Citation: Williams v. Unifund, 2025 ONLAT 24-003210/AABS

Licence Appeal Tribunal File Number: 24-003210/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:

Samantha Williams

Applicant

and

Unifund

Respondent

DECISION

ADJUDICATOR: John Mazzilli

APPEARANCES:

For the Applicant: Meghan Fyall, Counsel

For the Respondent: Raman Pandher, Counsel

HEARD: By way of written submissions

OVERVIEW

1Samantha Williams, (the “applicant”), was involved in an automobile accident on March 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 Unifund (the “respondent”) 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 accident on October 25, 2021, she was removed from the Minor Injury Guideline (“MIG”) due to her accident-related injuries from the October 25, 2021, accident. The applicant submits that she was not removed form the MIG from the subject accident, and that the Adjudicator that conducted the case conference held on July 22, 2024, improperly failed to include the MIG as an issue in dispute in the Case Conference Report and Order issued on July 25, 2024.

ISSUES

3The issues in dispute are:

i. Is the applicant entitled to $3,622.31 for Chiropractic Services proposed by MacKenzie Medical Rehab in a treatment plan/OCF-18 ('plan') dated May 20, 2022?

ii. Is the applicant entitled to $2,023.03 for Chiropractic Services proposed by MacKenzie Medical Rehab in a plan dated September 12, 2022?

iii. Is the applicant entitled to $1,525.84 for Chiropractic Services proposed by MacKenzie Medical Rehab in a plan dated October 27, 2022?

iv. Is the applicant entitled to $2,260.00 for a Chronic Pain assessment, proposed by Princeton Hill Medical Assessments Inc. in a plan dated November 4, 2022?

v. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Princeton Hill Medical Assessments Inc.in a plan dated November 27, 2022?

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?

WITHDRAWN ISSUES

4At the hearing, the applicant withdrew issues 5 and 6 as listed in the Case Conference report and Order dated July 22, 2024.

RESULT

5The applicant remains in the MIG.

6The respondent’s denial letters are in accordance with s.38(8) for issues i, ii and iii.

7The respondent’s denial letter of issue iv and v is in breach of s.38(8); accordingly, the respondent shall pay the applicant $2,260.00 in accordance with s.38(11).

8Interest is owing on $2,260.00 and $2,200.00.

9The applicant is not entitled to an award.

PROCEDURAL ISSUES

10I find that the issue of MIG is not properly before the Tribunal.

11The applicant submits that the case conference Adjudicator failed to include the applicability of the MIG as an issue in dispute on the Case Conference Report and Order dated July 22, 2024, despite the LAT application’s inclusion of the MIG as an issue in dispute.

12In her reply to submissions the applicant submits that there is no prejudice to the respondent by adding the MIG as an issue in dispute given that the respondent was able to complete submissions on the MIG issue and not limited in its ability to do so because it used the full-page limits offered by the Tribunal in its submissions.

13The respondent argues that the issue of the MIG is not properly before the Tribunal as it was not included in the Case Conference Report and Order issued on July 25, 2024. It argues that the applicant did not take any steps to notify the Tribunal or the respondent that the applicability of the MIG had been omitted in the approximate eight months between the case conference and the due date of the hearing submissions.

14The respondent argues that the applicant failed to follow a core procedural requirement and that her silence amounts to a waiver of the MIG issue. It argues that after months of silence she cannot now attempt to unilaterally expand the scope of the hearing and that by admitting the MIG issue the Tribunal would deprive the respondent of procedural fairness.

15For the purposes of my deliberation, I find that the issue of the MIG is not properly before me. As the applicant had 8 months to remedy the issue of MIG with the Tribunal by way of a request for an amendment to the CCRO or by way of a motion seeking to add the MIG as an issue. I find that the applicant’s silence on the issue of MIG between the date of the case conference and the date of the hearing submissions does prejudice to the respondent as the parties have a right to know the issues that are to be argued at the hearing.

16Given that the MIG is not properly before me, for the purposes of my deliberation I conclude that the applicant remains in the MIG, accordingly I will not make a finding on the reasonableness or necessity of the disputed treatment and assessments. My analysis will focus on the applicant’s procedural arguments in accordance with s.38(8) of the Schedule.

ANALYSIS

Section 38(8) denials of the treatment and assessment plans

17Section 38 of the Schedule provides a provision for claims of medical and rehabilitation benefits and for approval of assessments. Section 38(8) reads that within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary.

$3,622.31 for chiropractic services

18I find on a balance of probabilities that the respondent’s denial letter is in accordance with s.38(8) of the Schedule.

19The applicant submits that the respondent’s denial letter of the disputed treatment plan contained boiler plate statements and do not provide a principled rational to which an insured person can respond. She submits that the respondent’s denial letter did not give reasons as to why the OCF-18 is not reasonable or necessary but rather the respondent’s only communication was that the applicant’s injuries appear to fall within the MIG.

