Citation: Brown v. TD General Insurance Company, 2025 ONLAT 23-009048/AABS

Licence Appeal Tribunal File Number: 23-009048/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:

Justine Renee Brown

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Ardi Deti, Paralegal

For the Respondent: Colin Birch, Counsel

HEARD: By way of written submissions

OVERVIEW

1Justine Renee Brown, the applicant, was involved in an automobile accident on March 20, 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 the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to $2,460.00 for an orthopedic assessment proposed by All Health Medical Centre, in a treatment plan dated December 30, 2021?

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

3In the applicant’s submissions, she withdrew the following issues that were listed in the Case Conference Report and Order (“CCRO”), dated February 22, 2024:

i. Is the applicant entitled to a non-earner benefit of $185.00 per week from April 20, 2021 to March 20, 2023?

ii. Is the respondent liable to pay an award under s. 10 of Reg. 64 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4I find that the applicant is not entitled to the treatment plan for an orthopedic assessment or interest.

ANALYSIS

Background

5On January 3, 2022, the applicant submitted the treatment plan in dispute dated December 30, 2021, recommending an orthopedic assessment.

6On January 10, 2022, the respondent advised the applicant that the treatment plan was denied pending an insurer’s examination (“IE”) to determine if her injuries fall within the Minor Injury Guideline (“MIG”). An orthopedic surgeon IE was scheduled for January 19, 2022 as well as a neurology IE and a psychology IE.

7On January 24, 2022, the respondent advised the applicant that she did not attend the scheduled orthopedic surgeon IE and no explanation had been received for her non-attendance. As a result, the respondent advised the applicant that she was not entitled to the treatment plan dated December 30, 2021. The respondent further stated that should the applicant wish to attend and participate, it would reschedule the examination and her entitlement to the benefit would be reviewed one she complied with its request.

8On February 4, 2022, despite the denial of the treatment plan, an orthopedic report was prepared by Dr. Darrel Justice Ogilvie-Harris, orthopedic surgeon.

9The IE assessments were rescheduled and subsequently took place in November 2022. The IE reports dated January 10, 2023, were provided to the respondent on January 11, 2023.

10On January 24, 2023, the respondent advised the applicant that she was removed from the MIG following a psychological IE. The respondent further advised that based on the IE reports of Dr. Oleg Safir, orthopedic surgeon, and Dr. Nagib Yahmad, neurologist, it had determined that the physical injuries sustained by the applicant fall under the MIG. The respondent advised that based on the examinations by Dr. Safir and Dr. Yahmad, the applicant was not entitled to the treatment plan dated December 30, 2021.

11On August 1, 2023, the applicant applied to the LAT to dispute her entitlement to the treatment plan in dispute.

12On August 25, 2023, the respondent advised the applicant that it did not agree to pay for the treatment plan dated December 30, 2021, based on the IE assessment of Dr. Safir dated November 9, 2022, and his addendum report dated January 10, 2023. It further advised that it was requesting an IE assessment with Dr. Safir, scheduled for November 1, 2023, to determine if the treatment plan is reasonable and necessary. The applicant did not attend the IE assessment.

Consequences of s. 38(14)

13The applicant takes issue with the respondent’s denial letter, dated January 24, 2023, that was sent after the receipt of the IE reports of Dr. Safir and Dr. Yahmad, dated January 10, 2023. The applicant claims that due to the respondent’s non-compliance with s. 38(14)(a) of the Schedule, she is entitled to the treatment plan in dispute.

14Pursuant to s. 38(14)(a) of the Schedule, within 10 business days after receiving an IE report, the insurer shall provide the insured person with a notice indicating the goods and services described in the treatment plan that it agrees to pay for, those it refuses to pay for, and the medical and other reasons for the insurer’s decision.

15After the IE assessments, the respondent advised that the treatment plan in dispute was denied by letter dated January 24, 2023. The applicant submits that the denial letter was non-compliant with s. 38(14) of the Schedule, in that it failed to provide a medical reason as to the reasonableness and necessity of the treatment plan in dispute. The applicant submits that the respondent denied the treatment plan based on the MIG, after she had been removed from the MIG due to psychological reasons, rather than providing a medical reason as to the reasonableness and necessity of the treatment plan. The applicant submits that because this denial was deficient, she is entitled to the treatment plan in dispute.

