Licence Appeal Tribunal File Number: 22-008834/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:
Junnsin Banyamen
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Ulana Pahuta
APPEARANCES:
For the Applicant:
Rajiv Kapoor, Paralegal
For the Respondent:
Peter A.B. Durant, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Junnsin Banyamen, the applicant, was involved in an automobile accident on March 12, 2021, 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, Co-operators General 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 limit (“MIG”)?
ii. Is the applicant entitled to $233.00 ($1,333.00 less $1,100.00 approved) for chiropractic services, proposed by Dun-Dix Healthcare in a treatment plan (“OCF-18”) dated August 3, 2021?
iii. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Premier Medical Health Clinic Inc. in an OCF-18 dated October 28, 2021?
iv. Is the applicant entitled to $2,200.00 for a Chronic Pain Assessment, proposed by Premier Medical Health Centre Inc. in an OCF-18 dated November 4, 2021?
v. Is the applicant entitled to $3,641.09 for psychological services, proposed by Premier Medical Health Centre Inc. in an OCF-18 dated April 7, 2022?
vi. Is the applicant entitled to $3,852.67 for chiropractic services, proposed by Premier Medical Health Centre Inc.in an OCF-18 dated July 8, 2022?
vii. Is the respondent liable to pay an award under s. 10 of Regulation 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
3I find that:
i. The applicant has not established that his accident-related impairments warrant removal from the MIG;
ii. The applicant is entitled to the outstanding balance of $233.00 for chiropractic services, proposed in the OCF-18 dated August 3, 2021, plus interest;
iii. The applicant is not entitled to the remaining treatment plans in dispute;
iv. The respondent is not liable to pay an award.
PROCEDURAL ISSUES
4In its responding submissions, the respondent requests that the clinical notes and records (“CNRs”) of the applicant’s family physician Dr. Alhur be excluded as evidence for this written hearing. It argues that it received these records for the first time with the applicant’s written hearing submissions. The respondent submits that these CNRs were served well outside the production deadlines stipulated in the Case Conference Report and Order dated May 3, 2023 and that it has suffered prejudice due to this late disclosure.
5The applicant submits that he had made best efforts to obtain the CNRs and that his first request was made ten days before the case conference. The applicant submits evidence of multiple, both telephone and email, reminders of the request. He argues that the delay was due to significant backlog outside of his control and that the CNRs were provided upon receipt. The applicant further submits that the respondent has not established that it has suffered prejudice as a result of the delay.
6I agree with the applicant and deny the respondent’s request to exclude Dr. Alhur’s CNRs. The applicant has provided evidence of his efforts to obtain the requested CNRs within the specified timeframe. Moreover, in its submissions the respondent was able to respond to the late-filed productions and it expressly notes that Dr. Alhur’s CNRs are silent with respect to the accident and do not support the applicant’s position. I further note that Dr. Alhur’s CNRs are only five pages in length and contain only three CNR entry dates. When considering prejudice to the parties I find that excluding Dr. Alhur’s CNRs would unduly prejudice the applicant, given that the respondent was able to review and respond to the medical records.
ANALYSIS
Minor Injury Guideline
7Section 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.”
8An 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.
9The applicant submits that he should be removed from the MIG on the basis of psychological impairment and chronic pain.
The applicant has not established a psychological impairment warranting removal from the MIG
10The applicant relies on the s. 25 psychological assessment report of Dr. Leon Steiner to argue that he developed an adjustment disorder with depressed mood, and somatic symptom disorder with predominant pain as a result of the accident. He further submits that Dr. Steiner’s report must be preferred over the s. 44 psychological assessment of the respondent, as the respondent’ assessor, Dr. Gerry Dancyger, did not conduct testing for depression or anxiety and because he applied the DSM-IV edition of the American Psychiatric Association’s guide, rather than the DSM-V edition.
11The respondent disputes that the applicant has developed an accident-related psychological impairment, relying on the s. 44 assessment of Dr. Dancyger. In his report Dr. Dancyger opined that his clinical interview and psychological testing did not reveal evidence of a significant and diagnosable accident-related psychological impairment. The respondent argues that the report of Dr. Dancyger should be preferred to that of the applicant’s assessor, as Dr. Dancyger conducted validity testing, met with the applicant in-person, and Dr. Dancyger’s findings of no psychological impairment are consistent with the medical record.
12I find that the applicant has not met his onus to prove that he has sustained a psychological impairment as a result of the accident.
13The applicant does not direct me to any evidence that he reported psychological symptoms to his family physicians in the years post-accident. Nor did his treating physicians diagnose him with a psychological impairment, refer him for psychological treatment or prescribe psychotropic medication. The applicant argues that he did not report ongoing psychological symptoms and pain to his family physicians because he “came from a background wherein asking for help or delving into mental health concerns is not common practice”. However, the applicant has not provided any evidence in support of this general submission. Moreover, the applicant did attend his family physician’s office for medical issues unrelated to the accident.
