Rajinder Sekhon v. Co-operators General Insurance Company, 2024 CanLII 99640

Citation: Rajinder v. Co-operators General Insurance Company, 2024 ONLAT 22-009709/AABS

Licence Appeal Tribunal File Number: 22-009709/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:

Rajinder Sekhon

Applicant

and

Co-operators General Insurance Company

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Shahzad Ayub, Counsel

For the Respondent: Julianne Brimfield, Counsel; Ethan Edwards, Counsel

Written Hearing: By way of written submissions

OVERVIEW

1Rajinder Sekhon, the applicant, was involved in an automobile accident on September 3, 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.

PRELIMINARY ISSUE

Length of applicant’s submissions

2The respondent submits that the applicant has failed to abide by the page limits set out in the Case Conference Report and Order (“CCRO”) of May 26, 2023. The CCRO specified that the applicant’s submissions were to be no longer than 12 pages. However, the applicant submitted 14 pages as well as an additional signature page with footnotes. The respondent submits that it would be unfairly prejudiced if it was required to adhere to the 12-page limit while the applicant exceeded it. It requests that I strike the applicant’s submissions beyond the 12-page limit.

3The applicant submits that the page limit was exceeded because of a mistaken presumption, and that to penalize her for this error would be unduly prejudicial. The applicant proposes to remedy any prejudice that the respondent has suffered by limiting her reply submissions to four pages instead of the six permitted by the CCRO.

4Pursuant to ss. 23(1) and 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, it is within my discretion to strike any submissions in excess of the 12-page limit laid out in the CCRO. While I agree with the respondent that the applicant did not comply with the CCRO, I choose not to exclude the applicant’s submissions. The respondent did not point to any issue it was unable to address within the allotted page limits as a result of the applicant’s breach of the CCRO. I do not find that any prejudice to the respondent in this case would outweigh the prejudice to the applicant if I were to exclude pages from her submissions.

ISSUES

5The 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 $3,595.68 for chiropractic services proposed by Natural Touch Rehabilitation Centre in a treatment plan dated November 2, 2021?

iii. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from February 15, 2022 to present and ongoing?

iv. Is the applicant entitled to $2,200.00 for a psychological assessment proposed by Sarvin Sabet Psychological Services in a treatment plan dated February 26, 2022?

v. Is the applicant entitled to $3,761.66 for chiropractic services proposed by Natural Touch Rehabilitation Centre in a treatment plan dated May 5, 2022?

vi. Is the applicant entitled to $4,724.96 for psychological services proposed by Sarvin Sabet Psychological Services in a treatment plan dated May 15, 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

6The applicant sustained a minor injury as defined in s. 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.

7The applicant is not entitled to an income replacement benefit.

8The treatment plans in dispute are not payable.

9No interest or award is payable.

ANALYSIS

Application of the Minor Injury Guideline

10I find that the applicant has not met her burden to establish that she should be removed from the MIG.

11Section 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.”

12An 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.

13The applicant does not make any substantive submissions with respect to why she should be removed from the MIG. She submits that the mandatory consequence of s. 38(11) is that the respondent is no longer entitled to apply the MIG to the applicant. She does not specify whether she believes that the operation of s. 38(11) removes an insured from the MIG entirely, or if it only applies to the specific treatment plans for which s. 38(8) has been breached. Despite the lack of substantive submissions and lack of clarity in this regard, this issue was still noted to be in dispute in the applicant’s submissions.

14The Divisional Court was clear in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707, that even if the consequence of s. 38(11) is triggered, that only applies to the specific treatment plan in question. It does not impose a permanent prohibition on the insurer with respect to whether the impairment is covered by the MIG. The applicant cannot be removed from the MIG simply by operation of this section.

15Although the applicant made a passing reference to a psychological diagnosis and pre-existing condition in her submissions, at no point does she explain why she should be removed from the MIG for either of those reasons. Due to a lack of submissions on this issue, I find that the applicant has not met her burden of proving on a balance of probabilities that she should be removed from the MIG.

Income Replacement Benefits

16I find that the applicant is not entitled to income replacement benefits.