16I find that while the respondent’s initial denial would be governed by s. 38(8) and the “shall pay” provision of s. 38(11) which expressly points to a denial that fails to comply with s. 38(8), an insurer’s subsequent response following receipt of an IE report is governed by s. 38(14) and (15). The applicant has not provided me with any authority to support that the “shall pay” provision applies to non-compliance under s. 38(14). Therefore, I find that the treatment plan in dispute is not payable on this basis.

The applicant is not entitled to the treatment plan for an Orthopedic Assessment

17I find that the applicant has not proven on a balance of probabilities that she is entitled to the treatment plan for an orthopedic assessment.

18To receive payment for medical and rehabilitation benefits under sections 15 and 16 of the Schedule, the applicant has the onus of proving 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.

19The applicant claims entitlement to $2,460.00 for an orthopedic assessment, proposed by Dr. Ogilvie-Harris, orthopedic surgeon, of All Health Medical Centre, in a treatment plan, dated December 30, 2021. The goals of the treatment plan are pain reduction, increase in strength, increase in range of motion, treatment recommendations, to return to activities of normal living and to identify impairments and help achieve maximal recovery.

20The applicant submits that she is entitled to the treatment plan in dispute because it is reasonable and necessary. The applicant relies on the treatment plan itself as well as the report of Dr. Ogilvie-Harris, dated February 4, 2022. The applicant submits that the report of Dr. Ogilvie-Harris provides comprehensive insight into the applicant’s impairments and lists the results of the diagnostic testing. Dr. Ogilvie-Harris noted that the applicant has mild to moderate disability in cognition and participation, and moderate to severe disability in mobility, self-care, getting along, and life activities. With regard to her Pain Disability Questionnaire, Dr. Ogilvie-Harris concluded that she has severe pain-related functional limitations which is consistent with a combination of physical as well as psychological issues. He stated that this is typically found in a patient with a chronic pain syndrome. He further concluded that according to the American Medical Association Guides (“AMA Guides”), the applicant was positive in five out of six criteria, confirming the diagnosis of chronic pain syndrome.

21The applicant submits that the IE Report of Dr. Peter Cobrin, psychologist, dated January 10, 2023, also supports the reasonableness of the orthopedic assessment, due to Dr. Cobrin’s evaluation of the applicant’s tendency to underreport problems, especially regarding traumatic events and routine physical complaints.

22The applicant further submits that IE reports and opinion of Dr. Safir, orthopedic surgeon, are irrelevant and cannot be relied upon. The applicant submits that Dr. Safir produced four separate reports dated January 10, 2023, and none of these reports addressed the treatment plan in dispute and whether it is reasonable and necessary. The applicant submits that this supports her assertion that Dr. Safir did not thoroughly review the documents provided to him in their entirety, particularly the report and treatment plan prepared by Dr. Ogilvie-Harris. The applicant submits that Dr. Ogilvie-Harris’ report provides a far more comprehensive insight into the applicant’s impairments. The applicant submits that Dr. Safir’s assessment lasted only 30 minutes, which suggests that he did not include a comprehensive evaluation of the applicant’s multi-faceted, complex medical condition.

23The respondent submits that the treatment plan in dispute is not reasonable and necessary because the applicant has failed to provide any evidence from treating sources to support that the treatment plan in dispute is reasonable and necessary. The respondent submits that the only evidence provided in support of the treatment plan in dispute is the treatment plan itself and the report of Dr. Ogilvie-Harris.

24The respondent submits that the accident was a minor collision from which the applicant sustained only minor soft tissue injuries which have resolved. The respondent submits that the limited medical records provided indicate that since the accident, the applicant has not sought any treatment for any injuries from the accident. The respondent submits that clinical notes and records (“CNRs”) from the applicant’s family doctor Dr. Emily Bachmeier, and Riverbend Walk-in Clinic where she attended, do not mention that the applicant was involved in an accident or that she sustained any injuries as a result of the accident. The respondent submits that there is no evidence that the applicant received any physiotherapy, chiropractic treatment or massage therapy since the accident. The records from Oxford Spine Centre, the clinic the applicant apparently attended after the accident, were ordered to be produced in the CCRO, dated February 22, 2024, but were never provided.

25The respondent submits that the report of Dr. Ogilvie-Harris should not be given any weight for the following reasons. First, the report was prepared following a telephone assessment without an in-person examination and therefore the conclusions in the report are based entirely on the applicant’s self-reporting. Second, Dr. Ogilvie-Harris, upon review of the records from treating sources, simply noted that they did not contain any “pertinent information” and did not address that the records do not mention the accident, or any injuries suffered by the applicant. Third, the report is very vague when discussing the applicant’s reported complaints and limitations yet concludes that the applicant suffers from chronic pain.

