Licence Appeal Tribunal File Number: 23-000446/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:
Asma Hamad
Applicant
and
Allstate Canada
Respondent
DECISION
ADJUDICATOR:
Tanjoyt Deol
APPEARANCES:
For the Applicant:
Kelisa Reyes, Paralegal
For the Respondent:
Simran Walia, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Asma Hamad (the “applicant”), was involved in an automobile accident on January 9, 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 Allstate Canada (the “respondent”), and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
2The issues in dispute are:
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?
Is the applicant entitled to $1,318.00 for physiotherapy services, proposed by Good Health and Rehab Centre in a treatment plan/OCF-18 (“OCF-18”) dated April 15, 2021?
Is the applicant entitled to $299.25 ($1,297.25 less approved $998.00) for physiotherapy services, proposed by Good Health and Rehab Centre in an OCF-18 dated April 19, 2021?
Is the applicant entitled to $3,092.75 for physiotherapy services, proposed by Good Health and Rehab Centre in an OCF-18, dated July 8, 2021?
Is the applicant entitled to non-earner benefits (”NEBs”) of $185.00 per week from February 8, 2021 to January 9, 2023?
Is the applicant entitled to interest on any overdue payment of benefits?
Is the respondent liable to pay an award under s. 10 of O. Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3I find that:
i. The applicant is removed from the MIG.
ii. Pursuant to s. 38(11) of the Schedule, the applicant is entitled to $1,318.00 for physiotherapy services, proposed in a treatment plan, dated April 15, 2021. The applicant is also entitled to interest in accordance with s. 51 of the Schedule.
iii. Pursuant to s. 38(11) of the Schedule, the applicant is entitled to $299.25, for physiotherapy services proposed in a treatment plan, dated April 19, 2021 and interest pursuant to s. 51.
iv. The applicant is not entitled to the remaining OCF-18 or interest.
v. The applicant is not entitled to NEBs, nor interest.
vi. The respondent is not liable to pay an award.
ANALYSIS
The Minor Injury Guideline
4Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”
5An insured person 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) of the Schedule, that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery from any accident-related minor injury 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.
6In all cases, the burden of proof lies with the applicant.
7The applicant submits that she suffers from back pain, shoulder pain, and headaches, which are chronic and restrict her ability to carry out her activities of daily living, household chores and engage with her children. She further argues that she experienced heightened anxiety throughout her pregnancy and great anxiety with her delivery and birth plan. I infer from these submissions that the applicant is seeking removal from the MIG on the basis of chronic pain and a psychological impairment.
8The respondent argues that the applicant sustained minor soft tissue injuries and her claim does not warrant removal from the MIG.
The applicant is removed from the MIG on the basis of chronic pain
9I find that the applicant has demonstrated that she has a chronic pain condition that warrants removal from the MIG and its $3,500.00 limit on treatment.
10As noted above, the applicant argues that her back pain, shoulder pain, and headaches are now chronic due to the passage of time and the constellation of symptoms results in functional limitations with her activities of daily living, household chores, and taking care of her children. To this end, she relies upon the clinical notes and records (“CNRs”) of Credit Valley Hospital, CNRs of Dr. Ban Rassam, family physician, and CNRs of Good Health Rehab Centre.
11Meanwhile, the respondent argues that the CNRs of Credit Valley and Dr. Rassam show that the applicant sustained minor soft-tissue injuries, such as headaches, shoulder, and back pain. It argues that s. 44 assessor, Dr. Andrzej Gwardjan, physiatrist, in his report, dated February 1, 2022, diagnosed the applicant with uncomplicated soft tissue injuries to the axial spine without evidence of any serious trauma. Therefore, it takes the position that the applicant’s claim does not warrant removal from the MIG.
12I find that the applicant suffers from chronic back and neck pain from the accident as documented in the CNRs of Credit Valley Hospital, Dr. Rassam, and Good Health Rehab Centre.
13In reaching this conclusion, I note that immediately following the accident, the applicant attended the emergency department at Credit Valley Hospital, where she reported lower back pain, neck pain, and a physical examination revealed significant paraspinal muscle tenderness on the right side. On January 10, 2021, it was noted that the applicant had constant back pain since the accident. On January 13, 2021, the applicant met with Dr. Aya Abdou, physician, who noted that the applicant was involved in a car accident and reported back pain. Dr. Abdou reassured the applicant that Tylenol was safe in pregnancy. Subsequently, on February 25, 2021, the applicant reported that she was interested in an epidural but worried it would worsen her existing back pain, and that she had no previous epidurals from her previous pregnancies.
