Wright v. Economical Insurance, 2025 CanLII 28460
Licence Appeal Tribunal File Number: 23-002382/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:
Anthony Wright
Applicant
And
Economical Insurance
Respondent
DECISION
ADJUDICATOR: Michael Beauchesne
APPEARANCES:
For the Applicant: Nicholas Whelan, Paralegal
For the Respondent: Jeremy Hanigan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Anthony Wright (the “applicant”) was involved in an automobile accident on March 2, 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 Economical Insurance (the “respondent”) and applied to the Licence Appeal Tribunal—Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2There are a couple of preliminary issues to address at the outset of this decision and an overview of the substantive issues in dispute will provide helpful context for these preliminary matters. The case conference report and order (“CCRO”) for this matter identifies disputes pertaining to the applicability of the Minor Injury Guideline (“MIG”), a non-earner benefit (“NEB”), four treatment plans (“OCF-18”), interest, and an award.
PRELIMINARY ISSUES
Issue 1: Is the applicant barred from proceeding to a hearing for his NEB claim because he failed to submit a completed and signed disability certificate (“OCF-3”) within the two-year time limitation under the Schedule?
3I find NEB benefits are not payable to the applicant because section 36(3) of the Schedule applies. The applicant’s NEB claim appears as substantive issue no. 2 in the CCRO.
4Section 36(2) of the Schedule requires that an applicant seeking a specified benefit, which includes an NEB, shall submit a completed OCF-3 with the application (“OCF-1”). This is to be read in concert with section 36(3) of the Schedule, which states that no specified benefits are payable for any period before the OCF-3 is submitted. Section 12(3)(c) provides that an insurer is not required to pay an NEB for more than 104 weeks after the accident.
Submissions of the parties
5The respondent argues the applicant is not entitled to an NEB because: (1) he did not submit a completed OCF-3; (2) he was informed of the missing OCF-3 by letter dated May 4, 2021; and (3) he subsequently failed to submit an OCF-3 within the two-year limitation period for his NEB claim.
6The applicant submits that he transmitted the OCF-3 to the respondent by fax on April 5, 2021. The applicant relies on an entry in the adjuster log notes that confirms the OCF-3 was received and reviewed by the handling adjuster. In reply, the respondent denies that the applicant produced a fax confirmation report and contests the applicant’s interpretation of the adjuster log notes.
7The applicant goes on to say that the denial notice provided by the respondent is unclear because it states that a completed OCF-3 was not submitted when, in fact, one had been completed and submitted. The applicant also says that the respondent’s denial notice does not comply with section 36(4) of the Schedule because it does not provide sufficient medical and other reasons for the denial. The applicant therefore reasons he is entitled to the remedy at section 36(6) of the Schedule, which essentially would require the respondent to pay the NEB. The applicant relies on M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 ON LAT (“M.B.”) and Lopreiato v. Aviva General Insurance, 2023 CanLII 4453 ON LAT (“Lopreiato”) to show that denial notices are insufficient where medical and other reasons for the denial are not provided, or where the respondent relies on “boilerplate” language to explain its denial decision.
Was the OCF-3 submitted to the respondent?
8The parties agree that the applicant’s accident occurred on March 2, 2021. This means the applicant would be eligible to receive an NEB up to March 2, 2023—if he proves entitlement—per section 12(3)(c) of the Schedule. However, the applicant is not entitled to an NEB for any period before he submits a completed OCF-3 to the respondent, and I find section 36(3) applies to this matter.
9The applicant has failed to persuade me that he submitted an OCF-3 to the respondent at any point prior to the end of his NEB eligibility period in March 2023. He submits the OCF-3 in evidence includes a fax confirmation sheet (i.e., transmission report) dated April 5, 2021, that shows the OCF-3 was sent to the respondent. I disagree. The OCF-3 in evidence includes a fax cover sheet, which is distinguishable from a transmission report in that the latter is generated by the fax machine once the transmission is either complete or fails to transmit. In short, a fax transmission report confirms the status of the transmission whereas a fax cover sheet as produced by the applicant does not confirm whether a transmission was received by the intended recipient.
