Ceniza v. Economical Mutual Insurance Company, 2025 CanLII 18214

Citation: Ceniza v. Economical Mutual Insurance Company, 2025 CanLII 18214

Licence Appeal Tribunal File Number: 22-013866/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:

Rohan Ceniza Applicant

and

Economical Mutual Insurance Company Respondent

DECISION

VICE-CHAIR: Tyler Moore

APPEARANCES:

For the Applicant: Michael Yermus, Counsel

For the Respondent: Ainsley Shannon, Counsel

HEARD: In Writing

OVERVIEW

1Rohan Ceniza, the applicant, was involved in an automobile accident on February 8, 2020, 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 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:

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 medical benefits and costs of examinations proposed by Oshawa Physiotherapy & Rehabilitation Clinic submitted in the following treatment plans/OCF-18s:

a. $2,200.00 for a chronic pain assessment submitted February 11, 2021; and

b. $9,820.92 for a chronic pain program submitted February 11, 2021?

iii. Is the respondent entitled to repayment of $7,036.98 relating to its payment of income replacement benefits (“IRBs”) paid to date?

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 sustained a minor injury as a result of the accident. He 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.

5The applicant is not entitled to interest or an award.

6The respondent is entitled to an IRB repayment in the amount of $7,036.98.

ANALYSIS

MIG

7Section 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.”

8An 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.

9The applicant submits that he sustained a partial thickness tear of his right rotator cuff, tendinosis of the right supraspinatus tendon, whiplash with neck pain, sprains/strains to the back/neck/ribs/sternum, headaches, insomnia, and a mood disorder. As a result, the applicant argues that he should be removed from the MIG based on his chronic pain condition.

10For the following reasons, I find that the applicant’s injuries have been rightly captured within the MIG and he is subject to the $3,500.00 funding limit on treatment.

Chronic Pain

11I find that the applicant has not demonstrated, on a balance of probabilities, that he suffers from a chronic pain condition that warrants removal from the MIG.

12The applicant submits that the chronic pain assessment report of Dr. Nayyar Razvi dated June 5, 2021, and the medical records of his family doctor, Dr. Samuel Lee, and orthopaedic surgeon, Dr. Mehdi Sadoughi, document ongoing and persistent pain beyond 6 months and chronic pain syndrome with functional impairments. Specifically, Dr. Razvi diagnosed the applicant with chronic pain syndrome and noted that he had ongoing complaints of headaches, neck pain, and right shoulder pain. The applicant also reported to Dr. Razvi that activities such as playing basketball, childcare, and exercise have diminished since the accident. The applicant argues that Dr. Razvi found that he had moderate limitations with feeding, functional mobility, sexual activity, childcare, driving, financial management, meal preparation and cleanup, and shopping. Dr. Razvi also indicated that the applicant had severe limitations with rest and sleep.

13The applicant relies on Dr. Razvi’s conclusion that due to chronic pain syndrome with diminished functioning, his injuries fall outside of the MIG. The applicant also relies on the clinical note of orthopaedic surgeon, Dr. Sadoughi dated September 22, 2021, to demonstrate that he was on modified duties as a physical labourer at Home Depot because of his shoulder injury.

14The respondent argues that the applicant has not received any physical treatment since August 2020, and that he did not fill a prescription for Naproxen medication between September 2020 and June 2021. The respondent also argues that the applicant did not see Dr. Lee, or any other physician between May 27, 2020, and May 28, 2021, and between June 2021 and December 21, 2022, he only saw Dr. Lee for chronic cold symptoms. The applicant did not fill any prescriptions for pain medication during that time. According to the respondent, Dr. Lee noted on May 28, 2021, that the applicant was only getting pain in his arm/shoulder if he did too much activity/work, and he only took two Tylenol on the days he was working. According to the initial intake assessment notes of the applicant’s current family physician, Dr. Emilia Sekoh, the applicant had normal range of motion and no pain in his right shoulder on February 3, 2023.

15The respondent also relies on the assessment reports of Dr. Mile Stefanac, general practitioner, dated August 18, 2020, Amanda Rudzinski, kinesiologist, dated January 6, 2021, and Dr. Razvi dated May 28, 2021.

