Sandra Fortini v. Intact Insurance Company, 2025 CanLII 35958

Citation: Fortini v. Intact Insurance Company, 2025 ONLAT 23-006603/AABS

Licence Appeal Tribunal File Number: 23-006603/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:

Sandra Fortini

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Caley Howard

APPEARANCES:

For the Applicant: Kayla Cuff, Paralegal

For the Respondent: Maryam Younes, Counsel

HEARD: By way of written submissions

OVERVIEW

1Sandra Fortini, the applicant, was involved in an automobile accident on November 13, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit (MIG)?

ii. Is the applicant entitled to $3,697.82 for physiotherapy, proposed by Newmarket Health and Wellness Center Inc. (“Newmarket”) in a treatment plan/OCF-18 (“treatment plan”) submitted on May 22, 2021?

iii. Is the applicant entitled to $598.41 ($1,410.46 less $812.05 approved) for physiotherapy, proposed by Newmarket in a treatment plan submitted on December 1, 2021?

iv. Is the applicant entitled to $282.50 for the cost of psychological screening, proposed by Imperial Medical Assessments Inc. (“Imperial”) in a treatment plan submitted on June 3, 2021?

v. Is the applicant entitled to $2,486.00 for the cost of a psychological assessment, proposed by Imperial in a treatment plan submitted on June 3, 2021?

vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find:

i. The applicant remains in the MIG.

ii. The applicant is not entitled to payment of the benefits set out in the treatment plan submitted May 22, 2021 or the two treatment plans submitted June 3, 2021.

iii. The applicant is entitled to payment of the benefits set out in the treatment plan submitted December 1, 2021, plus interest, once incurred.

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.

ANALYSIS

The applicant is subject to the MIG

4I find that the applicant’s injuries are predominantly minor and are subject to treatment within the MIG.

5Section 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.”

6An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

7The applicant submits that she sustained injuries to her low back, neck and hip in the accident. She submits that she suffers from both chronic pain and a psychological condition as a result of the accident and should be removed from the MIG as a result.

A) The applicant does not suffer from chronic pain with a functional impairment

8I find that the applicant does not suffer from chronic pain with a functional impairment as a result of the accident.

9The applicant submits that she suffers from chronic pain with a functional impairment as a result of the accident. In support of her position, she relies on the clinical notes and records (CNRs) of Newmarket Health and Wellness Centre, where the applicant sought physiotherapy, chiropractic and acupuncture treatment after the accident; the CNRs of Dr. Wisam Jaber, a doctor at a walk-in clinic where the applicant sought treatment after the accident; the psychological pre-screen interview, dated June 1, 2021, of Viktoria Tolmatshov, psychotherapist, acting under the supervision of Dr. Eugene Hewchuk, psychologist; and the Insurer’s Examination (IE) psychological assessment of Dr. Jonathan Siegel, dated August 10, 2023. The applicant also referred to the OCF-3 completed by Dr. Pathan in her submissions, but this document was not included in the materials before the Tribunal, so I have not considered it.

10The respondent submits that the applicant has not proven that she suffers from chronic pain or that she suffers from any functional impairment due to chronic pain. The respondent relies on the CNRs of Dr. Jaber; the CNRs of Newmarket Health and Wellness Centre; the physician assessment report of Dr. Ahmad Belfon, GP, dated May 31, 2022; and the physician assessment report of Dr. Paul Tepperman, occupational health physician, dated November 1, 2022.

11I find that the CNRs of Dr. Jaber show that the applicant attended at the walk-in clinic the day after the accident. The CNRs further show that while the applicant returned to consult Dr. Jaber on other health-related matters, she did not mention the accident or any related pain to Dr. Jaber again after November 14, 2020.

12I find that the CNRs of Newmarket Health and Wellness Centre show that the applicant reported pain to her treating physiotherapy and acupuncture treatment providers between the time of the accident and November 2022. However, I also find that the applicant regularly reported improved pain levels to her treatment providers. In addition, I find that the applicant does not direct me to any reports that she made to her treatment providers about functional impairments that she suffered as a result of her pain.

