Pathminidevi Senthilmany v. Economical Insurance Company, 2025 CanLII 129087

Citation: Senthilmany v. Economical Insurance Company, 2025 ONLAT 24-000976/AABS

Licence Appeal Tribunal File Number: 24-000976/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:

Pathminidevi Senthilmany Applicant

and

Economical Insurance Company Respondent

DECISION

ADJUDICATOR: Amar Mohammed

APPEARANCES:

For the Applicant: Rakesh Sharma, Counsel Sareena Samra, Counsel

For the Respondent: Ainsley Shannon, Counsel Atef Latif, Counsel

HEARD: By Way Of Written Submissions

OVERVIEW

1Pathminidevi Senthilmany, the applicant, was involved in an automobile accident on August 23, 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, Economical Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline (“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 and assessment plan/OCF-18 (“plan”) dated January 19, 2023?

iii. Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from September 20, 2022 to ongoing?

iv. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit. As the applicant is in the MIG, it is not necessary to assess the reasonableness and necessity of the plans in dispute. The applicant is not entitled to payment of the proposed plan under s. 38(11) of the Schedule. The applicant is not entitled to a NEB, or to interest. The respondent is not liable to pay an award. The application is dismissed.

ANALYSIS

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 MIG limit?

4I find, on a balance of probabilities, that the applicant’s injuries sustained in the accident are predominantly minor as defined by the Schedule.

5Section 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.”

6An 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 medical 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 is on the applicant.

7The applicant has not made substantive submissions regarding removal from the MIG. The applicant has not addressed the definition of a minor injury in s. 3(1) of the Schedule or presented compelling or corroborating medical evidence in support of the position that the applicant’s injuries fall outside of that definition. Further, the OCF-3 completed by Frank Huang, physiotherapist lists the following accident-related injury and sequelae information in descending order of significance, all of which are included in the definition of a minor injury: contusion of breast, whiplash associated disorder [wad2] with complaint of neck pain with musculoskeletal signs, sprain and strain of shoulder joint, rotator cuff capsule, contusion of knee.

8I do not find it necessary to address every argument made by the applicant and will instead focus on the legal test that applies to the issue in dispute, which is well settled at this Tribunal. The applicant argues that removal from the MIG is warranted in this case based on sections 38(1) and 38(3) of the Schedule. The applicant’s position is that if a plan is submitted in compliance with the Schedule, then it is deemed reasonable and necessary and it requires funding beyond the MIG limit. The applicant places limits on her submissions and argues submissions solely dealing with removal from the MIG are unnecessary and will not be made:

MIG applicability gets disputed/ determined not in isolation of a substantive issue, but with respect to the substantive issues and in this case the following OCF-18 that were denied by the respondent as the MIG applies.

Thus, the applicant will not be making any submissions solely on the applicability of MIG, but will dispute applicability of the MIG with respect to the denied substantive issues.

9The applicant states that out of the $3,500.00 MIG limit, $1,100.00 is remaining. The applicant argues that since a plan proposing an assessment for $2,200.00 has been submitted, which is beyond the $1,100.00 remaining under the MIG limit, I must assess whether the applicant has complied with s. 38 of the Schedule in submitting the proposed plan. The applicant’s submissions in this regard relate to the content of a treatment plan as prescribed by s. 38(3) of the Schedule. I find that these submissions are not relevant to the legal test for removal from the MIG, nor does the respondent contend that the applicant did not comply with the Schedule in this regard. Even so, the applicant’s position is that if the plan proposing the $2,200.00 assessment was submitted in compliance with the Schedule, it should be deemed reasonable and necessary by virtue of s. 38(3)(c) of the Schedule.

10The applicant further argues that since it is deemed reasonable and necessary and the amount proposed is beyond the amount remaining under the MIG, it follows that the applicant would not be subject to the MIG limit. Based on the applicant’s submissions, the onus should then shift to the respondent to defend its denial notice under s. 38 of the Schedule. The applicant provided no authority to support the position. I am not persuaded by the applicant that every plan submitted in compliance with the Schedule is deemed reasonable and necessary, nor is the disputed plan in the issue before me. I find that the applicant’s position reverses the onus onto the respondent whereas it is the applicant’s onus to establish entitlement to benefits on a balance of probabilities.

