Licence Appeal Tribunal File Number: 23-008327/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:
Ahmed Mengestu
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
VICE-CHAIR:
Kevin Kovalchuk
APPEARANCES:
For the Applicant:
Georgiana Masgras, Counsel
For the Respondent:
Marcin Panasewicz, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Ahmed Mengestu, the applicant, was involved in an automobile accident on January 18,2020, 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, Certas Home and Auto 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”). The parties agree the MIG limits have not been exhausted with $138.45 remaining as of the date of the case conference.
ii. Is the applicant entitled to $2,757.20 for a nursing assessment proposed by Meditecs Independent Medical Examination (“IME”) in an OCF-18/ treatment plan (‘plan”) dated June 17, 2023?
iii. Is the applicant entitled to $3,808.10 for an orthopaedic assessment proposed by Meditecs IME in a plan dated June 17, 2023?
iv. Is the applicant entitled to $3,997.60 for a psychological assessment proposed by Meditecs IME in a plan dated June 17, 2023?
v. Is the applicant entitled to $9,552.96 for physiotherapy services, proposed by Spinetec Health Care Solutions in a plan dated June 17, 2023?
vi. Is the applicant entitled to $200.00 for a Disability Certificate (OCF-3) submitted by Spinetec Health Care Solutions on June 18, 2023?
vii. Is the applicant entitled to $21,715.20 for a catastrophic determination assessment proposed by Meditecs IME in a plan dated June 17, 2023?
viii. Is the respondent liable to pay an award under s. 10 of Reg.664 because it unreasonably withheld or delayed payments to the applicant?
ix. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3I find that the applicant has not met his onus of proving that his accident-related impairments warrant removal from the MIG.
4As the applicant is in the MIG, it is not necessary to determine if the treatment plans and OCF-3 in dispute are reasonable and necessary.
5The treatment plans in issues ii, iii, iv, v. and vii. above are not payable pursuant to s. 38.
6The applicant is not entitled to $200.00 for a Disability Certificate (OCF-3) submitted by Spinetec Health Care Solutions on June 18, 2023.
7As there are no overdue benefits payable, the applicant is not entitled to interest.
8The respondent is not liable to pay an award.
9I dismiss this application.
PROCEDURAL ISSUES
10The respondent requests that the Tribunal exclude the medical evidence at TAB 12 of the applicant’s submissions (K-W Urgent Care Clinic - Clinical notes and records dated April 9, 2020). The respondent submits that these records were provided beyond the deadline set in the Case Conference Report and Order (“CCRO”) dated January 17, 2024, which set a deadline of March 17, 2024.The respondent submits that the records at TAB 12 of the applicant’s submissions were served on the respondent on July 24, 2024.
11The applicant has made no reply to the respondent’s request that the Tribunal exclude the documents at TAB 12 of the applicant’s submissions.
12I decline to exclude the documents at Tab 12 of the applicant’s submissions. I base my decision on Rule 9.3 of the Licence Appeal Tribunal Rules (the “Rules”) which gives the Tribunal discretion to allow a party to rely on documents, even if, that party has not complied with the Rules. I find that the respondent will not be prejudiced by the late filing of the documents because the respondent had the documents as of July 24,2024 and referred to the aforementioned documents in its submissions dated August 9, 2024. By referring to the documents in its submissions I find that the respondent had time to consider the documents and make submissions on them. I therefore decline the respondent’s request.
ANALYSIS
Applicability of the Minor Injury Guideline:
13Section 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.”
14An 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.
The Applicant has not established chronic pain warranting removal from the MIG.
15I find that the applicant has not persuaded me on a balance of probabilities that he suffers from a chronic pain condition with functional impairments that would warrant removal from the MIG.
16The applicant submits that “injuries of more that 6 months are classified as ‘chronic’ injuries and chronic injuries do not fall within the MIG”. The applicant further submits that the test for chronic pain was set out in Z.L. v, Northbridge Personal Insurance Corporation, 2019 CanLII 58161 (ON LAT) and involves consideration of the following three factors”:
a) The insured suffers from significant and constant pain - more than simple ongoing or recurrent pain.
b) The pain has persisted well beyond the normal healing time for the injuries sustained; and
c) The individual’s pain causes functional impairment and disability, specifically with respect to functional abilities.