13I find that the pre-screen interview of June 1, 2021 shows that the applicant reported to the interviewer, Ms. Tolmatshov, that she suffers from chronic pain as a result of the accident and that she can no longer participate in activities that require prolonged sitting or standing. I give little weight to this report as it is entirely based on Ms. Tolmatshov’s interview of the applicant. I find that Ms. Tolmatshov, a psychotherapist, does not provide any testing of or opinion on the applicant’s functional impairments due to pain. I further find that the applicant’s reports to Ms. Tolmatshov respecting functional impairment are vague and unsupported by the CNRs of any of her treatment providers.

14I find that the psychological assessment report of Dr. Siegel, dated August 10, 2023, shows that the applicant reported to Dr. Siegel that she continues to experience pain. However, I find that she also reported that she was able to return to work within a couple days of the accident and that she remains active in sports, such as canoeing and skiing, but she cannot participate as vigorously or for the same duration as she was able before the accident. Dr. Siegel opined that the applicant has mild psychological adjustment difficulties associated with persistent pain, but nothing of a magnitude to warrant a DSM-5 diagnosis. I give Dr. Siegel’s opinion more weight than Ms. Tolmatshov’s pre-screen interview because it is based on psychometric testing as well as Dr. Seigel’s interview and observations of the applicant.

15I give weight to Dr. Tepperman’s opinion that the applicant’s accident-related injuries had resolved as of November 1, 2022 and that she had no physical or functional limitations because it was based on the results of Dr. Tepperman’s physical examination and observations of the applicant and also took into account the applicant’s subjective description of her complaints. I find that Dr. Tepperman concurs with Dr. Belfon’s opinion that the applicant continued to have some myofascial pain as a result of the accident as of May 2022, but had no functional limitations.

16For the foregoing reasons, I find that the applicant has not proven, on a balance of probabilities, that she suffers from chronic pain with a functional impairment.

B) The applicant does not suffer from a psychological condition

17I find that the applicant does not suffer from a psychological condition as a result of the accident.

18The applicant submits that she suffers from a psychological condition. In support of her position, she relies on the June 1, 2021 psychological pre-screen interview of Ms. Tolmatshov, under the supervision of Dr. Hewchuk, in which a “provisional diagnosis” of adjustment disorder is issued.

19The respondent submits that a pre-screen interview such as that of Ms. Tolmatshov, in which a provisional diagnosis is rendered, is not sufficient evidence to warrant removing the applicant from the MIG. In support of this position, the respondent relies on the case of P.S. v. Wawanesa Mutual, 2020 CanLII 87934 (ON LAT) (“P.S.”), in which the Tribunal found that a psychological pre-screen interview on its own is not sufficient evidence in support of a psychological impairment because it is entirely based on the applicant’s self-reports with no diagnostic testing to confirm the results. In addition, the respondent relies on the psychological assessment report of Dr. Siegel, in which Dr. Siegel opines that the applicant has mild psychological adjustment difficulties associated with persistent pain, but nothing of a magnitude to warrant a DSM-5 diagnosis and requires no psychological intervention as a result of the accident.

20While I am not bound to follow other Tribunal decisions, I find the reasoning in P.S. to be persuasive. I find the June 1, 2021 psychological pre-screen interview, on its own, is not sufficient to prove that the applicant has a psychological condition that warrants her removal from the MIG.

21The applicant submits that Dr. Pathan, her chiropractor, noted that she reported driving anxiety, especially as a passenger, on a visit to Newmarket Health and Wellness Centre on November 23, 2020. However, I was not directed to this reference in the CNRs of Newmarket Health and Wellness Centre.

22I find that the applicant has not directed me to evidence that corroborates the provisional diagnosis of Dr. Hewchuk.

