Licence Appeal Tribunal File Number: 24-011637/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:
Ying Zhao
Applicant
and
Security National Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Rakesh Sharma, Counsel
For the Respondent:
Marco Fantin, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Ying Zhao, the applicant, was involved in an automobile accident on September 7, 2023, 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.
2The applicant was involved in a previous motor vehicle accident on July 7, 2022. The applicant filed a LAT application before the Tribunal in respect of this accident and a decision was released (see: Tribunal file number 23-014809/AABS).
ISSUES
3The 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 $2,200.00 for a psychological assessment proposed by Somatic Assessments and Treatment Clinic in a treatment plan dated January 18, 2024?
iii. Is the applicant entitled to $5,126.46 for chiropractic services, proposed by Total Recovery Rehab Centre in a treatment plan dated April 23, 2024?
iv. Is the applicant entitled to $45.00 for ambulance call services, submitted on a claim form (“OCF-6”) dated July 12, 2024?
v. Is the applicant entitled to a non-earner benefit of $185.00 per week from October 5, 2023 to September 5, 2025?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4I find that the applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore are subject to treatment within the $3,500.00 MIG.
5I find that the applicant is not entitled to the treatment plans for a psychological assessment or chiropractic treatment or the OCF-6 for ambulance call services.
6I find that the applicant is not entitled to a non-earner benefit of $185.00 per week from October 5, 2023 to September 5, 2025.
7I find that the applicant is not entitled to an award or interest.
PROCEDURAL ISSUE
Section 54 of the Schedule
8The applicant in her reply submissions refers to s. 54 of the Schedule. She submits that she does not have the onus to disprove the case made out by the respondent that is not based on the denial reasons served upon the applicant under s. 54 of the Schedule.
9Section 54 of the Schedule provides that if an insurer refuses to pay a benefit or reduces the amount of a benefit that a person is receiving, the insurer shall provide the person with a written notice advising the person of his or her right to dispute the refusal or reduction.
10I find that the applicant is attempting to assert that the respondent is not allowed to make new submissions in this hearing that were not specifically noted in the respondent’s denial letters of the benefits in dispute. The applicant has provided no authority to support this interpretation, nor do I find that it is remotely accurate based on a plain reading of this section. There is no indication in s. 54 of the Schedule that the respondent in a hearing before the Tribunal can only make submissions based on its denial letters or that it is not permitted to make new submissions. Rather, s. 54 simply requires an insurer provide a clear and unequivocal denial letter and advise the insured of their right to dispute the refusal. It says nothing about the respondent’s right to make submissions at a hearing or that its submissions are confined to those contained in a denial letter.
11I find that the respondent has complied with s. 54 of the Schedule and provided the applicant with clear and unequivocal denials. It further advised the applicant of her right to dispute the refusal within these denials, as required by s. 54. I further find that the respondent is entitled to present its case as it sees fit, including submissions on its position and responses to the applicant’s submissions and evidence.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
12The applicant sustained predominantly minor injuries as defined under the Schedule.
13I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.
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. Section 3(1) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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 states that she “will not be making any submissions solely on the applicability of the MIG but will dispute applicability of the MIG with respect to the denied substantive issues”. She submits that the statutory requirement upon her is to make a claim for medical and rehabilitation treatments/assessments, other than those payable under the MIG, that is compliant with s. 38(3) of the Schedule, which sets out the requirements of a treatment and assessment. The applicant therefore submits that as the submitted treatment plans comply with s. 38(3), her onus is only to disprove on a balance of probabilities the denial reasons served upon the applicant in the notice under s. 54 of the Schedule, in order to prove entitlement to the denied treatment plans and removal from the MIG. The applicant argues that in order for the denial notices under s. 54 of the Schedule to be valid, the respondent must comply with the provisions of s. 38(8) of the Schedule and provide medical and all other reasons as to why the goods and services are not reasonable and necessary. The applicant then sets out the reasons why she believes that the denial notices do not comply with s. 38(8) of the Schedule. The applicant further submits that there is no statutory requirement under s. 38 of the Schedule to attach any other medical records to the submitted treatment plan in support of the proposed treatment being necessary for rehabilitation of the applicant.
