Citation: Banton v. Belair, 2025 ONLAT 23-003259/AABS

Licence Appeal Tribunal File Number: 23-003259/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:

Damian Banton

Applicant

and

Belair

Respondent

DECISION

ADJUDICATOR: Dagmar Boettcher

APPEARANCES:

For the Applicant: Maria Aslam, Paralegal

For the Respondent: Jenna Ng, Counsel

HEARD: By Way of Written Submissions

OVERVIEW

1Damian Banton, the applicant, was involved in an automobile accident on February 1, 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, Belair, 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? Note: The parties agree the MIG limits have not been exhausted with $2,050.25 remaining.

ii. Is the applicant entitled to $1,328.10 for physiotherapy services, proposed by Harleen Kaur in a treatment plan/OCF-18 ("plan") dated June 21, 2021?

iii. Is the applicant entitled to $2,400.00 for a chronic pain assessment, proposed by Remik Zakrewski in a plan dated October 20, 2022? (The Case Conference Report and Order of October 20, 2023 misidentified the assessment as being for an occupational therapy assessment. Both the applicant and the respondent maintain that the OCF-18 was for a chronic pain assessment, and this has been confirmed by a review of the OCF-18).

iv. Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Dr. Leon Steiner in a plan dated October 17, 2020?

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

RESULT

3The applicant has demonstrated on a balance of probabilities that they should be removed from the MIG.

4The applicant is entitled to the June 21, 2021 plan in the amount of $1,328.10 for physiotherapy services.

5The applicant is entitled to the October 20, 2022 plan for a chronic pain assessment.

6The applicant is entitled to the October 17, 2020 plan for a psychological assessment.

7The applicant is entitled to interest in accordance with s. 51 of the Schedule for the June 21, 2021 plan, the October 17, 2020 plan, and the October 17, 2020 plan, if incurred.

ANALYSIS

Minor Injury Guideline

8I find that the applicant has met his onus of proving that his injuries are not predominantly minor as defined in s. 3 of the Schedule and he is therefore removed from the MIG.

9Section 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."

10An 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 condition combined with compelling medical evidence stating that the condition precludes recovery if they were 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.

11The applicant argues that he is not subject to the MIG on three grounds:

i. A pre-existing medical condition prevents him from achieving maximal recovery if subject to the MIG;

ii. The medical evidence supports a psychological impairment; and

iii. The medical evidence supports a chronic pain diagnosis.

12The respondent submits that the applicant's soft tissue injuries meet the definition of "minor injury" and therefore fall within the MIG and that there is no compelling medical evidence documenting a pre-existing condition that would prevent him from achieving maximal recovery if kept within the MIG. The respondent also submits that the psychological assessment report of June 2, 2021 does not endorse sufficient clinically significant symptoms to warrant a DSM-5 diagnosis for post traumatic stress disorder ("PTSD") and that there is little evidence that the applicant's ongoing pain impairs his level of functionality.

Does the medical evidence support a diagnosis of psychological impairments resulting from the motor vehicle accident?

13I find that, on a balance of probabilities, the applicant has established that he has psychological impairments that warrant removal from the MIG.

14The applicant submits that he sustained a psychological injury as a result of the motor vehicle accident ("MVA"), and therefore should not be confined within the limits set by the MIG. I am pointed to the clinical notes and records ("CNRs") of Dr. Ting-Wai Joyce Cheung, the applicant's family physician, of May 6, 2021 during which the applicant reported nightmares, anxiety, and sleeping difficulties. Dr. Cheung assessed the applicant with anxiety and possible PTSD after the motor vehicle accident and suggested a treatment plan of therapy and medication.

15The applicant directs me also to the s. 44 psychological assessment report dated June 2, 2021 completed by Dr. David Direnfeld, Clinical Psychologist, in which the doctor noted that the applicant endorsed symptoms for a provisional diagnosis of PTSD. He also stated the applicant had endorsed the most severe or second most severe option for each of the 20 symptoms on the PTSD Checklist for DSM-5 (PCL-5). On the Beck Anxiety Inventory, the applicant exhibited low levels of anxiety, and on the Beck Depression Inventory II, the applicant scored in the range for moderate symptoms of depression. Scores on the Work and Social Adjustment Scale between 10 and 20 suggest significant functional impairment. The applicant scored 15 on this questionnaire.

16The respondent submits that the applicant should not be removed from the MIG because the CNRs of Dr. Cheung do not mention possible PTSD until May 6, 2021, which is 14 months after the accident. The respondent further submits that while Dr. Direnfeld endorsed symptoms for a provisional diagnosis of PTSD on June 2, 2021, when correlated with the diagnostic interview, there was insufficient clinical evidence to warrant a diagnosis of PTSD. The respondent also submits that the applicant replied "no" when asked by Dr. Direnfeld if he needed psychological treatment for anxiety or any other reason.