20The respondent argues that the applicant has not met her burden of entitlement of the treatment plan and that the Tribunal is not required to sift through the record to build a case for the applicant. It argues that the denial was based on the medical documentation available at the time the OCF-18 was submitted, approximately 10 weeks post accident. It argues that the OCF-18 was simply a funding request and that the respondent requested further documentation from treatment providers to remove the applicant from the MIG.

21I find that the respondent’s denial letter is in accordance with s.38(8) of the Schedule because the letter contained detailed medical and or reasons for its denial of the disputed treatment plan. The OCF-18 lists the applicant’s injuries as sprains and strains to multiple sites, headache, stress, other sleep disorders and other anxiety disorders.

22The denial letter states that the listed injuries by the health provider appear to fall within the definition of the Minor Injury Guideline, this is consistent with the listed injuries identified on the OCF-18.

23The denial further provides clarity and next steps for the applicant as the disputed treatment plan exceeds the $3,500.00 MIG funding limits. The denial states that “based on the information above, the maximum amount of medical and rehabilitation benefits payable shall not exceed $3,500.00. However, if you and your health practitioner(s) believe that you have a pre-existing medical condition that will prevent you from achieving maximal recovery if you are subject to the $3,500.00 medical and rehabilitation limit, please provide supporting documentation or compelling evidence immediately for our review and consideration.”

24Further, the letter goes on to provide more direction to assist the applicant, stating: “In the interim, please have your health practitioner submit a completed Treatment Confirmation Form (OCF-23) so that we may provide coverage in accordance with the Minor Injury Guideline (MIG). Please be advised that if a Treatment Confirmation Form (OCF-23) is not submitted by your health practitioner and you are not treated within the Minor Injury Guideline (MIG), you will be responsible for payment of any incurred expenses for good and/or services provided.”

25In this case there was no medical reason provided because there was no medical basis for the denial. It is well established that an OCF-18 on its own is not medical evidence, furthermore the applicant did not submit a completed OCF-23 to the respondent until June 13, 2022, approximately three weeks after submitting the disputed treatment plan, therefore the respondent’s denial is proper in accordance with s.38(8) because the disputed treatment plans exceeds the $3,500.00 MIG funding limit and because there is no identified medical basis needed to support the denial of the OCF-18 because the medical evidence at the time of the denial did not support the need for the treatment requested from OCF-18 above the MIG limits.

26I find on a balance of probabilities that the respondent’s denial letter is in accordance with s.38(8) of the Schedule.

$2.023.03 for chiropractic services

27I find on a balance of probabilities that the respondents denial letter is in accordance with s.38(8)

28The applicant submits that the respondent’s denial letter contains the same reasons for the denial as the issue above. She argues that there is no medical condition noted, no mention of her pre-existing conditions, no reasons as why they believe her injuries fall within the MIG and no reasons as to why the treatment plan was not reasonable or necessary.

29The respondent argues that it had not received any medical documentation describing the applicant’s accident-related injuries, and therefore its denial of the treatment plan is fully justified.

30Contrary to the applicant’s submission, I find the respondent’s denial letter dated November 14, 2022, did provide medical and or other reasons for its denial of the disputed treatment plan.

31The notice informs the applicant that: “We have compared this OCF-18 with medical documentation that has been provided, compared it further to the Minor Injury Guideline (MIG) and determined there is insufficient compelling evidence of pre-existing injuries or conditions and insufficient medical documentation to persuade us that your accident-related injuries fall outside the MIG.”

32The letter notes further that: “We believe the MIG applies, and the treatment claimed is not reasonable or necessary as it does not conform to the MIG treatment protocols.” This meets the requirements of s. 38(9).

33The letter also instructs that a s. 44 examination would be scheduled, stating: “We require you to undergo an examination under Section 44. Further details of the examination(s) will follow shortly. Your attendance may be required.”

34I find on a balance of probabilities that the respondents denial letter is in accordance with s.38(8) because the respondent identified that it does not have sufficient medical information and in turn advises the applicant of its requirement for an insurer’s examination under s.44 in a manner that is clear and sufficient for an unsophisticated individual to understand.

$1,525.84 for chiropractic services

35I find on a balance of probabilities that the respondent’s denial letter is in accordance with s.38(8) of the Schedule.

36The applicant submits that the respondent’s denial letter contains deficient reasons under s.38(8). She submits that the denial letter is boiler plate and contains deficient reasons because not a single medical condition was noted, the specific documents reviewed were not noted and her previous accident and resulting injuries were not noted despite the respondent’s knowledge of her previous accident-related injuries.

37The respondent argues that at the time of its denial, it had no medical documentation disclosed to it, therefore if no diagnosis had been disclosed it cannot be expected to invent one. It argues that the applicant has failed to identity what condition could have been referenced based on the records provided at the time of the denial.

38The denial letter states that “we have compared this OCF-18 with medical documentation that has been provided, compared it further to the Minor Injury Guideline (MIG) and determined there is insufficient compelling evidence of pre-existing injuries or conditions and insufficient medical documentation to persuade us that your accident-related injuries fall outside of the MIG.”