10The fax cover sheet in evidence shows that a seven-page transmission was indeed initiated from Premier Medical Centre Inc., at 3:13 PM on April 5, 2021. But in my view, this time/date stamp merely confirms that a transmission was attempted at the sender’s end and there is no confirmation of receipt or the fax number it transmitted to. While I accept the seven faxed pages do, in fact, comprise the OCF-3 completed by Mr. Mitesh Rajodlya (physiotherapist) on March 22, 2021, I find the fax cover sheet establishes only that the OCF-3 was intended to be sent to the respondent (i.e., “Julissa” at Economical Insurance Company) and falls short of proving the respondent received it. While producing a fax transmission report is not strictly necessary to show compliance with section 36(2), I find the absence of one is this case is a hinderance to the applicant’s claim because the respondent is saying the OCF-3 was never received and the onus to prove transmission falls to the applicant.
11Similarly, I am persuaded that the adjuster’s log notes do not show the respondent received an OCF-3 from the applicant. The parties provide contrasting interpretations of an entry made on May 4, 2021. Here is an excerpt of that entry:
Benefits Entitled To:
IRBE: No, as per OCF-1
IRBO: No, on OCF-3 (emphasis added)
OCGR: No, no optionals, not Cat
OHHM: No, no optionals, not Cat
Election to Benefits: No
12The applicant’s submissions point to the “IRBO: No, on OCF-3” annotation as evidence that the respondent received the OCF-3. In his reply, the applicant emphasizes that this annotation “looks to be clear and coherent that an OCF-3 was received.” I take this to mean that the applicant is saying the annotation shows an adjuster reviewed the OCF-3 and confirmed the applicant was not entitled to an income replacement benefit (“IRB”), thereby proving the respondent received the OCF-3. In contrast, the respondent says a typo was made, (i.e., “on” should read “no”, such that the annotation should read: “No, no OCF-3”) and that this interpretation is clear when the whole entry is reviewed in context. The respondent asserts its interpretation is corroborated by its letter to the applicant, dated May 4, 2021, that advises it has not received an OCF-3.
13I afforded the log note entry little weight in support of the applicant’s position. Looking at the IRBE annotation for context, it reads: “No, as per OCF-1” (emphasis added). Given the ordinary meaning of as per (i.e., in accordance with), I would agree this conveys that the adjuster reviewed an OCF-1. And given the standardized nomenclature used throughout the log note entry, I find that had the adjuster reviewed an OCF-3 when assessing IRBO eligibility, it is more likely that the annotation would have read “No, as per OCF-3” (emphasis added). But the entry does not say this. Rather, the IRBO entry reads “No, on OCF-3” (emphasis added). In my view, it makes more contextual sense that “on,” which does not appear in any of the other annotations in this log note entry, was a typo and should read “no” [see, for e.g., “OCGR: No, no optionals, not Cat” and “OHHM: No, no optionals, not Cat” (emphasis added)]. As such, I reject the notion inferred by the applicant’s submissions that “on” literally means the adjudicator reviewed information “on” the OCF-3.
14In any event, the respondent’s interpretation is more persuasive to me because it is supported by the May 2021 letter that indicates the applicant had not submitted a completed OCF-3 and is therefore not entitled to an NEB in accordance with 36(3) of the Schedule.
Is the respondent’s denial notice compliant with the Schedule?
15The applicant’s arguments fail as they pertain to the sufficiency of the respondent’s denial notice. In my view, section 36(4) of the Schedule—which requires the respondent’s notice to explain the medical and any other reasons for denying the NEB—does not apply to this case because the requirements that section imposes on the respondent activate only when the respondent receives the OCF-1 and the OCF-3. And in this case, the applicant has not proven the respondent received an OCF-3.
16But even if I were to accept that section 36(4) applies, I would find the applicant could not avail himself of the relief at section 36(6) because I do not accept that the respondent’s notice was deficient. The applicant argues the notice was vague and did not provide medical reasons. I find neither of these arguments are persuasive.
17The notice was not vague because it clearly identified what the missing piece was (i.e., the OCF-3): “…Based on the information you have provided, it has been determined you are not eligible to receive this benefit, as you have not submitted a completed Disability Certificate (OCF-3)…”. At that point, the applicant’s belief that the OCF-3 had been sent notwithstanding, it was clear that the respondent was claiming the OCF-3 was not delivered. In my view, denying the NEB because the applicant failed to produce an OCF-3, as he is legislatively required to do, is a perfectly valid “other” reason that does not require a medical component.