14I further find that the decision cited by the applicant on this point, Roldan v The Personal Insurance Company, 2022 CanLII 106445, is distinguishable from the present matter. The applicant argues that in Roland, the Tribunal accepted that the claimant’s abstinence from seeking treatment was not because it was unnecessary, but because he was “reluctant”. The applicant submits that similarly, the fact that he did not seek treatment from his family physician should not be taken to mean that he did not sustain accident-related impairments. I do not agree with the applicant’s interpretation of Roland. In that decision the Tribunal expressly noted that the CNRs of the claimant’s family doctors revealed that “she was experiencing noteworthy psychological symptoms after the accident”. One of the family doctors diagnosed her with anxiety nervosa, prescribed medication for her psychological symptoms and recommended psychological counselling. This is substantially different from the present matter, where the family doctor CNRs do not reveal any psychological complaints, diagnoses or recommended treatment.
15With respect to the respondent’s s. 44 psychological report, while I agree with the applicant that Dr. Dancyger did not conduct the same diagnostic testing as the applicant’s assessor, I do not agree that this renders his report “inherently flawed”. The applicant submits that Dr. Dancyger only conducted validity testing and as such, cannot make the determination as to whether the applicant suffered a psychological impairment. However, Dr. Dancyger expressly stated that his determination was not just based on psychological testing, but also on the mental status examination and clinical interview. The applicant reported few complaints of anxiety or unhappiness, denied having any emotional issues and did not appear to be anxious or depressed. Dr. Dancyger also stated that one of the tests he conducted, the Personality Assessment Inventory, did not just consider validity measures, but also rendered diagnostic considerations of Axis I and Axis II disorders.
16More persuasively, I find that Dr. Dancyger’s findings are consistent with the objective medical record. The applicant does not direct me to any evidence that he reported psychological symptoms to his treating physicians or sought treatment for same. As such, the decision cited by the applicant, Lechumanan v The Co-operators General Insurance Company, 2022 CanLII 14947 (ON LAT), is distinguishable. The applicant relies on Lechumanan to argue that Dr. Dancyger’s report should be disregarded due to limited psychological testing. However, in Lechumanan while the Tribunal did assign less weight to Dr. Dancyger’s report, the Vice-Chair expressly stated that the s. 25 assessor’s finding of psychological impairments was consistent with the applicant’s multiple reports to his family physician of psychological symptoms. In the present case, no such corroborating evidence from the applicant’s family physician was tendered.
17As such, I find that the applicant has failed to lead sufficient evidence to establish a psychological impairment as a result of the accident.
The applicant has not established chronic pain warranting removal from the MIG
18The applicant relies on a s. 25 chronic pain assessment report of Dr. Tajedin Getahun, to argue that he developed chronic cervical and lumbosacral spine pain as a result of the accident. While Dr. Getahun did not diagnose the applicant with chronic pain, the applicant submits that his injuries have developed beyond soft tissue injuries into ongoing, severe pain. The applicant argues that this is similar to the facts of 17-000081 v RBC General Insurance Company, 2017 CanLII 59504 (ON LAT) (“V.C.”), where the applicant’s ongoing injuries and complaints were sufficient evidence of chronic pain despite the lack of a firm chronic pain diagnosis.
19I find that the applicant has not met his onus to prove that he suffers from chronic pain as a result of the accident.
20The CNRs of the applicant’s family physician do not demonstrate any accident-related pain complaints after the first month post-accident. No evidence has been led by the applicant of being prescribed pain medication, being referred for testing or to pain specialists or that a treating physician had diagnosed him with chronic or ongoing pain. Although the applicant relies on the s. 25 chronic pain assessment report of Dr. Getahun to establish his claim, Dr. Getahun did not diagnose the applicant with chronic pain syndrome or chronic pain. I agree with the respondent that Dr. Getahun’s diagnosis of myofascial strain of the cervical and lumbosacral spine falls within the definition of a “minor injury”.
21Moreover, the applicant has not established that he meets three out of the six criteria of the AMA Guides for a diagnosis of chronic pain. The applicant has not led evidence of an overdependence on prescription pain medication, but rather, confirmed to Dr. Getahun that he did not use any medication for his symptoms. The CNRs of the applicant’s family physician do not demonstrate reports of psychosocial sequelae after the accident. Nor has the applicant led evidence of secondary deconditioning due to fear-avoidance of pain.
22In terms of functional impairment, the applicant reported to Dr. Getahun that he returned to work as an Uber drive two weeks after his injuries, and presently works the same amount of hours. Although the applicant points to his reports to Dr. Getahun of functional impairment such as sleep disturbance, reliance on his wife and mother for assistance with household tasks and being unable to return to playing soccer, these self-reports are not corroborated by the medical record. The CNRs of the applicant’s family physicians do not reveal any reports of functional restrictions as a result of the accident. Further, the respondent’s s. 44 physiatry assessor Dr. Zabieliauskas found that the applicant had full range of motion of all upper and lower extremity joints, neck and back.
23As such, I find that the applicant has not established that he suffers from functionally disabling chronic pain as a result of the accident.
24The respondent has led evidence that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant has failed to prove that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
25However, as an alternative argument the applicant argues that all of the treatment plans in dispute are payable, as the respondent did not comply with its statutory notice requirements under s. 38(8) of the Schedule.
