Licence Appeal Tribunal File Number: 23-004085/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:
Vanessa Norouzi
Applicant
and
Allstate Insurance Company of Canada
Respondent
DECISION
VICE-CHAIR:
Tyler Moore
APPEARANCES:
For the Applicant:
Olga Poznyakova, Paralegal
For the Respondent:
Yalda Aziz, Counsel
HEARD: In Writing
OVERVIEW
1Vanessa Norouzi, the applicant, was involved in an automobile accident on October 23, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Allstate Insurance Company of Canada, 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 $1,297.64 for physiotherapy services, proposed by Maya Physio and Health Clinic in a treatment plan/OCF-18 (“plan”) submitted May 7, 2022?
iii. Is the applicant entitled to medical services proposed by Alcat Assessments Inc, as follows:
(a) $4,980.87 for psychological services, in a plan submitted July 4, 2022;
(b) $2,200.00 for a psychological assessment, in a plan submitted May 24, 2022; and
(c) $2,200.00 for a neurological assessment, in a plan submitted February 24, 2023?
iv. Is the applicant entitled to $325.00 which represents the HST amount for the income replacement benefit (“IRB”) report, submitted by way of invoice on April 5, 2022?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payment to the applicant?
vi. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant sustained a minor injury as a result of the accident as defined in s. 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit for a minor injury.
4The applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services that are outside of the MIG.
5The applicant is not entitled to HST for the IRB report.
6The applicant is not entitled to interest or an award.
PROCEDURAL ISSUES
7The respondent requests that the June 22, 2022, section 25 psychological assessment report of Dr. Shirin Jazayeri be excluded as evidence because it was not shared with the respondent until June 19, 2024. According to the respondent, that did not comply with the disclosure timeline the Tribunal ordered in the case conference report and order (“CCRO”) dated November 28, 2023.
8The applicant submits that it was her understanding that Dr. Jazayeri’s report was in the respondent’s possession well before June 19, 2024. She relies on a fax confirmation showing that the original report was sent to the respondent on July 5, 2022, which failed, but it was resent on February 24, 2023. Then, on July 19, 2023, a correspondence from the respondent notes that “at this time, we are requesting Shirin Jazayeri provide us with a copy…”, and on March 15, 2024, the applicant provided an Acknowledgement of Expert Duty. According to the applicant, the respondent was dealing directly with Dr. Jazayeri and ALCAT Assessment Centre, and at no point did the respondent notify the applicant that it did not have the s. 25 report.
9The applicant also submits that the treatment plan recommending psychological treatment was submitted based on the recommendations in Dr. Jazayeri’s s. 25 report, so the respondent had been aware of the report since 2022. The applicant argues that the respondent could have also requested a copy of the report at the case conference, but it did not.
10The applicant submits further that excluding Dr. Jazayeri’s report from consideration would be prejudicial to her because the report relates to a number of the issues in dispute, and the respondent has had an opportunity to conduct its own s. 44 psychological assessment.
11I find that the applicant would be prejudiced by excluding Dr. Jazayeri’s psychological assessment report. The respondent, however, has not satisfied me that it would be prejudiced in that regard. I accept the applicant’s submissions and agree that the respondent has had other opportunities leading up to the hearing to request the report if it was not in its possession.
12Even if I accept that the respondent did not have the report until June 19, 2024, it still had nearly a month to review and comment on the report in its submission that were submitted to the Tribunal on July 11, 2024. For these reasons, I have admitted Dr. Jazayeri’s report as evidence for consideration.
13On July 22, 2024, the respondent submitted a Notice of Motion which the Tribunal ordered to be heard at this hearing.
14The respondent argues that the last page of the applicant’s reply submissions should not be considered by the Tribunal because it exceeds the page limit ordered in the CCRO. According to the respondent, the last page introduces new arguments not previously outlined in the applicant’s initial submissions.