14In a similar vein, on January 13, 2021, January 24, 2021, February 15, 2021, May 30, 2021, August 2, 2021, September 10, 2021, and November 10, 2021, the applicant reported muscle, bone, joint aching, back pain, shoulder pain, and headaches, and was prescribed Tylenol extra strength, Naproxen, and Arthrotec by Dr. Rassam.
15I am alive to the respondent’s argument that the CNRs of Credit Valley Hospital describe the accident as mild and at low speed, however I find that this does not detract from my finding that she suffers from chronic pain. This is because I find her consistent reports of constant back pain and neck pain since the accident to be persuasive evidence of chronic pain. Further, a physical examination revealed significant paraspinal muscle tenderness on the right side immediately following the accident, and the applicant sought information on an epidural for her pregnancy, despite going through previous deliveries without one.
16I also acknowledge that the respondent argues that on March 3, 2021, Dr. Rassam noted that the applicant had a normal vaginal delivery and that the records predominately related to her pregnancy. However, I am not persuaded by these arguments because the fact that the applicant had a normal delivery does not support a conclusion that the applicant does not have pain from this accident. In my view, having a normal delivery does not equate to a finding that the applicant has no ongoing pain from the accident especially where the applicant reported accident-related pain both before and after the delivery to the doctors at Credit Valley Hospital, Dr. Rassam and Good Health Rehab Centre.
17In a similar vein, I am not persuaded by the respondent’s position that the CNRs predominately related to the applicant’s pregnancy. This is because the applicant complained of accident-related complaints both before and after delivery. Indeed, before the delivery, January 13, 2021, January 24, 2021, and February 13, 2021, it was noted that the applicant had muscle, bone and joint aching, back pain and shoulder pain following the accident. Likewise, following the delivery, on May 30, 2021, August 2, 2021, September 10, 2021, and November 10, 2021, the applicant reported back pain, headaches, and muscle pain. Moreover, the applicant also consistently reported back and neck pain to her treating practitioners at Good Health Rehab Centre from February 1, 2021 to February 2022, for a total of approximately 25 occasions.
18Likewise, I disagree with the respondent that the clinical note by Dr. Rassam, dated November 10, 2021, is not accident related. This is because the applicant reported muscle pain during that visit, which she has consistently reported since the accident. Also, in light of the applicant’s consistently reported muscle pain following the accident, I am unable to find an alternative cause for the resulting muscle pain. Further, Dr. Gwardjan also opined that the applicant had accident-related cervical sprain/strain and musculoligamentous thoracolumbar strain/sprain.
19I also find that the applicant has established that her chronic back and neck pain have resulted in functional limitations. I acknowledge the respondent’s position that the applicant reported no functional limitations to Dr. Rassam. However, the applicant has reported functional limitations to two other sources, Dr. Gwardjan and her treating practitioners at Good Health Rehab Centre.
20For instance, on January 26, 2022, the applicant reported to Dr. Gwardjan that her pain affected essentially all her daily activities, that her husband helped with some of the household chores, that her pain affected all aspects of her life, and that she was unable to play with her children. Similarly, the applicant reported to her treating practitioners at Good Health Rehab Centre on August 23, 2021, December 1, 2021, January 3, 2022, February 9, 2022, and February 14, 2022, that she had difficulty with her childcare, lower back pain when taking care of her toddler, difficulty attending to household chores, and lower back pain when carrying her toddler. In short, I am not persuaded by the respondent’s position that the fact that the applicant did not report functional limitations to Dr. Rassam negates the fact that she reported limitations to both Dr. Gwardjan and at Good Health Rehab Centre.
21I am not persuaded that the applicant’s functional limitations are due to her pregnancy. I acknowledge that the respondent argues that the applicant only complained of household difficulties on one occasion to the practitioners at Good Rehab, which was during the initial assessment that took place when the applicant was at least 38 weeks pregnant. The respondent’s position does not appreciate that the applicant also reported difficulty attending to her household chores on December 1, 2021, as outlined in the CNRs of Good Health Rehab Centre. She also reported that she required assistance from her husband with her household chores, as outlined in Dr. Gwardjan’s report, dated February 1, 2022. In other words, the applicant continued to report difficulties with her household chores after her delivery, and therefore I am not persuaded by the respondent’s position that her difficulty is related to her pregnancy.
22The respondent also argues that the applicant has not consistently reported of her difficulties with her childcare, because she only reported it on six occasions. However, there is no requirement that the applicant has to report functional limitations a specific number of times. The caselaw from this Tribunal is clear that chronic pain with a functional limitation or disability is sufficient to remove the applicant from the MIG.
