Citation: Malone v. RSA Insurance, 2025 ONLAT 22-012569/AABS

Licence Appeal Tribunal File Number: 22-012569/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:

Lena Malone

Applicant

and

RSA Insurance

Respondent

DECISION

ADJUDICATOR:

Tanjoyt Deol

APPEARANCES:

For the Applicant:

Shahzad Ayub, Counsel

For the Respondent:

Thomas Petrella, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Lena Malone, (the “applicant”) was involved in an automobile accident on August 2, 2019, 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 RSA Insurance (the “respondent”) 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 $804.00 for chiropractic services, proposed by The Centre for Fitness Health and Performance in a treatment plan (“OCF-18”) dated November 16, 2020?

iii. Is the applicant entitled to $2,486.00 for a TMJ Assessment, proposed by Imperial Medical Assessments Inc., in a OCF-18 dated March 31, 2022?

iv. Is the respondent liable to pay an award under s. 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

3I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

ii. The applicant is entitled to the November 16, 2020, OCF-18 for chiropractic services, in the amount of $804.00, plus interest in accordance with s. 51 of the Schedule.

iii. The applicant is not entitled to the remaining OCF-18 in dispute or interest.

iv. The respondent is not liable to pay an award.

PROCEDURAL ISSUE

4In its submission, the respondent stated that the applicant failed to comply with the deadline to file her submissions in the June 23, 2023 Case Conference and Order (“CCRO”). It did not advise what relief it was seeking from the Tribunal.

5The applicant did not provide a response to the procedural issue raised by the respondent.

6I find that the applicant filed her submissions late by one day. According to the CCRO, the applicant was ordered to produce initial submissions 30 calendar days before the hearing, which was February 15, 2024. She submitted her initial submissions on February 16, 2024.

7The respondent has not directed me to evidence of prejudice that was caused by the late delivery of these submissions. I find that the applicant would suffer significant prejudice if her submissions and evidence were excluded for the purposes of this hearing, as the evidentiary onus rests with her to demonstrate entitlement to the benefits in dispute. On this basis, and given the negligible impact of a one day contravention, I believe this matter is best heard by considering all the submissions before me.

ANALYSIS

The applicant remains within the MIG

8I find that the applicant has not met her evidentiary onus to establish that she should be removed from the MIG.

9Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is 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.”

10An insured person 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 from any accident-related minor injury 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.

11In all cases, the burden of proof lies with the applicant.

12Despite the MIG being an issue in dispute, the applicant’s submissions are silent on this issue. Instead, her analysis is focused solely on the procedural requirements of ss. 38(8), 38(11), and ss. 44(1) and 44(5) of the Schedule.

13The applicant further requests an Order from the Tribunal that under s. 38(11), the respondent be enjoined from continuing to claim that the MIG applies to her claim because it was non-compliant with s. 38(8). I infer from these submissions that the applicant is arguing that since the respondent was non-compliant with s. 38(8), then according to s. 38(11), she is removed from the MIG for the entirety of her claim.

14I do not agree with this submission. I find that while the applicant cites Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (“Zheng, Cai”) in her submissions, she notes only how that decision affirmed the requirement for an insurer to comply with s. 38(8) and that the consequences of s. 38(11) were mandatory. The applicant does not refer to what, in my view, is one of the main points of Zheng, Cai—its confirmation at paragraph 21 that s. 38 refers to the specific treatment plan in question and s. 38(11) does not impose a permanent prohibition on an insurer with regard to a MIG determination.

15In short, I find that based on Zheng, Cai, an improper denial does not result in an applicant being removed from the MIG for her entire claim. Rather, the respondent is prohibited from taking the position that the impairment falls within the MIG with respect to the non-compliant OCF-18s and must pay the costs incurred under those plans until a compliant notice is given.

16As the onus is on the applicant to establish grounds for her removal from the MIG, and she has not provided any submissions or referred me to evidence on this issue, it follows that she has not met her burden. Further, pursuant to Zheng, Cai, she cannot be removed entirely from the MIG as the result of any contraventions of s. 38(8), but rather, the respondent would be subject to the shall-pay provision in s. 38(11). Thus, the applicant remains within the MIG and is subject to its $3,500.00 limit on treatment, subject to any amounts payable under s. 38(11) for any non-compliance on the part of the respondent with its notice obligations.