18Given that the applicant produced insufficient evidence to demonstrate he submitted an OCF-3 to the respondent in April 2021—or at any time thereafter up to March 2023 when his NEB eligibility window closed—I find section 36(3) of the Schedule applies. The applicant is therefore not entitled to an NEB, or the relief specified at section 36(6) of the Schedule.
Issue 2: Is the applicant barred from proceeding to a hearing for several OCF-18s because he failed to attend an Insurer’s Examination (“IE”) under section 44 of the Schedule?
19I find the applicant’s failure to attend IEs is fatal to his claim for three out of four of the disputed OCF-18s.
20For context, the CCRO identifies three OCF-18s proposed by 101 Assessment Center that are the subject of this preliminary issue. These include: (1) a psychological assessment in the amount of $2,460.00 by Dr. Konstantinos Papazoglou (psychologist) on December 5, 2022; (2) psychological services in the amount of $3,790.70 by Dr. Papazoglou on April 19, 2023; and (3) a chronic pain assessment in the amount of $2,460.00 by Dr. Grigory Karmy (physician) on April 19, 2023. These are listed as substantive issues 4, 5 and 6 in the CCRO, respectively.
Submissions of the parties
21The applicant submits he was unable to attend the scheduled IEs owing to a health condition that required ongoing treatment. He asserts he should not be barred from pursuing the disputed OCF-18s due to this circumstance. The applicant further submits that the denial and IE notices are deficient because they do not provide medical and any other reasons as to why the OCF-18s were denied, nor the scheduling of IE assessments. The applicant adds that the IEs are not reasonably necessary because the notices are insufficient and because he had provided ample medical evidence to support his entitlement.
22The respondent argues that its IE notice complied with the Schedule and provided the medical reasons for undergoing the IEs. The respondent goes on to argue that the applicant did not provide a reasonable explanation for missing any of the scheduled and re-scheduled IEs. The respondent adds that the applicant did not provide a doctor’s note to substantiate he had appointments relating to his health condition at the time of the scheduled IEs, nor is there any indication of conflicting appointments for treatment of his health condition in the clinical notes and records produced by the applicant. The respondent goes on to say it does not have expert evidence to rely on with regard to the applicant’s entitlement to the disputed OCF-18s because it was precluded from exercising its statutory right to independently examine the applicant to determine his eligibility for treatment beyond the MIG.
23Based on the submissions of the parties, I am being asked to consider: (1) whether the respondent provided adequate reasons for denying the disputed OCF-18s and requiring IEs; (2) whether the IEs are reasonably necessary; and (3) whether the applicant provided a reasonable explanation for missing the IEs. I will first address the sufficiency of the respondent’s notices before considering whether the IEs are reasonably necessary, and, lastly, whether the applicant provided a reasonable explanation for missing the IEs.
24For context, there is one denial notice in evidence for the psychological assessment OCF-18. There is also one notice in evidence that serves as both a benefit denial and an IE request for the psychological services OCF-18 and chronic pain assessment OCF-18. Given that the applicant’s submissions do not contest the subsequent three IE re-scheduling notices, I have not addressed them in this decision.
The sufficiency of the respondent’s notices
25I find the applicant has not shown that the respondent’s notices fail comply with the Schedule. For both notices, the applicant’s submissions do not lead arguments or point to evidence that establish the reasons for denial are insufficient.
26In my view, the notice for the psychological assessment OCF-18 offers a principled rationale based fairly on the insurer’s file. The notice, dated December 21, 2022, says the OCF-18 was denied because, in the more than 21 months that had elapsed since the accident, the applicant had not provided medical evidence of an accident-related psychological impairment or pre-existing psychological condition up to the submission of the OCF-18. The notice indicates that the applicant had produced only the clinical notes and records of Mr. Rajodlya despite several requests to obtain the clinical notes and records of the applicant’s family physician that support treatment outside the MIG limits.