11For clarity, while the applicant has not made substantive submissions which could warrant removal from the MIG, the applicant has referred to psychological impairments in their submissions. To ensure the resolution of this dispute on its merits, I considered whether the applicant can escape the MIG as a result of a psychological condition.

12It is well settled that a treatment and assessment plan is not medical evidence. I have reviewed the plan and find that the plan does not confirm a psychological condition warranting removal from the MIG. Instead, it notes the evaluation it proposes will determine the presence of and the extent of the applicant’s psychological impairments. As a result, the proposed plan and its contents do not assist the applicant in establishing removal from the MIG. I will address the plan in more detail below on the basis of the applicant’s more specific arguments related to the plan.

13For the reasons above, I find, on a balance of probabilities, that the applicant’s injuries sustained in the accident are predominantly minor as defined by the Schedule.

Is the applicant entitled to $2,200.00 for a psychological assessment?

14I find, on a balance of probabilities, that the applicant is not entitled to payment of $2,200.00 for a psychological assessment.

15The applicant refers me to two pieces of evidence being relied upon, the plan itself and the denial letter. As noted earlier, the applicant’s position is that if the plan complies with s. 38 of the Schedule it is deemed reasonable and necessary. This is certainly not the case, and the applicant has not provided any binding authority on this point. Rather, as the applicant is in the MIG, it is not necessary to consider if any treatment plans in dispute are reasonable and necessary. However, since the applicant has raised arguments regarding the respondent’s compliance with s. 38 of the Schedule, I have addressed the plan in this context below. Further, as noted earlier, I have considered whether there is medical evidence related to this proposed plan that may assist me in my analysis of removal of the MIG and therefore review the pre-screen report included in the proposed plan as additional comments.

The plan proposing a psychological assessment and the pre-screen report

16The applicant argues that there is no statutory requirement under s.38 of the Schedule to attach any medical records. It seems, for this reason, I have nothing to corroborate what is contained in the plan with medical evidence that may assist me. I do not have any clinical notes and records or reports. The pre-screen report included in the additional comments section is completely based on the applicant’s self-reporting at the pre-screening interview.

17The pre-screen report notes as a clinical opinion:

[The applicant] was involved in a motor vehicle accident on August 23, 2022. She continues to experience pain in her back, neck, and chest. Additionally, [the applicant] reported being emotionally distressed and said she struggled with anxiety, irritability, frustration, depression, and fatigue. [The applicant] had no preexisting psychological difficulties, and her current mental health issues are a direct result of the accident. Her clinical presentation provides evidence she is experiencing many of the symptoms commonly found in individuals suffering from post-accident psychological impairment. Furthermore, her pain and psychological challenges are affecting her daily activities.

18The pre-screen report then makes recommendations:

Given the severe and acute nature of the client's ongoing pain and psychological impairment as a direct result of the motor vehicle accident, this client should NOT fall under the Minor Injury Guidelines {MIG) category. The accident has materially contributed to the client's impairment, and the motor vehicle accident-related disabilities constitute a significant barrier to recovery and return to pre-accident levels of functioning. Because the client's psychological impairment is acute, [the applicant] needs to undergo a full psychological assessment battery including psychometric testing and a thorough, in-depth clinical interview to determine her clinical diagnosis and psychological treatment needs.

19The respondent argues this report is merely a pre-screen interview report and deserves no evidentiary weight for several reasons. I give the pre-screen report no weight for the following reasons:

i. it is undated,

ii. it is not signed by anyone,

iii. it does not clearly confirm the author of the report. Although it states that it is based on an interview of the applicant conducted September 15, 2022 by Sherry Jiang, MA., R.P (Qualifying) and supervised by Dr. Sharleen McDowall, C. Psych., it is unclear from the report who provided the clinical opinion or recommendations,

iv. it does not mention a review of any records, completion of any objective testing, and seems to be solely based on the applicant’s self-reporting at the interview,

v. It is written in the voice of an advocate rather than a neutral medical assessor. For example:

a. It refers to the applicant as a client rather than a patient,

b. It advocates by using language such as “this client should NOT fall under the Minor Injury Guidelines (MIG) category.”,

c. It simultaneously recommends a full psychological assessment battery including psychometric testing and a thorough, in-depth clinical interview while also confirming severe and acute psychological impairment in addition to causation being as a direct result of the subject accident prior to completion of the assessment.

