Citation: Blinov v. Unifund Assurance Company, 2025 ONLAT 22-011916/AABS

Licence Appeal Tribunal File Number: 22-011916/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:

Alexei Blinov

Applicant

and

Unifund Assurance Company

Respondent

DECISION

ADJUDICATOR: Laura Goulet

APPEARANCES:

For the Applicant: Olga Poznyakova, Paralegal

For the Respondent: Anthea Chan, Counsel

HEARD: By way of written submissions

OVERVIEW

1Alexei Blinov, the applicant, was involved in an automobile accident on September 22, 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, Unifund Assurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

2Upon receipt of the applicant’s submissions, the Tribunal became aware that the Law Society of Ontario Lawyer and Paralegal Directory (“Directory”) indicated that the applicant’s representative was unable to provide legal services due to lack of proof of insurance. The Tribunal requested submissions from the parties as to whether the applicant’s representative is able to provide legal services. In her submissions, the applicant’s representative filed a Certificate of Liability Insurance indicating that she is insured from November 14, 2022, to November 14, 2025, and the Directory is updated to reflect this. As such, I am satisfied that the applicant’s representative can make submissions on behalf of the applicant.

ISSUES

3The 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 (“MIG”) limit?

ii. Is the applicant entitled to a non-earner benefit (“NEB”) in the amount of $185.00 per week from October 22, 2021, to September 22, 2023?

iii. Is the applicant entitled to the medical services proposed by Mackenzie Medical Rehabilitation Centre (“Mackenzie”) as follows:

a. $3,795.50 for physiotherapy, chiropractic, and massage therapy services, in a treatment plan/OCF-18 (“plan”) dated October 2, 2021;

b. $2,026.55 for chiropractic and massage therapy services, in a plan dated February 9, 2022;

c. $1,620.65 for chiropractic and massage therapy services, in a plan dated March 23, 2022; and

d. $1,417.70 for chiropractic and massage therapy services, in a plan dated May 18, 2022?

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

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

RESULT

4The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the MIG funding limit.

5The applicant is not entitled to a NEB.

6The applicant is entitled to the plan dated May 18, 2022.

7The applicant is not entitled to the remaining treatment plans at issue.

8The respondent is not liable to pay an award.

9Interest is payable on any overdue benefits.

ANALYSIS

Applicability of the Minor Injury Guideline

10Section 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.”

11An 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 a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

12The applicant submits that he sustained a psychological impairment because of the accident, and he has a pre-existing condition that cannot be treated within the confines of the MIG to achieve maximum medical recovery.

The applicant does not suffer a psychological impairment as a result of the accident

13I find that the applicant has not established on a balance of probabilities that he suffers from an accident-related psychological impairment.

14The applicant relies on the documentation prepared by chiropractors Dr. Samuel Johnson and Dr. Na Ryung Kim, outlining his reports of sleep issues, stress, and anxiety, and the clinical notes and records of his family physician, Dr. Natan Khotianov, who diagnosed him with an Adjustment Disorder with Anxiety features on October 4, 2021, during a telephone consultation. The applicant did not file any other clinical notes and records from Dr. Khotianov.

15In assessing psychological injuries arising from the accident, I give no weight to the opinions of Dr. Johnson and Dr. Kim, because they are chiropractors and are not able to diagnose psychological injuries. Further, the notations by Dr. Johnson and Dr. Kim in the disability certificate, dated October 2, 2021, and plans dated February 9, March 23, and May 18, 2022, are descriptions of psychological symptoms, which in my view are insufficient to establish a finding that the applicant sustained a psychological impairment as a result of the accident.

16I find that the single notation in Dr. Khotianov’s clinical notes and records is insufficient evidence demonstrating that the applicant sustained a psychological injury because of the accident. The records from the applicant’s call with Dr. Khotianov on October 4, 2021, refer to the applicant’s mood as normal, remarkable for anxiety, but also state that no injuries were sustained in the accident. There is no indication in Dr. Khotianov’s notes and records that any psychometric testing was done to arrive at the diagnosis; no referral was made; and no plan was indicated to address the applicant’s psychological state.