23In addition, I give significant weight to the opinion of Dr. Siegel, who performed a full psychological assessment of the applicant, and determined that, while she exhibited some mild adjustment difficulties, her injuries were minor and she required no psychological intervention as a result of the accident.

24As a result of the foregoing, I find that the applicant has not proven, on a balance of probabilities, that she suffers from a psychological condition as a result of the accident that would warrant her removal from the MIG.

25I find that the applicant’s accident-related injuries are predominantly minor and therefore subject to treatment within the $3,500.00 MIG limit.

Entitlement to treatment plans

26I have found that the applicant remains subject to the MIG, therefore it is not necessary to determine whether the disputed treatment plans are reasonable and necessary.

27However, the applicant submits that she is entitled to the disputed treatment plans due to the non-compliance of the respondent’s denials with s. 38(8) of the Schedule.

28Section 38(8) of the Schedule requires an insurer to respond to each treatment plan within 10 days of receiving it by identifying the goods, services, assessments and examinations described in the treatment plan that the insurer does and does not agree to pay for. The response must include the medical reasons and all of the other reasons why the insurer considers any proposed treatments or assessments not reasonable or necessary.

29If an insurer fails to comply with s. 38(8), the consequences are:

i. The insurer cannot take the position that the insured person has an impairment to which the MIG applies; and

ii. The insurer shall pay for all goods, services, assessments, and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

30Although I am not bound by Tribunal decisions, I find that T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT), provides useful guidance on the meaning of “medical reasons.” It found that such reasons should:

i. include specific details about the insured’s condition that formed the basis for the insurer’s decision; and

ii. should allow an unsophisticated person to make an informed decision to accept or dispute the insurer’s decision.

C) Treatment plan submitted May 22, 2021

31I find that the applicant is not entitled to the treatment plan submitted May 22, 2021.

32The treatment plan submitted May 22, 2021 was completed by Dr. Farhankhan Pathan, physiotherapist, and sought funding of $3,697.82 for acupuncture, massage therapy, nutritional supplements, exercise sessions and exercise equipment.

33The parties agree that this treatment plan was denied by letter dated June 6, 2022. The applicant submits that she is entitled to payment of the benefits set out in the treatment plan because the respondent did not properly identify her medical condition or make mention of the specific benefits that were at issue in its denial letter.

34The respondent made no submissions respecting its delay in issuing the denial letter.

35I find that the respondent did not comply with s. 38(8) of the Schedule as it did not respond to the treatment plan within 10 days of receipt.

36However, I find that the June 6, 2022 denial letter complies with the requirements of s. 38(8) in that it contains the medical reasons and all other reasons for the denial because it contains sufficient details to enable an unsophisticated person to make an informed decision to accept or dispute the insurer’s decision. Specifically, I find that the letter identifies the treatment plan and lists the benefits sought therein, identifies that the denial is based on the IE report of Dr. Belfon dated May 31, 2022, acknowledges that the applicant continues to have some myofascial pain across her neck and low back and identifies these injuries as falling under the MIG, in accordance with Dr. Belfon’s opinion.

37The Divisional Court in Aviva General Insurance Company v. Catic, 2022 ONSC 6000 (“Catic”), held that the items listed in the subject treatment plan are payable only if they are incurred during the period for which a compliant denial notice remains outstanding. The applicant has not directed me to evidence that the treatment plan was incurred prior to June 6, 2022 when the deficient notice was cured. Therefore, I find that the applicant has not demonstrated on a balance of probabilities that the treatment plan is payable due to non-compliance with s. 38(8).

D) Treatment plan submitted December 1, 2021

38I find that the applicant is entitled to the treatment plan submitted December 1, 2021, once incurred.

39The treatment plan submitted December 1, 2021 was completed by Dr. Pathan and sought funding of $1,410.56 for physiotherapy and acupuncture treatment. It was partially approved in the amount of $812.05, leaving the amount of $598.41 in dispute.