17The applicant submits that “it is clear that the Applicant’s injuries have continued to plague her (sic) for years now and are clearly chronic”.
18The respondent submits that the applicant has not met his burden of demonstrating that he sustained injuries that are not subject to the MIG.
19The respondent further submits that the medical evidence at TAB 12 of the applicant’s submissions does not establish or support a diagnosis of chronic pain.
20The respondent also submits that allegations contained in the applicant’s submissions are not evidence in and of themselves.
21In my view, in order to be taken out of the MIG due to chronic pain, there must be evidence of severe or functionally disabling pain that is constant and affects the applicant’s day to day or work function. The pain must be continuous (in that the initial minor injury never fully healed) and must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. To meet the applicant’s burden to show that chronic pain is more than mere sequelae from his soft tissue injuries there must be a discussion of the level of pain, its effect on the person’s function, and whether the pain is bearable without treatment.
22The applicant has not pointed me to any evidence that would support a diagnosis of chronic pain. Having reviewed the documents at TAB 12 of the applicant’s submissions, I find the medical evidence in the aforementioned documents does not support a diagnosis of chronic pain.
23Although not bound by the decision in Z.L. v Northbridge I find it a helpful guide in assessing whether an individual suffers from chronic pain or chronic pain syndrome. However, I find that the applicant has not adduced any evidence that meets any of the criteria set out in Z.L. v Northbridge.
24Finally, I agree with the respondent that the appellant’s submissions are not evidence in and of themselves.
25The applicant did not provide compelling evidence that, he has chronic pain with a functional impairment sufficient to remove him from the MIG. As such, I find on a balance of probabilities, that the applicant does not sufferer from chronic pain with functional impairment because of the accident.
The Respondent’s Denials of the Treatment Plans
26As I have found the applicant to remain within the MIG I find that it is not required of me to review the treatment plans in dispute, to determine if they are reasonable and necessary.
27However, the applicant submits that the denial letters denying treatment plans (plans) that were submitted to the respondent on June 17, 2023, were improper because they gave the reason for denial that the applicant fell within the MIG. The applicant further submits that the respondent did not give medical reasons for its denial.
28The applicant submits that the denial letters “suggest that the respondent refused to even consider the medical evidence in its possession at the time it denied the relevant treatment”. The applicant further submits that section 38(8) of the Schedule requires an insurer to provide a medical reason for a denial and that section 38(11) of the Schedule “enjoins the insurer from taking the position that the insured person has an impairment to which the Minor Injury Guideline is appropriate”.
29Section 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 an insured person has an impairment to which the MIG applies.
30The respondent submits that in the denial letters, it noted that the applicant’s injuries fell within the MIG and identified additional relevant reasons where applicable.
31The respondent further submits that that it consistently advised the applicant that his injuries were being treated in the MIG, explained the MIG and requested medical records which were not forthcoming.
Denial Letter dated June 26, 2023, for treatment plan (‘plan”) in the amount of $2,757.20.
32I find that the denial letter dated June 26, 2023, was sent within 10 business days after receipt of the plan that was dated June 17, 2023.
33I find that the denial letter provided clear medical reasons for denying the plan. It indicated that the determination was based upon a review of the plan. It also indicated that there was a lack of medical evidence supporting the plan.
34It noted that the applicant’s injuries fell within the MIG, and it asked for additional information that might remove the applicant from the MIG.
35I find that the medical reasons were clear and sufficient enough to allow the applicant to understand the reasons for the denial. Consequently, I find that this denial meets s.38(8) and therefore the plan is not payable.
Denial letter dated June 26, 2023, for a plan in the amount of $3,808.10.
36I find that the denial letter dated June 26, 2023, was sent within 10 business days after receipt of the plan that was dated June 17,2023.
37I find that the denial letter provided clear medical reasons for denying the plan. It indicated that the determination was based upon a review of the plan. It also indicated that there was a lack of medical evidence supporting the plan.
38It noted that the applicant’s injuries fell within the MIG, and it asked for additional information that might remove the applicant from the MIG.
39I find that the medical reasons were clear and sufficient enough to allow the applicant to understand the reasons for the denial. Consequently, I find that this denial meets s. 38(8) and therefore the plan is not payable under s. 38(11).