15The respondent also argues that paragraphs 7, 9, 11, and 13 of the applicant’s reply submissions should be struck because the applicant introduces new case-law that was not addressed in her initial submissions and she re-states her arguments related to her entitlement to the issues in dispute. The respondent submits further that the applicant makes new submissions to critique Dr. Saplys’ s. 44 assessment report, when she had the opportunity to do so in her initial submissions. As a result, the respondent argues that it has been prejudiced.
16The applicant submits that her reply submissions are within the prescribed page limits because the submissions actually start on page 2 under the paragraph “issues”. The first page of her reply submissions addresses the respondent’s introduction of a new preliminary issue about whether Dr. Jazayeri’s s. 25 report should be excluded. According to the applicant, the one-page reply to the respondent’s new preliminary issue is not prejudicial to the respondent, but it would be prejudicial to the applicant if excluded because she was not aware of the issue until the respondent’s submissions.
17The applicant also argues that the respondent’s own submissions dated July 5, 2024, exceed the CCRO page limit by one page, and that it should be excluded in the interest of fairness and consistency.
18With respect to paragraphs 7, 9, and 11, the applicant submits that there is no new evidence or issues presented, and the applicant’s arguments are framed as replies to the respondent’s arguments.
19The respondent’s motion is denied for the following reasons. I agree that both parties exceeded the page limits by one page as set out in the CCRO. The parties are cautioned against exceeding the page limits, but in the interest of fairness I have considered the last page of both the respondent’s submissions and the applicant’s reply submissions. I find that there is no prejudice to either party by considering the submissions in their entirety.
20With respect to paragraphs 7, 9, 11, and 13 of the applicant’s reply submissions, I find that the applicant has not introduced new evidence, but rather replied to the respondent’s submissions. I find that the same holds true with respect to Dr. Shaplys’s report. In its submissions, the respondent notes that it relies on Dr. Shaplys’s findings and opinion. I find that paragraph 13 of the applicant’s reply submissions provides a response as to why the report should be given little weight.
ANALYSIS
MIG
21Section 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.”
22An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.
23The applicant submits that she should be removed from the MIG on the basis that she sustained a concussion and post-concussion syndrome, she has pre-existing physical and psychological conditions, and she suffers from psychological injuries as a result of the accident.
24For the following reasons, I find that the applicant sustained a minor injury as a result of the accident.
Concussion
25I find that the applicant’s accident-related physical injuries do not warrant her removal from the MIG.
26The applicant submits that Dr. Paulette Licorish, neurologist, diagnosed her with post-concussion syndrome on March 29, 2022.
27The respondent submits that the applicant incorrectly claims that Dr. Licorish diagnosed her with post-concussion syndrome, but rather that Dr. Licorice noted features consistent with prolonged post-concussion syndrome. The respondent also submits that Dr. Licorish did not recommend any neurological follow-up.
28I am not persuaded by the applicant’s submissions. According to Dr. Licorice’s report, the applicant did not hit her head, there was no loss of consciousness, no vomiting, no nausea, and there was no amnesia as a result of the accident. A CT of the applicant’s head shortly after the accident was normal. The applicant reported to Dr. Licorice that she has had headaches every one to two weeks, poor concentration, and tinnitus for which Dr. Licorice recommended a medication trial, but the applicant declined. Dr. Licorice discharged the applicant with no recommended follow-up and indicated that the applicant was managing her symptoms by taking short breaks.
29Though Dr. Licorice noted that the mechanism of injury with associated whiplash type symptoms is a frequent cause of post-concussion symptoms, Dr. Licorice does not indicate that the applicant’s symptoms would preclude her recovery within the MIG.
30The applicant has not pointed me to any other evidence from a health practitioner, including her family physician, that would corroborate a diagnosis of concussion or post-concussive syndrome following the accident that would preclude her recovery within the MIG. Dr. Licorice’s neurological assessment was normal, and the applicant continues to work.
31I accept that the applicant may have sustained some concussion-like symptoms as a result of the accident, but I find that the evidence does not support that she sustained a concussion or post-concussion syndrome that would warrant her removal from the MIG.
Pre-existing conditions
32I find that the applicant has not demonstrated, on a balance of probabilities, that she suffers from a pre-existing injury or condition that precludes recovery within the MIG.