23I place little weight on Dr. Gwardjin’s conclusions/recommendations for the following three reasons.
24First, Dr. Gwardjin noted that strength of all key upper and lower extremities were affected by inconsistent poor effort due to reported exacerbation of neck pain. However, Dr. Gwardjin provided no rationale on how the applicant had inconsistent poor effort due to her neck pain. In my view, the fact that she reported exacerbation of her neck pain during testing does not support Dr. Gwardjin’s conclusion that it was inconsistent poor effort.
25Second, Dr. Gwardjin concluded that there was evidence of nonorganic signs with a positive Waddel’s score on examination, but provided no explanation on which evidence supported the non-organic signs, as it was not addressed in the physical examination section of the report. Also, Dr. Gwardjin provided no explanation on what Waddel’s testing is and what a positive score indicates. Significantly, there is no reference to Waddel’s testing being conducted in the physical examination section of the report.
26Third, Dr. Gwardjin opined that the applicant sustained uncomplicated soft tissue injuries which would have been expected to resolve by now, but does not address why the pain hasn’t resolved, despite a year passing since the accident, and the applicant reporting ongoing pain to him and her treating practitioners at Good Rehab.
27Therefore, I find on a balance of probabilities that the applicant has demonstrated that she suffers from a chronic pain condition and is removed from the MIG on this basis. As I have determined that the applicant is removed from the MIG on the basis of her chronic pain condition, I do not need to consider whether her psychological impairments will remove her from the MIG.
MIG Conclusion and Treatment Plans
28Since the applicant is removed from the MIG, she can apply for medical and rehabilitation benefits above the MIG limits.
29To receive payment for a treatment and assessment plan pursuant to 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.
30However, the applicant also submits that the respondent’s denials contravened s. 38(8) of the Schedule.
31Under s. 38(8), an insurer has the obligation to provide an insured person with a notice identifying the medical and all of the other reasons why the insurer finds the treatment plan not to be reasonable and necessary. There should be clear and sufficient information for an unsophisticated person to make an informed decision to either accept or dispute the denial. If those reasons are not provided, the consequence under s. 38(11) is that the insurer must pay for the goods and services described in the treatment plan.
The respondent was non-compliant with s. 38(8) of the Schedule with respect to the OCF-18 for physiotherapy services, in the amount of $1,318.00
32I find that the respondent’s explanation of benefits (“EOB”) dated April 19, 2021, was non-compliant with s. 38 of the Schedule.
33The applicant argues that the EOB was non-compliant with s. 38(8) because it did not identify what goods and services were being denied, and it failed to provide any medical reasons for the denial. The applicant further argues that the EOB was non-compliant with s. 38(9) because it failed to advise her that the MIG applies to her impairment.
34The respondent argues that the denial was compliant with s. 38(8) because it advised the applicant that it was approving the treatment up to the hourly rates provided under the Superintendent’s Professional Service Guideline No. 03/14.
35In the April 19, 2021, EOB, the respondent provided the following reason for denying the OCF-18:
We have received the OCF-18 dated 04/15/2021 (HCAI: 21041503700) in the amount of $1318. Please be advised we are unable to approve the full amount of this OCF-18 Treatment Plan as Physiotherapy sessions are being requested at $111.80 per one hour. As per the FSCO rate guidelines, an hour of Physiotherapy treatments is to be charged at no more than $99.75/hour.
As such we have denied this treatment plan and will require amendments to the requested treatment fees and resubmission for consideration.
36I agree with the applicant’s submissions that the respondent failed to reference the MIG or s. 38(9) in its denial letter. Section 38(9) of the Schedule is clear that if an insurer believes that the MIG applies to an insured’s impairment, then the s. 38(8) notice must so advise the insured. In its submissions for this hearing, the respondent has argued that the applicant should not be removed from the MIG. Further, the respondent did not address s. 38(9) or why the denial did not advise the applicant that her impairments were in the MIG when it has maintained this position at the hearing. As such, I find that the respondent’s denial was not in compliance with the Schedule. As I have determined that the respondent’s denial was non-compliant on this basis, I do not need to consider the applicant’s remaining arguments on why the EOB was non-compliant with s. 38(8).
37Consequently, I find that the respondent’s EOB dated April 19, 2021, is non-compliant with s. 38(8), and the respondent has not pointed me to correspondence that cures this deficient EOB.