Denial letter dated June 26, 2023, for a plan in the amount of $3,977.60.
40I find that the denial letter dated June 26, 2023, was sent within 10 business days after receipt of the plan dated June 17, 2023.
41The denial letter provided clear medical reasons for denying the plan. It noted that the determination was based on a review of the plan. It also notes that the proposed psychological assessment was not appropriate as the respondent had not received “compelling medical evidence supporting a need for a psychological assessment”.
42It further noted that the applicant’s injuries fell within the MIG, and it asked for additional information that might remove the applicant from the MIG.
43I find that the medical reasons were clear and sufficient enough to allow the applicant to understand the reasons for the denial. Consequently, I find that this denial meets s. 38(8) and therefore this plan is not payable under s. 38(11).
Denial letter dated June 26, 2023, for a plan in the amount of $9,552.96.
44I find that the denial letter dated June 26, 2023, was sent within 10 business days after receipt of the plan dated June 17, 2023.
45The denial letter provided clear medical reasons for denying the plan. It noted that the respondent reviewed the applicant’s list of injuries, compared them to the criteria in the minor injury guideline and concluded that the applicant’s injuries were minor and fell within the MIG. The respondent also requested medical records for the period “2019/01/18 to present”. It asked for any additional medical information the applicant might have.
46I find that the medical reasons were clear and sufficient enough to allow the applicant to understand the reasons for the denial. Consequently, I find that this denial meets s .38(8) and therefore the plan is not payable under s. 38(11).
Denial letter dated June 28,2023, for a plan in the amount of $21,715.20.
47I find that the denial letter dated June 28, 2023, was sent within 10 business days of receipt of the plan dated June 17, 2023.
48The denial letter provided clear medical reasons for denying the plan. It noted that the medical information indicated that the applicant had predominantly minor injuries. It also noted that the last time the applicant received treatment was on November 2, 2020. The denial asked for any additional information the applicant might have with respect to his injuries.
49I find that the medical reasons were clear and sufficient enough to allow the applicant to understand the reasons for the denial. Consequently, I find that this plan is not payable.
$200 for a disability certificate submitted on June 18,2023 is not payable.
50The applicant submits that he is entitled to $200 for a disability certificate (OCF-3) submitted by Spinetec Health Care Solutions on June 18,2023 for a plan in the amount of $7,966.50 for a neurological assessment which was denied on June 27, 2023.
51The respondent submits that it is unclear as to what neurological assessment the applicant is referring as there is no such assessment at issue. The respondent also submits that the applicant has not advanced any argument in support of his entitlement to the $200.
52I agree with the respondent that it is unclear as to what neurological assessment the applicant is referencing as a neurological assessment was not included in the issues in dispute. Nor has the applicant advanced any argument in support of his entitlement to the $200.
53Because I have not been provided with any documentation or argument in support of the applicant’s claim for $200 for a disability certificate, I find on a balance of probabilities that the $200 for a disability certificate is not payable.
Interest
54As there are no overdue benefits payments the applicant is not entitled to interest.
The respondent is not liable to pay an award.
55I find that the applicant is not entitled to an award pursuant to s. 10 of Regulation 664.
56Pursuant to section 10 of Regulation 664, the Tribunal may award up to 50% of the total benefits payable plus interest, if it determines that the 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 “behavior, 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 these criteria.
57The applicant has made no submission as to why he is entitled to an award, and I have found there are no benefits payable.
58As there are no benefits withheld, it follows there was no unreasonable delay or withholding of such benefits and therefore there is no entitlement to an award.
ORDER
59As a result of the above and on a balance of probabilities I find that:
i. The applicant sustained predominantly minor injuries as defined in the Schedule and is therefore subject to treatment within the monetary limits of the MIG.
ii. The treatment plans in issues ii, iii, iv, v. and vii. above are not payable pursuant to s. 38.
iii. The applicant is not entitled to $200 for a Disability Certificate (OCF-3) submitted by Spinetec Health Care Solutions on June 18, 2023
iv. As there are no overdue benefits payments the applicant is not entitled to interest.
v. The respondent is not liable to pay an award.
60This application is dismissed.
Released: May 26, 2025
Kevin Kovalchuk
Vice-Chair