17The respondent submits that the applicant has not met her onus of proving that her injuries fall outside of the MIG, as she has failed to cite any medical evidence or advance any submissions to substantiate her claim. The respondent submits that the applicant has failed to address or present any evidence of pre-existing conditions or any submissions that the accident aggravated such conditions to support her removal from the MIG. The respondent argues that the applicant’s physical injuries from the accident are soft tissue in nature and fall within the definition of a minor injury. It relies on the Insurer’s Examination (“IE”) report of Dr. Seung-Jun Lee, general practitioner, dated December 27, 2023, that found the applicant sustained uncomplicated musculoskeletal injuries predominantly to the axial spine and her shoulders without objective evidence of serious musculoskeletal trauma. It submits that based on the IE Psychological Paper Review report of Dr. Fabio Salerno, dated February 15, 2024, the applicant does not meet the DSM-5 TR diagnosis as a result of the accident. The respondent therefore submits that the applicant has not proven that she suffers a chronic pain condition or a psychological condition as a result of the accident.
18The respondent further submits that its denials of the treatment plans in dispute were clear and unambiguous and met all the requirements of s. 38(8) of the Schedule. It argues that its denial letters were reasonable, supported by medical evidence and consistent with the Schedule and the Tribunal’s jurisprudence.
19Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 days of receiving it by identifying the goods and services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide the medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
20If 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 an 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 related to the period starting on the 11th business day after the day the insurer received the applicant and ending on the day the insurer gives notice as described in s. 38(8)
21I find that the applicant has not met her onus of proving that her accident-related injuries warrant removal from the MIG. I find that the applicant’s position that her only requirement is to prove that the respondent’s denial notices are not compliant with s. 38(8) of the Schedule is incorrect. This is not the test. It is well settled that the applicant is required to submit evidence and make submissions to support that her injuries warrant removal from the MIG (See: Scarlett v. Belair Insurance, 2015 ONSC 3635 (Div. Ct.)). An analysis of s. 38(8) of the Schedule is only conducted with respect to whether the treatment plan in dispute was properly denied. Pursuant to s. 38(11)(1), if proper notice is not provided, the insurer cannot take the position that the applicant has an impairment to which the MIG applies to deny the treatment plan. An improper denial of a treatment plan does not mean that an applicant is then automatically removed from the MIG for the duration of their claim.
22I find that the applicant has not made any submissions regarding her removal from the MIG based on chronic pain or a psychological condition. Rather, she has simply attached the two treatment plans in dispute and set out the reasons why she believes that the respondent’s denial notices were not compliant with s. 38(8) of the Schedule. The Tribunal has consistently found that a treatment plan itself is not sufficient medical evidence to prove entitlement, as contemporaneous corroborating medical evidence or submissions are required to support entitlement to medical benefits and removal from the MIG. I find that other than the two treatment plans submitted by the applicant, no further medical evidence has been submitted or relied upon by the applicant.
23Upon review of the treatment plan recommending a psychological assessment, dated November 16, 2023, it lists the applicant’s injuries as specific (isolated) phobias, headache, nightmares, nonorganic sleep disorders, irritability and anger. In the psychological pre-screen noted in the treatment plan, the comments are based solely on the self-reporting of the applicant without any contemporaneous evidence to support her complaints. I find that no medical evidence was reviewed, no psychometric objective testing was performed and there is no diagnosis provided. I further find that there is a discrepancy in the pre-screen report because it mentions the applicant was involved in a previous accident and that she reported no history of mental health concerns. In the applicant’s submissions she states that she was seeing a psychologist prior to the accident and continued to see the same psychologist after the accident. This is inconsistent with the pre-screen report which states that she has no history of mental health concerns. I find that this pre-screening report is insufficient evidence to support that the applicant suffers a psychological condition that warrants removal from the MIG.
24With respect to the applicant’s physical complaints, the only medical evidence provided in support, is the treatment plan recommending chiropractic therapy, dated April 22, 2024. The treatment plan lists multiple injuries suffered by the applicant. Under Part 8 - Activity Limitations, it states:
Chronic and persistent mva injuries. Pain and decreased range of motion in the cervical, thoracic, lumbar spine and shoulder region. Persistent neurological symptoms in bilateral upper extremity with weakness and loss of strength. Headaches (3-4x/week), difficulty with standing, walking, and lifting. Unable to participate in full social activities. ADL’s and housekeeping. Anxiety and attention deficit. Rx: Tylenol 500 mg.