27Similarly, I find the notice for the psychological services and chronic pain OCF-18s, dated June 26, 2023, provides sufficient reasons for denial. The notice says the OCF-18 was denied because the applicant provided insufficient medical documentation to establish that his accident-related injuries fall outside the MIG. The notice reiterates that the claim had been dormant for almost two years, and that the applicant had not provided medical evidence of an accident-related psychological impairment or pre-existing psychological condition up to the submission of the OCF-18. The notice goes on to indicate that the respondent had only received an Ontario Health Insurance Plan (“OHIP”) summary for the period of May 31, 2021, to August 31, 2022, in which no post-accident hospital visits were documented. While I find this to be inconsistent with the December 2022 denial notice issued six months earlier—which indicated the respondent had also received Mr. Rajodlya’s records—this omission, in my view, bears little weight on whether the respondent’s notices failed to provide medical and any other reasons for denying the proposed benefits.
Are the respondent’s IE requests reasonably necessary?
28I find the IE requests are reasonably necessary. While I am not bound by earlier Tribunal decisions, I find it prudent here to use the criteria often adopted by the Tribunal when assessing whether an IE is reasonably necessary [see, for e.g., 17-005291/AABS v Travelers Canada, 2018 CanLII 13172 (ON LAT); R.S. v Pafco Insurance Company, 2020 CanLII 27384 (ON LAT); and 17-000020 v State Farm Insurance Company, 2017 CanLII 46354 (ON LAT)]. Those criteria include:
i. The timing of the insurer’s request;
ii. The possible prejudice to the other side;
iii. The number and nature of the previous insurer’s examinations;
iv. The nature of the examinations being requested;
v. Whether there are any new issues being raised in the applicant’s claim that require evaluation; and
vi. Whether there is a reasonable nexus between the examination requested and the applicant’s injuries.
29In my view, the respondent’s request for IEs were not timely. While the applicant’s submissions do not take issue with the timing, I note the Health Claims for Auto Insurance (“HCAI”) report in evidence shows the chronic pain OCF-18 was submitted to the respondent on May 1, 2023, and the respondent’s first IE notice is dated almost two months later on June 26, 2023. That said, I diminished the weight I placed here because the IEs were nevertheless initially scheduled to allow ample time for completion and review (i.e., almost a year) by both parties prior to the hearing.
30The concerns raised by the respondent (i.e., that it does not have expert evidence to rely on because the applicant failed to attend the scheduled IEs) are not addressed by the applicant. It is well-established that IEs are an insurer’s only option for obtaining independent, contemporaneous medical evidence to defend claims made against them. I find that the respondent’s ability to adjust the applicant’s file and participate in proceedings before the Tribunal is significantly hindered because it was rendered unable to obtain its own expert assessment to test the opinions voiced in Dr. Papazoglou’s section 25 evaluation, upon which the applicant relies heavily to support its case.
31Based on the submissions of the parties, these were the first IEs requested on this claim by the respondent. In my view, this is not excessive in nature or number.
32I find there is a reasonable connection between the requested IEs and the applicant’s injuries. I agree with the respondent’s position that it is entitled to assess the accuracy of the applicant’s claims, which, in this case, is Dr. Papazoglou’s belief that the applicant sustained psychological disorders—that include a pain predominant somatic disorder—rather than the residual sequelae of his accident-related injuries. In my view, the respondent should be permitted to examine the connection and determine on its own whether the applicant sustained injuries that fall outside the MIG and require further assessment and treatment.
33Taking all this into consideration on a balance of probabilities, I find the respondent’s IE requests were reasonably necessary because they: (1) were timely enough to permit completion and review of the examination prior to the hearing; (2) were appropriate given the respondent’s rights under the Schedule; (3) were not excessive in number or nature considering the limited IEs the applicant had been previously subjected to; and (4) were reasonably connected to the applicant’s injuries.
Did the applicant provide a reasonable explanation for missing the IEs?
34I find the applicant’ has not provided a reasonable explanation for missing the IEs scheduled and rescheduled by the respondent.
35Section 44(1) of the Schedule permits an insurer to require that an insured person be examined by a regulated health professional(s) to help determine if the insured person is, or continues to be, entitled to a claimed benefit. Section 55(1)2 of the Schedule prohibits an insured person from applying to the Tribunal to dispute a benefit if the insurer has provided the insured person with notice that it requires an examination under section 44, but the insured person has not complied with that section. This is to be read in concert with section 55(2) of the Schedule, which enables the Tribunal to permit an application to dispute a claimed benefit despite an insured person’s non-compliance with section 44.