17I find that the medical evidence that the applicant has directed me to supports that he has psychological impairments resulting from the motor vehicle accident. I find Dr. Cheung's assessment on May 6, 2021 of the applicant's anxiety and possible PTSD post-MVA compelling because, although Dr. Cheung's opinion was given in support of a treatment plan, it is corroborated by the assessment of Dr. Direnfeld who endorsed symptoms for a provisional diagnosis of PTSD. Dr. Direnfeld noted that their findings were consistent with DSM-5 Criterion A for PTSD. Further, I find that while the respondent points to the applicant's response when asked if he needed psychological treatment for anxiety, Dr. Direnfeld noted that inappropriate responses or inconsistent responses were possibly attributable to attempts at impression management.

18I find that the applicant has proven, on a balance of probabilities, that he should be removed from the MIG based on a psychological impairment.

19As a result, it is not necessary to address the applicant's other arguments for removal from the MIG.

20The applicant points me to the CNRs of Dr. Cheung dated February 12, 2020 in which the applicant references the MVA of February 1, 2020 and advises that his increased back pain since the accident has impacted his job duties. Dr. Cheung's assessment recommends physiotherapy which the applicant began and which the CNRs indicate improved his pain levels. The applicant also reported to Dr. Direnfeld on June 2, 2021 that Dr. Cheung had advised him to restart the physiotherapy treatments after the accident. The applicant submits that the treatment plan is reasonable and necessary as the insured has documented functional limitations and that these limitations have resulted in modified employment duties. In addition, the applicant points me to the CNRs of Dr. Cheung of September 20, 2020 which document that the back and shoulder pain improves after physiotherapy. I find therefore that the physiotherapy treatment plan in the amount of $1,328.10 is reasonable and necessary.

21I find also that the denial letter dated July 6, 2021, was non-compliant with s. 38(8) of the Schedule. The OCF-18 for physiotherapy services is payable under s. 38(11) of the Schedule as it has been incurred and as the respondent did not cure the deficient notice prior to this hearing.

22Sections 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. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well the medical and other reasons why it considered any of the goods and services to not be reasonable or necessary. Pursuant to s. 38(11) if an insurer fails to comply with any of these requirements, it is prohibited from taking the position that the MIG applies and must pay for any incurred treatment and expenses until such time that it gives notice that complies with s. 38(8) of the Schedule.

23The applicant submits that there are two issues surrounding the denial of the OCF-18 in the amount of $1,328.10 for physiotherapy services, received by the insurer on June 26, 2021 and denied on July 6, 2021. The applicant states that proper notice was not given to the insured within 10 business days after receipt of the plan. As a result, the applicant states the insurer is prohibited from taking the position that the insured person is bound by the limits of the MIG and must pay for all goods, services, assessments, and examinations beginning on the 11th business day after receipt of the plan until a valid denial is received.

24The applicant also submits that the denial notice is insufficient, vague, and falls short of the requirements of s. 38(8), and that it did not provide specific details regarding the applicant's condition, and that the insurer did not review and/or consider the medical evidence provided. The applicant submits that on April 5, 2021 the respondent was provided with the CNRs of Dr. Cheung for the period July 25, 2019 to February 25, 2021 which documented pre-existing chronic back pain as well as functional limitations. The applicant states that the CNRs constituted compelling medical evidence, and that the respondent failed to review/consider the records, and that the deficiency has not been cured. The applicant states the full costs of the plan have been incurred.

25The respondent submits, in response to the applicant's first issue, that the plan was received on June 21, 2021 and that the insured was notified within the timeframe required by the Schedule, as July 1, 2021 was a holiday and should not have been counted as a business day.

26The respondent submits, in response to the second issue regarding the denial of the plan, that the occupational therapist completing the OCF-18 specifically indicated within Part 4 that the MIG applied and that treatment under the MIG has been provided, and additional treatment goods and/or services are required within the MIG. The respondent also states that the OCF-18 was denied based on previous approvals of the maximum MIG limits for an OCF-23 and OCF-18 and cited the applicant's submission. However, the denial letter provided by the insurer did not specifically reference previous OCF-18s. The respondent's submissions also directed me to the s. 44 assessment report completed by Dr. Moolla during which the assessor reviewed a previous OCF-18 dated October 29, 2020 and determined there was no clinical evidence that passive modalities would benefit the applicant and that the applicant required independent active exercises. However, the denial letter also did not include the details or reasons for Dr. Moola's denial.

27I find that the insurer complied with the ten day notice provisions within s. 38(8) of the Schedule because the Intact denial letter submitted by the applicant confirms receipt of the OCF-18 on June 21, 2021 and the denial letter is dated July 6, 2021. As July 1, 2021 was a holiday it should not have been counted as a business day. The respondent's denial letter falls on the 10th business day.

28I find that the insurer did not meet the requirements of s. 38(8) of the Schedule with regards to the requirement that the denial specify the medical or other reasons as to why the insurer considered the costs to be not reasonable or necessary. It did not provide medical or other reasons for the denial regarding the specific treatment in question and did not engage the specific details about the insured's condition forming the basis for the insurer's decision. I find that the denial letter lacked sufficient medical documentation in support of the insurer's denial because there was insufficient evidence that the insurer considered the CNRs provided by the applicant.