40The applicant submits that the denial letter, dated December 9, 2021, does not comply with s. 38(8) of the Schedule.

41The respondent submits that the December 9, 2021 letter is compliant with the Schedule.

42I find that the letter of December 9, 2021 does not comply with s. 38(8) as it lacks sufficient details to enable an unsophisticated person to make an informed decision to accept or dispute the insurer’s decision.

43I find that while the letter identifies that the respondent has determined that the applicant’s injuries are classified as minor injuries, the references to the applicant’s injuries lack the detail necessary to be compliant with s. 38(8). The letter repeatedly references “your injuries resulting from the motor vehicle accident” or “your impairment”, without identifying the details of the applicant’s injuries on which the respondent based its decision.

44I have not been referred to a subsequent letter that complies with s. 38(8) of the Schedule. In Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200 (“Suarez”), the Divisional Court held that where the insurer does not provide a denial that complies with s. 38(8) and does not cure the deficiency before the Tribunal adjudicates the dispute in favour of the insured, the insured can proceed to incur the items listed in the subject treatment plan and the insurer is liable to pay for them once properly invoiced.

45Therefore, I find that the applicant is entitled to payment of the benefits set out in the treatment plan submitted December 1, 2021 once incurred and properly invoiced.

E) Treatment plan for psychological pre-screen submitted June 3, 2021

46I find that the applicant is not entitled to the treatment plan submitted June 3, 2021.

47The first treatment plan submitted on June 3, 2021 was completed by Dr. Hewchuk and sought funding for $282.00 for a psychological pre-screen interview.

48The applicant submits that the respondent’s denial letter of June 9, 2021 does not comply with s. 38(8) of the Schedule.

49The respondent submits that the letter of June 9, 2021 is compliant and also refers me to a subsequent denial letter of August 18, 2023.

50The denial letter of June 9, 2021 contains the following reasons for the denial:

The Treatment and Assessment Plan (OCF-18) indicates you should qualify for treatment outside of the minor injury limit. Following a review of the Treatment and Assessment Plan (OCF18) there is insufficient documentation provided by your health practitioner that would support your removal from the minor injury limit.

51The letter went on to request clinical notes and records from the applicant’s family doctor for a specified period, pursuant to s. 33(1) of the Schedule.

52I find that the letter of June 9, 2021 does not comply with the requirements of s. 38(8) because it lacks sufficient details to enable an unsophisticated person to make an informed decision to accept or dispute the insurer’s decision. While the letter indicates that the respondent requires additional documentation from a health practitioner to support the applicant’s removal from the MIG, I find that it does not acknowledge the details of the applicant’s condition reported in the treatment plan or explain how those details factor into the respondent’s decision.

53The respondent sent a follow-up letter in respect of the same treatment plan dated August 18, 2023, which contains the following reasons for the denial:

We are now in receipt of the Insurer’s Examination report completed by Dr. Jonathan E Siegel, Psych on August 10/232 [sic] and have attached a copy for your review. Based on the report, your injuries qualify you for treatment under the Minor Injury Guideline.

Ms. Fortini’s current psychological adjustment difficulties are considered to be minor.

In a Treatment and Assessment Plan (OCF-18) of June 1, 2021, Dr. E. Hewchuk, Psychologist reference adjustment disorders under Part 6. A pre-screening psychological assessment was recommended under Part 12: at present, Ms. Fortini does not require any psychological intervention and from this perspective, the Treatment and Assessment Plan (OCF-18) is not currently reasonably required.

54I find that the letter of August 18, 2023 complies with s. 38(8) of the Schedule because it contains sufficient details to enable a sophisticated person to make an informed decision to accept or dispute the insurer’s decision. Specifically, I find that the letter identifies the treatment plan and the benefit sought therein, identifies the details of the applicant’s condition as set out in the treatment plan, states that the denial is based on the opinion of Dr. Siegel and highlights the aspects of Dr. Siegel’s opinion that are relevant to the respondent’s decision.