38As such, I find that the OCF-18 for physiotherapy services to be payable with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.
The respondent was non-compliant with s. 38(8) of the Schedule with respect to the OCF-18 for physiotherapy services, with a remaining balance of $299.25
39I find that the respondent’s EOB, dated April 23, 2021, was non-compliant with s. 38(8).
40The applicant submits that the respondent failed to provide a compliant denial of the benefits because it failed to provide a breakdown of the goods and services it agrees to pay for, and those it does not agree to pay for, pursuant to section 38(8) of the Schedule. She further argues that the EOB, dated April 23, 2021, was non-compliant with s. 38(8) because it did not provide a medical reason for the denial.
41The respondent argues that it was compliant with s. 38(8) because the OCF-18 in dispute outlined that the applicant’s claim fell within the MIG and the OCF-3 identified MIG type injuries.
42In the April 23, 2021 EOB, the respondent provided the following reasons for denying the OCF-18:
We have received the OCF-18 dated 04/19/2021 {HCAI: 21041903974) in the amount of $1297.25. Please be advised we are unable to approve the full amount of this OCF-18 Treatment Plan as the Minor Injury Guideline limits are maxed at $3500. We have partially approved this treatment plan to the approved limits ($998). We feel that the Minor Injury Guideline is appropriate along with the clinics indication as noted in Part 4 of this treatment plan. However, please submit any compelling medical documentation to support the above noted injuries are above the Minor Injury Guideline, if applicable. In the event no additional compelling medical documentation can be provided to support the injuries sustained are above the Minor Injury Guideline, all future of incurred treatment above $3500 cannot be considered or approved. At this time, we feel the Minor Injury Guideline is appropriate.
43I find that this EOB did not comply with the requirements pursuant to s. 38(8) of the Schedule as it failed to provide adequate medical reasons to deny the disputed OCF-18. The reasons provided in the notice are insufficient to satisfy the respondent’s obligation under s. 38(8) of the Schedule as no specific details about the applicant’s diagnosis and prognosis are provided. Nor did the respondent identify what information it required from the applicant. In my view, the respondent’s denial lacked clear and sufficient reasons to allow the applicant to make an informed decision to either accept or dispute the denial.
44I acknowledge that the respondent argues that it referred to the OCF-18 in the EOB, and therefore provided sufficient medical and all of the other reasons under s. 38(8), however I find this argument to be conflicting. This is because throughout its submissions, the respondent maintained that an OCF-18 is “not stand in evidence for medical evidence”. Therefore, it is difficult to reconcile that the respondent provided a medical reason for the denial based on the OCF-18, when it also argues that an OCF-18 is not medical evidence.
45I further acknowledge the respondent’s argument that the injuries outlined in the OCF-3 are MIG type injuries, however this reason was not provided in the EOB. Nor, has the respondent addressed why the OCF-3 could not have been identified in the EOB if it was relying upon it as a basis for denying the OCF-18.
46Finally, the respondent refers me to the Tribunal decision of Sidhu v. TD General Insurance Company, 2020 CanLII 94816 (ON LAT) (“Sidhu”) to support its position that its EOB was compliant because the OCF-18 confirmed MIG type injuries. However, Sidhu is not binding upon me and I also note that the respondent in Sidhu did not argue that an OCF-18 is not medical evidence, therefore the factual scenario is distinguishable.
47The respondent has also not referred me to a subsequent EOB that cured this deficient EOB. As such, I find that the OCF-18 for physiotherapy services to be payable with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.
The applicant is not entitled to the OCF-18 for physiotherapy services, in the amount of $3,092.75
48I find that the respondent’s EOB, dated July 12, 2021, with respect to the denial of physiotherapy services was compliant with s. 38(8), and therefore it is not payable under s. 38(11).
49The applicant argues that the respondent’s EOB was non-compliant with s. 38(8) because it did not clearly identify what goods and services were being denied, it failed to address whether the OCF-18 was reasonable and necessary, and it failed to provide medical reasons for the denial.
50The respondent argues that the EOB was compliant with s. 38(8).
51In its EOB, dated July 12, 2021, at page two, the respondent identified that the services listed in the OCF-18 included an assessment in the amount of $200.00 and physical rehabilitation in the amount of $2,892.75, and none of these were payable because they were not reasonable and necessary. In the additional comments section of the EOB, the respondent provided the following reasons for denying the OCF-18:
We are in receipt of your Treatment and Assessment Plan (OCF-18 prepared by Rutu Dave of Good Health Rehab Centre and dated July 08, 2021.