17I prefer the opinion of Dr. Jonathan Seigel, psychologist, who conducted a s. 44 assessment of the applicant for three hours on April 29, 2022, because he is the only psychologist who assessed the applicant. Dr. Seigel concluded that the applicant had overall mild psychological adjustment difficulties that are not of a magnitude to warrant a diagnosis and are not significant and compelling enough to require psychological treatment. As part of the assessment, Dr. Seigel reviewed the applicants’ medical records, conducted an interview, and administered psychometric testing. In his report, Dr. Seigel indicated that the applicant discussed some long-standing personal issues but found no significant functional or psychological limitations stemming from the accident. It was also noted that the applicant reported to Dr. Seigel that he did not feel he needed or wanted psychological counselling.

18For these reasons, I am not satisfied, on a balance of probabilities, that the applicant suffers a psychological impairment because of the accident.

The applicant does not have a pre-existing condition preventing recovery under the MIG

19I find that the applicant has not established on a balance of probabilities that he has a pre-existing condition, documented by a medical practitioner, that would prevent maximal medical recovery under the MIG.

20The applicant has not led any evidence on this issue. His submissions state that the respondent is aware of his pre-existing conditions because those conditions are noted in the Insurer’s Examination (“IE”) reports. Yet, the applicant did not state what the pre-existing conditions are, nor how they would preclude his recovery within the MIG. Upon my review of the IE reports, I find that the IE report of Dr. Gina Pohani, physician, dated June 1, 2022, indicates that the applicant reported bilateral hip pain that predates the accident, which was most pronounced approximately two months following the accident, and has since improved. The IE report of Dr. Siegel, dated June 1, 2022, indicates that the applicant reported no pre-accident psychiatric history, but prior to the accident, he had pain off and on in his left hip and attributed this to summer jobs doing heavy lifting. The applicant reported to Dr. Siegel that he did not think that the accident exacerbated any pre-accident pain.

21I find that the applicant’s self-reported hip pain pre-dating the accident is not a documented pre-existing condition which would preclude his recovery in the MIG. The applicant has not tendered any medical records pre-dating the accident, other than an instance where he received a vaccination. Therefore, his pre-existing hip pain is not documented in any contemporaneous medical records. As such, it does not satisfy the branch of the test which requires the pre-existing condition be documented by a healthcare provider.

22For these reasons, I find that the applicant has not demonstrated, on a balance of probabilities, that he suffers from a documented pre-existing health condition which would preclude his recovery if subject to the MIG.

The applicant is not entitled to a non-earner benefit

23I find that the applicant is not entitled to a NEB.

24Section 12(1) provides that an insurer shall pay a NEB to an insured person who sustains an impairment because of the accident if the insured person suffers a complete inability to carry on a normal life as a result of and within 104 weeks after the accident. Section 3(7)(a) defines a “complete inability to carry on a normal life” as “an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident.” The Court of Appeal set out the guiding principles for NEB entitlement in Heath v. Economical Mut. Ins. Co., 2009 ONCA 391, which, generally, focuses on a comparison of the applicant’s pre- and post-accident activities.

25The applicant submits that he is entitled to a NEB because he suffered a complete inability to carry on a normal life and did not qualify for an income replacement benefit (“IRB”).

26I find that the applicant returned to work following the accident and missed no time from work due to accident-related injuries. Further, I find that the applicant has provided little evidence upon which I can assess the change in his pre-accident activities relative to his post-accident activities. I find that the treatment records from Mackenzie do not lend any information about the applicant’s pre-accident functioning, and the post-accident records do not demonstrate that the applicant’s functionality is reduced to the point that he suffers a complete inability to carry on a normal life. The OCF-12 states that the applicant was unable to run and play soccer following the accident and that he requires help walking and climbing stairs. Otherwise, the OCF-12 notes that the applicant can do all his other pre-accident activities. From this information, coupled with the fact that the applicant returned to work full time and in a full capacity, I conclude that he does not suffer a complete inability to carry on a normal life because of the accident.

