Licence Appeal Tribunal File Number: 23-006074/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:
Cedric Garcia
Applicant
and
Belair
Respondent
DECISION
ADJUDICATOR:
Nathan Prince
APPEARANCES:
For the Applicant:
Olga Poznyakova, Paralegal
For the Respondent:
Amir Fazel, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Cedric Garcia, the applicant, was involved in an automobile accident on January 28, 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, 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. Is the applicant entitled to a non-earner benefit (“NEBs”) of $185.00 per week from February 25, 2022 to January 28, 2024?
ii. 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 MIG limits have been exhausted.
iii. Is the applicant entitled to $200.00 for the cost of the preparation of an OCF-18 proposed by Imperial Medical Assessments Inc dated March 11, 2022?
iv. Is the applicant entitled to $87.19 ($200.00 less $112.81 approved) for the cost of the preparation of an OCF-3 dated April 6, 2022?
v. Is the applicant entitled to $136.87 ($1,300.00 less $1,163.13 approved) for physiotherapy services proposed by Mackenzie Medical Rehabilitation Centre, in a treatment plan/OCF-18 (“plan”) dated June 27, 2022?
vi. Is the applicant entitled to $2,486.00 for a psychological assessment proposed by Imperial Medical Assessments, in a plan dated March 8, 2022?
vii. Is the applicant entitled to $2,023.03 for chiropractic services proposed by Mackenzie Medical Rehabilitation Centre in a plan dated September 10, 2022?
viii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
3The applicant made submissions with respect to a plan dated February 5, 2022 in the amount of $3,795.00; however, this plan was not listed as an issue in dispute in the case conference report and order nor was it added as an issue in dispute at any time prior to the hearing. Therefore, I did not consider entitlement to this plan as the issue was not properly before me.
RESULT
4The applicant is not entitled to NEBs.
5The applicant remains in the MIG.
6The applicant is not entitled to the plans in dispute.
7As there are no benefits payable, the applicant is not entitled to interest or an award.
ANALYSIS
The applicant is not entitled to NEBs
8I find that the applicant has not demonstrated on a balance of probabilities that he is entitled to NEBs.
9Section 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, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.
10Entitlement to NEBs is being sought on the basis that the respondent did not comply with its obligations under section 36 of the Schedule.
11Section 36(4) of the Schedule provides that:
(4) Within 10 business days after the insurer receives the application and completed disability certificate, the insurer shall,
a) pay the specified benefit;
b) 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; or
c) send a request to the applicant under subsection 33 (1) or (2). O. Reg. 34/10, s. 36 (4).
12Section 36(6) provides that if the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in subsection (4)(b), on the day the insurer gives the notice.
13The applicant submits that he provided his OCF-1 and OCF-3 to the respondent on February 9, 2022 and February 5, 2022 respectively and that the respondent failed to provide adequate notice that was compliant with section 36(4) of the Schedule. As such, the applicant submits that he is entitled to NEBs pursuant to section 36(6) of the Schedule which requires the respondent to pay for the benefit in the absence of a section 36(4) compliant notice.
14The respondent relies on three communications it sent to the applicant dated February 17, 2022, February 25, 2022, and March 23, 2022 and it submits that these communications provides adequate reasons for the denial of NEBs.
15The first letter, dated February 17, 2022, indicates that the applicant is not entitled to NEBs because he was employed at the time of the accident. Similarly, the February 25, 2022 notice advised the applicant that he was not eligible to receive NEBs as he was deemed to be an employed individual. Finally, the March 23, 2022 notice states that the applicant is not entitled to NEBs because the medical documentation provided by the applicant’s health practitioners does not support a finding that the applicant suffers a complete inability to carry on a normal life. In addition, the March 23, 2022 letter requested an updated OCF-3 as well as updated medical documentation from the applicant.
16The applicant submits that the respondent’s position outlined in the February denial letters is not legally correct and that it has been accepted by the Tribunal that an insured can be eligible for NEBs even if employed. While this may be the case, I find that the wording of section 36(4) requires the respondent to provide reasons for its denial - it does not mandate that the reasons provided be legally correct. Therefore, I find that the correctness of the respondent’s position with respect its denial letter is not relevant to whether the denial meets the notice requirements of section 36(4).
17The applicant further submits that the notices are not sufficient as they are generic and use unclear language and he relies on Wu v. Aviva General Insurance Company, 2023 CanLII 50592 (ON LAT) and Cruz v. Western Assurance Company, 2024 CanLII 67342 (ON LAT) in support of this proposition.