Based on the medical documentation in your file and the injuries listed on the OCF-18, we have made a determination that your injuries are predominately soft tissue injuries and can be treated within the Minor Injury Guideline. Minor is defined as a sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae in the Statutory Accident Benefits Schedule {SABS). At this time we are requesting that Rutu Dave provide us with a copy of the diagnostic reports including, but not limited to, clinical notes and records, copies of specialist reports and any other information relied upon to determine that the injury is excluded from the Minor Injury Guideline. To date, we have not been provided with any compelling medical evidence documented by your family physician to support that your pre-existing medical condition would prevent you from achieving maximum medical recovery within the minor injury framework.
Therefore, based on the above reasons, we do not approve the above goods, services and/or assessments and the Treatment and Assessment Plan (OCF-18) will not be subject to an Insurer Examination.
52I find that page two of the EOB clearly identified the services and the amounts for the proposed services as outlined in the OCF-18. The EOB, at page two and in the additional comments section, advised that the respondent was not agreeable to paying the OCF-18. Therefore, I disagree with the applicant that the EOB did not identify what services were being denied, as it clearly did. The respondent’s EOB also provided sufficient reference to the applicant’s medical condition, being that the applicant sustained predominately soft tissue injuries, which can be treated within the MIG, and provided a definition of the MIG for the applicant’s reference. Moreover, the respondent identified information it required, which included diagnostic imaging, CNRs, specialist reports, and any other information that the applicant was relying upon to warrant removal from the MIG. I find that the reasons cited by the respondent were clear and sufficient enough to allow an unsophisticated person to make an informed decision as to whether to dispute the decision.
53I find that this reason satisfies the requirement, well-established in the jurisprudence, that an insurer provide reasons capable of giving a claimant a principled rationale, based fairly on the claimant’s file, to which an insured person can respond: See 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) at para 22. Reasons should enable a claimant to make an informed decision about whether to challenge the insurer’s determination and pursue her claims. Here, the respondent stated that the applicant sustained soft tissue injuries that can be treated within the MIG, and identified information it did not have but required from the applicant, and therefore it is unable to approve the OCF-18.
54In short, the applicant has not established that the respondent’s EOB dated July 12, 2021, was non-compliant with s. 38(8), and therefore it is not payable under s. 38(11).
55I now turn to whether the OCF-18 for physiotherapy services is reasonable and necessary. I find that the applicant has not established on a balance of probabilities that the proposed treatment is reasonable and necessary.
56The applicant argues that the goal of the OCF-18 is pain reduction, which is an legitimate goal for treatment, and that Dr. Heba Al-Mahfoud completed a prescription for physiotherapy on May 10, 2022.
57The respondent argues that an OCF-18 alone is insufficient to establish physiotherapy treatment is reasonable and necessary, that there were no referrals for physiotherapy in Dr. Rassam’s records, and Dr. Gwardjan opined that the applicant achieved maximum medical recovery.
58I find that there is insufficient evidence to support the applicant’s position that she receives pain relief from the proposed physiotherapy services. This is because she has not referred me to evidence to support such a proposition. In any event, on July 12, 2021, August 2, 2021, August 23, 2021, November 29, 2021, December 6, 2021, January 24, 2022, and February 16, 2022, it was noted in the CNRs of Good Health Rehab Centre that after receiving physiotherapy treatment, the applicant’s condition remained the same. The applicant also reported to Dr. Gwardjan that despite attending for passive modalities for pain control three times a week, her pain remained with no significant change. The CNRs of Good Health Rehab Centre and the applicant’s self-reporting hold weight when assessing whether the applicant received pain relief from physiotherapy services as her submissions are not evidence.
59Second, I find that the prescription for physiotherapy from Dr. Heba Al-Mahfoud is not contemporaneous to the submission of this OCF-18. Dr. Heba Al-Mahfoud’s prescription was completed 10 months after the applicant sought funding for the OCF-18. Moreover, I place significant weight on the lack of recommendation for physiotherapy treatment in Dr. Rassam’s records because he is the applicant’s family physician, was involved with her care contemporaneous with the submissions of the OCF-18, and therefore has the most intimate knowledge of the applicant’s treatment needs.
60Third, I am persuaded by Dr. Gwardjan’s opinion that the applicant has reached maximum therapeutic benefit. The CNRs of Good Rehab support that the applicant’s condition remained the same after physiotherapy treatment and she reported no change to her ongoing pain despite attending treatment for three times a week.
61For all these reasons, I find that the applicant has not established that the proposed OCF-18 for physiotherapy services is reasonable and necessary.