27The applicant further argues that he is entitled to a NEB because the respondent failed to provide a notice compliant with s. 36(4) of the Schedule, which sets out that within 10 business days after the insurer receives the application and completed OCF-3, it shall pay the specified benefit; give the applicant a notice explaining the medical and any other reasons why it does not believe the applicant is entitled to the benefit and, if the insurer requires a s. 44 examination, advise the applicant of the requirement for an examination; or send a request to the applicant under s. 33(1) or (2).

28Pursuant to s. 36(6) of the Schedule, if the insurer fails to comply with s. 36(4), the insurer shall pay the benefit for the period starting on the day the insurer received the application and OCF-3 until the insurer gives notice described in s. 36(4)(b). The applicant submits that the respondent failed to provide the applicant with a notice compliant with s. 36(4)(b) following their failure to comply with s. 36(4).

29The applicant claims entitlement to a NEB because the respondent did not reply to the application within 10 business days. He submits that Mackenzie provided an OCF-3 to the respondent on October 14, 2021, and that on October 29, 2021, the respondent acknowledged the receipt of the OCF-3 and made requests for an OCF-10 and for medical documentation pursuant to s. 33. The applicant argues that the notice under s. 36(4) was due on October 28, 2021.

30I find that there are 10 business days between October 14,2021, and October 29, 2021, and therefore the respondent’s denial letter was not late.

31The applicant further submits that the respondent’s letter dated October 29, 2021, is not a denial because the respondent’s request for an OCF-10 and various medical documents does not comply with s. 36(4). In addition, the applicant submits that the October 29, 2021, letter is deficient because it fails to provide the consequences for not complying with the request and because it did not notify the applicant that he was in non-compliance with section 33. Further, the applicant submits that the respondent did not require a s. 44 examination relating to his claim for NEBs.

32The respondent argues that the applicant has not submitted an OCF-10 to confirm his election of either IRBs or NEBs. It relies on section 33(1) of the Schedule, which sets out that within 10 business days after a request from the insurer, the applicant shall provide it with any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit. The respondent further relies on section 33(6), which states that the insurer is not liable to pay a benefit in respect of any period during which the insured person fails to comply with s. 33(1).

33The applicant relies on the decision of W.F. v. Aviva Insurance Canada, 2019 CanLII 14032 (ON LAT), for the proposition that before the respondent can rely on s. 33(6), it has a duty to provide clear, unambiguous information about the applicant’s responsibilities and rights under s. 33. However, this decision is not binding on me, and on reconsideration, the Tribunal found there was no express duty to define the applicant’s obligations and define the consequences of non-compliance.

34The respondent further submits that the applicant’s status as it pertains to specified benefits has been ambiguous. It highlights that the applicant’s OCF-1 stated that his accident-related injuries did not prevent him from working, but his OCF-3 states that his injuries prevent him from performing his essential tasks of employment and prevent him from returning to his normal activities following the accident. The respondent submits that the OCF-10 is necessary because it requires a certification from the applicant that the information provided is correct and acknowledges the consequences for providing false or misleading information. The respondent takes the position that not requiring an OCF-10 would render section 35 of the Schedule to be meaningless. The respondent submits that it requested an OCF-10 and section 33 productions on October 29, 2021, and the applicant responded with correspondence advising that he returned to work and is claiming a NEB, but he did not complete an OCF-10.

35I find that the respondent’s letter dated October 29, 2021, is compliant with section 36(4)(c) of the Schedule because it contains a valid request under section 33(1). The respondent replied to the applicant within 10 business days and requested an OCF-10 pursuant to section 33, stating that it was reasonably required to determine the applicant’s entitlement to a NEB. It also stated that the applicant’s benefit entitlement cannot be considered until receipt of the OCF-10. Considering that the applicant’s claims documents indicated entitlement to both IRBs and NEBs, I find that an OCF-10 is reasonably required to assist the respondent in determining the applicant’s entitlement to specified benefits.