16Dr. Stefanac reported that the applicant performed all activities of daily living and self-care independently since the accident, including meal preparation and grocery shopping. Dr. Stefanac concluded that the applicant’s prognosis was good and that his injuries were minor within the meaning of the Schedule.

17Ms. Rudzinski noted that the applicant reported an 80-90% improvement in his accident-related symptoms. She observed the applicant demonstrate a high level of function during his functional abilities evaluation and the applicant reported to Ms. Rudzinski that he was able to remove lighter garbage bags at home, use the snow plow, do laundry, and go grocery shopping for lighter items.

18The respondent submits that Dr. Razvi is the only physician to find that the applicant suffers from chronic pain syndrome, and that the applicant’s self-report to Dr. Razvi is inconsistent with the medical record. The respondent submits that for example, the applicant reported to Dr. Razvi that his shoulder pain was constant, but on the same day, he reported to Dr. Lee that his shoulder pain was activity and work dependent. The respondent submits that the applicant also reported to Dr. Razvi that he was still going to massage and physiotherapy, even though he had not attended for 9 months at the time of the assessment. Dr. Razvi noted that the applicant had moderate limitations for feeding, but according to the respondent that is inconsistent with what Ms. Rudzinski found when she observed the applicant to push and pull-up to 70 lbs, and the fact that he returned to full-time work, and he was caring for an infant. Finally, the respondent argues that Dr. Razvi found that the applicant had moderate limitations with driving, but the applicant was able to drive himself to the hospital right after the accident, he reported driving he and his wife to the hospital everyday over the next couple of weeks related to his wife’s pregnancy, he drove himself to his assessments, and he had not reported an inability to drive himself to any of his treatment providers. The respondent also submits that Dr. Razvi did, however, note no muscle wasting and that the applicant had full ranges of motion.

19I am not persuaded by the applicant’s submissions. The applicant relies on the report of Dr. Razvi, but I agree that it is inconsistent with, and not supported by, the other medical evidence on file. Dr. Razvi’s report also relies on the applicant’s inconsistent self-report compared to Ms. Rudzinki’s functional ability assessment which included objective functional testing. For that reason, I have given limited weight to Dr. Razvi’s report or his finding that the applicant suffers from chronic pain syndrome.

20I also find that the applicant has not demonstrated that he meets at least three of the six criteria for a chronic pain condition as outlined by the American Medical Association Guides to the Evaluation of Permanent Impairment (“AMA Guides”). He has not demonstrated that he is overly dependent on family members or healthcare providers, and there is no evidence indicating that he is dependent on or abusing medications or other substances. The applicant remains independent with his personal care tasks and resumed full-time employment. While the AMA Guides’ provisions about chronic pain are not incorporated into the Schedule, this Tribunal has consistently applied them as a useful interpretive tool on chronic pain. The applicant did not address the Guides in his submissions.

21In light of the fact that the applicant has not met at least three of the six criteria for a chronic pain condition according to the AMA Guides, and the inconsistent medical record with respect to whether he has chronic pain with functional impairment, I find that the applicant’s accident-related injuries do not, on a balance of probabilities, warrant removal from the MIG.

22The applicant is subject to the MIG and the $3,500.00 funding limit for a minor injury. The treatment plans in dispute propose goods and services that fall outside of the MIG. As a result, I find that the applicant is not entitled to the treatment and assessment plans that are both dated February 11, 2021. The applicant is only entitled to treatment up to the MIG limits, and the parties agree that the MIG limits have been exhausted.

IRB Repayment

23I find that the applicant’s failure to advise the respondent that he received employment insurance (“EI”), short-term disability (“STD”), and long-term disability (“LTD”) benefits were acts of wilful misrepresentation and that the respondent is entitled to repayment as a result.

24Section 52(1) of Schedule permits the respondent to claim repayment of benefits paid in error or due to willful misrepresentation. Section 52(2) provides that the respondent must give notice of the overpayment, and section 52(3) restricts the requests for repayment to a period of no longer than 12 months following the error unless it was originally paid to the person as a result of willful misrepresentation or fraud.