39Like the letter address above, the denial states “We believe the MIG applies, and the treatment claimed is not reasonable or necessary as it does not conform to the MIG treatment protocols.”

40The letter again, informs the applicant that she may be required to attend a s. 44 examination to investigate her claim: “We require you to undergo an examination under Section 44. Further details of the examination(s) will follow shortly. Your attendance may be required.”

41I find on a balance of probabilities that the applicants denial letter is in accordance with s.38(8) of the Schedule because it contains sufficient reasons for its denial because the respondent identified that its does not have sufficient medical information and in turn advises the applicant of its requirement for an insurer’s examination under s.44 in a manner that is clear and sufficient for an unsophisticated individual to understand.

$2,260.00 for a chronic pain assessment and $2,200.00 for a psychological assessment

42I find on a balance of probabilities that the respondent is in breach of s.38(8) because its denial letter did not contain clear reasons for its denial of the chronic pain assessment and the psychological assessment.

43The respondent denied the applicant $2,260.00 for a chronic pain assessment and $2,200 for a psychological assessment by way of one letter dated November 28, 2022, the same reasons for the denial were provided for both OCF-18’s in this one letter, however the letter does not explain that the denial is for a chronic pain assessment or a psychological assessment.

44The applicant submits that there are no proper medical or any other reasons provided in the respondent’s denial letter. She submits that the respondent simply claims there is no evidence of a pre-existing injury despite understanding the applicant was involved in a previous accident that resulted in physical and psychological injuries, therefore the denial is deficient under s.38(8).

45The respondent argues that its denial letter is in accordance with s.38(8) because the letter clearly states that there was insufficient compelling evidence to justify the plans and that in the absence of any medical diagnosis or condition cited, the applicant’s position is without merit.

46The denial letter incorporates the two OCF-18’s listed above, one dated November 16, 2022, in the amount of $2,200.00 and one dated November 4, 2022, in the amount of $2,260.00. However, the denial does not provide information as to what the OCF-18’s are in relation to. The denial letter states that “we have compared these OCF-18s with medical documentation that has been provided, compared it further to the Minor Injury Guideline (MIG) and determined there is insufficient compelling evidence of pre-existing injuries or conditions and insufficient medical documentation to persuade us that your accident-related injuries fall outside of the MIG.”

47Like the letter address above “We believe the MIG applies, and the treatment claimed is not reasonable or necessary as it does not conform to the MIG treatment protocols.”

48The letter further informs that “We are currently awaiting the Insurer’s examination in accordance with Section 44 of the regulation that was previously scheduled. An independent medical opinion will assist in determining if your accident-related impairment would fall within the definition of the minor injury in accordance with the accident benefits regulation.”

49I find that the respondent’s notice is in breach of s.38(8) for the chronic pain assessment and the psychological assessment because I find the denial letter did not provide a clear reason for what treatment the respondent is denying. Further, the denial does not specify which s.44 assessment the respondent awaits to inform its independent medical opinion from, is it one of the OCF-18’s or both OCF-18’s?

50In addition, the denial letter does not specify the type of treatment the respondent is denying, it simply lists the OCF-18’s and the dollar figure associated with each OCF-18 without any explanation of what it is denying. Finally, If the OCF-18’s were not before me, combined with the issues in dispute and the parties’ submissions it would be difficult, based solely on the denial letter to comprehend what is being denied and why. Therefore, I find the denial notice does not contain reasons that are clear enough for the applicant to make an informed decision to either accept or dispute the respondent’s denial.

51I find on a balance of probabilities that the respondent is in breach of s.38.(8) in its denial of the psychological assessment and the chronic pain assessment because its denial letter did not contain clear reasons for the denial of these assessments. Accordingly, the respondent shall pay $2,260.00 and $2,200.00 to the applicant in accordance with s.38(11) of the Schedule.

Interest

52Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest is owing on $2,260.00 and $2,200.00.

Award

53The 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.

54The applicant submits that she is entitled to an award because the respondent has been in complete breach of its contractual obligation of good faith because the applicant has been improperly kept within the MIG despite evidence supporting she should be removed and without access to treatment she desperately needs for over two years with no real reasons from the respondent as to why.

55The respondent argues that the applicant did not provide compelling evidence that her pre-existing injuries from her previous accident prevent recovery within the confines of the MIG.

56I find that the applicant is not entitled to an award from the respondent because the issue of MIG is not before me, therefore an analysis of the reasonableness and necessity of the disputed treatment plans is not required to determine if the respondent unjustly withheld treatment from the applicant.

ORDER

57It is ordered that:

i. The applicant remains in the MIG.

ii. The respondent’s denial letters are in accordance with s.38(8) for issues i, ii and iii.

iii. The respondent’s denial letter of issues iv and v are in breach of s.38(8). The respondent shall pay the applicant $2,260.00 and $2,200.00 in accordance with s.38(11).

iv. Interest is owing on $2,260.00 and $2,200.00.

v. The applicant is not entitled to an award.