I find that other than this treatment plan, there is no further documentation provided to support or corroborate the applicant’s complaints. The CNRs of the clinic have not been provided to document what if any ongoing complaints were suffered by the applicant and there is no evidence provided as to the applicant’s functional limitations. I find that there are no submissions made by the applicant as to her difficulties with performing her activities of daily living or housekeeping. I find that it is incumbent on the applicant to provide evidence of the ongoing or recurrent pain that she experiences as a result of the accident. The applicant’s reliance on this treatment plan is not sufficient evidence that she has ongoing pain or that she has a corresponding functional impairment as a result of the accident. Therefore, I do not find that the applicant suffers from a chronic pain condition that would warrant removal from the MIG.
25For the reasons outlined above, I find on a balance of probabilities, that the applicant does not suffer from a psychological condition or a chronic pain condition as a result of the accident and therefore she is not removed from the MIG on this basis.
Entitlement to the Treatment Plans in Dispute
26Having found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
27I will therefore address the applicant’s submission that the treatment plans in dispute are payable pursuant to s. 38(11) of the Schedule, as the respondent did not comply with the notice requirements of s. 38(11) of the Schedule.
Denial of the Treatment Plan for a psychological assessment dated November 16, 2023
28The applicant argues that the treatment plan dated November 16, 2023, for a psychological assessment, was improperly denied by the respondent pursuant to s. 38(8) of the Schedule. She submits that the denial reasons are flawed, arbitrary, inapplicable, not meaningful and statutorily deficient.
29The respondent advised the applicant by letter dated January 24, 2024, that the treatment plan was denied on the basis that that the applicant has an impairment that entitled her to receive goods or services under the MIG. It states that it has no compelling medical evidence (clinical notes and records from your family physician or psychologist, for example) documenting a pre-existing psychological condition that would make it unlikely for her to achieve maximum medical recovery if her claim were to remain subject to the $3,500.00 allotted to those minor injuries. It states that it is not in receipt of any medical documentation regarding her injuries from the subject accident that serves as evidence that her injuries fall outside of the criteria of a minor injury. The letter further states that as the treatment plan is dated November 16, 2023, but was only submitted for consideration on January 18, 2024, two months later, it is unclear whether the proposed psychological assessment is reasonable and necessary at this time. The respondent requested a s. 44 assessment to review the treatment plan.
30I find that the January 24, 2024 denial letter was a valid denial. The letter noted details of the treatment plan in dispute. It stated that the treatment plan was denied based on the applicant’s injuries being minor and because it had no medical documentation to support that her injuries fall outside the criteria of a minor injury. It further noted that as the treatment plan was submitted two months after it was prepared, it raised the question of whether the assessment is still reasonable and necessary at the time it was submitted. The letter advised that a s. 44 assessment would be scheduled. I find that 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. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons, it does not render the notice invalid.
31For the reasons outlined above, I find on a balance of probabilities, that the applicant has not met her burden of proving that this treatment plan for a psychological assessment is payable under s. 38(11) of the Schedule.
Denial of the Treatment Plan for chiropractic treatment dated April 22, 2024
32The applicant argues that the treatment plan recommending chiropractic treatment, dated April 22, 2024 was improperly denied by the respondent pursuant to s. 38(8) of the Schedule.
33The respondent advised the applicant by letter dated May 6, 2024, that the treatment plan for chiropractic treatment was denied. The respondent stated that the medical diagnosis of dislocation, sprain and strain of joints and ligaments at ankle and foot levels, ribs, sternum, contusion of knee, dizziness/giddiness, malaise, fatigue, cramp and spasm, chest pain tear of lateral, non-organic sleep disorder, listed on the submitted treatment plan, are impairments that entitled her to receive goods and services under the minor injury definition. It noted that to date it had not received any CNRs which indicate that she is suffering from nightmares, nervousness, disturbance of activity and attention, irritability and anger, unhappiness, and state of emotional shock and stress. It stated that it has not been provided with any objective medical evidence that the injuries from the accident would prevent her from achieving maximal medical recovery within the MIG. The respondent further states that as per the s. 44 assessment reports, she sustained uncomplicated musculoskeletal injuries predominantly to the axial spine and her shoulders without evidence of musculoskeletal trauma. It requests further medical evidence from her family doctor and/or any medical documents that have not been previously submitted.