36I find that the applicant has not complied with the s. 33 request made by the respondent. Given the ambiguity in the applicants’ claim for specified benefits, it was reasonable for the respondent to request a completed OCF-10 to certify which specified benefit the applicant seeks. I find that the email correspondence from the applicant’s counsel to the respondent is insufficient and does not qualify as compliance with section 33 of the Schedule. The OCF-10 is a preset form, and in my view, it is a form that would not exist if applications for a specified benefit could be made without the form. The OCF-10 is required because it includes an attestation that the information provided is correct and clearly advises the applicant of the consequences following an election. The email from counsel for the applicant does not include those important details.

37Accordingly, since the applicant did not submit an OCF-10 to the respondent, the applicant remains non-compliant with section 33 of the Schedule and is not entitled to a NEB as a result.

38To receive payment for a treatment and assessment plan under s. 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 because 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.

39As I have found the applicant's injuries to be subject to treatment within the MIG, it is not necessary for me to determine whether the disputed treatment plans are reasonable and necessary. I will, however, address the applicant’s submissions that the respondent failed to comply with the mandatory requirements of s. 38(8) of the Schedule.

The applicant is not entitled to the treatment plan dated October 2, 2021

40The applicant is not entitled to the plan dated October 2, 2021, because it was properly denied by the respondent in compliance with s. 38(8) of the Schedule.

41The applicant relies on s. 38(8) which sets out that the insurer has 10 business days to respond to the insured upon receipt of the OCF-18. The applicant indicates that the OCF-18 was submitted to the respondent on October 5, 2021. He claims that he did not receive a denial of the plan and that the denial was only conveyed via the electronic document exchange system between Mackenzie and the respondent. The applicant further submits that the adjuster log notes do not indicate that a denial letter was sent. To the applicant, this a breach of section 38(8) that engages the mandatory consequences outlined in section 38(11) of the Schedule, entitling him to the goods and services described in the plan. The applicant also argues that the salutation in this letter indicates the name of another person, not the applicant, and therefore it should be excluded from evidence.

42The respondent filed the denial letter dated October 13, 2021, which relates to this plan, pointing to a code at the bottom of the letter indicating that it was mailed out. Despite the salutation, I find that the letter itself is addressed to the applicant at the top of the page. The fact that a salutation is incorrect does not make the denial invalid.

43I find that the respondent issued a valid denial on October 13, 2021, which complied with section 38 of the Schedule, and is not subject to review pursuant to section 38(6). The plan was submitted on October 5, 2021, and a denial letter was mailed to the applicant on October 13, 2021. Pursuant to section 64(18) of the Schedule, documents delivered via mail are deemed to be received by the other party on the 5^th^ business day in the absence of any evidence to the contrary. In this case, the 5^th^ business day is October 20, 2021, and the applicant has not provided any evidence indicating that the document was received later. October 20, 2021, is the 10^th^ business day following submission of the plan, thus I find that it is compliant with the timelines outlined in section 38(8). I am further persuaded that the respondent replied to the plan in accordance with the Schedule because the applicant complied with the request that was made by the respondent in its October 13, 2021, letter for an OCF-23 and submitted one, dated October 18, 2021.

44For the above reasons, I find that the applicant is not entitled to the plan dated October 2, 2021.

The applicant is not entitled to the treatment plans dated February 9, 2022, and March 23, 2022

45The applicant is not entitled to these plans because they were properly denied by the respondent in compliance with s. 38(8) of the Schedule.

46The applicant submits that the respondent failed to comply with the mandatory requirements in section 38(8) by failing to provide adequate medical and all other reasons for the denials. He argues that the notices failed to refer to the applicant’s specific injuries, to mention any diagnosis, to advise on what basis the denial was being made, or to refer to which documents were reviewed in coming to the decision. He submits that this error entitles him to the goods and services listed in the plans that are incurred during the period of non-compliance.

47Section 38(8) of the Schedule provides that the insurer must reply to a plan within 10 business days, must identify the goods and services it does not agree to pay for, and must give the medical and all other reasons for the denial. The reasons for the denial must be meaningful enough for the applicant to decide whether to dispute the determination.