26The respondent relies on IE reports prepared by Dr. Safir, orthopedic surgeon, Dr. Yahmad, neurologist, and Danny Horban, occupational therapist, where in-person examinations were conducted, and the assessors concluded that the applicant’s injuries were minor and she was not suffering from any functional impairments or limitations as a result of the accident. The respondent submits that the conclusions of the IE assessors are supported by the medical evidence that the applicant did not report the accident or any injuries to her treating practitioners following the accident.

27The respondent acknowledges that it does not have an IE report directly commenting on whether the treatment plan in dispute is reasonable and necessary because the applicant did not attend the IE assessment that it scheduled in November 2023.

28I find that the applicant has not established that the treatment plan in dispute is reasonable and necessary for the following reasons.

29Firstly, I find that the medical evidence does not establish that the applicant’s accident-related physical impairments warranted further investigation at the time the treatment plan was submitted. I find that other than providing the treatment plan and the report of Dr. Ogilvie-Harris, the applicant has not provided any contemporaneous CNRs from her treating practitioners to support the applicant’s ongoing complaints at the time the subject treatment plan was submitted or after the report of Dr. Ogilvie-Harris was provided. I find that upon review of the CNRs of Dr. Bachmeier, family physician, Riverbend Walk-In Clinic and London Health Sciences, provided by the respondent in its submissions, there is no mention of the applicant’s involvement in an accident or that she suffered any physical complaints as a result of the accident. In addition, there are no CNRs provided from Oxford Spine Centre where the applicant attended for treatment. There are no assessment notes or treatment records documenting the applicant’s injuries, complaints, or response to treatment. I note that these records were ordered to be produced in the CCRO and there is no evidence that they were provided to the respondent or filed with the Tribunal for this hearing.

30Secondly, I find that the applicant has not dealt with the key elements to establishing entitlement to the disputed treatment plan in her submissions. I find that the applicant’s submissions mainly focus on what the respondent allegedly did wrong with the adjustment of the file. She has not provided any submissions on the disputed treatment plans’ therapeutic goals, whether they are being met, or the costs. The applicant has not established whether and how the services proposed in the disputed treatment plan are reasonable, other than providing a copy of the treatment plan and Dr. Ogilvie-Harris’s report.

31Thirdly, I give little weight to the report of Dr. Ogilvie-Harris, dated February 4, 2022. I find that Dr. Ogilvie-Harris did not complete a physical examination of the applicant and conducted his assessment virtually. I find that his report is based entirely on the self-reporting of the applicant and her responses to the fillable questionnaires. I find that he did not comment on the lack of reporting of the accident or any accident-related complaints under the Review of Medical Brief section of his report. He noted that there was no pertinent information in the CNRs of Riverbend Medical Clinic and noted that there were no significant pre-existing musculoskeletal problems in the CNRs of Dr. Bachmeier. I find that he has not relied on sufficient medical evidence other than the self-reporting of the applicant in support of his findings.

32Fourthly, I find the purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus of demonstrating that there are grounds on which they believe that a condition exists that would warrant further investigations by way of an assessment. I find the IE reports prepared by Dr. Safir, orthopedic surgeon, Dr. Yahmad, neurologist, and Danny Horban, occupational therapist, persuasive, and I put weight on their findings as to the nature of the applicant’s injuries, which are soft tissue, and do not indicate that there are grounds on which to believe that a condition exists which warrants further investigation. I find that the respondent was entitled to deny the treatment plan in dispute on the basis of the findings of the IE assessors.

33Finally, I find that despite the respondent’s attempt to assess the applicant’s entitlement specifically to the treatment plan in dispute, the applicant did not attend the scheduled assessment in November 2023 and did not respond to the request. I find that the applicant has not provided submissions on her failure to attend the scheduled IE assessment in November 2023 nor has she provided an explanation for her non-attendance.

34For the reasons set out above, I find that the applicant has not met her onus of demonstrating on a balance of probabilities that the treatment plan, dated December 30, 2021, is reasonable and necessary.

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the treatment plan in dispute is not payable, no interest is owing.

ORDER

36For the reasons outlined above, I find that the applicant is not entitled to the treatment plan for an orthopedic assessment or interest. The application is dismissed.