NEBs
The respondent’s Notice of Examination (“NOE”), dated December 30, 2021, was non-compliant with s. 44(5) of the Schedule
62I find that the NOE, dated December 30, 2021, was non-compliant with s. 44(5) of the Schedule. However, despite this non-compliance with s. 44(5), I will not exclude Dr. Gwardjian’s report from the record, nor will I assign it less weight.
63The applicant argues that in the respondent’s EOB, dated February 3, 2022, it relied upon the s. 44 report of Dr. Gwardjian to deny the applicant’s NEB. However, she argues that the NOE, dated December 30, 2021, was non-compliant with s. 44(5), because it did not identify in the reasons and description of the examination section that it was in relation to NEB, and did not provide medical and any other reasons for the examination. As such, the applicant relies upon the authority of Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (“Taksali”) to argue that the Tribunal should not consider the s. 44 report of Dr. Gwardjian as it is derived from a defective notice. Alternatively, she argues that limited weight should be given to the report of Dr. Gwardjian.
64The respondent argues that its NOE did indicate that the examination was being scheduled to address entitlement to NEBs.
65I find that the NOE, dated December 30, 2021, falls short of meeting the requirements under s. 44(5) because it did not provide the applicant with medical and any other reasons on why the proposed examination was required to assess the applicant’s entitlement to NEB. Indeed, the NOE states that the applicant sustained predominately soft tissue injuries that are within the MIG, however the applicant can still be entitled to NEBs if she is in the MIG. Therefore, in my view, this NOE was not clear enough to allow the applicant to make a well-informed decision on whether to attend the examination, or why one was required to assess her entitlement to NEBs.
66The applicant heavily relies on the Tribunal decision of Taksali. Taksali is a Tribunal decision and is not binding upon me. Moreover, Taksali erroneously concluded that a non-compliant notice of an insurer’s examination (“IE”) caused the resulting IE report to be void ab initio. The conclusion in Taksali failed to consider that the remedy for an insufficient IE notice is that the applicant is not obligated to attend the examination. Moreover, the applicant could have attended the IE under protest, but rather she attended without raising any concerns about the sufficiency of the notice until her written submissions.
67Here, the applicant attended and participated in the IE without raising concerns. Having attended and participated in the IE renders the applicant’s arguments on the admissibility of the IE report to be moot. Likewise, the applicant’s argument that the s. 44 report of Dr. Gwardjian should be given limited weight because the NOE was non-compliant with s. 44(5) is also moot because the applicant attended the IE without raising any concerns.
68Accordingly, I find that the s. 44 report of Dr. Gwardjian will not be excluded from the record or given limited weight, despite the NOE being non-compliant with s. 44(5).
Procedural requirements of s. 36(4) of the Schedule
69I find that the applicant has not established that the respondent was non-compliant with s. 36(4) of the Schedule.
70Section 36(4) provides that within 10 business days after receiving an application and completed disability certificate, the respondent shall pay the benefit, give notice of the medical and any other reasons why it will not pay the benefit, or request additional information pursuant to section 33(1) or 33(2) of the Schedule.
71If an insurer fails to comply with s. 36(4) within the 10 business day time limit, s. 36(6) states that it must pay the specified benefit until a notice in accordance with s. 36(4)(b) is given. However, pursuant to s. 33(6) of the Schedule, the insurer is not liable to pay a benefit during any period in which the claimant fails to provide the insurer with the information requested pursuant to s. 33.
72The respondent submits that it complied with s. 36(4) of the Schedule. It submits that upon receipt of the OCF-1 and OCF-3, it responded within the 10 business day deadline and outlined all the medical information it lacked to determine her entitlement to NEBs. To this end, it relies upon the EOBs, dated April 21, 2021 and May 3, 2021.
73The applicant’s arguments on this issue are somewhat conflicting. In her initial submissions, she argues that the respondent had possession of both the OCF-1 and OCF-3 as of March 2, 2021, however the respondent did not provide a response until February 3, 2022. Meanwhile, in her reply submissions, she argues that the OCF-1 was submitted on March 2, 2021, and since the respondent did not respond until April 21, 2021, the consequences under s. 36(6) are triggered.
74I find that the May 3, 2021 EOB fulfills the requirements of s. 36(4)(c). It requests information that is reasonably required to assist the respondent in determining the applicant’s entitlement to NEBs, namely, the activities of daily living checklist, CNRs from the applicant’s family doctor, hospital records, and a Decoded OHIP Summary.
