Citation and Parties

Citation: Istarlin Ali v. Gore Mutual Insurance Company, 2025 CanLII 129055

Licence Appeal Tribunal File Number: 23-012652/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:

Istarlin Ali

Applicant

and

Gore Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Ulana Pahuta

APPEARANCES:

For the Applicant: Julia Logoutova, Paralegal

For the Respondent: Aleksandar Tomasevic, Counsel

HEARD: By way of written submissions

OVERVIEW

1Istarlin Ali, the applicant, was involved in an automobile accident on September 3, 2022, 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, Gore Mutual 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:

1. 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?

2. Is the applicant entitled to the treatment plans/assessments proposed by 2430307 Ontario Ltd., as follows:

i. $2,300.00 for Psychological Services, in a treatment plan dated September 14, 2022;

ii. $2,300.00 for a Neurological Assessment, in a treatment plan dated April 25, 2023?

iii. $2,641.62 for Physiotherapy Services, in a treatment plan dated April 25, 2023?

iv. $2,300.00 for a Chronic Pain Assessment, in a treatment plan dated August 18, 2023?

3. Is the applicant entitled to the treatment plans proposed by 2430303 Ontario Inc., as follows:

i. $2,227.73 for Chiropractic Services, in a treatment plan dated November 30, 2022; and

ii. $1,749.00 for Physiotherapy Services, in a treatment plan dated April 25, 2023?

iii. $1,270.27 for Chiropractic Services, in a treatment plan dated June 7, 2023?

iv. $1,270.27 for Physiotherapy Services, in a treatment plan dated July 20, 2023?

v. $1,270.27 for Physiotherapy Services, in a treatment plan dated August 18, 2023?

3In her written hearing submissions, the applicant confirmed that the treatment plan dated November 25, 2022 for chiropractic services in the amount of $2,227.73, was being withdrawn.

RESULT

4I find that:

i. The applicant has not met her onus to prove that her injuries warrant removal from the MIG;

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

iii. As no payments are overdue, the applicant is not entitled to interest.

ANALYSIS

Minor Injury Guideline

5Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person 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."

6An insured person 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.

7The applicant's submissions do not address her accident-related impairments, whether she sustained a non-minor injury or on what ground she seeks removal from the MIG. Although MIG determination was listed as an issue in dispute in the Case Conference Report and Order, the issue of whether the applicant should be removed from the MIG is not addressed by the applicant in her submissions, nor did the applicant direct me to any medical evidence to support her removal from the MIG.

8Given the lack of submissions and medical evidence from the applicant as to the issue of MIG determination, I find that she has not met her burden to prove accident-related impairments warranting removal from the MIG.

9As I have found that the applicant's accident-related impairments do not warrant treatment beyond the MIG limits, it is not necessary for me to address the reasonableness and necessity of the treatment plans in dispute. I further note that the applicant's submissions do not address whether the treatment plans are reasonable and necessary. Rather, she argues that all of the treatment plans are payable pursuant to s. 38(11) of the Schedule, due to the respondent's non-compliance with s. 38(8).

10Sections 38(8) and 38(11) of the Schedule, set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply.

11Under s. 38(8), within 10 business days after it receives a treatment plan, the insurer shall:

i. give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment plan that the insurer agrees to pay for

ii. any the insurer does not agree to pay for and

iii. the medical reasons and all of the other reasons why the insurer finds the treatment plan not to be reasonable and necessary.

12If an insurer fails to provide the requisite denial, under s. 38(11)2 it is required to pay for all goods and services described in the treatment plan that relate to the period incurred from the 11th business day after the treatment plan was submitted until the proper denial is given.

OCF-18 in the amount of $2,300.00 for a psychological assessment

13I find that the respondent's denial notices with respect to this treatment plan were compliant with s. 38(8) of the Schedule.

14The applicant submits that the respondent's initial notice to the applicant, dated October 14, 2022, was non-compliant with s. 38(8) because it failed to identify the goods and services proposed in the treatment plan, and the reason for the denial - that "there had been no psychological diagnosis" - was illogical, since that was the very purpose of the proposed psychological assessment. The applicant further argues that the subsequent denial letter, dated January 4, 2023, was also non-compliant with the Schedule since it referenced the insurer's examination ("IE") report as the basis for the denial, but did not include an actual copy of the report.

15The respondent submits that both the October 14, 2022 and the January 4, 2023 denial letters complied with the Schedule. It argues that the October 14, 2022 letter identified the treatment plan by date, treatment provider, and amount, before denying the OCF-18 in its entirety. As such, there was no confusion as to what was being denied. The respondent further submits that the reason for the denial and requested IE, that there had been no psychological diagnosis on the claim, provided a clear reason as to why the applicant was being referred to an IE and why the treatment plan was being denied.

16I find that the applicant has not established that either of the denial letters are non-compliant with s. 38(8).

17With respect to the letter dated October 3, 2022, the applicant submits that the letter "failed to identify the goods, services, assessments and examinations proposed in the plan". However, the letter identified the treatment plan by date, treatment provider, and amount, before denying the OCF-18 in its entirety. A copy of the OCF-18 was appended to the letter as well. I agree with the respondent that the applicant has not provided any caselaw in support of the argument that the specific services or assessments listed in the OCF-18 must be specifically listed in the denial letter. Particularly since it is clear that the treatment plan was denied in its entirety, rather than a partial denial where only certain services were denied. I do not find that this is a situation where a person reading the denial letter would not know what items were denied, and what items were approved. I further find that the respondent provided a medical reason for the denial, namely, that there had been no evidence of a psychological diagnosis to warrant the proposed psychological assessment.

