Alexander Solomon v. Economical Mutual Insurance Company, 2025 CanLII 39278

Citation: Solomon v. Economical Mutual Insurance Company, 2025 ONLAT 23-007620/AABS

Licence Appeal Tribunal File Number: 23-007620/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:

Alexander Solomon Applicant

and

Economical Mutual Insurance Company Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Nicholas Whelan, Paralegal

For the Respondent: Karly Lyons, Counsel

HEARD: By way of written submissions

OVERVIEW

1Alexander Solomon, the applicant, was involved in an automobile accident on July 3, 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, 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 ("MIG") limit?

ii. Is the applicant entitled to an income replacement benefit ("IRB") in the amount of $400.00 per week from July 10, 2021, to ongoing?

iii. Is the applicant entitled to $2,764.36 for physiotherapy services, proposed by 101 Physio in a treatment plan submitted July 14, 2021?

iv. Is the applicant entitled to $2,423.91 for physiotherapy services, proposed by 101 Physio in a treatment plan submitted February 3, 2022?

v. Is the applicant entitled to $2,210.00 for psychological services, proposed by 101 Assessments in a treatment plan submitted November 29, 2021?

vi. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a treatment plan submitted September 13, 2021?

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

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

3I note that, in its submissions, the respondent withdrew the preliminary issue of whether the applicant is barred from proceeding to a hearing with respect to his entitlement to an IRB because he failed to attend an insurer's examination.

RESULT

4The applicant is barred from proceeding with his claim with respect to the MIG pursuant to s. 55(1) of the Schedule.

5Pursuant to s. 38(11), $591.10 is payable with respect to the treatment plan for physiotherapy submitted July 14, 2021, and $1,800.92 is payable with respect to the treatment plan for physiotherapy submitted February 3, 2022. The applicant is entitled to interest on these amounts pursuant to s. 51.

6The applicant is not entitled to the remainder of the treatment plans in dispute.

7The applicant is not entitled to an IRB.

8The respondent is not liable to pay an award.

ANALYSIS

Application of the Minor Injury Guideline

9I find that, pursuant to s. 55(1), the applicant is statute barred from proceeding with his claim that he does not belong in the MIG.

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 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.

12The applicant submits that he should be taken out of the MIG as a result of his psychological and physical injuries. He relies on the report of Dr. Konstantinos Papazoglou, psychologist, dated October 18, 2021, where he was diagnosed with adjustment disorder (with mixed anxiety and depressed mood), specific (isolated) phobia (driver/passenger), and somatic symptom disorder with predominant pain. The applicant also argues that the latter diagnosis is linked to chronic pain and correlates with his complaints and the imaging completed.

13However, the respondent submits that it requested a s. 44 psychological examination on April 23, 2024, and the applicant did not attend. It submits that the applicant is barred from proceeding to a hearing on this issue pursuant to s. 55 of the Schedule.

14Section 55 states that an insured person shall not apply to the Tribunal if the insurer provides them with notice in accordance with the Schedule that it requires an assessment under s. 44, but the insured person has not complied with that section. Under s. 55(2) the Tribunal has the discretion to permit an insured person to apply despite their non-attendance.

15Under s. 44(5)(a), an insurer must provide the insured person notice setting out the medical and any other reasons for the examination. The Tribunal in M.B. v. Aviva Insurance Canada, 2017 CanLII 87160, held the following:

In my view, an insurer satisfies its obligation to provide its "medial and any other reasons," whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured's medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, an insurer's "medical and any other reasons" should, at the very least, include specific details about the insured's condition forming the basis for the insurer's decision or, alternatively, identify information about the insured's condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer's "medical and any other reasons" should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule's consumer protection goal.

16While I am not bound by Tribunal decisions, I agree with the reasoning of the Tribunal on that issue. I also agree with the Tribunal's reasoning in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373:

In evaluating the sufficiency of such notice, the Tribunal should be mindful of those who adjust insurance files. It would be naïve or impractical or to expect them to articulate something resembling a medical opinion. Likewise, their reasons should not be measured by the inch or held to a standard of perfection. Moreover, reasonable minds may disagree about the content of an insured's file. Those allowances should be made. If it offers a principled rationale based fairly on an insured's file, an insurer will have satisfied its obligation under s. 38(8).

17Further, the Divisional Court in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318, indicated that where reasons are required, they must be meaningful in order to permit the insured to decide whether or not to challenge the insurer's determination. Mere "boilerplate" statements do not provide a principled rationale to which an insured can respond.

18On April 15, 2024, the respondent advised that an in-person insurer examination had been arranged to address the two psychological treatment plans in dispute, as well as a determination with respect to the MIG. The letter indicated that no records had been received from the applicant's pre-accident health practitioners to determine the extent of his pre-accident conditions and how they may have been affected post-accident. It also noted that no hospital records had been received to date. Finally, it states: "we do not have enough sufficient documentation in regard to psychological injuries as an accident related injury itself."