18I do not agree. I find that the totality of the three notices provided by the insurer form a clear basis for the respondent’s denial of NEBs. The first two notices indicate that the applicant is not entitled to NEBs because he was working at the time of the accident. I find this language to clear and unambiguous.
19In addition, the third notice provided on March 23, 2022 identifies that the current medical evidence does not support entitlement to NEBs and requests further medical documentation from the applicant. I find that the March 23, 2022 letter is a request for additional information pursuant to section 36(4)(c). Section 36(4) of the Schedule requires the respondent to comply with at least one of the three items outlined in sections 36(4)(a), 36(4)(b), and 36(4)(c). As I have found that the respondents request for additional information falls within the scope of 36(4)(c), it follows that the March 23, 2022 notice is also compliant with section 36(4) of the Schedule.
20Based on the foregoing, I find that the respondent’s three denial letters are valid because they are compliant with section 36(4) of the Schedule, and therefore, the applicant is not entitled to the relief sought under section 36(6).
21The applicant argues that, in the alternative, if the notices are found to be valid, that the applicant is not required to prove medical eligibility to NEBs because the original reason for the denial was based on the fact that the applicant was working at the time of the accident rather than medical reasons.
22I am not persuaded by the applicant’s submission that he does not have to prove medical eligibility to NEBs. The applicant bears the onus of proving entitlement to NEBs. I was not pointed to any authority that would suggest that this onus is dependent upon the respondent’s reason for denying the benefit and therefore do not accept the applicant’s assertion that he no longer needs to meet his onus for proving eligibility to NEBs. In any event, the denial letter of March 23, 2022 clearly indicates that the medical record does not substantiate a basis for entitlement to NEBs so the respondent had raised the issue of medical eligibility.
23As the applicant did not make any submissions regarding his inability to carry on a normal life as a result of the accident, I find on a balance of probabilities that the applicant has not met his onus of demonstrating that he is entitled to NEBs.
The applicant remains within the MIG
24I find that the applicant has not demonstrated on a balance of probabilities that he should be removed from the MIG.
25Section 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.”
26An 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.
27The applicant did not make any submissions regarding his removal from the MIG and therefore I find that he has not met his onus of demonstrating that his accident-related impairments warrant removal from the MIG.
The applicant is not entitled to $200.00 for the cost of the preparation of an OCF-18
28I find that the applicant has not demonstrated on a balance of probabilities that he is entitled to $200.00 for the cost of the preparation of an OCF-18.
29The applicant submitted a plan to the insurer on March 11, 2022 in the amount of $282.50 for a psychological pre-screening. The applicant is seeking $200.00 with respect to this assessment.
30The applicant submits that the respondent’s denial notice, dated March 21, 2022, is not compliant with section 38(8) of the Schedule.
31Section 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 section 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 section 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.
32The applicant relies on Jamily v Certas Home and Auto Insurance, 2022 CanLII 98064 [“Jamily”] where the adjudicator found that the insurer’s denial letter was non-compliant with section 38(8) because it did not contain specific details about the insured’s medical condition or even mention what the insured’s injuries were. Further, there was no reference to which documents the insurer relied upon in coming to its determination or what additional documents the insurer required from the insured.
33In coming to her conclusion in Jamily, the adjudicator relied upon the decision of T.F. v Peel Mutual, 2019 ONSC 5318, 2019 CanLII 39373 [“T.F.”] in which the Tribunal held that to be compliant with section 38(8) of the Schedule, “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 decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.”
34The respondent submits that its denial letter is compliant with section 38(8) of the Schedule because it provides the medical and other reasons for the denial.
35The March 21, 2022 denial letter states that the medical and other reasons for the denial are as follows: “
The information we currently have on file does not allow us to determine if the recommendations are appropriate at this time as there is no medical evidence to indicate the injuries you sustained are not Minor Injury in nature. As per Section 38(8) of the Statutory Accident Benefits Schedule, we are unable to consider funding for the above noted goods and services as we require a S44 Insurer Examination to determine if the goods and services in the Treatment and Assessment Plan (OCF-18) dated March 8, 2022 in the amount of $282.50 are reasonable and necessary.”
36I find that the respondent’s denial letter dated March 21, 2022 is compliant with section 38(8) because it addresses the applicant’s medical condition as it relates to the MIG and as such there is a lack of medical documentation to support the plan. The denial further notes that additional information is required and that it has scheduled a section 44 insurer examination. In this regard, I find the case before me to be distinguishable from Jamily where there was no section 44 examination request made by the respondent.