The denial notice

20The applicant also argues that the respondent’s denial dated February 1, 2023, does not contain meaningful reasons and is therefore not compliant with section 38(8) of the Schedule.

21Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.

22The respondent’s reasons should engage the specific details about the applicant’s condition forming the basis for the respondent’s decision and be adequate to allow an unsophisticated person to understand them and make an informed decision to either accept or dispute the denial.

23The respondent’s notice provides the following summary of reasons for denying the $2,200.00 plan proposing a psychological assessment:

i. After review of the plan and the file, despite multiple requests, no clinical notes and records documenting accident-related injuries have been provided.

ii. There is no documentation that supports a psychological diagnosis or limitation as a direct result of the accident, so the plan is not reasonable and necessary.

iii. The applicant’s injuries fall within the definition of a minor injury under the MIG and the $3,500.00 limit applies.

24The applicant argues this is mere conjecture and the notice does not contain meaningful reasons that would permit the applicant to decide whether to challenge the denial. The applicant refers me to Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318. The applicant contends that the plan and the pre-screen report included in the additional comments opine that the applicant suffers from psychological impairment and that the MIG does not apply. As a result, the respondent’s notice is not meaningful because it does not reference the medical evidence it relied on to conclude that the applicant suffered a minor injury.

25I agree with the respondent that the notice provided sufficient reasons and that citing the MIG is a valid medical reason because it is defined in the Schedule using medical terms. Also, noting the applicant has not provided any clinical notes and records documenting accident-related injuries is a valid reason that meets the requirements of s. 38(8). In my view, the notice is compliant with s. 38(8).

26For the reasons above, I find, on a balance of probabilities, that the applicant is not entitled to payment of $2,200.00 for a psychological assessment, under s. 38(11).

Is the applicant entitled to a non-earner benefit of $185.00 per week from September 20, 2022 to ongoing?

27I find that, on a balance of probabilities, the applicant is not entitled to a non-earner benefit (“NEB”).

28Section 12(1) provides that an insurer shall pay an 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.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, (Heath) which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

29Section 36(4) of the Schedule states that within 10 business days after the insurer receives the application and completed disability certificate (OCF-3), the insurer shall pay the specified benefit, provide notice explaining why the insurer is not paying the benefit or advising the insured of the requirement for an examination under s. 44, or send a request under s. 33. Section 33 requires the insured to provide the insurer with any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit.

30The applicant argues that s. 36 of the Schedule provides the statutory requirements and the adjudication procedure in respect of a claim for NEB. The applicant refers me to the following interpretation of s. 36(4)(a) through (c):

The sub section (a) states to pay the specified benefit. There is no “OR” between sub section (a) and sub section (b). Whereas there is “OR” between sub section (b) (c). Therefore, section (a) and (b) and sub section (a) (c) are required to be read in continuation as the objective of consumer protection nature of the Schedule is to provide access to the benefits. Even if there appears to be any ambiguity in interpretation, the ambiguity is required to be interpreted in favor of the Applicant; thus, it means that the respondent continues to pay the benefit, while scheduling an insurer examination to obtain medical reasons to substantiate its belief that the Applicant is not entitled to the benefit. The belief does not equate as evidence and it would be against the spirit of the consumer protection nature of the Schedule to not pay the benefit on the basis of belief.

31Based on the above interpretation, the applicant’s argument is essentially that in this case, once the applicant submitted the Disability Certificate (“OCF-3”), the respondent erred under s. 36(4)(a) by not paying the NEB within 10 days and that it had a duty to do so. I was not referred to any authorities supporting the applicant’s interpretation. I find that subsections 36(4)(a) through (c) provides options which the insurer may choose to exercise in responding to the insured.

32The respondent argues it complied with s. 36(4)(c) of the Schedule by sending a s. 33 request, and the applicant did not provide the requested information or documents until June 2024. The respondent requested:

i. Clinical notes and records from your family doctor from August 2021 to present, and

ii. Clinical notes and records from any treating practitioner seen since the motor vehicle accident.