19The applicant argues that the notice requesting the s. 44 assessment did not include medical reasons and was boilerplate. I disagree. The respondent referred specifically to the applicant's psychological condition and the fact that it did not have medical documentation to relate the applicant's diagnoses to the accident. An insurer is not required to fabricate a medical reason to support a s. 44 assessment where it had limited medical evidence available to it. As the respondent referred to the information it did not have and to the specific medical condition it required information on, I find that it satisfied s. 44(5)(a).

20The applicant has not otherwise explained why he failed to attend the assessment, and has not suggested that the proposed psychological assessment was unreasonable in order to address whether he belongs in the MIG. The respondent submits that the applicant did not comply with the production order in the Case Conference Report and Order of February 16, 2024 ("CCRO"), to provide various records including an OHIP summary and family doctor records from one year pre-accident to the date of the case conference. Given the applicant's diagnoses and the lack of medical evidence provided to the respondent, I find that it is reasonably necessary for the applicant to undergo the s. 44 assessment with a psychologist.

21I also note that the applicant argues that as there is no reason to discount the findings in Dr. Papazoglou's report, his opinion is ample evidence for his removal from the MIG. Even if I were to exercise my discretion under s. 55(2), I would not allow him to use his non-attendance at the s. 44 assessment as a sword to bolster his claim. Aside from the report of Dr. Papazoglou and the pre-screen in the treatment plan that proposed his assessment, the applicant has not provided any compelling or corroborative evidence that he sustained a psychological impairment as a result of the accident. The clinical notes and records from the walk-in clinic the applicant attended provided do not mention psychological difficulties, and they do not go past September 7, 2021. The only other clinical notes and records before me are physiotherapy treatment records, and these do not speak to the applicant's psychological condition and do not otherwise identify an injury that would remove him from the MIG.

22The respondent has requested that I draw an adverse inference from the applicant's failure to provide the productions ordered in the CCRO. Tribunal orders must be followed, and given that the applicant did not provide any explanation for its failure to do so, I am prepared to draw an adverse inference and infer that it would be detrimental to his case if the documents were produced.

23I am accordingly not persuaded by Dr. Papazoglou's report alone, and find that the applicant has not met his burden in proving that he sustained a psychological impairment such that he should be removed from the MIG.

24Further, I do not accept the applicant's assertion that Dr. Papazoglou's diagnosis of somatic symptom disorder with predominant pain is necessarily "linked" to chronic pain, or that this would remove him from the MIG on its own. The applicant has not been diagnosed with chronic pain syndrome, has not adduced evidence of the level or frequency of his pain past the first few months after the accident, and he has not provided compelling evidence that his pain impairs his function such that he should be removed from the MIG.

25In any event, I find that as the applicant has not provided a reasonable explanation for his non-attendance at the s. 44 assessment, it follows that he is statute barred from proceeding with his claim that he does not belong in the MIG.

Income Replacement Benefit

26I find that the applicant is not entitled to an IRB.

27To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

28The applicant submits that he returned to work on December 10, 2021, and that IRBs are payable up to that date. Aside from that submission, he has not directed me to compelling evidence showing that he suffers a substantial inability to perform the essential tasks of his employment. Further, he has not provided any financial documents or an OCF-2. I have no way of determining the quantum of IRBs even if he was entitled to them.

29I accordingly find that the applicant has not met his burden of proving, on a balance of probabilities, that he is entitled to IRBs.

30As the applicant remains in the MIG, I need not determine whether the treatment plans in dispute are reasonable and necessary pursuant to s. 15 and 16 of the Schedule. However, the applicant's submissions with respect to the treatment plans also refer to s. 38(8) and 44(5).

31Under s. 38(8), an insurer has the obligation to, within 10 business days after it receives a treatment plan, 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. Pursuant to s. 38(10) and 44(1), an insurer may notify an insured person that they are required to be examined by a regulated health professional.

32If the insurer fails to give a notice in accordance with s. 38(8) in connection with a treatment plan, the following rules found in s. 38(11) apply: (a) the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies, and (b) 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).

Physiotherapy treatment plans

33I find that $591.10 is payable with respect to the treatment plan submitted July 14, 2021, and $1,800.92 is payable with respect to the treatment plan submitted February 3, 2022.

34On July 27, 2021, the respondent provided the applicant with a letter stating that it had reviewed the treatment plan submitted July 14, 2021, and had no supporting medical documentation from his family doctor or specialist reports. It stated that it compared the information it had on file to the definition of a "minor injury" as defined by the Schedule, and that the applicant's injuries fit within that definition. It did not specify what the applicant's injuries were, explain what documents it reviewed, or explain why his injuries fit within the definition of the MIG.

35On February 16, 2022, the respondent denied the treatment plan submitted February 3, 2022. It stated that it had no supporting medical documentation on file to support the treatment plan. The rest of the letter was virtually identical to that of the letter above. This letter also failed to identify the applicant's medical condition, explain what documents it reviewed, or explain why his injuries fit within the definition of the MIG.