34I find that the May 6, 2024 denial letter was a valid denial. The letter noted details of the treatment plan in dispute. It stated that the treatment plan was denied based on the applicant’s injuries being minor and because it had no medical documentation to support that her injuries would prevent her from achieving maximal medical recovery within the MIG. While I find that the respondent failed to specify which s. 44 reports it was relying on, this error is not sufficient to find that the letter was not a valid denial. I find that the respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether or not to accept or dispute the decision. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons, it does not render the notice invalid.
35For the reasons outlined above, I find on a balance of probabilities, that the applicant has not met her burden of proving that this treatment plan for chiropractic treatment is payable under s. 38(11) of the Schedule.
Entitlement to OCF-6 for ambulance call services
36The applicant claims entitlement to $45.00 for ambulance call services, submitted on an OCF-6, dated July 12, 2024.
37The applicant submits that it presumes the denial reason of this OCF-6 to be exhaustion of MIG limits. She states that if she is successful in removal from the MIG, it would open up medical and rehabilitation limits of $65,000.00 and the respondent should be ordered to pay the invoice.
38As I have found that the applicant’s injuries fall within the MIG and she has exhausted the $3,500.00 MIG limits, she is not entitled to the OCF-6 for ambulance call services.
Entitlement to a Non-Earner Benefit (“NEB”)
39I find that the applicant is not entitled to a NEB of $185.00 per week from October 5, 2023 to September 5, 2025. I find that she has not established, on a balance of probabilities, that she suffers a complete inability to carry on a normal life as a result of the accident.
40Section 12(1) of the Schedule provides that an insurer shall pay a NEB to an insured person who sustains an impairment as a result of the accident, if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines “a complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.”
41The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Insurance Company, 2009 ONCA 391 (“Heath”), which, generally focuses on a comparison of the applicant’s pre- and post-accident activities.
42For the applicant to prove that she sustained injuries that continuously prevent her from engaging in substantially all of her pre-accident activities, she must present a thorough analysis and comparison of activities that she could do before and after the accident. The applicant must first identify the activities in which she used to engage, along with their frequency and importance.
43Section 36(2) of the Schedule provides that an insured’s application for a specified benefit shall include a completed disability certificate (“OCF-3”) along with her application under s. 32 of the Schedule.
44Section 36(4) of the Schedule provides that within ten business days after the insurer receives an application and a completed OCF-3, the insurer shall,
a. Pay the specified benefit;
b. Give the applicant a notice explaining the medical and any other reasons why the insurer does not believe that the applicant is entitled to the specified benefit and, if the insurer requires an examination under section 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or
c. Send a request to the applicant under subsection 33(1) or (2).
45The applicant submitted her Application for Accident Benefits (“OCF-1”) dated September 11, 2023, to the respondent on September 11, 2023. She submitted her OCF-3 dated September 11, 2023, to the respondent on September 13, 2023.
46By letter dated September 21, 2023, the respondent advised the applicant that it is unable to determine if she is eligible for a NEB based on the OCF-3. It states,
Dr. Palantzas references that there is evidence of an impairment from a previous motor vehicle accident, however we are not receipt of any supporting documentation (clinical notes and records from Dr. Palantzas, for example). Dr. Palantzas also references radiculopathy, psychological and cognitive dysfunction, however we are not in receipt of any supporting medical documentation. Lastly, Dr. Palantzas states that you are experiencing a decrease in your pre-accident ADL capacity, however no specific examples have been provided. Only a generic statement. As such, it is unclear if you suffer a complete inability to carry on a normal life.
47The respondent advised the applicant that in order to assist it in determining her eligibility to a NEB, it required her to attend a s. 44 examination. It further stated that a NEB is not payable until it received the report of the examination and made a determination that the benefit is payable.
48By letter dated December 29, 2023, the respondent advised the applicant that she was not entitled to a NEB based on the s. 44 assessment reports of Dr. Fabio Salerno, psychologist, Dr. Seung-Jun Lee, physiatrist, and Ms. Faye Perreras, occupational therapist, dated December 27, 2023, which all found that she did not suffer a complete inability to carry on a normal life as a result of the accident.