36Given that the applicant failed to show the respondent’s notices were deficient, and that he did not attend any of the scheduled or rescheduled IEs, I now turn to the restriction on proceedings at section 55(2) of the Schedule. The Tribunal has generally held that the applicant should provide a reasonable explanation for non-compliance to merit the relief offered at section 55(2) [see, for e.g., 18-002529 v Aviva Insurance Canada, 2019 CanLII 43896 (ON LAT); Silvera v. Aviva General Insurance, 2021 CanLII 35585 (ON LAT); and Coladonato v Aviva Insurance Company, 2023 CanLII 42651 (ON LAT]. While I am not bound by these decisions, I am persuaded by their consistent interpretation of how to apply section 55(2), which is reinforced in Noble v. Economical Insurance Company, 2024 ONSC 6985 (“Noble”). Noble is a recent Divisional Court decision that upholds a Tribunal decision to dismiss an application for IE non-attendance that the applicant failed to reasonably explain. Although the Court does not expressly or directly engage with the language of “reasonable explanation” in the IE non-attendance context, it finds no error in the way the Tribunal exercised its discretion under section 55(2). In my view, this supports the Tribunal’s long-held principle that the requirement for a reasonable explanation for IE non-attendance accords with the proper exercise of discretion under section 55(2).
37To establish the reasonableness of his explanation, the applicant should support his position by leading evidence that shows the IEs conflicted with appointments to treat his health condition. The applicant did not do this. Further, the applicant did not point to evidence that substantiates his health condition, or that it requires ongoing treatment. As such, I am not persuaded as to the reasonableness of the applicant’s explanation and decline to apply section 55(2) of the Schedule.
38Given that the applicant has not established that: (1) the respondent’s notices pertaining to the disputed OCF-18s are deficient; (2) the requested IEs are not reasonably necessary; and (3) he has a reasonable explanation for missing the IEs, I agree that section 55(1)2 of the Schedule applies with no relief afforded by section 55(2). The applicant is therefore barred from pursuing his OCF-18 claims at the Tribunal until he attends the IEs requested by the respondent.
SUBSTANTIVE ISSUES
39The substantive issues in dispute are:
i. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit?
ii. Is the applicant entitled to physiotherapy services in the amount of $1,297.00, proposed by Premier Medical Centre Inc. in an OCF-18 dated July 21, 2021, submitted August 9, 2021, and denied August 19, 2021?
iii. Is the respondent liable to pay an award under section 10 of Regulation 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
40The applicant remains in the MIG and is not entitled to the disputed OCF-18 for physiotherapy services or interest. The respondent is not liable to pay an award.
ANALYSIS
Applicability of the MIG
41I find the applicant has not demonstrated he should be removed from the MIG.
42Section 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.”
43The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2) of the Schedule, which says the MIG limit does not apply if the applicant’s health practitioner determines and provides: (1) compelling evidence that the applicant has a pre-existing medical condition that was documented by a health practitioner before the accident; and (2) that the pre-existing medical condition will prevent the applicant from achieving maximal recovery from his accident-related injuries if kept in 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.
44The applicant’s submissions do not argue the MIG in a straightforward way. From what I understand, he seeks removal from the MIG because (1) his physical injuries are not minor; (2) he sustained psychological impairment; (3) he suffers from chronic pain; and (4) he has a pre-existing condition.
45The applicant submits there is a plethora of medical documentation and OCF-18s that list injuries and impairments that would bring him outside the MIG. He points to the records of both the Centre for Addiction and Mental Health (“CAMH”) and Parkdale Queen West Community Health Centre (“Parkdale”) to support his claim, as well as adjuster log notes that identify both anxiety and depression were noted on the OCF-3 and a treatment confirmation form (“OCF-23”). The applicant also directs me to the psychological assessment completed by Dr. Papazoglou in March 2023 to show he was diagnosed with an adjustment disorder, a passenger-related phobia, and somatic symptom disorder with consistent pain complaints corroborated by the Wellmedica Clinic.
46The respondent says the ambulance call report clearly demonstrates that the applicant sustained minor injuries. The respondent asserts that the applicant did not sustain a psychological impairment owing to the accident, and that, as a matter of procedural fairness, Dr. Papazoglou’s report merits no weight because the respondent was unable to obtain an IE to address Dr. Papazoglou’s findings. The respondent goes on to say that Dr. Papazoglou’s opinions are unreliable because he failed to consider medical records of the applicant’s treating physicians or the ambulance call report. The respondent also says the applicant has not established he sustained chronic pain resulting from the accident and relies on Zappia v Unica Insurance Inc., 2020 CanLII 101805 ON LAT (“Zappia”) to show the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”) should be applied to the applicant’s claim.