55The applicant has not directed me to evidence that this treatment plan was incurred between the 11th business day after June 3, 2021 and August 18, 2023, when the deficient denial was cured. Therefore, pursuant to the Divisional Court decision in Catic, I find that the applicant has not demonstrated on a balance of probabilities that she is entitled to the treatment plan.

F) Treatment plan for a psychological assessment dated June 3, 2021

56I find that the applicant is not entitled to the second treatment plan submitted June 3, 2021.

57The second treatment plan submitted on June 3, 2021 was completed by Dr. Hewchuk and sought funding of $2,486.00 for a psychological assessment.

58The applicant submits that the denial letter of June 9, 2021 does not comply with s. 38(8) of the Schedule.

59The respondent submits that the letter of June 9, 2021 is compliant and also refers me to the follow-up denial letter of August 18, 2023.

60The denial letter of June 9, 2021 contains the following reasons for the denial:

The Treatment and Assessment Plan (OCF-18) indicates you should qualify for treatment outside of the minor injury limit. Following a review of the Treatment and Assessment Plan (OCF18) there is insufficient documentation provided by your health practitioner that would support your removal from the minor injury limit.

61The letter went on to request clinical notes and records from the applicant’s family doctor for a specified period, pursuant to s. 33(1) of the Schedule.

62I find that the letter of June 9, 2021 does not comply with the requirements of s. 38(8) because it lacks sufficient details to enable an unsophisticated person to make an informed decision to accept or dispute the insurer’s decision. While the letter indicates that the respondent requires additional documentation from a health practitioner to support the applicant’s removal from the MIG, I find that it does not acknowledge the details of the applicant’s condition reported in the treatment plan or explain how those details factor into the respondent’s decision.

63The denial letter of August 18, 2023 contains the following reasons for the denial:

We are now in receipt of the Insurer’s Examination report completed by Dr. Jonathan E Siegel, Psych on August 10/232 [sic] and have attached a copy for your review. Based on the report, your injuries qualify you for treatment under the Minor Injury Guideline.

Ms. Fortini’s current psychological adjustment difficulties are considered to be minor.

In a second Treatment and Assessment Plan (OCF-18) by Dr. E. Hewchuk, Psychologist, of June 7, 2021, there is reference to the following services under Part 12, for a psychological assessment for the purpose of treatment planning. she [sic] does not require psychological intervention regarding the index motor vehicle accident of November 13, 2020 and as such, the Treatment and Assessment Plan (OCF-18) is not reasonably required, from the current perspective.

64I find that the letter of August 18, 2023 complies with s. 38(8) of the Schedule because it contains sufficient details to enable a sophisticated person to make an informed decision to accept or dispute the insurer’s decision. Specifically, I find that the letter identifies the treatment plan and the benefit sought therein, identifies the details of the applicant’s condition as set out in the treatment plan, states that the denial is based on the opinion of Dr. Siegel and highlights the aspects of Dr. Siegel’s opinion that are relevant to the respondent’s decision.

65The applicant has not directed me to evidence that this treatment plan was incurred between the 11th business day after June 3, 2021 and August 18, 2023, when the deficient denial was cured. Therefore, pursuant to the Divisional Court decision in Catic, I find that the applicant has not demonstrated on a balance of probabilities that she is entitled to the treatment plan.

Interest

66Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on the benefits payable under the treatment plans as set out above.

Award

67The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. 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 this criteria.

68The applicant did not direct me to evidence that the respondent unreasonably withheld or delayed the payment of benefits. Therefore, I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.

ORDER

69I find:

i. The applicant remains in the MIG.

ii. The applicant is not entitled to payment of the benefits set out in the treatment plan submitted May 22, 2021 or the two treatment plans submitted June 3, 2021.

iii. The applicant is entitled to payment of the benefits set out in the treatment plan submitted December 1, 2021, plus interest, once incurred.

iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.