49The applicant submits that under s. 36(2) of the Schedule, a completed OCF-1 and OCF-3 constitutes an application for eligibility to a NEB. She submits that under s. 36(4) of the Schedule, the respondent is required to respond within ten days of receipt of an OCF-3. She argues that subsection (a) states to pay the specified benefit. There is no “or” between subsection (a) and subsection (b). There is an “or” between subsection (b) and (c). Therefore, subsection (a) and (b) and subsection (a) and (c) are required to be read in continuation as the objective of consumer protection of the Schedule is to provide access to benefits. The applicant submits that reading subsection (a) and (b) together implies that the respondent must commence the payment of benefits, while scheduling an IE to obtain medical reasons to substantiate its belief that the applicant is not entitled to the benefit. Where the belief of the respondent does not get substantiated by the conclusions of its medical assessors, the respondent commences the payment of the benefit with retrospective effect along with interest on overdue payments.
50The applicant further submits that the respondent did not provide a medical reason for denying her entitlement to a NEB in its denial letter dated September 21, 2023. It only provided a medical reason in its final denial letter dated December 29, 2023. She therefore submits that she is entitled to a NEB for the period from October 5, 2023 to December 28, 2023.
51The applicant submits that for the period from December 28, 2023 to September 5, 2025, she is also entitled to a NEB. She submits in order for the three IE reports dated December 27, 2023 to be statutorily valid reports, the assessors of the reports must be aware of the statutory definition of “complete inability to carry on a normal life”. They must first ascertain what constitutes a normal life of the applicant prior to the accident and how the injuries sustained by the accident have impacted the normal life and whether the impact of the said injuries continuously prevents the applicant from engaging in substantially all of the activities in which the applicant ordinarily engaged before the accident. The applicant submits that based on this criterion, the IE reports are statutorily deficient as the assessors did not provide the definition of complete inability to carry on a normal life to enable them to make an analysis of the impact of the injuries identified to satisfy the statutory criteria of complete disability to carry on a normal life. The assessors did not determine what constituted the normal life of the applicant prior to the accident and how the impact of the injuries from the accident continuously prevents the applicant from engaging in substantially all of the activities.
52The respondent submits that the applicant fails to meet the test under s. 12 of the Schedule for eligibility to a NEB. It refers to the factors in Heath that are to be considered when analysing the applicant’s entitlement to NEBs. The respondent submits that the Tribunal has consistently held that an applicant must provide specific and comparative evidence detailing her pre- and post-accident activities, including the frequency and time commitment of such activities, to demonstrate that she is prevented from engaging in “substantially all” of the activities in which she ordinarily engaged prior to the accident (see Grant Flint v. Certas Direct Insurance Company, 2023 CanLII 15068 (ON LAT)). The respondent argues that the applicant has failed to make any submissions detailing her pre-accident activities or the extent to which she was prevented from engaging in those activities.
53The respondent submits that the applicant has failed to provide any medical evidence other than the OCF-3 substantiating her NEB claim. The respondent submits that the absence of medical evidence of the applicant’s functional abilities renders her claim speculative and unsupported. As the burden of proof lies with the applicant, her failure to provide sufficient evidence of her functional impairments and their impact on her daily life precludes a finding of entitlement to a NEB.
54With respect to the OCF-3 relied upon by the applicant, the respondent submits that it is well settled that an OCF-3 is not medical evidence as set out in the Tribunal decision Ganani v. Pembridge Ins. Co., 2021 CanLII 50782 (ON LAT) (“Ganani”). The respondent submits that the OCF-3 does not comment or provide the level of detail as to the applicant’s pre- and post-accident activity level that is required to meet her onus of proof under the Heath test. The OCF-3 form references a decrease in normal life functional capacity with respect to housekeeping, however, it does not indicate how long the household tasks took before or after the accident, nor does it provide any analysis or comparison demonstrating that the applicant has been continuously prevented from engaging in substantially all pre-accident activities. The respondent therefore submits that the applicant has not satisfied her evidentiary burden due to her failure to provide sufficient medical records, assessments or documentation to substantiate her claim.
55The respondent submits that its denial letter to the applicant dated September 21, 2023, provides a clear and readily comprehensible explanation that complies with s. 36(3) and (4) of the Schedule and the settled case law. The letter clearly outlines the reasons why the NEB was being denied as well as explains the need for the s. 44 assessments to address the claim.