37While I am not bound by prior Tribunal decision, I adopt the principle set out in T.F. wherein it was held that an insured may meet its obligations under section 38(8) to provide medical and other reasons by identifying information about the insured’s condition that the insurer does not have but requires. I find that the respondent has complied with section 38(8) in this case because it has identified that there is a lack of medical documentation to support the plan and advised the applicant that it will need to conduct a section 44 examination to gather the required information.
38As such, I find that the denial notice provided by the respondent is compliant with section 38(8) and therefore the applicant is not entitled to the benefit in dispute.
The applicant is not entitled to $87.19 for the cost of preparation of an OCF-3
39The applicant submits that this amount is reasonable and necessary; however, as previously noted, the applicant remains within the MIG and the MIG limits have been exhausted. Therefore, it is not necessary for me to consider whether this plan is reasonable and necessary.
The applicant is not entitled to $136.87 for physiotherapy services
40I find that the applicant has not demonstrated on a balance of probabilities that he is entitled to $136.87 for physiotherapy services.
41The applicant submits that the denial letter dated July 7, 2022 is not compliant with section 38(8) of the Schedule because it does not provide medical reasons for the denial. The applicant further submits that the notice is boilerplate and is confusing and unclear.
42The July 7, 2022 denial states:
Based on the medical documentation submitted, your injuries resulting from the motor vehicle accident qualify you for treatment under the Minor Injury Guideline….. Your impairment falls within the definition of a minor injury therefore we are unable to consider expenses for services outside the recommendations of this OCF-18 or the maximum Minor Injury limit of $3,500.00.
43I find that the respondent’s notice of July 7, 2022 is compliant with section 38(8) as it provides a medical reason for the denial (IE. the applicant’s injuries fall within the definition of a Minor Injury) and further notes that the respondent had approved up to the MIG limits and could not consider any further services beyond that as the applicant remained within the MIG.
44As such, I find that the applicant is not entitled to the $136.87 for physiotherapy services.
The applicant is not entitled to $2,486.00 for a psychological assessment
45I find that the applicant has not demonstrated on a balance of probabilities that he is entitled to $2,486.00 for a psychological assessment.
46The applicant submits that the respondent’s denial notice, dated March 21, 2022, is not compliant with section 38(8) of the Schedule and again relies on Jamily.
47The March 21, 2022 denial letter states:
The information we currently have on file does not allow us to determine if the recommendations are appropriate at this time as there is no medical evidence to indicate the injuries you sustained are not Minor Injury in nature. As per Section 38(8) of the Statutory Accident Benefits Schedule, we are unable to consider funding for the above noted goods and services as we require a S44 Insurer Examination to determine if the goods and services in the Treatment and Assessment Plan (OCF-18) dated March 8, 2022 in the amount of $2486.00 are reasonable and necessary.
48Similar to my analysis above, I find that the respondent’s denial letter dated March 21, 2022 is compliant with section 38(8) of the schedule because it addresses the applicant’s medical condition as it relates to the MIG and notes that there is a lack of medical documentation to support the plan. The denial further notes that additional information is required and that it has scheduled a section 44 insurer examination. Again, I find the case before me to be distinguishable from Jamily where there was no section 44 examination request made by the respondent.
49The applicant further submits that the plan is reasonable and necessary; however, as the MIG limits have been exhausted and the applicant remains in the MIG, it follows that the applicant is not entitled to the plan in any event.
50As such, I find that the applicant is not entitled to $2,486.00 for a psychological assessment.
The applicant is not entitled to $2,023.03 for chiropractic services
51The applicant submits that this amount is reasonable and necessary; however, as previously noted, the applicant remains within the MIG and the MIG limits have been exhausted. Therefore, it is not necessary for me to consider whether this plan is reasonable and necessary.
The applicant is not entitled to interest
52Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no payments owed, the applicant is not entitled to interest.
The applicant is not entitled to an award
53The 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.
54As I have found that the applicant is not entitled to any of the benefits in dispute, there is no basis for an award under s. 10 of Reg. 664.
ORDER
55For the reasons outlined above, I find:
i. The applicant is not entitled to NEBs;
ii. The applicant remains in the MIG;
iii. The applicant is not entitled to the plans in dispute;
iv. As there are no benefits payable, the applicant is not entitled to interest or an award; and
v. The applicant is dismissed.
Released: March 25, 2025
Nathan Prince
Adjudicator