17The applicant seeks income replacement benefits in the amount of $400.00 per week from February 15, 2022, to present and ongoing. The applicant does not make a substantive argument for her entitlement to this benefit, nor does she provide evidence of the quantum of the benefit. Instead, the applicant submits that her argument is focused exclusively on s. 36(4) and (6), and s. 44(1) and (5) of the Schedule.

18Section 36(4) states that within 10 business days after the insurer receives the application and completed disability certificate, it shall either (a) pay the specified benefit, (b) give the applicant a notice explaining the medical and any other reasons why it does not believe the applicant is entitled to the specified benefit, and if it requires an examination under s. 44, advise the applicant of the requirement for an examination, or (c) send a request under s. 33. Section 36(6) states that if the insurer fails to comply with the above, it shall pay the specified benefit starting on the day it received the application and completed disability certificate, and ending on the day the insurer gives notice under s. 36(4)(b).

19If an insurer requires an examination, s. 44(5) obligates it to provide an insured person with the medical and any other reasons for the examination. It is well-settled that these reasons should be clear and sufficient enough to allow an unsophisticated person to make an informed decision on whether to attend an assessment.

20On November 26, 2021, the respondent requested that the applicant attend a s. 44 assessment to assess her entitlement to an income replacement benefit. The reasons provided for the assessment were that an OCF-3 of November 4, 2021, indicated an anticipated disability duration of 9-12 weeks from the onset of disability, and 12 weeks had passed since the accident. The respondent stated that it required a s. 44 examination to further explore and understand the applicant’s impairments as they related to her eligibility to receive the benefit at that stage in her recovery. The examination was also required to further understand how her functional complaints affect her ability to perform her pre-accident employment and to further understand her medical diagnosis/prognosis for recovery and resumption of function. A subsequent letter on December 9, 2021, set out the details of the assessment.

21The applicant attended the assessment with Dr. Raymond Zabieliauskas, physiatrist, on January 27, 2022. On February 14, 2022, the respondent denied the benefit based on Dr. Zabieliauskas’ finding that she did not suffer a substantial inability to perform the essential tasks of her employment. It agreed to pay the benefit up until that date, pending a calculation of her entitlement by an accountant.

22The applicant submits that in requesting the assessment, the respondent failed to demonstrate why it was reasonably necessary. She submits that the rationale for the assessment “materially misrepresents the anticipated duration of disability” set out in the OCF-3, as the anticipated duration of disability could not have meant 12 weeks after the accident; she posits instead that the duration indicated in the OCF-3 begins the date the OCF-3 is completed. The applicant argues that the assessment was procured in a manner that is inconsistent with s. 44(5), the results of the assessment are therefore void ab initio, and the respondent is not entitled to rely on them in its ultimate denial letter. As a result, she submits that s. 36(4) has not been complied with, and the remedy in s. 36(6) is triggered, causing the income replacement benefit to be payable in full.

23I find that even if the respondent was incorrect in its interpretation of the disability duration indicated in the OCF-3, that does not necessarily mean that the assessment was improperly procured. The applicant has not directed me to any authority that states that the reasons provided must also be accurate. Further, even if that reason was inaccurate such that it was not sufficient, that would not eliminate the other reason for the request (to understand how her functional complaints affected her ability to complete her employment tasks).

24The respondent submits that the letters clearly set out the medical and other reasons for the assessment. I agree. I find that the reasons were sufficient enough that the applicant could have made an informed decision about whether to attend the assessment. The respondent advised that it did not have information regarding the applicant’s functional abilities and ability to complete her employment tasks. I find that this reason was quite clear. I therefore do not accept the applicant’s argument that the notice for the assessment was insufficient.

25The applicant also submits that the denial letter failed to meet the requirements of s. 36(4). She notes that a second OCF-3, dated February 28, 2022, indicated that she was unable to perform the essential tasks of her employment, and that the duration of disability was more than 12 weeks. The applicant submits that on March 7, 2022, the respondent explained that it was maintaining its position that she was not entitled to the benefit based on the findings of Dr. Zabieliauskas’ report. The applicant submits that the up-to-date OCF-3 either (a) necessarily supersedes the findings of Dr. Zabieliauskas, or (b) an evaluation of both sets of findings must be undertaken, and a determination made as to which better reflects the current medical condition of the applicant. She argues that the respondent cannot simply state the position in the OCF-3, state the position of Dr. Zabieliauskas, and then agree with the position taken by Dr. Zabieliauskas. She argues that by doing so, the respondent has not complied with s. 36(4), thereby triggering s. 36(6), and causing the respondent to pay the benefit in full.