17As I have found the applicant to remain within the MIG, I find that it is not required to review the treatment plans in dispute to determine if they are reasonable and necessary.

18The applicant also makes arguments with respect to the validity of the respondent’s denial notices. She submits that the denial notices, dated November 20, 2020, and April 14, 2022, contain fatal deficiencies under s. 38(8). She further argues that the Notice of Examination (“NOE”), dated November 23, 2020, was non-compliant with s. 44(5) as the respondent did not provide the medical and any other reasons for the examination.

19The crux of the applicant’s argument is that since the November 23, 2020 NOE was non-compliant, and even though she attended the assessment completed by Dr. Mile Stefanac, general practitioner, the resulting report was void ab initio. She argues that as the resulting report is void ab initio, then the respondent cannot rely on this report when denying the OCF-18s, and therefore the denial notices, dated January 11, 2021 and April 14, 2022, are non-compliant with s. 38(8).

20The respondent argues that the applicant did not raise these issues with respect to the denial notices or NOE at the case conference, and these issues were not raised until the applicant’s hearing submissions were filed. It is unclear from the respondent’s submissions whether it is seeking relief that these new arguments should not be considered by the Tribunal or its merely advising the Tribunal that these issues were not raised until the hearing submissions.

21In any event, I find that section 38(8) of the Schedule specifically sets out an insurer’s procedural obligations in responding to a treatment plan and s. 38(11) addresses the consequences for non-compliance. Section 44(5) also sets out the insurer’s obligations with respect to scheduling IEs, and that a compliant notice must be provided to the applicant. Therefore, I find the sufficiency of an insurer’s notice is open for review when it denies a benefit and will consider the applicant’s arguments on this basis.

(a) The November 16, 2020, OCF-18 for chiropractic services, in the amount of $804.00

22I find that the denial notice dated November 20, 2020 was non-compliant with s. 38(8) of the Schedule. I also find the subsequent denial notice, dated January 11, 2021, did not cure this deficiency. Therefore, the OCF-18 for chiropractic services, is payable under s. 38(11) of the Schedule once incurred and properly invoiced by the applicant, as the respondent did not cure the deficient notice prior to this hearing.

23Under s. 38(8), an insurer has the obligation to 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. There should be clear and sufficient information for an unsophisticated person to make an informed decision to either accept or dispute the denial. If those reasons are not provided, the consequence under s. 38(11) is that the insurer must pay for the goods and services described in the treatment plan.

24The applicant argues that the denial notice dated November 20, 2020, was non-compliant with s. 38(8) because it contains fatal deficiencies.

25The respondent argues that the OCF-18 for chiropractic services was denied due to a lack of compelling evidence in the applicant’s family doctor records to support removal from the MIG. It further argues that the applicant did not reference any compelling evidence in her submissions.

26In the November 20, 2020 denial notice, the respondent provided the following reason for denying the OCF-18:

We have compared this OCF-18 with medical documentation that has been provided, reviewed clinical notes and records received from Dr. Lucia Nicoara, compared it further to the Minor Injury Guideline (MIG) and determined there is insufficient compelling evidence of pre-existing injuries or conditions and insufficient medical documentation to persuade us that your accident-related injuries fall outside of the MIG.

27I find that the denial notice, dated November 20, 2020, does not comply with the requirements under s. 38(8) of the Schedule as it failed to provide adequate medical reasons to deny the disputed OCF-18, nor did it identify that it was denying an OCF-18 for chiropractic services. Indeed, there is no indication of what kind of services are being denied in the denial notice, as there is no reference to the OCF-18 being for chiropractic services.

28While the respondent referenced the clinical notes and records of Dr. Nicoara, it did not meaningfully communicate what those records indicated about her condition, and why she remained in the MIG as a result. It also refers to a review of the MIG. While the Schedule contains the medical definition of the MIG, this reason does not specify which condition of the applicant the respondent is relying upon in relation to the MIG definition.