Do the applicant’s accident-related physical injuries fall within the MIG?
47I am persuaded that the applicant’s injuries fall within the MIG. Part 5 of the OCF-3 lists physical injuries that consist of sprains and strains of the lumbar and thoracic spine as well as whiplash with complaints of pain, stiffness, and tenderness. These types of injuries meet the definition of minor injury in the Schedule. While the OCF-3 also mentions radiculopathy, I find the applicant’s submissions do not point to supporting evidence of this condition. In fact, the September 2021 entry in Wellmedica’s records indicates that while the applicant was still experiencing residual pain (i.e., a “temporary twinge”), there is no radiating pain. I therefore assigned less weight to the applicant’s radiculopathy claim.
Did the applicant sustain an accident-related psychological impairment?
48I find the applicant’s evidence falls short of establishing he should be removed from the MIG because of psychological impairment.
49The applicant’s submissions do not pinpoint where, in the adjuster notes, there are annotations about depression and anxiety. While I was able to locate an August 18, 2021 entry that refers to Mr. Rajodlya documenting mixed anxiety and depressive disorder, I place little weight on this evidence because the sleep, anxiety, and depressive disorders listed in the OCF-3 fall outside the scope of practice for physiotherapists to diagnose, and because I was not directed to contemporaneous medical records that support these diagnoses.
50While I recognize that Dr. Papazoglou later offers several diagnosis in his report, I was pointed to little contemporaneous evidence of psychological symptomology that corroborates Dr. Papazoglou’s opinion. In fact, I find that Dr. Papazoglou’s report does not list any records of the applicant’s medical history that may have been available to support his assessment, or that he may have consulted to verify the applicant’s self-reported medical history. In my view, these detractors diminish the probative value of Dr. Papazoglou’s evidence.
51Given that Dr. Papazoglou relies heavily on his clinical interview with the applicant to inform his opinions, I find the inconsistencies in the applicant’s reporting to Dr. Papazoglou also weighs against the applicant’s claim. The respondent’s submissions raise discrepancies between the applicant’s reporting to Dr. Papazoglou and nurse practitioner (“NP”) Sarah Innis that impede the reliability of his evidence. For example, the applicant provided opposing accounts of his willingness to undergo psychological counselling—on one hand, Dr. Papazoglou reports the applicant was interested in pursuing 12 sessions in April 2023, while on the other hand, NP Innis reports just two months later that the applicant was circumspect (i.e., wary and unwilling) about group or phone counselling, believing it would not be helpful. The applicant also gave sharply contrasting accounts of his alcohol consumption when his medical history and risk factors were probed by these practitioners, offering that he drank only one glass on special occasions to Dr. Papazoglou in March 2023, but telling NP Innis that same month that his weekly consumption totalled 20 alcoholic drinks. While the applicant had an opportunity to address these discrepancies in his reply, he chose to not do so, and this hindered his MIG claim.
52The clinical notes and records of Parkdale were of little assistance. According to the index of the applicant’s evidence brief, these records comprise 61 pages and, contrary to the Tribunal’s orders, the applicant’s submissions did not pinpoint annotations of depression and anxiety therein. I therefore did not review the Parkdale records.
Does the applicant suffer from accident-related chronic pain with functional impairment?
53I find the applicant has not established he should be removed from the MIG because of chronic pain.
54To demonstrate he should be removed from the MIG, the applicant must show he sustained chronic pain with functional impairment that is more than sequalae from his accident-related injuries. The Tribunal has held that chronic pain syndrome—or pain that is a severe, debilitating condition accompanied by functional impairment and distinct from ongoing or recurring pain—qualifies as chronic pain [see, for e.g., 17-007825 v Aviva Insurance Canada, 2018 CanLII 98282 (ON LAT); 16-000438 v The Personal Insurance Company, 2017 CanLII 595151 (ON LAT); and Pham v. Coseco Insurance, 2021 CanLII 43546 (ON LAT)].
