a Scheduled Event to the parties on January 11, 2024.
9The applicant submits in their motion that the late evidence is “new” evidence filed in response to the respondent’s submissions on the hearing of the substantive issues.
10The applicant did not make any submissions regarding the reason for filing late evidence and why I should consider it in light of the fact it was filed on reply and not in keeping with the CCRO deadlines.
11The respondent filed a response to the applicant’s motion. The respondent argues the applicant received the evidence on June 13, 2023 and there is no reason to admit the late evidence. The respondent submits it would be unfair to admit the evidence, given that it will suffer prejudice in its inability to include the evidence for review by a s.44 assessor and to prepare for the hearing.
12The respondent submits that the applicant did not disclose the document with his submissions, despite having possession of the document for over six months before his submissions were due.
13I agree with the respondent and order that the progress report of PCC dated June 1, 2023 be excluded from the hearing. I find that the evidence is not “new” evidence and does not excuse the applicant’s failure to meet production deadlines. I find that the applicant had an opportunity to present his case and the prejudice to the respondent by the admission of the late evidence is greater.
ANALYSIS
Applicability of the MIG
The applicant has failed to demonstrate that he suffers from accident-related injuries that warrant removal from the MIG
14Section 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 in accordance with the MIG. 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.”
15An 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.
16The applicant submits that he should be removed from the MIG based on the following accident-related physical and psychological injuries:
a. his diagnosis of chronic pain;
b. his psychological injuries.
17To this end, the applicant relies on the clinical notes and records of Dr. Payam Sadro, family physician, a report of Dr. Leon Steiner, psychologist, a report of Dr. Tajedin Getahun, orthopaedic surgeon and the decoded OHIP summary.
18In response, the respondent submits that the applicant’s injuries are soft tissue in nature and fall within the definition of minor injury under the Schedule. The respondent relies on the Disability Certificates (“OCF-3s”), s.44 Insurer Examination (“IE”) reports of Dr. Seyed Hosseini, physiatrist and Dr. Douglas Saunders, psychologist, and the clinical notes and records of Dr. Sadro.
19The applicant points to the clinical notes and records of Dr. Sadro which I find do not provide a diagnosis of chronic pain with functional impairment or psychological impairment after the accident. The applicant reported work-related problems with his hands and a subsequent boating injury to his doctor within a year after the accident. The applicant has provided evidence of two subsequent visits to Dr. Sadro in July and October 2021 with accident-related neck and back complaints.
20The applicant submits that in report dated March 1, 2022, Dr. Getahun opined that since the applicant’s strain type injuries have not resolved, he has entered a chronic phase. The applicant reported to Dr. Getahun that although he returned to modified work, he has not returned to socializing, driving, cycling or gym activities.
21The applicant points to a psychological assessment conducted by Dr. Leon Steiner. In report dated January 7, 2022, Dr. Steiner diagnoses major depressive disorder and recommends psychological services and a vehicular reintegration assessment. The applicant does not refer to any notes from his treating physician regarding a psychological impairment as a result of the accident.
22The applicant submits that he should be removed from the MIG on account of his accident-related chronic pain and psychological injuries. The applicant does not point to a diagnosis of accident-related chronic pain with functional impairment or psychological impairment by any of his treating doctors.
23The respondent submits that the applicant has not provided medical documentation in support of a claim for chronic pain or psychological impairments to warrant removal from the MIG, and I agree. The respondent relies on the OCF-3 dated August 18, 2020 completed by Dr. Harpreet Ghuman, chiropractor, which contradicts the applicant’s submissions that he suffered non-minor injuries. Dr. Ghuman lists the applicant’s accident-related injuries as whiplash, cervical disc disorder, radiculopathy, plantar fasciitis, iliotibial band syndrome, lumbago and cervicalgia. A subsequent OCF-3 dated March 11, 2021 completed by Dr. Charanbir Singh, chiropractor lists the applicant’s accident-related injuries as sprain and strain of the neck, back and shoulder and headaches. Dr. Singh indicates the applicant has returned to work, and I accept this evidence because its from a treating clinic.
24The respondent points to the reports of Dr. Hosseini dated April 29, 2021 and September 29, 2022, which found that the applicant sustained uncomplicated soft tissue injuries with a good prognosis for complete functional recovery within the MIG. The respondent submits that Dr. Hosseini found the applicant’s complaints inconsistent with his activities at the gym including treadmill, stair climber, cycling and swimming. The respondent further submits there is no compelling evidence from the applicant’s health practitioners that his injuries fall outside the MIG. The applicant made infrequent visits to his doctor in the 3.5 years following the accident and there are no documented functional restrictions.