29I acknowledge that the respondent argues that the CNRs of Dr. Nicoara show that the applicant had a pre-existing history of type two diabetes, and uterine cancer, however the denial notice, dated November 20, 2020, did not have these conditions listed. The respondent has not provided an explanation of why these pre-existing conditions could not be outlined in the denial notice.

30The respondent also argues that in this OCF-18, the only listed injury was TMJ, which is not associated with the accident, as opined by Dr. David Hacker, otolaryngologist. Again, the denial notice does not state that the OCF-18 is being denied because the only listed injury of TMJ is not associated to the accident. Rather, the denial notice states that the OCF-18 is being denied based on the CNRs of Dr. Nicoara.

31I further acknowledge the respondent’s position that the applicant did not refer to compelling evidence in her submissions. With respect, the clinical notes and records of Dr. Nicoara were identified in the denial notice, yet the respondent did not advise the applicant what her medical condition was and why the OCF-18 was being denied based on those records. The respondent also did not advise the applicant that it required further information to make a determination with respect to this OCF-18.

32Consequently, I find that the respondent’s denial notice, dated November 20, 2020, is non-compliant with s. 38(8).

33I also find that the January 11, 2021, denial notice did not cure the non-compliance, because it also failed to provide adequate medical reasons to deny the OCF-18 for chiropractic services.

34In its January 11, 2021, denial notice, the respondent provided the following reasons for maintaining its denial:

Based on the insurer's examination reports dated January 4, 2021 completed by Dr. Mile Stefanac from Dynamic Functional Solutions, your injuries have been determined to fall within the definition of a minor injury that caps your medical and rehabilitation limit at $3500.00. As such, we maintain our position outlined in our letter dated November 20, 2020 and we do not agree to fund the treatment outlined on the Treatment and Assessment Plan (OCF 18) dated November 16, 2020 as it exceeds your medical limits.

35I find that this denial notice is non-compliant with s. 38(8), because no specific details about the applicant’s diagnosis and prognosis were provided. Indeed, in its submissions, the respondent argues that Dr. Stefanac concluded in his report that the applicant sustained whiplash injury and sprain/strain injuries to the cervical spine, yet these impairments were not listed in the denial notice. Instead, the respondent vaguely advised the applicant that based on this IE report, her injuries have been determined to fall within the MIG, which does not serve the Schedule’s consumer protection goal.

36As a result, the provisions set out in s. 38(11) of the Schedule are triggered, and as such, the OCF-18 for chiropractic services is payable, with interest pursuant to s. 51 of the Schedule, once incurred and properly invoiced by the applicant.

(b) The s. 44 report of Dr. Stefanac is not void ab initio even though the respondent’s NOE, dated November 23, 2020, was non-compliant with s. 44(5)

32I find that the NOE, dated November 23, 2020, was non-compliant with s. 44(5) because the respondent failed to provide an adequate medical and any other reason for the examination. I further find that despite the non-compliance with s. 44(5), the applicant attended the assessment with Dr. Stefanac and the respondent was entitled to rely on the resulting s. 44 report in denying the OCF-18.

33Pursuant 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. Section 44(5) requires an insurer to provide a NOE which sets out “the medical and any other reasons for the examination.” The medical reason should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the insurer’s request to attend the assessment (M.B. v. Aviva Insurance Canada, 2017 CanLII 87160).

34The applicant argues that the respondent’s NOE, dated November 23, 2020 is non-compliant with s. 44(5) because no rationale was provided for the examination.

35The respondent did not provide any submissions on this issue.

36In the respondent’s NOE, dated November 23, 2020, it provided the following reason for scheduling an IE:

Further to our correspondence dated November 20, 2020, we require an examination under Section 44 of the Statutory Accident Benefits Schedule in relation to the additional medical documentation recently provided.

37Critically, no medical or any other reason was provided in the denial notice, dated November 20, 2020. Instead, at the bottom portion of the denial, the respondent advised that it required the applicant to undergo an s. 44 IE and further details would follow shortly.