55There is little evidence of pain that is a severe, debilitating condition resulting in functional impairment. The March 2021 entry in Wellmedica’s records made just several days after the accident indicates the applicant recalled sharp low back pain and pain in his right temporal area after impact that may have resulted from hitting his head in the accident. This is at odds with the ambulance report that indicates the applicant denied head impact or any injuries save sharp pain that was localized to his left chest wall area that he rated a four out of 10. There is no mention here of any impairments arising from this pain. Almost seven months later, a September 2021 entry shows the applicant complained that he still experienced residual pain that he characterized as a “temporary twinge” and was mostly in his lower back. But I see no evidence in this record of functional testing that identified impairments.
56There is then an 18-month gap in medical evidence up to Dr. Papazoglou’s report, which I find does not support pain of a severe and debilitating nature. While the applicant’s submissions do not pinpoint his pain or functional impairment complaints in Dr. Papazoglou’s report as required by the CCRO, I was able to locate where the applicant provided his own account of lower and upper back pain, frequent headaches (i.e., twice weekly), and functional difficulties (i.e., sitting, standing, walking for prolonged periods, bending, and lifting heavy objects) that he attributed to pain. However, I placed less weight on this evidence because: (1) the applicant’s submissions do not direct me to contemporaneous complaints of these functional difficulties up to the time of his consultation with Dr. Papazoglou; and (2) the assessment of functional impairment owing to physical injuries is outside the scope of Dr. Papazoglou’s practice as a psychologist. Further, the applicant’s complaint to Dr. Papazoglou about frequent headaches—that the applicant described as a nine out of 10 on an intensity scale where 10 is the most severe—is at odds with the ambulance report and the September 2021 entry in Wellmedica’s records where the applicant conveyed little mention of headaches and attributed his pain complaints to mostly his lower back. As earlier mentioned, I place less weight on the diagnoses offered by Dr. Papazoglou because he did not rely on medical records to corroborate the applicant’s own reports of his medical history or the psychometric results that informed Dr. Papazoglou’s opinion.
57Given the sparse and inconsistent evidence concerning the applicant’s pain and any resulting impairment, I am persuaded the applicant did not sustain accident-related chronic pain and therefore should remain in the MIG.
Does the pre-existing condition provision apply?
58I find the applicant is not eligible for MIG removal owing to a pre-existing medical condition.
59I disagree that the medical documentation the applicant produced shows there are pre-existing psychological conditions. The CAMH records—which, according to the applicant’s submissions, show a psychotherapist referred him to a social worker before the accident—ambiguously indicate that a “TESS” referral was made from “SW Kevin Z to book IASP assessment.” The applicant does not point to an explanation as to what a TESS referral or IASP assessment are, and I could not determine such in the record. What I can glean from these records, which are largely of an administrative nature and provide little insight into the applicant’s symptomology or treatment, is that the applicant was likely being assessed as a candidate for cognitive behavioural therapy. But the applicant’s submissions do not direct me to supporting psychotherapist records in evidence, and, in any event, the CAMH records I reviewed do not indicate the proposed appointment was ever confirmed or attended by the applicant. In fact, the last chronological annotation in these records, dated August 5, 2020, indicates the applicant had not responded to repeated requests to schedule the intake, and that CAMH would be cancelling the assessment if the applicant did not respond by August 14, 2020.
60Even if I accepted that the CAMH records provided compelling evidence of a pre-existing condition, I would still find the applicant has not established he meets the second part of the test at section 18(2) of the Schedule. The applicant’s submissions do not point me to a medical opinion by a health practitioner that determines maximal recovery of his accident-related injuries under the MIG is prevented by a pre-existing medical condition documented by CAMH or otherwise.
61Given that the applicant has not led compelling evidence of a pre-existing medical condition, and failed to show a health practitioner determined this condition will prevent maximal recovery from his accident-related injuries if subjected to the MIG limit, I find he is not eligible to be removed from the MIG on this basis.
The disputed OCF-18 for physiotherapy services
62I find the applicant is not entitled to this OCF-18.
63To receive payment for an OCF-18 under sections 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.
64The applicant submits that his medical records show he experienced sudden and sharp pain in his lower back, a swollen left ankle from an old injury, and a bump on the right side of his head as a result of the accident. He says these records should warrant the reasonableness and necessity of the disputed OCF-18. The applicant also submits that the respondent’s denial notice is deficient because it does not provide medical and other reasons per section 37 of the Schedule. The applicant relies on M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 ON LAT (“M.B.”); and J.P. vs. Royal Sun Alliance (RSA), 2020 CanLII 12753 ON LAT (“J.P.”) to show the respondent may not rely on a notice devoid of reasons and articulated in boilerplate style.