18With respect to the subsequent denial letter dated January 4, 2023, the respondent disputes the applicant's claim that the IE report was not included with the denial letter. It argues that the copy of the letter included with the applicant's submissions was missing the 2nd page, which clearly indicated that the IE reports were attached to the letter. It has provided as evidence a copy of the complete denial letter. I agree with the respondent that the applicant's copy of the denial letter did not include page 2, which states that the IE report was enclosed with the letter. The applicant did not provide reply submissions disputing this complete copy of the letter, therefore I accept that a copy of the IE report was included with the January 4, 2023 denial letter. In the stated reason for the denial, the letter referred to the IE report, its finding that the applicant's injuries fell within the Minor Injury Guideline and that the proposed treatment plan was not reasonable and necessary. I find that the applicant has not established that the denial letters are non-compliant with s. 38(8).

OCF-18s for a neurological assessment, physiotherapy (aquatic) and a chronic pain assessment

19I find that the applicant has not established that the respondent was non-compliant with s. 38(8) with respect to these treatment plans.

20The applicant has addressed these treatment plans together, arguing that the denial letters for these OCF-18s were deficient for the same reason. Namely, that while they identified the treatment plan by date, treatment provider, and amount and appended the OCF-18s, the denial letters did not specifically advise what goods, services, assessments and examinations the respondent refused to pay for. The applicant argues that attaching copies of the treatment plans to the letters cannot substitute for properly addressing the plans, as required by s. 38(8) of the Schedule.

21As previously noted in the section above, I do not find that this was a breach of s. 38(8), particularly as it is clear that each of the treatment plans were denied in their entirety. The applicant does not direct me to any caselaw which holds that an itemized breakdown of services is required, particularly in a situation where the full amount of the OCF-18 was being denied (as opposed to a situation where an OCF-18 is only partially denied).

OCF-18 dated November 30, 2022 for chiropractic treatment

22I find that the applicant has not established that this treatment plan is payable pursuant to s. 38(11) of the Schedule.

23The applicant submits that the initial denial notice and request for an IE dated December 7, 2022 not only failed to refer to the particular goods and services being denied, but it also did not include a copy of the OCF-18 form. The applicant further argues that the final denial letter dated January 9, 2023 did not include a copy of the respondent's IE report.

24With respect to the initial denial letter dated December 7, 2022, the applicant has raised the same argument that the denial should have specified the particular service being denied. But in addition, she has also noted that a copy of the OCF-18 was not included with the denial letter. I see no issues with the content of the denial letter such that s. 38(8) would be triggered. The December 7, 2022 denial identified the plan by date, amount and treatment provider, and stated that the treatment plan was denied in full. I do not find that there was any confusion or lack of clarity about the services that were being denied.

25With respect to the subsequent denial letter dated January 9, 2023, the stated reason for the denial was that based on the IE report dated January 6, 2023 by Raymond Zalieliauskas, it was determined that the applicant's injuries fall within the Minor Injury Guideline and that the proposed goods and services were not reasonable and necessary. The letter also stated that the copy of the IE report was enclosed. In my view, a medical reason for the denial was provided, with reference to the applicant's standing within the MIG and the findings of the respondent's IE assessor.

26However, the parties disagree as to whether a copy of the IE report was included with the letter. I note that even if the report was not provided with the January 9, 2023 denial, the respondent has provided evidence that it was provided soon after. The respondent has provided email correspondence between the applicant's legal representative and its adjuster dated January 12, and January 13, 2023, where the applicant's representative noted that a copy of the report mentioned in the January 9, 2023 letter had not been provided. The respondent's adjuster then provided the report the following day. In my view, it is clear that even if the IE report was not included with the January 9, 2023 letter, this inadvertent error was corrected within a few days. Even if this delay in providing the IE report rendered the January 9, 2023 letter temporarily non-compliant with s. 38(8) until the referenced IE report was provided, the applicant has not led any evidence that the treatment plan was incurred during the three day period of non-compliance.

27As such, the applicant has not established that the treatment plan is payable pursuant to s. 38(11) of the Schedule.

Remaining OCF-18s for chiropractic treatment

28I find that the applicant has not established that the respondent was non-compliant with s. 38(8) with respect to these treatment plans.

29The applicant submits that the respondent's denial letters for the chiropractic treatment plans dated April 25, 2023, June 7, 2023, July 20, 2023 and August 18, 2023 were all non-compliant with s. 38(8) of the Schedule. She argues that while the denials identified the treatment plan by date, treatment provider, and amount and appended the OCF-18s, the denial letters did not specifically advise what goods, services, assessments and examinations the respondent refused to pay for.

30As previously noted in the section above, I do not find that this was a breach of s. 38(8), and the applicant has not established that these treatment plans are payable pursuant to s. 38(11) of the Schedule.

ORDER

31I find that:

i. The applicant has not met her onus to prove that her injuries warrant removal from the MIG;

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

iii. The application is dismissed.