75The EOB of April 21, 2021 and May 3, 2021, also requested an Election Form (“OCF-10”) under s. 33. I agree with the applicant that the respondent’s request for an OCF-10 was non-compliant with s. 35(1) because the notice was sent after 10 business days. Here, the respondent first requested an OCF-10 in an EOB, dated April 21, 2021, which was the first response to the OCF-1, however the OCF-1 was sent to the respondent on March 2, 2021. Therefore, the notice for an OCF-10 was not sent within 10 business days. Nevertheless, the fact that the request for an OCF-10 was non-compliant with s. 35(1) does not negate the fact that the respondent made a valid request under s. 33 of the Schedule for the documentation as listed above. Indeed, the applicant did not dispute the validity of the s. 33 request, nor did she advise whether she was compliant with the request.
76The applicant has not established that she subsequently complied with the request made under section 33 of the Schedule. The respondent produced an EOB of June 23, 2021, wherein the applicant’s NEBs were suspended under s. 33(6) because the applicant did not provide the requested documentation under s. 33. The applicant has provided no submissions on whether she subsequently complied with s. 33, and if so, when.
77The applicant has not established when the OCF-3 was submitted. I reject the applicant’s position that the respondent was in possession of both the OCF-1 and OCF-3 since March 2, 2021. This is because she has not referred me to evidence which establishes the date that the OCF-3 was sent. The only document before me regarding the submission is a fax confirmation that the OCF-1 was sent to the respondent on March 2, 2021. There is no such confirmation with respect to the OCF-3. Nevertheless, it is likely that the respondent responded within 10 business days of receiving the OCF-3. In the EOB, dated April 21, 2021, the respondent advised the applicant that it had not received an OCF-3. This occurred eight business days prior to May 3, 2021, when the Respondent confirmed receipt of the OCF-3 and requested that the applicant complete an OCF-10. Therefore, I find that the respondent did respond within 10 business days of receiving both the OCF-1 and OCF-3 as mandated under s. 36(4).
78I further reject the applicant’s premise that submitting an OCF-1 engages the response requirements outlined in section 36(4) of the Schedule. The applicant also argues that the respondent was non-compliant with s. 36(4) because it did not respond to the OCF-1 within 10 business days. As noted above, the OCF-1 was submitted on March 2, 2021, and the first response to the OCF-1 was on April 21, 2021. However, a plain reading of s. 36(4) shows that an insurer is only required to give a notice under this section once it receives both the application and disability certificate. As noted above, the respondent sent an EOB, dated May 3, 2021, following receipt of the OCF-3. Issuing an EOB once the OCF-1 and OCF-3 are submitted is compliant with s. 36(4).
79As such, I find that the applicant has not met her burden to prove that NEBs are payable as a result of procedural non-compliance with s. 36(4).
Substantive Entitlement to NEBs
80I find that the applicant has not satisfied her onus to prove that she suffers from a complete inability to carry on a normal life.
81Section 12(1) of the Schedule 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 at para. 50, which focuses on a comparison of the applicant’s pre-and post-accident activities.
82To further summarize paragraph 50 of Heath, the following are factors to consider when analyzing the test for NEB:
i. A comparison between the applicant’s activities and life circumstances before and after the accident.
ii. Assessing the applicant’s activities and life circumstances requires more than a snapshot in time but involves assessing it over a reasonable period prior to the accident and the duration after is case specific.
iii. In proving “substantially all” requires looking at all the applicant’s pre-accident activities and life circumstances but greater emphasis can be placed on the ones that matter the most to the applicant.
iv. “Continuously prevents” means that it’s of a nature, extent or degree that is and remains uninterrupted.
v. “Engaging in” refers to a qualitative perspective – going through the motions may not be “engaging in,” and if doing the activity is sufficiently restricted then it’s not “engaging in”.
vi. If pain is a primary factor that prevents the applicant from engaging in their pre-accident activities, the question is not whether the applicant can physically do the acts, but are they practically prevented from engaging in those activities.
83The applicant argues that she meets the NEB test because her accident-related injuries continuously prevent her from engaging in the areas of her life that were important to her before the accident. She further argues that she had anxiety from the accident which impacted her delivery and birth plan. To this end, she relies upon the OCF-3, dated January 23, 2021, and the CNRs of Good Health Rehab Centre, CNRs of Credit Valley Hospital and Dr. Gwardjan’s report.
84The respondent argues that the applicant does not meet the NEB test because there are no functional impairments noted in Dr. Rassam’s CNRs. It further argues that the applicant gave birth without complications.