65The respondent argues that the progress reports of almost two-dozen physiotherapy sessions the applicant undertook between April and July 2021 show his symptoms were continuously improving. The respondent also argues that the applicant’s ankle swelling is unrelated to the accident and that after September 2021, the applicant’s medical evidence is devoid of any accident-related injury complaints up to his consultation with Dr. Papazoglou despite several appointments with health practitioners in the interim.
66I find that the applicant’s submissions on this OCF-18 do not point to the treatment goals or lead evidence to show those goals can reasonably be met by participating in more physiotherapy treatment. This significantly hampers the applicant’s ability to prove the reasonableness and necessity of this OCF-18.
67Further, I do not accept that the applicant’s ankle swelling is an applicable consideration. The September 2021 entry of the Wellmedica records indicate that the applicant’s ankle was not injured in the accident and Part 5 of the OCF-18 does not indicate any injuries to the applicant’s ankle. Similarly, the headaches documented in Dr. Papazoglou’s report are not listed as an accident-related injury in the OCF-18, and the ambulance call report establishes that the applicant did not hit his head in the collision. In fact, the applicant’s submissions mention headaches only in the context of Dr. Papazoglou’s report with little-to-no reference of head-related complaints in contemporaneous medical records. I therefore discount any pain arising from a head “bump” as claimed by the applicant.
68While I accept the applicant experiences low back pain, I disagree that his corresponding complains to Dr. Papazoglou correlate with the clinical notes and records of Wellmedica to support the reasonableness and necessity of the physiotherapy services proposed in the OCF-18. This is because the applicant’s complaints of experiencing sudden low back pain on impact do not reconcile with the ambulance report where the applicant explicitly denied any injuries except pain localized to his left chest-wall (i.e., ribs). In my view, the lack of contemporaneous medical documentation pertaining to ongoing low back pain (i.e., from September 2021 when the applicant reported his pain amounted to a “temporary twinge” up to his consultation with Dr. Papazoglou in March 2023) further diminishes the reasonableness and necessity of physiotherapy treatment for low back pain.
69I did not consider the applicant’s arguments pertaining to the sufficiency of the respondent’s denial notice for this OCF-18. The applicant argues section 37 of the Schedule, which I find pertains to the determination of continuing entitlement to specified benefits and is not relevant to the medical benefits proposed in the disputed OCF-18.
Interest
70Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. Given that there are no benefits owing in this case, no interest is payable.
Award
71I find the respondent is not liable to pay an award.
72The applicant seeks an award under section 10 of Regulation 664. Under section 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” [See, for e.g., 17-006757 v. Aviva Insurance Canada, 2018 CanLII 81949 (ON LAT); and S.M. v. Unica Insurance Inc., 2020 CanLII 61460 (ON LAT Reconsideration]. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets this threshold.
73The applicant submits that the respondent unreasonably withheld or delayed benefits payments because it failed to adjust the file as it received new medical evidence. The applicant relies on Almayahi v. The Co-Operators General Insurance Company, 2021 CanLII 28687 ON LAT (“Almayahi”) to show the respondent should continue to adjust the file as new documentation is provided.
74In my view, Almayahi is of little assistance to the applicant’s case. In Almayahi, the Tribunal found the insurer was liable to pay an award because it failed to continually adjust the file by ignoring new medical records that contradicted the results of their section 44 IE. For this matter, I find the applicant’s position is untenable, given that he frustrated the respondent’s good faith attempts to obtain IEs so it could adjust the file accordingly. The notices issued by the respondent establish that the applicant had produced little to no medical information in support of his claim, and that multiple unsuccessful requests had been made to obtain further medical information under section 33 of the Schedule, which outlines the duty of the applicant to provide information.
75In any event, as there are no benefits payable in this case, it follows that the respondent cannot be liable for unreasonably withholding or delaying payment.
ORDER
76The applicant remains in the MIG and is not entitled to the disputed OCF-18 for physiotherapy services or interest. The respondent is not liable to pay an award.
Released: April 2, 2025
Michael Beauchesne
Adjudicator