33The applicant submits that she was diagnosed with longstanding scoliosis-related back pain by Toronto Western Hospital on October 18, 2021. According to the applicant, this condition would affect her recovery within the MIG.
34The applicant relies on the s. 44 assessment report of Dr. Ramunas Saplys, orthopaedic surgeon, dated March 31, 2022, which notes neck pain and shoulder pain that had not resolved, as well as back pain as a result of the applicant’s 55-degree scoliosis that got worse from the accident. Specifically, Dr. Saplys noted that the applicant suffered an exacerbation of mild pain that she had from her scoliosis prior to the accident.
35The applicant also argues that the respondent did not provide Dr. Saplys with complete information, in the context that she had just finished receiving treatment within the MIG, and that any opinion of Dr. Saplys pertaining to the MIG should not be considered as his report was authored before any benefit was submitted that was not within the MIG.
36The applicant also submits that she was diagnosed with an adjustment disorder with anxiety and depressed mood by Dr. Zhila Fazeli, psychiatrist, prior to the accident on March 11, 2021.
37The respondent submits that diagnoses alone are not enough to warrant the applicant’s removal from the MIG under s. 18(2). The respondent acknowledges the applicant’s pre-existing psychological impairments and pre-existing scoliosis but argues that there is no evidence of an exacerbation as a direct result of the accident or compelling evidence that recovery cannot be achieved under the MIG.
38The respondent argues that the applicant visited Dr. Fazeli in February 2022 and February 2024, and attributed her symptoms to life stressors. According to the respondent, Dr. Fazeli did not link her impairments to the accident, and the applicant has returned to work, continues to drive regularly, resumed daily activities, and entered a university program in September 2022. In addition, the applicant does not take any prescription medications for psychological impairments.
39The respondent relies on the s. 44 psychological assessment report of psychologist, Dr. Douglas Saunders, who concluded that the applicant’s mild accident-related psychological symptoms did not meet the diagnostic threshold. Dr. Saunders considered the applicant’s self-reported difficulties falling asleep, weight gain, irritable mood, and brain fog, but found that none of those symptoms were directly related to the accident.
40I have carefully considered Dr. Saplys’s report which indicates under the “benefits addressed” that the applicability of the Minor Injury Guideline was addressed, and he concluded that although there was compelling evidence of pre-existing scoliosis, the applicant had the capacity to recover within the MIG. I find that Dr. Saplys considered the applicant’s pre-existing condition and accident-related injuries when rendering his opinion. I also find that there is no indication in Dr. Fazeli’s clinical notes or the clinical notes of the applicant’s family physician, Dr. Maghol Javanmard, that the applicant’s post-accident psychological symptoms were accident-related, or that her pre-existing mental health impairments precluded her recovery if she were to be kept within the MIG.
41There is no question that the applicant suffered from pre-existing psychological impairments and scoliosis. I also accept that the accident amplified the applicant’s scoliosis-related back pain. I find, however, that the applicant has not met the second part of the test pursuant to s. 18(2) of the Schedule, in that she has not provided compelling medical evidence that her pre-existing conditions precludes recovery if she is kept in the confines of the MIG.
Psychological condition
42I find that the applicant has not established, on a balance of probabilities, that she sustained a psychological injury as a result of the accident that would warrant removal from the MIG.
43The applicant submits that the s. 25 assessment report of Dr. Shirin Jazasyeri, psychologist, dated June 22, 2022, diagnoses her with an adjustment disorder with mixed anxiety and depressed mood, sleeping pattern difficulties, and cognitive functioning issues. The applicant also submits that Dr. Fazeli, psychiatrist, diagnosed her with persistent depressive disorder with anxious distress, Cluster B personality traits, rule out ADHD on February 1, 2024.
44The respondent relies on the s. 44 psychological assessment report of Dr. Douglas Saunders dated September 7, 2022. Dr. Saunders concluded that the applicant had mild accident-related symptoms, but they did not meet the diagnostic threshold. According to the respondent, the applicant reported difficulties falling asleep, weight gain, irritable mood, and brain fog, but none were directly related to the accident.