33The respondent further argues that it complied with s. 36(4)(b) of the Schedule which requires the respondent to:

give the applicant a notice explaining the medical and any other reasons why the insurer does not believe 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

34The respondent’s letter advised the applicant of the requirement for an examination and gave the following reasons for its position that the applicant is not entitled to the NEB:

The injuries listed on the OCF-3 provided by Good health Wellness Centre are minor injuries that typically don't result in a complete inability to carry on a normal life. We do not have any clinical records on file that document any accident related impairments. We have arranged independent examinations to assist us in determining if you are entitled to the Non-Earner Benefit.

35The OCF-3 lists the following accident-related injury and sequelae information in descending order of significance: Contusion of breast, Whiplash associated disorder [WAD2] with complaint of neck pain with musculoskeletal signs, Sprain and strain of shoulder joint, rotator cuff capsule, Contusion of knee.

36The applicant argues since the respondent’s letter was not drafted by a regulated health professional and there is no medical opinion cited, the notice lacks medical reasons whereas the Schedule requires it. However, while the applicant references the lack of medical opinion, this is not what is required by the Schedule. What is required is “medical and any other reasons”. In this case, I find that the notice issued by the respondent is compliant with s. 36(4).

37Like my finding on the previous issue, the respondent has provided two medical opinions in its letter. First, the applicant’s injuries are within the definition of a minor injury which do not typically result in a complete inability to carry on a normal life. Second, that the applicant has not provided clinical records documenting accident-related injuries. The applicant seems to be arguing medical reasons must come from a regulated health professional, in essence, that the medical reasons must cite some medical opinion in support of the respondent’s position. This is not always necessary, as in this case, the medical reasons are referring to the applicant’s lack of establishing a medical record supporting entitlement to the benefit in dispute. In other words, medical reasons may contain a positive claim, for example asserting and relying on a medical opinion. Medical reasons may also assert a negative claim, for example asserting that a medical opinion supporting the applicant does not exist, is not true, or lacks a certain quality. In this case the nature of the respondent’s medical reason falls into the latter category.

38Lastly, the applicant was originally scheduled for two s. 44 insurer examinations (“IEs”) on October 27 and November 1, 2022. On October 24, 2022, the applicant requested to reschedule the IEs to a day other than Tuesdays and Thursdays. The IEs were rescheduled for November 11 and December 9, 2022. On November 4, 2022, the applicant requested to reschedule the November 11 IE due to an unexpected family matter. On December 6, 2022, the applicant also requested to reschedule the December 9, 2022 IE to December 23, 2022. The applicant ultimately made several rescheduling requests, including as reviewed above, for various reasons, including because the applicant tested positive for Covid on December 29, 2022. The applicant says she was willing to attend, and the respondent should have continued to reschedule, subject to her limitations.

39The respondent submits it is not arguing the applicant’s failure to attend should carry any consequence in this case, such as being barred from disputing the issue at this Tribunal under s. 55 of the Schedule. The respondent decided it no longer wanted to reschedule the IEs, so it did not. I do not have anything before me to suggest the respondent was not entitled to make this decision or that the decision was somehow improper.

40Despite my findings, I note that the applicant has the evidentiary burden on all of the issues in dispute. The applicant not addressed the principles established in Heath. The applicant has not led medical evidence to establish that she meets the NEB test.

41For the reasons above, I find that, on a balance of probabilities, the applicant is not entitled to a NEB.

Interest

42The applicant is not entitled to interest because there are no overdue benefits to which interest would apply pursuant to s. 51 of the Schedule.

Award

43The 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.

44The applicant argues the respondent unreasonably withheld the payment of NEB in contravention of its duty to pay under s. 36(4)(a) of the Schedule. I have found that the applicant is not entitled to a NEB. As there are no benefits unreasonably withheld or delayed, the applicant is not entitled to an award.

ORDER

45For the reasons above, I make the following orders:

i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

ii. As the applicant is in the MIG, it is not necessary to assess the reasonableness and necessity of the plans in dispute. The applicant is not entitled to payment of this plan under s. 38(11) of the Schedule.

iii. The applicant is not entitled to a NEB, or to interest.

iv. The respondent is not liable to pay an award.

v. The application is dismissed.