38Both the NOE and the denial notice fall well short of meeting the requirements under s. 44(5) because the applicant was provided with inadequate medical or any other reasons on why the examination is required. While the respondent in its NOE, dated November 23, 2020, advised the applicant that it required the examination in relation to additional medical documentation, it did not advise what documentation it had recently received, and why this warranted an IE.

39It is well-settled that the insurer’s medical and any other reasons should 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. Here, the respondent did not provide any specific details about the applicant’s condition, nor did it refer to any details outlined in the updated medical documentation. Thus, in my view, this correspondence was not clear enough to allow the applicant to make a well-informed decision on whether to attend the examination.

40As noted above at paragraph 19, the applicant argues that the s. 44 report of Dr. Stefanac is void ab initio because it is procured improperly based on a deficient NOE, and therefore the respondent cannot rely upon this report when denying the OCF-18s.

41The applicant submits that attendance at a s. 44 assessment cannot constitute a waiver of her entitlement to be provided with a proper notice that is consistent with s. 44(5). She argues that since the Schedule constitutes remedial and consumer protection legislation, an insured person is incapable of waiving their rights thereunder. She relies on Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (“Taksali”).

42The respondent did not provide submissions on this issue.

43In Taksali, the Tribunal found that there is “no provision for an insured to waive their right to a benefit, most especially by attending an examination at which their non-attendance would threaten their entitlement to the benefit that they are seeking” (para. 22). The Tribunal stated that the insured is placed in the position of either attending an examination for inadequate reasons, or not attending, thereby incurring the immediate loss of a benefit and the financial cost of appealing to the Tribunal. The Tribunal found that this was contrary to the spirit and intent of the Schedule.

44I do not agree that attending a s. 44 assessment, where insufficient notice has been provided, means that the applicant has waived her right to a benefit. The only right the applicant would waive by attending the s. 44 assessment is the right to argue that she should not have attended the assessment in the first place. That is not a “benefit” under the Schedule. If the insurer has not provided clear and sufficient reasons for the s. 44 request, the insured legitimately does not have to attend, and the entitlement is not threatened by the insured’s non-attendance.

45Further, I do not agree with the Tribunal’s statements in M.B. and Taksali that the Schedule makes no provision for an insured to be able to waive requirements under the Schedule, and only allows an insurer to do so. Section 44(6) allows the parties to mutually agree to waive a requirement for notice, and s. 46(2) allows an insured person to waive a conflict of interest with respect to a referral. It therefore cannot be said that the spirit and intent of the Schedule was such that an insured person could never waive any of its requirements.

46If the applicant’s interpretation was correct, it would allow insureds to make a tactical decision to attend assessments, and if the assessment was not favourable, argue that the treatment plan is payable based on a technicality. This would result in an insurer paying for an assessment that it assumed the insured person agreed to, only to have the insured person turn around and argue otherwise. I find that this would be an absurd result.

47The Schedule is consumer protection legislation. However, I do not find that the interpretation suggested by the applicant would merely serve to protect insured persons. There is already a consequence for the respondent’s failure to provide adequate notice of a s. 44 assessment: the insured does not have to attend. That is the consumer protection function built into the Schedule. To interpret the legislation otherwise would allow an insured person to obtain a tactical benefit, which goes further than protection.

48Without the Schedule explicitly stating otherwise, and in light of the absurd result that would ensue, I do not accept the applicant’s argument. I accordingly find that the s. 44 assessment report is not void ab initio, and the respondent was entitled to rely on it in its denial notice, dated April 14, 2022.

(c) The March 31, 2022, OCF-18 for a TMJ Assessment, in the amount of $2,486.00

37I find that the respondent’s denial notice, dated April 14, 2022, with respect to the denial of the TMJ assessment was compliant with s. 38(8), and therefore it is not payable under s. 38(11).

38The applicant argues that the denial notice, dated April 14, 2022, is non-compliant with s. 38(8) because it provided an excerpt of the IE report, which does not constitute as substantive specific details. The applicant further argues that the OCF-18s themselves have been certified by duly qualified medical professionals that the proposed treatment is reasonable and necessary. As such, the applicant argues that a rebuttable presumption has been created in favour of the treatment that the respondent must rebut with “very good”, fair and principled reasons.