26The only letter from March 7, 2022, before me does not refer to the income replacement benefit; it deals entirely with the applicant’s entitlement to a psychological assessment. In any event, the income replacement benefit had already been denied on February 14, 2022. Accordingly, whether the respondent ignored the OCF-3 after the denial has no bearing on its compliance with s. 36(4).

27To receive payment for an income replacement benefit under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

28The applicant does not make any submissions as to how she meets this test. There are very few medical records before me, and scant information about the applicant’s employment tasks. An OCF-3 without further evidence regarding the applicant’s ability to complete the tasks of her employment is not sufficient to prove entitlement to the benefit, especially in the face of an opinion from Dr. Zabieliauskas that the applicant does not meet the test. I accordingly find that the applicant has not met her burden of proving that she is entitled to an income replacement benefit.

29Finally, I agree with the respondent that the applicant has failed to establish the quantum of the income replacement benefit. The only documentation before me is a 2022 income tax return. The applicant submits that she received no employment income during 2022, however the return indicates that she earned gross commission income of $32,716. No further details have been provided regarding this commission, or what led to a negative net commission income. No pre-accident financial documents have been provided, and none have been provided for 2023. I find that the applicant has failed to establish the quantum of her income replacement benefits, and therefore even if she was entitled to it, the amount would be nil.

30The applicant’s submissions with respect to these treatment plans focus exclusively on s. 38(8) and s. 38(11)2. She states that, for clarity, her submissions do not address whether the treatment plans are reasonable and necessary. I will accordingly not engage in an analysis with respect to s. 15 or 16.

31Under s. 38(8), an insurer has the obligation to provide the insured person with a notice identifying the medical and all of the other reasons why the insurer finds a treatment plan not to be reasonable and necessary. There should be clear and sufficient information for an unsophisticated person to make an informed decision to either accept or dispute the denial. If those reasons are not provided, the consequence under s. 38(11) is that the insurer must pay for the goods and services described in the treatment plan.

$3,595.68 for chiropractic services proposed by Natural Touch Rehabilitation Centre in a treatment plan dated November 2, 2021

32I find that this treatment plan is not payable.

33The applicant submits that the treatment plans in dispute were certified by duly qualified health practitioners (a) to contain accurate information, (b) that the proposals contained therein were “reasonable and necessary” to treat the applicant’s impairments, and (c) that said impairments were not “predominantly a minor injury”. She argues that the inclusion of a certification in the forms administering the Schedule was intended by the legislature to create a rebuttable presumption that the findings set out therein were true and accurate. She submits that any denial notice provided by an insurer must rebut the certifications.

34This treatment plan, submitted by Dr. Samar Arbnezhad, chiropractor, included a document entitled “Minor Injury Guideline Exemption Assessment & Report”. The applicant argues that, for the denial of this treatment plan to have been consistent with s. 38(8), the rationale provided by the respondent was required to have expressly addressed and rebutted the certifications and the argument provided in Dr. Arbnezhad’s report.

35I do not agree. Firstly, Dr. Arbnezhad incorrectly stated in this report that the applicant sustained a rotator cuff tear. The ultrasound report of the applicant’s left shoulder from November 4, 2021, specifically states that there was no rotator cuff tear. Clearly, the mere certification of a treatment plan does not necessarily presume that the recommendations are inherently reasonable and necessary, or are necessarily based on a solid or accurate foundation. All it does is confirm that the information submitted is true to the best of the practitioner’s knowledge. I accordingly do not accept that there are rebuttable presumptions an insurer must overcome in order to meet denial notice requirements. Secondly, the applicant has not pointed to any authority or wording in the Schedule that specifies that in denying a treatment plan, all aspects of it, including any attached reports, need to be expressly addressed. In my view, that would go above and beyond the requirement of providing clear and sufficient information for an unsophisticated person to make an informed decision to either accept or dispute a denial.