Outstanding balance of the OCF-18 dated August 3, 2021 for chiropractic services
26I find that the outstanding balance of $233.00 of the partially approved OCF-18 dated August 3, 2021 is payable pursuant to s. 38(11) of the Schedule.
27I find that the respondent’s Explanation of Benefits (“EOB”) dated August 16, 2021 was not compliant with s. 38(8) of the Schedule. I agree with the applicant that the stated reason for the partial denial used boilerplate, non-specific language. It simply stated that the respondent had determined that the applicant’s impairments met the definition of a minor injury. The reasons provided in the notice do not contain any specific details about the applicant’s medical condition, or identify what information the respondent required from the applicant. In my view, the EOB lacked clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denial.
28Since a subsequent compliant notice was not provided by the respondent, the respondent is now unable to cure this s. 38(8) non-compliance. As such, the outstanding balance of the OCF-18 is payable pursuant to s. 38(11) of the Schedule.
OCF-18 dated July 8, 2022 for chiropractic services in the amount of $3,852.67
29I find that the OCF-18 dated July 8, 2022 is not payable pursuant to s. 38(11) of the Schedule.
30The respondent provided two EOBs in response to this treatment plan. While I agree with the applicant that the first EOB dated July 21, 2022 was non-compliant with s. 38(8) of the Schedule, the respondent’s second EOB dated August 9, 2022 was compliant.
31The initial notice dated July 21, 2022 denied the OCF-18 “pending receipt and review” of the respondent’s s. 44 reports. No medical reason was provided by the respondent. However, the respondent subsequently denied the treatment plan by way of a denial letter dated August 9, 2022. This correspondence included the respondent’s s. 44 physiatry assessment report and summarized Dr. Zabieliauskas’ findings. I agree with the respondent that the notice contained detailed medical reasons for the denial of the treatment plan. Therefore, the August 9, 2022 EOB cured the respondent’s previous non-compliant EOB.
32As such, as per the Divisional Court decision in Aviva General Insurance v. Catic, 2022 ONSC 6000 (“Catic”), the respondent would only be liable to pay for the OCF-18 if the services were incurred during the period of non-compliance, from the date of the initial EOB to August 9, 2022. The applicant has not led any evidence that the proposed chiropractic services were incurred this period. As such the applicant has not established that the OCF-18 dated July 8, 2022 is payable pursuant to s. 38(11) of the Schedule.
OCF-18 dated October 28, 2021 for a psychological assessment and OCF-18 dated November 4, 2021 for a chronic pain assessment
33I find that these OCF-18s are not payable pursuant to s. 38(11) of the Schedule.
34Both of these treatment plans were denied by way of a letter dated November 10, 2021. The correspondence stated that the respondent did not have compelling evidence to support a non-minor injury and identified the documents it had reviewed in coming to its determination. It further detailed the documentation it did not have but required, including CNRs of the applicant’s family physician and decoded OHIP summaries. This was a clear and unequivocal denial. The correspondence contains straightforward and clear language, sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.
35As such, I find that the respondent’s notice was compliant with s. 38(8) of the Schedule.
OCF-18 dated April 7, 2022 for psychological services
36I find that the OCF-18 dated April 7, 2022 is not payable pursuant to s. 38(11) of the Schedule.
37The respondent denied the treatment plan for psychological services by way of an EOB dated May 11, 2022. This correspondence stated that the respondent did not have documentation supporting that the applicant had sustained a psychological impairment or had been referred for psychological counselling as a result of his accident-related impairments. The EOB further stated that the respondent required additional documentation, such as the CNRs of the applicant’s family physician from November 4, 2021 to present and any specialists’ reports.
38I find that this correspondence was compliant with s. 38(8) of the Schedule. It provided a medical reason for the denial, and identified the information that the respondent did not have, but required. As such, the applicant has not established that the OCF-18 is payable pursuant to s. 38(11) of the Schedule.
Interest
39Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the outstanding balance of $233.00 of the OCF-18 dated August 3, 2021.
Award
40The applicant sought an award under s. 10 of Regulation 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.
41Although I have found that the applicant is entitled to payment of one OCF-18 due to procedural non-compliance with s. 38 of the Schedule, I am not persuaded that these actions were excessive, impudent, stubborn, unyielding or immoderate. I do not find that this procedural non-compliance meets the high threshold for an award. Further, although the applicant submits that he was improperly held within the MIG, I similarly found that the applicant failed to establish that his accident-related impairments warranted removal from the MIG.
42As such, the applicant has not established that the respondent is liable to pay an award.
ORDER
43For the foregoing reasons I find that:
i. The applicant remains within the MIG;
ii. The applicant is entitled to the outstanding balance of $233.00 for chiropractic services, proposed in the OCF-18 dated August 3, 2021, plus interest;
iii. The applicant is not entitled to the remaining OCF-18s in dispute; and
iv. The respondent is not liable to pay an award.
Released: October 4, 2024
Ulana Pahuta
Adjudicator