Licence Appeal Tribunal File Number: 23-009322/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:
Rajinder Dhaliwal
Applicant
and
Economical Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Tami Cogan
APPEARANCES:
For the Applicant: Joshua Meshack, Counsel
For the Respondent: Sunjay Mistry, Paralegal
HEARD: By way of written submissions
OVERVIEW
1Rajinder Dhaliwal, the applicant, was involved in an automobile accident on September 9, 2018, 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, Economical Mutual 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?
ii. Is the applicant entitled to $2,754.10 for physiotherapy services, proposed by Health Max – Brampton in a treatment plan/OCF-18 (“plan”) dated June 2, 2021?
iii. Is the applicant entitled to $2,200.00 for psychological service, proposed by Sarvin Sabet Ghadam, in a plan dated December 22, 2021?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the respondent liable to pay an award under s.10 of Reg 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3I find the following:
i. The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit.
ii. As the applicant is in the MIG, I do not need to determine if the treatment plans are reasonable and necessary.
iii. The treatment plans are not payable pursuant to s. 38 of the Schedule.
iv. The applicant is not entitled to interest.
v. The respondent is not liable to pay an award under s.10 of Reg 664.
PROCEDURAL ISSUES
4The hearing date was set for September 20, 2024. The applicant’s submissions were due 30 days before the hearing date, on August 21, 2024. However, the submissions were filed on August 26, 2024, five days late. The respondent’s submissions were due 14 days before the hearing date, on September 6, 2024. The respondent did not oppose the applicant’s late filing but instead filed an adjournment request seeking relief to file its submissions an equal number of days late in order to have its full fourteen days to respond. The respondent’s submissions were filed on September 10, 2024. The applicant did not object. I find that to have this matter decided on its merits, I will accept the late filed submissions of both parties.
5The parties were permitted 10 pages each for their submissions. The respondent’s submissions were received as 12 pages, not including the title page or the document index. The respondent plead for relief to have their full submissions considered. The applicant did not file a reply or object to the respondent exceeding the page limit. I will consider the additional pages of the respondent’s submissions because I have not heard the applicant object or claim procedural unfairness.
ANALYSIS
Minor Injury Guideline (“MIG”)
6The applicant remains subject to the MIG limits.
7Section 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.”
8An 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.
9The treatment and assessment plans in dispute propose treatment that falls outside the MIG. Thus, the applicant’s entitlement to them is contingent on a finding that his injuries are not included in the minor injury definition. If so, the applicant must then demonstrate that the treatment and assessment plans are reasonable and necessary on a balance of probabilities.
10The applicant submits he has suffered a psychological condition that removes him from the MIG. The applicant relies on the OCF-3 and treatment plans as evidence that the applicant’s injuries are outside of the MIG. The OCF-3 was completed by Dr. P Badwall, chiropractor, on September 13, 2018. The applicant submits the treatment plan completed by Sarvin Sabet Ghadam, psychologist, dated December 22, 2021, is evidence of the applicant’s psychological condition.
11The respondent’s position is that the treatment plan alone does not evidence a psychological condition that would remove him from the MIG and there are no supporting medical records for the treatment plan being reasonable or necessary. The respondent also raises causation because the applicant was involved in two subsequent accidents. The second accident was on December 31, 2020, for which he saw Dr. Inderjit Kaur on January 1, 2020. On May 29, 2021, the applicant was assessed by Dr. Guninder Sandhu for a third accident.
12The applicant has not lead evidence of chronic pain that would remove him from the MIG, or evidence of a pre-existing condition that would prevent his recovery within the MIG. In my view, the physical injuries listed on the OCF-3, within the purview of Dr. Badwall, chiropractor, are all within the definition of a minor injury.
13I agree with the respondent that the psychological pre-screening attached to the submitted treatment plan does not provide a diagnosis or evidence of a psychological impairment that would remove the applicant from the MIG. Further, I find that the treatment plan alone is not evidence of a treatment plan being reasonable and necessary. A treatment plan must be supported by other medical evidence or opinion corroborating the need for the treatment.