85The applicant has not provided submissions or evidence of her pre-accident activities of daily living, or more crucially, demonstrated how her engagement in these activities has changed as a result of the accident. Moreover, in her submissions, the applicant did not identify the activities she values, nor did she provide evidence of the frequency and time commitments of her pre-accident activities, as required by Heath. In the absence of this information, it is difficult to compare her pre- and post-accident capabilities with respect to the activities she ordinarily engaged in or valued. This alone makes it challenging for the applicant to meet her burden.
86I place little weight on the applicant’s self-reported changes in her activities. The applicant largely relies upon her self-reporting in the CNRs of Good Health Rehab Centre and to Dr. Gwardjan. Particularly, she reported to Dr. Gwardjan that she was unable to perform essentially all of her daily activities, that she requires assistance from her husband with some household chores, and that she is unable to play with her children due to pain. I place little weight on this self-reporting because the applicant did not identify exactly what daily activities she is unable to perform, nor did she specify how her pain practically prevented her from doing these activities. Likewise, the applicant did not provide particulars of how her pain practically prevented her from completing her household chores and playing with her children.
87With respect to the CNRs of Good Health Rehab Centre, I acknowledge that the applicant reported difficulty with childcare, cooking and household chores. However, a reduced ability to complete pre-accident tasks is insufficient to meet the test for NEB. The test for entitlement to NEB is stricter and requires the applicant to demonstrate a complete inability to continuously engage in substantially all of her pre-accident activities, which I find is lacking here. Moreover, the applicant’s self-reporting is not corroborated by the CNRs of Dr. Rassam because there is no reference to the applicant having functional limitations from the accident, and Dr. Gwardjan’s physical examination was largely unremarkable.
88I also acknowledge the applicant’s argument that the anxiety from the accident impacted her delivery and birth plan. Even If I were to accept that the applicant’s anxiety impacted the applicant’s delivery and birth plan, Heath explains that “continuously prevented” means that a claimant must prove “disability or incapacity of the requisite nature, extent or degree which remains uninterrupted”. Here, Dr. Rassam on March 3, 2022, noted that the applicant had a normal vaginal delivery with no complications, and there was no indication in this entry that the applicant’s anxiety continuously prevented her from completing her activities.
89I also place little weight on the OCF-3. Although the OCF-3 identifies that the applicant suffers a complete inability to live a normal life, I note that an OCF-3 alone does not establish whether an applicant has sustained a complete inability to carry on a normal life. It is a form used to apply for a specified benefit and is not a comprehensive assessment of injuries sustained in an accident.
90Accordingly, I find that the applicant has not demonstrated on a balance of probabilities that she suffers a complete inability to carry on a normal life and thus, she is not entitled to NEBs as claimed, nor interest.
The respondent is not liable to pay an award
91I find that the applicant has not established that the respondent unreasonably withheld or delayed payment of the treatment plans for the cost of physiotherapy services.
92Pursuant to section 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable plus interest if it determines that the 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. The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.
93The applicant argues that the only medical opinion that the respondent relied upon was an improperly procured s. 44 assessment, and that the respondent did not consider other pertinent medical information and documentation, which was provided to them.
94The respondent argues that the applicant has not met her onus to establish that she is entitled to an award.
95The applicant did not direct me to which medical information and documentation was not considered by the respondent. Further, the applicant’s NEBs were suspended due to s. 33(6) of the Schedule, and the applicant has not advised whether she was subsequently compliant with s. 33, and if so, when. I am unable to find that the applicant is entitled to an award without evidence demonstrating that the respondent disregarded compelling medical evidence which resulted in the respondent unreasonably withholding or delaying payment for the disputed OCF-18s. Therefore, I find that no award is payable.
CONCLUSION AND ORDER
96For the reasons outlined above, I find that:
i. The applicant is removed from the MIG.
ii. Pursuant to s. 38(11) of the Schedule, the applicant is entitled to $1,318.00 for physiotherapy services, proposed in a treatment plan, dated April 15, 2021. The applicant is also entitled to interest in accordance with s. 51 of the Schedule.
iii. Pursuant to s. 38(11) of the Schedule, the applicant is entitled to $299.25, for physiotherapy services proposed in a treatment plan, dated April 19, 2021 and interest pursuant to s. 51
iv. The applicant is not entitled to the remaining OCF-18 or interest.
v. The applicant is not entitled to NEBs, nor interest.
vi. The respondent is not liable to pay an award.
Released: March 31, 2025
Tanjoyt Deol
Adjudicator