Licence Appeal Tribunal File Number: 23-008349/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:
Rujvinder Mann
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Yalda Aslamzada, Counsel
For the Respondent:
Devon McIntyre, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Rujvinder Mann, the applicant, was involved in an automobile accident on October 11, 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, Intact 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 $3,522.63 for physiotherapy services, proposed by Active Life Wellness Center in a treatment plan/OCF-18 (“plan”) dated May 5, 2021?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant has not demonstrated on a balance of probabilities that her accident-related impairments warrant removal from the MIG.
4The parties do not indicate in their written hearing submissions whether the MIG limits are exhausted. The applicant is entitled to treatment up to the MIG limits. It is not necessary to consider whether the treatment plan in dispute is reasonable and necessary.
5The respondent’s denial of the treatment plan dated May 5, 2021 was a proper notice in accordance with s.38 (8) of the Schedule, and therefore, this treatment plan is not payable pursuant to s.38(11) of the Schedule.
6As there are no overdue benefits, there is no entitlement to interest or an award.
PROCEDURAL ISSUES
Page Limits Exceeded
7The respondent submits that the applicant has failed to abide by the submission page limits set out in the Case Conference Report and Order dated January 15, 2024 (“CCRO”). The CCRO indicates the applicant’s and respondent’s written submission will be limited to 10 pages in length.
8The respondent argues that in addition to the applicant’s six pages of submissions, she refers to the following additional submissions, which should not be considered by the Tribunal:
a. “Tab R”- which includes an additional six pages of submissions in chart format;
b. Exhibit “X” to the Affidavit of Yalda Aslamzada- there are an additional two pages of submissions;
c. “Optional Tab 2”- there are an additional two pages of submissions, and;
d. “Optional Tab 3”-there are an additional four pages of submissions.
9In her reply, the applicant submits that her submissions include tabs which contain optional additional information, which exceed the 10-page limit set out in the CCRO. The applicant further submits that the Tribunal may exercise its discretion in considering the optional tabs, since the respondent has not shown any actual prejudice from their inclusion.
10I find that the applicant exceeded the 10-page limit as set out in the CCRO, which includes submissions being made in the optional tabs to support her position on entitlement. The actual pages of the optional tabs referenced in the submissions include an additional six pages of submissions in chart format, at “Tab R”, plus an additional two pages of submissions, attached as Exhibit “X” to the Affidavit of Yalda Azlamzada, and an additional six pages of submissions at the optional tabs summarizing case law, and legislative intent.
11The CCRO specified that the hearing adjudicator may not consider submissions which exceed page limits. The discretion lies with the hearing adjudicator. I note that pursuant to ss. 23(1) and 25.0.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, it falls directly within my discretion to admit or strike any submissions in excess of the limits set out in the CCRO. However, in this case, I will admit non-compliant submissions because the respondent has not demonstrated any prejudice resulting from these additional submissions.
ANALYSIS
The applicant has not demonstrated that she suffers from accident-related injuries that warrant removal from the MIG
12The applicant made no initial submissions regarding the substantive basis for her removal from the MIG and instead, focused her arguments on procedural errors made by the respondent which result in finding the disputed benefits payable.
13Therefore, I find that the applicant has not demonstrated on a balance of probabilities that she sustained accident-related injuries to warrant removal from the MIG.
The applicant is not entitled to the disputed treatment plan
14Since I have found that the applicant’s accident-related injuries do not remove her from the MIG, it is not necessary for me to consider whether the plan is reasonable and necessary. The applicant is entitled to any remaining amount in the MIG.
15The applicant argues that the treatment plan is certified by a duly qualified medical professional to contain accurate information in proposing reasonable and necessary treatment. The applicant argues that the certification creates a rebuttable presumption that the plan is reasonable and necessary, which the respondent must rebut on the basis of fair and principled reasons in the denial notice.
Was the respondent’s denial of treatment plan proper under Section 38(8) of the Schedule?
16As noted above, the focus of the applicant’s argument is that the respondent did not properly deny the disputed treatment plan, in accordance with s. 38(8) of the Schedule.
17Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
18If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11)2 provides that is an insurer fails to provide proper notice of the reasons for its denial it must pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice as described in s. 38(8).
19The Tribunal has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.
Sufficiency of the Respondent’s Denial of OCF-18 dated May 5, 2021
20The applicant argues that the plan dated May 5, 2021 for physiotherapy services, completed by Dr. Ravin Sodhi, chiropractor, of Active Wellness Center in the amount of $3,522.63 was improperly denied by the respondent. The respondent wrote to the applicant on June 9, 2021 denying the benefits, within 10 business days after receiving the plan on June 2, 2021. The applicant argues that the respondent’s denial of this plan does not comply with s.38(8) of the Schedule because it does not provide medical and other reasons for the denial.
21The applicant also submits that the respondent’s denial was generally improper and does not provide particulars regarding this plan.
22I find that the June 9, 2021 was a valid denial letter. It indicates that the applicant’s injuries fall under the MIG, and the respondent had not received any objective medical information to support an injury to warrant removal from the MIG. It further indicates that the respondent requested compelling medical information to determine whether she sustained a non-minor injury or a pre-existing condition that would prevent recovery under the MIG.
23The respondent stated in its denial letter dated June 9, 2021, that the applicant’s list of injuries falls under the MIG, and the information provided does not support compelling evidence of a pre-existing condition that would prevent recovery under the MIG limit. The respondent made requests under s.33 for clinical notes and records from October 11, 2017, from a general practitioner, hospital and specialists to be provided by June 23, 2021.
24In my view, this rationale meets the standard set out in 17-003774/AABS v. Aviva Canada Inc, 2018 CanLII 84051 ON LAT (“Aviva”). While not binding on me, I find the following reasoning in Aviva to be persuasive “…an insurer’s ‘medical and any other reasons’ should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decisions or, alternatively, identify information about the insured’s condition that the insurer does not have but requires.”
25Here, the respondent has requested information about the insured’s pre-existing conditions and accident-related injuries that the insurer does not have but requires to determine whether the applicant’s injuries fall outside the MIG. The respondent has specifically requested further information from the applicant’s family physician, hospitals and specialists from October 11, 2017 to date, pursuant to section 33 of the Schedule. As such, I find the respondent’s reference to the MIG in the denial letter was a valid denial of the plan.
26In sum, I find that the June 9, 2021 letter was a valid denial letter. I find that the respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notice invalid.
27Since I have found that the respondent ‘s denial notice dated June 9, 2021 was a valid notice, it is not necessary to determine whether further notices dated June 14, 2022 and October 20, 2022 were also valid notices regarding the same issue.
28I find on a balance of probabilities that the applicant has not met her burden to establish that this plan is payable under section 38.
The applicant is not entitled to interest or an award
29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
30Under 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.
31Since there are no benefits owing or delayed, there is no interest or an award payable to the applicant.
ORDER
32For the reasons set out above, I find that:
i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG treatment limit.
ii. The applicant is entitled to treatment up to the MIG limits and, it is not necessary to consider whether the disputed plan for physiotherapy services is reasonable and necessary.
iii. As there are no benefits owing or delayed, the applicant is not entitled to interest or an award.
iv. The application is dismissed.
Released: March 20, 2025
__________________________
Lisa Holland
Adjudicator