14The only medical records I have been directed to, regarding the applicant’s psychological symptoms, are dated September 18, 2019, one year after the accident. The applicant spoke to Dr. Sandhu and was diagnosed with depression and prescribed Cipralex, however, the applicant’s reported reasons were unrelated to the accident and the doctor’s notes do not mention the accident. I therefore find there is a lack of supporting medical evidence for the treatment plan being reasonable and necessary as a result of the 2018 accident because the treatment plan for the psychological assessment is dated December 22, 2021, three years after the accident; two years after the applicant’s only report of mental health concerns to his family doctor; and seven months after the third accident. I find the applicant has not proven a casual link between the applicant’s psychological condition and the accident.
15I find on a balance of probabilities that the applicant has not met his burden to prove on a balance of probability that he has suffered injuries that are not predominantly minor. I find the applicant remains subject to the MIG limits.
16As the applicant is in the MIG, it is not necessary for me to consider whether the treatment plans are reasonable and necessary.
17However, the applicant also argues the treatment plans are payable pursuant to s. 38. For the following reasons I find the treatment plans are not payable.
18Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.
19The applicant submits that he is entitled to the treatment plans for two reasons. First, the denial of the treatment plan dated June 2, 2021 was not denied until September 28, 2021, being a period longer than 10 days, and therefore under s. 38(11) of the Schedule the treatment plans are payable. The second reason is that the language in the denials are insufficient and therefore the mandatory consequences under s. 38(11)2 apply.
20The respondent submits that the notices of denial were given within 10 business days and the reasons provided meet s. 38(8) requirements, and therefore the treatment plans are not payable.
21The applicant is correct that if the insurer fails to give notice within 10 business days after receiving the treatment and assessment plan the insurer is prohibited from taking the position that the applicant is subject to the MIG. However, the key date is that on which the respondent receives the treatment plan, not the date the treatment plan is completed. I find that although the treatment plan was dated June 2, 2021, the respondent has led persuasive evidence that the treatment plan was not received until September 16, 2021, as demonstrated by the HCAI submission date on the treatment plan. I find that the respondent did in fact give notice of the denial within 10 business days and therefore the consequences of s. 38(11) do not apply.
22I have reviewed the letters of denial sent to the applicant on September 28, 2021 and December 30, 2021. I disagree with the applicant’s characterization of the denials. Both letters provide reasons that are specific to the applicant including applicable dates, doctor’s names, references to previously provided records as well as requests for updated supporting records. In the letters the respondent clearly states that the applicant is subject to the MIG, and that if the updated records are provided and are relevant to the treatment plans, that an Insurer’s Examination will be considered. I find that based on the evidence before me, the letters contain valid medical reasons, and the letters of denial are compliant with s. 38(8) and therefore s. 38(11) does not apply.
23I find the applicant has not proven on a balance of probabilities that the treatment plans are payable pursuant to s. 38.
Interest
24There is no overdue payment of benefits, therefore I find the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
Award
25The respondent is not liable to pay an award under s. 10 of Regulation 664.
26Under s. 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits. An award should be proportionate and considerate of the blameworthiness of the insurer, the vulnerability of the insured and the advantage wrongfully gained by the insurer from its misconduct. The Tribunal has found unreasonable behaviour by an insurer to be behaviour that is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.
27The applicant’s position is that the insurer’s denials were inadequate, and the notice of Insurer’s Examination was improper, therefore payment of a special award is owing due to inappropriately withheld payments. The applicant seeks the maximum allowable penalty of 50% of each of the denied treatment plans.
28The respondent’s position is that the file was adjusted based on the medical records and information available. Any delay in adjustment was caused by the applicant’s delay in providing the records. Furthermore, the Insurer’s Examination was requested in the proper course of adjusting the file, based on the records provided, once received.
29As per my reasons above, I find the denial letters are clear and are compliant with the Schedule. With regard to the notice of Insurer’s Examination, the applicant has not led evidence of the notice and the applicant’s submissions do not prove the notice was improper.
30I find the applicant has not met the burden of proof to support the respondent has acted in a manner worthy of an award. No award is payable.
Conclusion and ORDER
31For the reasons set out above, I find the following:
i. The applicant is subject to the MIG limits.
ii. As the applicant is in the MIG, I do not need to consider if the treatment plans are reasonable and necessary.
iii. The treatment plans are not payable pursuant to s. 38 of the Schedule.
iv. The applicant is not entitled to interest.
v. The applicant is not entitled to an award under s. 10 Reg 664.
32The application is dismissed.
Released: April 25, 2025
Tami Cogan
Adjudicator