25The respondent also points to the IE reports of Dr. Saunders dated April 29, 2021 and November 2, 2022, in finding no diagnosable psychological impairment as a result of the accident. The respondent submits the applicant has not met his burden of proving that his injuries fall outside the MIG in the absence of a diagnosis of a psychological impairment by his treating physicians.
26I find that the applicant has not proven on the balance of probabilities that he suffers from accident-related chronic pain with functional impairment or psychological impairment warranting removal from the MIG. The evidence suggests that the applicant’s functional abilities are inconsistent with chronic pain with functional impairment or a psychological impairment. For example, there is evidence that the applicant returned to work in November 2020, completed a real estate course by February 2021 and returned to his gym activities, cycling and swimming by September 2022. In addition, there are no records from the applicant’s family physician in support of a functional impairment or a psychological condition.
27Overall, I find that the applicant has not met his onus of establishing entitlement to treatment beyond the MIG in the absence of any consistent findings in support of a chronic pain with functional impairment or psychological diagnosis.
28Since the applicant has not demonstrated that his accident-related injuries warrant removal from the MIG, and the MIG limits are exhausted, it is not necessary to consider whether the plans are reasonable and necessary.
Section 38(8)
29The applicant submits that the respondent’s denials are non-compliant with the Schedule for failing to provide valid medical reasons. The applicant submits since the respondent did not properly deny the disputed treatment plans, in accordance with s. 38(8) of the Schedule, there is no valid denial, and the treatment plans are payable.
30Section 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 the other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
31If 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 is an insurer fails to provide proper notice of the reasons for its denial it must pay for all 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).
32The 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.
The respondent’s denial notices are complaint with the Schedule
OCF-18 dated March 11, 2021 for physiotherapy services
33I find that the Explanation of Benefits (“EOB”) dated March 22, 2021 complies with the Schedule. Although, the applicant submits that no medical reason was provided and that the language is vague, I disagree. The respondent has identified the applicant’s medical condition. The EOB specifically references the fact that the respondent has not received compelling medical information to indicate that the applicant suffers from any physical impairments that fall outside the MIG. The respondent has further specified the information it does not have but requires, namely clinical notes and records before scheduling an IE.
34Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, this does not render a notice invalid. In this case, the language was clear and straightforward and was sufficient to permit the applicant to make an informed decision as to whether to accept or refuse the denial. I find this was a clear and unequivocal denial.
OCF-18 dated May 17, 2021 for chiropractic services
35I find that the EOB dated June 14, 2021 complies with the Schedule. It indicates that the respondent has not received compelling medical documents to determine the applicant’s entitlement to medical and rehabilitation benefits beyond the MIG.
36I find that this was a clear and unequivocal denial. The respondent has identified the applicant’s medical conditions. The applicant was provided with information regarding his right to appeal the decision. In my view, the reasons were clear and sufficient to allow an unsophisticated person to make an informed decisions to either accept or dispute the decision at issue.
OCF-18s dated January 7, 2022 for a psychological assessment and February 7, 2022 for a chronic pain assessment
37I find that the EOB’s dated February 7th and 8th, 2022 complied with the Schedule. The respondent identifies the benefits in dispute as a chronic pain assessment and a psychological assessment and the reason for the denial as no compelling medicals on file to support injuries that fall outside the MIG or non-MIG injuries.
38Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, this does not render a notice non-compliant. In this case, the language was clear and straightforward and was sufficient to permit the applicant to make an informed decision as to whether to accept or refuse the denial. I find this was a clear and unequivocal denial.
Interest
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, interest does not apply.
Award
40The 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 an award is not appropriate because the respondent did not unreasonably withhold payment as the denials were based on reasonable, objective assessments of the applicant. Thus, an award under s.10 of Reg. 664 is not warranted.
ORDER
41For the reasons set out above, I find that:
i. The applicant is subject to the MIG.
ii. The applicant is not entitled to the treatment plans in dispute.
iii. The applicant is not entitled to interest.
iv. An award is not payable.
v. The application is dismissed.
Released: October 7, 2024
Lisa Holland
Adjudicator