48I find that the relevant denial notices complied with section 38 of the Schedule because they express clear and unequivocal medical reasons for the denials. Before I address the denials individually, I must highlight that at the time of the denials, the respondent had very little medical information, a situation which continues to date. The applicant has produced only one clinical note from his family physician, which was delivered on February 25, 2022. As discussed earlier, that note does not include a diagnosis of a psychological injury. Further, on July 18, 2023, he produced Mackenzie’s clinical notes and records, which I find include no persuasive information to suggest that the applicant sustained an injury that is not included in the minor injury definition.

49I find that the denial dated February 22, 2022, in relation to the plan dated February 9, 2022, is compliant with section 38. The letter includes the definition of a minor injury, and states that the respondent requires a determination that the applicant’s impairment is not a minor injury, or compelling evidence of a pre-existing injury which would preclude recovery if subject to the MIG. Further, the letter indicates that the MIG applies based on the information in the file and that they do not have enough medical evidence to confirm that his injuries are not a minor injury. The respondent then requests clinical notes and records from the applicant’s family physician, any hospital he attended on the day of the accident, and any specialists he has seen in the past two years. Considering the minimal medical information the respondent had at the time, I find this is a sufficient denial as it includes the medical reasons: that all the information indicates a minor injury, and that the applicant must provide evidence of a non-minor injury for the respondent to consider treatment outside of the MIG.

50I find that the denial dated March 31, 2022, in relation to the plan dated March 23, 2022, is equally sufficient and compliant with section 38. The letter includes the definition of a minor injury and states that the respondent requires a determination that the applicant’s impairment is not a minor injury, or compelling evidence of a pre-existing injury which would preclude recovery if subject to the MIG. Further, the letter indicates that the MIG applies based on the information in the file and that they do not have enough medical evidence to confirm that his injuries are not a minor injury. This letter then states that it will request a s. 44 assessment. The respondent submits that at the time, only four medical entries were produced from Dr. Khotianov, which provided no clear diagnosis or information about causation, prognosis, and the applicant’s activities of daily living. Again, I find the medical reason provided indicating a lack of information to suggest a non-minor injury is sufficient, particularly considering the minimal medical information the respondent had at the time.

51For the above reasons, I find that the applicant is not entitled to the plans dated February 9, 2022, and March 23, 2022.

The applicant is entitled to the treatment plan dated May 18, 2022

52I find that the applicant is entitled to the plan dated May 18, 2022, because the denial is not compliant with s. 38 of the Schedule.

53The applicant submits that the denial letter dated May 22, 2022, is “boilerplate” in that it failed to acknowledge certain injuries sustained by the applicant that were outside the MIG and did not list any of the applicant’s injuries.

54The denial letter confirms receipt of documentation with a few pages of medical information on February 25, 2022, and states that they were unable to identify any information regarding the accident date. A lack of information regarding the accident date is not a medical reason to deny benefits. Further, the letter does not advise the applicant that the respondent believes that the MIG applies to his claim. I also find that the respondent has not provided a subsequent denial that is compliant with section 38. This engages the mandatory consequences outlined in section 38(11) of the Schedule.

55For these reasons, I find that the applicant is entitled to the plan dated May 18, 2022, if incurred.

Interest

56Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The respondent is liable to pay interest on any overdue benefits.

Award

57The 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.

58It is well settled that an award should not be ordered simply because an insurer made an incorrect decision. Rather, to attract an award under Regulation 664, the insurer’s conduct must be excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.

59I find that the respondent’s behavior does not reach that high standard. Further, having found that only one treatment plan is payable, I find that there is no basis for ordering an award.

ORDER

60The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG.

61The applicant is not entitled to a NEB.

62The applicant is entitled to the plan dated May 18, 2022, if incurred.

63The applicant is not entitled to the remaining treatment plans at issue.

64The respondent is not liable to pay an award.

65Interest is payable on any overdue benefits.