29I refer to the binding decision in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 which affirmed that an insurer is required to comply with s. 38(8) and that the requirements and consequences of s. 38(11) are mandatory. I refer also to the Divisional Court finding in Aviva General Insurance Company v. Catic, 2022 ONSC 6000, which found that incurred OCF-18s are payable during the period of non-compliance.

30Consequently, I find that the respondent's denial letter dated July 6, 2021 is non-compliant with s. 38(8) and the respondent has not pointed me to correspondence that cures this deficient denial letter. I find that the OCF-18 for physiotherapy is payable.

Is the applicant entitled to $2,400.00 for a chronic pain assessment, proposed by Remik Zakrewski in a plan dated October 20, 2022?

31I find that this treatment plan is reasonable and necessary, as the applicant has provided sufficient compelling evidence about the reasonability or goals of this treatment plan.

32To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

33The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

34The treatment plan is for a chronic pain assessment in order to determine if the applicant's pain adversely affects his wellbeing and functional capacity such that it would be reasonably possible that the applicant suffers from chronic pain and therefore a chronic pain assessment is warranted.

35In his submissions, the applicant cites Borzush v. Aviva Insurance Canada, 2021 CanLII 30523 (ON LAT), wherein the Tribunal held that the six criteria in The American Medical Association's, Guides to the Evaluation of Permanent Impairment, 6th Edition, 2008, ("AMA Guides") are a helpful tool in the assessment of chronic pain. While the AMA Guides criteria for chronic pain were not incorporated into the Schedule, this Tribunal has consistently considered them a useful interpretive tool for assessing claims of chronic pain in accident benefits disputes in the absence of a diagnosis of chronic pain. I agree that they are a useful analytical tool.

36The applicant submits that by December 15, 2022, the applicant had been undergoing physiotherapy for 34 months and that this meets the second requirement of the AMA Guides – an excessive dependence on health care providers. Additionally, the applicant submits that they had become reliant on prescription drugs for 34 months, had developed anxiety and was unable to return to the same level of pre-accident work and recreational activities. The applicant submits the above is consistent with four of the six AMA Guides criteria.

37The respondent submits that the applicant's pain, while severe and ongoing, is not a severe debilitating condition and that the applicant appears highly functional. However, the respondent also confirms that the applicant reported to the s. 44 assessors on December 15, 2022 that the back pain continued to be an accident-related physical complaint. In citing M.S. v. Dominion of Canada General Insurance, 2021 CanLII 50777 ON LAT, the respondent submits that the Tribunal stated that chronic pain is not merely ongoing or recurrent pain, but a severe debilitating condition, and as the applicant appears to be functional, the OCF-18 for a chronic pain assessment is not reasonable or necessary.

38I find that this treatment plan is reasonable and necessary because the applicant has provided sufficient compelling evidence indicating there are grounds on which to believe a condition exists, such that further investigation is warranted. I find therefore that the OCF-18 for a chronic pain assessment in a plan dated October 20, 2022 is reasonable and necessary.

Is the applicant entitled to $2,200.00 for a psychological assessment, proposed by Dr. Leon Steiner in a plan dated October 17, 2020?

39I find that the treatment plan for a psychological assessment is reasonable and necessary, as the applicant has provided sufficient compelling evidence about the reasonability or goals of this treatment plan.

40The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

41The treatment plan is for a psychological assessment to determine if the applicant's psychological condition adversely affects his wellbeing and functional capacity such that it would be reasonably possible that the applicant suffers from psychological impairments.

42As the applicant has been removed from the MIG due to psychological impairments resulting from the motor-vehicle accident, and the assessment of Dr. Direnfeld endorsed a provisional diagnosis of PTSD, I find that this treatment plan is reasonable and necessary. The applicant has provided sufficient compelling evidence indicating there are grounds on which to believe a condition exists, such that further investigation is warranted. The CNRs of Dr. Cheung, to which I am pointed, note sleeping difficulties, nightmares, and anxiety. I find, therefore, that the applicant is entitled to the psychological assessment proposed by Dr. Leon Steiner in a plan dated October 17, 2020 because they have been removed from the MIG due to psychological impairments resulting from the motor-vehicle accident.

Interest

43I find that interest applies to the June 21, 2021 plan in the amount of $1,328.10 for physiotherapy services, if incurred.

44I find that interest applies to the October 20, 2022 plan for a chronic pain assessment, if incurred.

45I find that interest applies to the October 17, 2020 psychological assessment, if incurred.

ORDER

46I order the following:

i. The applicant has demonstrated that he suffers from injuries outside of the minor injury definition in the Schedule and is removed from the MIG and its $3,500.00 funding limit;

ii. The applicant is entitled to the June 21, 2021 plan in the amount of $1,328.10 for physiotherapy services, plus interest if incurred in accordance with s. 51 of the Schedule;

iii. The applicant is entitled to the October 20, 2020 plan in the amount of $2,400.00 for a chronic pain assessment, plus interest if incurred in accordance with s. 51 of the Schedule; and

iv. The applicant is entitled to the October 17, 2020 plan in the amount of $2,200.00 for a psychological assessment, plus interest if incurred in accordance with s. 51 of the Schedule.