45The applicant reported to Dr. Saunders that she worked in a research-focused role at Sunnybrook Health Sciences after the accident before entering a Master’s degree program in September 2022. The applicant drove herself to and from work.
46I note some inconsistencies in the applicant’s self-report, and I have given it limited weight. According to Dr. Jazasyeri’s assessment, which was conducted virtually, the applicant denied ever receiving previous psychological or psychiatric care and stated she was completely healthy prior to the accident, apart from scoliosis, but she consulted with Dr. Fazeli in 2021. Dr. Fazeli’s February 1, 2024, psychiatric consultation notes as reflect that the applicant had a long history of symptoms of depression and anxiety starting in high school. The applicant also reported to Dr. Jazasyeri that she experienced daily headaches since the accident. However, according to Dr. Licorice’s report, which is dated almost six months earlier, the applicant was only having headaches every one to two weeks.
47In March 2023 and October 2023, Dr. Javanmard referred the applicant for psychiatric consultation regarding depression and anxiety symptoms, as well as significant weight gain. Dr. Javanmard did not note that the symptoms were caused by the accident, but he did indicate that the applicant was advised that she had cortisol issues in the past.
48While I accept that the applicant had pre-existing psychological impairments and psychological symptoms after the accident, I find on a balance of probabilities that she did not sustain accident-related psychological injuries that would warrant removal from the MIG.
49The respondent has confirmed in its evidence that the maximum of $3,500.00 for medical and rehabilitation benefits available under the MIG has been exhausted. As I have found that the applicant has not proven that his accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans.
50However, as an alternative argument, the applicant submits that the treatment and assessment plans in dispute are payable pursuant to s. 38(11) of the Schedule, as the respondent did not comply with its statutory notice requirements under s. 38(8).
51I find that the respondent’s denials of proposed treatment and assessment plans for physiotherapy services, psychological services, a psychological assessment, and a neurological assessment are compliant with s. 38 of the Schedule.
52The Divisional Court in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 (“Hedley”) found that boilerplate medical reasons for denials of treatment plans submitted under the Schedule constitute as no reasons at all. Reasons must be meaningful in order to permit the insured to decide whether or not to challenge the insurer’s determination.
53The applicant submits that the respondent’s notice related to the treatment plan for physiotherapy services is deficient because it does not mention any of the applicant’s conditions and provides a vague reference to “injuries” without further details. The applicant also submits that the denial mentions the s. 44 orthopaedic report dated March 17, 2022, but does not attach the report for review and does not refer to any meaningful details from it. According to the applicant, the notice references the s. 44 orthopaedic assessment and Explanation of Benefits dated April 1, 2022, without advising her as to whether those documents were the only documents relied on in the denial.
54The applicant submits that the respondent’s notice related to the treatment plan for psychological services in the amount of $4,980.87 is deficient because it was submitted via HCAI on July 4, 2021, and notice from the respondent was not issued until July 19, 2022, which was one day beyond the 10 business days the respondent had to respond. According to the applicant, denial notices posted solely on HCAI do not meet the provision of s. 38(8) for the date received by the applicant. The applicant also submits that the notice did not mention any of the applicant’s medical conditions, it simply referred to “minor injuries”, and relied on boilerplate language that did not mention what documents were reviewed in formulating the denial.
55The applicant submits that the respondent’s denial of the psychological assessment is deficient, again because the respondent provided vague, non-specific references to “minor injuries” without further detail on the notice dated May 27, 2022. The applicant also submits that there is no mention of the materials reviewed prior to denying the proposed assessment, specifically the psychological pre-screen of May 18, 2022, which served as the basis for the proposed assessment.
56The applicant did not provide any submissions related to deficiencies in the respondent’s denial of the neurological assessment, so it has not been addressed.