56The respondent relies upon the s. 44 IE reports prepared by Dr. Salerno, Dr. Lee and Ms. Perreras, dated December 27, 2023, which determined that the applicant does not meet the disability test for NEBs. In response to the applicant’s submissions regarding the IE reports, the respondent submits that there is no requirement under the Schedule that assessors must provide or recite the statutory definition of “complete inability to carry on a normal life” in order for their reports to be valid. The respondent submits that each assessor elicited a history of the applicant’s pre- and post-accident activities, documented the reported limitations and evaluated her functional abilities. The respondent submits the fact that the assessors did not quote verbatim from the statutory wording does not render their reports deficient.
The applicant is not entitled to a NEB
57I do not agree with the applicant’s interpretation of s. 36(4) of the Schedule that subsections (a) and (c) are to be read continuously. I find that the applicant has provided her own interpretation of this section without providing the Tribunal with any authority or case law supporting same. I find that under s. 36(4), the respondent is given three options: agree that the applicant is entitled to pay the benefit and pay the specified benefit, disagree that the applicant is entitled and arrange a s. 44 assessment or request additional documentation pursuant to s. 33(1) of the Schedule to assist with the determination. I do not interpret s. 36(4) as meaning that the respondent is required to commence payment of a NEB until it receives the s. 44 assessment determination. I find that the respondent’s letter dated September 21, 2023, in response to the OCF-3, met the requirements of s. 36(4)(b) of the Schedule when it requested a s. 44 assessment. The respondent was not required to pay a NEB until the results of the s. 44 assessment were received.
58With respect to the respondent’s denial letter dated September 21, 2023, I find that it was a proper denial. The letter clearly outlined the reasons why the NEB was being denied and explains the need for the s. 44 assessments to address the claim. The letter specifically referred to the contents of the OCF-3 prepared by Dr. Palantzas. It noted that it has no supporting documentation supporting the impairments from her previous motor vehicle accident and that there are no specifics provided as to her decrease in her pre-accident ADL capacity and only a generic statement was provided. I therefore find that the respondent’s denial letter provided valid “medical or other reasons” for the denial.
59I find that while the applicant focused on her procedural entitlement to a NEB, she has not made specific submissions about her substantive entitlement. In contravention of the decision in Heath, she has not provided any submissions or evidence with respect to the guiding principles set out in the decision and therefore she has not met the test for entitlement. I further find that it is the applicant’s onus to meet the test for entitlement, not the respondent’s onus to disprove it. I find that the applicant has not made sufficient submissions detailing her pre-accident activities or the extent to which she was prevented from engaging in those activities. Upon review of her submissions, there is no indication as to any activities that she performed pre-accident which she was subsequently unable to perform. In addition, other than the OCF-3, the applicant has provided no supporting medical evidence to support her claim. I agree with the Tribunal decision in Ganani which concluded that an OCF-3 on its own is not medical evidence.
60I further give weight to the conclusions of the IE assessors which found that the applicant did not suffer a complete inability to carry on a normal life. I find that their conclusions were based on their individual assessment of the applicant and the testing performed. I further find that the applicant has not directed the Tribunal to any medical evidence to refute the findings of the IE assessors.
61I agree with the respondent that the role of the IE assessors is to evaluate the applicant’s medical and functional status and provide their professional opinion on the applicant’s abilities and limitations. It is the parties’ and the Tribunal’s role, and not the assessors, to apply the statutory test under s. 3(7)(a) and s. 12 of the Schedule to the evidence before it, with the requirement of Heath in mind. I therefore do not find that the IE reports are deficient because they did not define “complete inability to carry on a normal life” in their reports.
62For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she is entitled to a NEB for the period from October 5, 2023 to September 5, 2025.
Interest
63Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, the applicant is not entitled to interest.
Award
64The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.
ORDER
65For the reasons outlined above, I find,
i. The applicant’s accident-related injuries are predominantly minor and she is therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plans in dispute for a psychological assessment and chiropractic treatment;
iii. The applicant is not entitled to the OCF-6, dated July 12, 2024, for ambulance call services;
iv. The applicant is not entitled to a NEB of $185.00 per week from October 5, 2023 to September 5, 2025;
v. The respondent is not required to pay an award;
vi. No interest is payable; and
vii. The application is dismissed.
Released: October 31, 2025
Melanie Malach
Adjudicator