25Section 7(1) of the Schedule sets out that the insurer can deduct all other income replacement assistance, which includes STD and LTD benefits. According to section 7(3)(1), the Schedule allows the insurer to deduct 70% of any gross employment income received by the insured person, including EI.

26The respondent submits that the applicant received the following benefits during the time in question that are deductible from IRBs:

i. STD benefits in the amount of $415.80 per week from February 17, 2020, and June 6, 2020.

ii. LTD benefits in the amount of $373.70 per week from June 7, 2020, to August 1, 2020.

iii. EI benefits for parental leave in the amount of $410.00 per week from August 2, 2020, to April 2, 2021.

27The respondent argues it became aware of the overpayment on July 6, 2020, when the applicant provided collateral benefits information, and notified the applicant of its intention to seek repayment on the next day, July 7, 2020. On August 6, 2020, the respondent sent an updated request for repayment accounting for the LTD benefits the applicant had received. On December 15, 2020, the respondent submits that it first became aware that the applicant had received EI parental leave benefits and subsequently sent the applicant a further updated request for repayment on December 22, 2020. According to the respondent, it reduced the applicant’s IRB payments by 20% to go towards the IRB repayment between December 22, 2020, and January 24, 2021, in compliance with s. 52(1)(b) of the Schedule. The respondent submits that the applicant did not dispute this IRB payment reduction. On January 12, 2021, the respondent informed the applicant that his IRB payments would be stopping as of January 24, 2021.

28The respondent submits that pursuant to s. 52 of the Schedule, it had until February 2021 to seek repayment of the overpayment, which it did as information regarding the overpayment came in. Repayment requests were made July 7, August 6, and December 22, 2020. The respondent submits that the issue of repayment was added in its Response that was served and filed on January 3, 2023.

29The applicant acknowledges receiving repayment letters from the respondent on July 7, 2020, and December 22, 2020, but argues that the respondent failed to commence an application with the Tribunal with respect to this dispute by December 22, 2022. The applicant submits that the respondent first sought to add this issue on the Tribunal’s Case Conference Summary Form dated July 11, 2023, which was over 6 months past the limitation deadline, according to s. 280(2) of the Insurance Act. The applicant argues that the respondent formally put him on notice of overpayment on December 22, 2020, and that subsequent correspondence dated January 12 and March 9, 2021, were just reminders of its initial formal notice, which cannot be considered as an ongoing limitation extension.

30I accept that when the IRBs were stopped on January 12, 2021, the respondent could no longer deduct overpayment from ongoing IRB payments and a finalized repayment amount of $7,036.98 was communicated to the applicant through correspondence on that same date.

31I find that the respondent is not barred from pursuing repayment because of the applicant’s willful misrepresentation and the respondent’s proper notice, pursuant to s. 52 of the Schedule. Section 56 of the Schedule clearly sets out that an application under subsection 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. I find that the language does not apply to an insurer’s request for overpayment, but rather a refusal to pay a benefit. I find that even if s. 56 applied to overpayments, the respondent’s limitation period would start on the date of the applicant’s refusal to pay and not when a repayment was first requested. The respondent requested repayment for the overpaid IRB on January 12, 2021, and added the overpayment issue to its Response dated January 3, 2023, which is less than two years after its request for overpayment was made.

32Given that there is no dispute as to the amount of overpayment and agreement that the applicant was in receipt of EI, STD, and LTD benefits during the period for which repayment is being sought, I find, on a balance of probabilities, that the respondent is entitled to an IRB repayment in the amount of $7,036.98.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Having concluded that no benefits are payable to the applicant, it follows that no payments are overdue, and no interest in payable.

Award

34The 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. I find that the applicant is not entitled to an award as the respondent has not unreasonably withheld or delayed payment.

ORDER

35The applicant sustained a minor injury as a result of the accident. He is subject to the MIG and the $3,500.00 funding limit for a minor injury.

36The applicant is not entitled to the treatment and assessment plans in dispute.

37The applicant is not entitled to interest or an award.

38The respondent is entitled to an IRB repayment in the amount of $7,036.98.