57The respondent submits that the denial related to the treatment plan for physiotherapy services was promptly issued on May 26, 2022. It specified the relevant treatment plan, compared the list of injuries against the MIG definition, and concluded that the applicant’s injuries were minor. The respondent also submits that the denial references the previous s. 44 orthopaedic assessment report of Dr. Ramunas Saplys, which was forwarded to the applicant with the explanation of benefits form on April 1, 2022, explaining why the applicant’s injuries fall within the MIG. The respondent argues that the Schedule does not require it to attach the medical documentation it relies on unless it is a s. 44 report for that specified treatment plan. The respondent also argues that Dr. Saplys’s report, while not undertaken specifically for the plan in dispute, is relevant medical documentation the respondent can rely on.
58The respondent submits that the denial related to the plan for psychological services was issued on July 18, 2022, and not July 19, 2022, as alleged by the applicant. The respondent also submits that the denial related to the plan for a psychological assessment was issued on May 26, 2022, and not May 27, 2022, as alleged by the applicant.
59The respondent argues that denials of the plans for psychological services and a psychological assessment state that there was no medical evidence to support a finding that the applicant suffered a psychological impairment related to the accident, and that her injuries continued to fall under the MIG. The notice also clearly encourages additional medical records that might alter the injury categorization. According to the respondent, notice informs the applicant that she was required to undergo a s. 44 assessment to determine whether her complaints warranted removal from the MIG.
60I find that the explanation of benefits dated July 18, 2022 related to the physiotherapy treatment plan in dispute identifies the goods and services described in the treatment plan that the respondent does not agree to pay for, and it references the medical documents reviewed and relied upon, namely the orthopaedic assessment report of Dr. Ramunas, which found that the MIG applies to the applicant’s injuries.
61I also find that the explanation of benefits related to the psychological assessment and the psychological services treatment plans identify the goods and services described in the plans, references that a s. 44 psychology assessment was to be re-scheduled to accommodate the applicant, and requests additional medical information from Dr. Shirin Jazayeri, psychologist, who proposed the plans. The explanation of benefits indicates that the proposed treatment and assessment plans exceed the MIG limits, which had been exhausted.
62The Tribunal has found that standing within the MIG is a medical reason because it indicates that the insured’s impairments are minor, which is a medical definition in the Schedule. I also find that it is well settled that not all the medical evidence provided by the applicant needs to be referred to by the respondent in its notices or explanation of benefits.
63Even if I accept that the denial related to the treatment plan for psychological services was communicated to the applicant one day outside of the 10-business day response deadline, the applicant has not pointed me to evidence that any part of the proposed plan was incurred between July 18 and July 19, 2022.
64The consequences for an insurer breaching the 10-business day deadline as outlined in the Divisional Court decision of Aviva General Insurance Company v. Catic, 2022 ONSC 6000, specifies that the applicant is entitled to the goods and services consumed starting on the 11th business day after the plan was submitted and ending on the day in which notice is provided. The applicant agrees that notice of the denial was provided no later than July 19, 2022, or the 11th business day after the plan was submitted.
65For all of these reasons, I find that the applicant is not entitled to the treatment and assessment plans in dispute.
HST for the IRB report
66I find that the applicant has not met her onus of establishing entitlement to HST in the amount of $325.00 for the IRB report.
67The applicant has not provided any submissions related to this issue. The respondent submits that the applicant has provided no rationale for why she should be entitled to the HST and argues that HST for an IRB report cannot be a standalone issue. It must be accompanied by the denial of a specific benefit.
Interest
68Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are payable, the applicant is not entitled to interest.
Award
69The 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.
70The applicant has not provided any submissions with respect to her entitlement to an award.
71The respondent submits that it relied on the available evidence and reviewed it in a timely manner. When necessary, the respondent obtained s. 44 reports, but that is not unreasonable conduct.
72I find no award payable because no benefits were unreasonably withheld or delayed.
ORDER
73The applicant sustained a minor injury as a result of the accident as defined in s. 3 of the Schedule. She is subject to the MIG and the $3,500.00 funding limit on treatment.
74The applicant is not entitled to the treatment and assessment plans in dispute because they propose goods and services that are outside of the MIG.
75The applicant is not entitled to HST for the IRB report.
76The applicant is not entitled to interest or an award.
Released: February 26, 2025
Tyler Moore
Vice-Chair