36While I agree with the respondent that a notice is not held to a standard of perfection, these letters do not mention basic information about the applicant's condition or why the respondent believed he belonged in the MIG. In my view, the letters provided insufficient information to the applicant such that he would not be able to make an informed decision to either accept or dispute the denials. I accordingly find that these letters did not comply with s. 38(8).

37However, on July 29, 2024, the respondent provided a second notice letter denying the treatment plan submitted February 3, 2022. It listed the applicant's injuries as set out in the OCF-3, and explained that these injuries fall within the MIG. It also indicated that it received clinical notes and records from 101 Physiotherapy and they confirm that the applicant sustained minor injuries. I find that this letter was compliant with s. 38(8) as it provided sufficient and clear information such that the applicant would be able to make an informed decision with respect to the denial.

38Further, on April 12, 2024, the respondent provided another notice letter for both physiotherapy treatment plans in dispute. This letter requested a s. 44 assessment with a general practitioner on April 24, 2024. The letter noted that the respondent had reviewed the treatment plans and the s. 44 kinesiology report of Danny Monk dated March 15, 2022. It referenced some of Mr. Monk's findings regarding normal range of motion and functional testing, and also stated that it had no clinical notes and records indicating otherwise.

39I am satisfied that the respondent complied with s. 44(5) in this letter, as it provided information about the applicant's condition and the information it did not have. I am also satisfied that an assessment with a general practitioner was reasonably necessary given the physical nature of the treatment plans and the lack of medical documentation provided to the respondent. I note that the applicant did not attend this assessment.

40However, the applicant provided an account summary from 101 Physio showing that part of the each of the treatment plans were incurred prior to the deficient notice being cured. For the treatment plan submitted on July 14, 2021, the account summary indicates that an invoice was prepared on June 6, 2022, for $591.10. For the treatment plan submitted on February 3, 2022, the account summary indicates that an invoice was prepared on June 6, 2022, for $1,800.92. Given that portions of the treatment plans were incurred well before the s. 44 request letter was sent, and despite the applicant's non-attendance, I will exercise my discretion and allow the applicant's claims to proceed with respect to these treatment plans pursuant to s. 55(2).

41The Divisional Court in Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000 ("Catic"), determined that only the goods and services that are incurred up until the date that the deficient notice is cured are payable. I find that, pursuant to s. 38(11) and Catic, the portions of the treatment plans that were incurred prior to the provision of the proper notice are payable. As proper notice was provided on April 12, 2024, I find that the remainder of the treatment plans which was not incurred is not payable.

42Pursuant to s. 38(11), I find that $591.10 is payable with respect to the treatment plan submitted July 14, 2021, and $1,800.92 is payable with respect to the treatment plan submitted February 3, 2022.

Psychological services treatment plan

43I find that this treatment plan is not payable as a result of s. 38(11).

44The respondent provided the applicant with a letter dated December 1, 2021, which stated: "currently we have no supporting medical documents from your family doctor showing any psychological concerns as a direct result of the motor vehicle accident". It then repeated the language indicated above regarding the MIG.

45I find that despite containing some boilerplate language regarding the MIG, this letter provided details regarding the information that it did not have, specifically in respect of the applicant's psychological condition. I am satisfied that this letter was sufficient such that the applicant could decide whether or not to challenge the insurer's determination or respond to the insurer by providing further information. I accordingly find that the respondent did not breach s. 38(8) with respect to this treatment plan and it is therefore not payable as a result of s. 38(11).

Psychological assessment treatment plan

46I find that this treatment plan is not payable as a result of s. 38(11).

47On September 24, 2021, the respondent provided a letter to the applicant which stated: "currently we have no support [sic] medical documentation from your family doctor supporting the requirement of a psychological assessment as a direct result of the motor vehicle accident." It then repeated the language indicated above regarding the MIG.

48I find that this letter complied with s. 38(8) as it explained what information it was missing regarding the applicant's condition, and identified the specific condition it did not have information on. I am satisfied that this letter was sufficient such that the applicant could decide whether or not to challenge the insurer's determination or respond to the insurer by providing further information. As such, I find that this treatment plan is not payable as a result of s. 38(11).

Interest

49Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As the treatment plans for physiotherapy are partially payable, it follows that interest is applicable on the amounts that are payable.

Award

50The 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 applicant did not make any submissions in support of his claim for an award. As such, I find that the applicant has not met his burden of proving that the respondent is liable to pay an award.

ORDER

51The applicant is barred from proceeding with his claim with respect to the MIG pursuant to s. 55(1) of the Schedule.

52Pursuant to s. 38(11), $591.10 is payable with respect to the treatment plan for physiotherapy submitted July 14, 2021, and $1,800.92 is payable with respect to the treatment plan for physiotherapy submitted February 3, 2022. The applicant is entitled to interest on these amounts pursuant to s. 51.

53The applicant is not entitled to the remainder of the treatment plans in dispute.

54The applicant is not entitled to an IRB.

55The respondent is not liable to pay an award.