36The applicant submits that the respondent provided a “limited, non-specific explanation” for its denial of this treatment plan. I disagree. The denial letter, dated November 18, 2021, stated that the respondent had not been provided with compelling evidence of any pre-existing medical condition that would prevent the applicant from achieving maximum medical recovery, as it had not received any clinical notes and records to date. It then made a request for various records.

37The respondent submits that a denial that identifies the absence of supporting medical records constitutes sufficient notice, provided it is clear and detailed enough for the applicant to understand. I agree. I find that in the case of this treatment plan, the reason for the denial was clear and understandable such that an unsophisticated person would be able to make an informed decision to accept or dispute the denial. As such, the denial letter was compliant with s. 38(8) and, and the consequence of s. 38(11)2 is not triggered.

$2,200.00 for a psychological assessment proposed by Sarvin Sabet Psychological Services in a treatment plan dated February 26, 2022

38I find that this treatment plan is not payable.

39The applicant submits that the deficiencies in the denial letter for this treatment plan are the same as those afflicting the treatment plan above.

40The denial letter, dated March 7, 2022, stated that the respondent had insufficient medical information on file supporting either a psychological impairment or the need for a psychological assessment. It also noted that the OCF-3 completed on February 28, 2022, did not indicate any psychological impairment or concerns. The respondent again requested the medical records it had not yet received.

41I agree with the respondent that the letter was comprehensive and provided clear, detailed, and sufficient reasons for the denial. I find that the letter satisfied the requirements in s. 38(8).

$3,761.66 for chiropractic services proposed by Natural Touch Rehabilitation Centre in a treatment plan dated May 5, 2022

42I find that this treatment plan is not payable.

43The denial letter, dated May 19, 2022, states that the treatment plan was denied because the insurer believed the MIG applied to the applicant’s impairments, and it also relied on Dr. Zabieliauskas’ report. It quoted directly from the report, and indicated his opinion that no further treatment was required.

44The applicant submits that the letter was deficient because Dr. Zabieliauskas’ report was issued over 1-year prior to the submission of the treatment plan, with no regard given to the applicant’s medical condition since then. Further, she argues that there was no evidence that the respondent carried out a substantive analysis of the plan before denying it. She also submits that the respondent did not take into account that the treatment plan expressly certified that the applicant’s condition had worsened.

45I do not accept the applicant’s argument. As indicated above, the respondent is only required to provide clear and sufficient reasons. The respondent does not have to be correct for a denial to be sufficient. Further, the applicant has not directed me to any authority to suggest that an insurer needs to conduct a substantive analysis of the treatment plan, or make assumptions about the passage of time and an insured’s medical condition. I find that the reasons provided by the respondent were clear and sufficient such that the applicant could make an informed decision to accept or dispute the denial, and the letter was accordingly compliant with s. 38(8).

$4,724.96 for psychological services proposed by Sarvin Sabet Psychological Services in a treatment plan dated May 15, 2022

46I find that this treatment plan is not payable.

47The applicant attended an assessment with Sarvin Sabet Ghadam, psychological associate, on April 19, 2022. She relies on Ms. Ghadam’s report, and argues that this was “the strongest possible form of medical opinion known to man”, and that denying the treatment plan in the face of this report is patently unreasonable. She submits that the respondent failed to acknowledge, address, or refute the diagnoses made by Ms. Ghadam in its denial letter of May 27, 2022. She argues that this omission, in and of itself, renders the denial inconsistent with the requirements of s. 38(8).

48As I have stated above, a denial does not have to be correct in order to meet the requirements of s. 38(8). There is no obligation on the respondent to acknowledge each and every medical record in its possession in its denial letters. The applicant has not directed me to any authority to support that proposition. I find that such an obligation is not contemplated by the Schedule.

49The denial letter states that, following the review of medical documentation on file, it did not appear that there were recommendations supporting the need for ongoing treatment associated with accident-related impairments. The letter specifically referred to the records of the applicant’s family physician. I find that the respondent’s denial letter provided clear and sufficient information such that an unsophisticated person could make an informed decision to either accept or dispute the denial.

Interest

50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, interest is not applicable.

Award

51The 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. As no benefits are payable, the applicant is not entitled to an award.

ORDER

52The applicant sustained a minor injury as defined in s. 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.

53The applicant is not entitled to an income replacement benefit.

54The treatment plans in dispute are not payable.

55No interest or award is payable.