39The respondent provided no submissions in response.

40In its April 14, 2022, denial notice the respondent provided the following reason for denying the OCF-18 for a TMJ assessment:

As noted on the Insurer's Examination report completed by Dr. Mile Stefanac MD, MBBS, CCFP-EM, CIME "Specifically with respect to the claimant's reports of right Jaw pain, it is my opinion this pain did not develop as a result of the motor vehicle accident. With regards to temporomandibular Joint disorder I do not concur with this diagnosis. In my opinion this condition did not develop as a direct result of the injuries sustained in the accident. It is likely this condition developed as a complication of the treatment the claimant received " As such, we are unable to approve this Treatment and Assessment Plan (OCF-18) at this time.

41The respondent’s NOE provided specific reference to the applicant’s medical condition, being that the applicant’s jaw pain and diagnosis of TMJ did not develop as a result of the accident, but rather from a complication of treatment received. As such, the respondent denied the OCF-18 for a TMJ assessment. I find that the reasons cited by the respondent were clear and sufficient enough to allow an unsophisticated person to make an informed decision as to whether to dispute the decision.

42I find that this reason satisfies the requirement, well-established in the jurisprudence, that an insurer provide reasons capable of giving a claimant a principled rationale, based fairly on the claimant’s file, to which an insured person can respond: See 16-003316/AABS v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) at para 22. Reasons should enable a claimant to make an informed decision about whether to challenge the insurer’s determination and pursue her claims. Here, the respondent referred to the IE report of Dr. Stefanac, indicated that the applicant’s jaw pain and TMJ diagnosis was not related to the accident, and therefore it was unable to approve the TMJ assessment.

43I also do not agree with the applicant that a rebuttable presumption is created simply by the submission of an OCF-18 and that the respondent has to rebut this with contrary medical opinions. This is because it would move the bar higher than what has been established and clarified in prior Tribunal reconsiderations such as M.B. v. Aviva, and 16-003316/AABS v. Peel. Accordingly, the respondent was under no obligation to provide such rebuttals and therefore cannot fail to meet the sufficient notice standard on this basis.

44In short, the applicant has not established that the respondent’s denial notice, dated April 14, 2022, was non-compliant with s. 38(8), and therefore it is not payable under s. 38(11).

The applicant is entitled to interest for the November 16, 2020 OCF-18, for chiropractic services

45Pursuant to s. 51 of the Schedule, interest is payable on the overdue payment of benefits. As I have found that the November 16, 2020, OCF-18 for chiropractic services is payable, interest is also payable on those outstanding benefits.

The respondent is not liable to pay an award

46I find that the applicant has not established that the respondent unreasonably withheld or delayed payment of the OCF-18 for chiropractic services.

47Pursuant 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 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 these criteria.

48The applicant argues that the respondent’s denials were fundamentally inconsistent with the purpose of the Schedule, as it ignored legislative intent by treating the OCF-18s as they do not exist, and that the IEs were a fishing expedition.

49Although I have found that the November 16, 2020, OCF-18 for chiropractic services is payable due to non-compliance with s. 38(8), a technical breach of the notice provisions of s. 38 would not automatically entitle an applicant to an award, without evidence of unreasonable withholding or delay. In this regard, the applicant has not made specific submissions or referred me to evidence to support this.

50In a similar vein, the applicant did not direct me to evidence that supports her arguments that the respondent ignored the OCF-18s in dispute by treating them like they do not exist and that the IEs were a fishing expedition. It is well-settled that submissions are not evidence.

51Based on all these reasons, I find on a balance of probabilities that an award is not payable.

ORDER

52For the reasons outlined above, I find that:

i. The applicant’s injuries are predominantly minor and therefore subject to treatment within the $3,500.00 limit of the MIG.

ii. The applicant is entitled to the November 16, 2020, OCF-18 for chiropractic services, in the amount of $804.00, plus interest in accordance with s. 51 of the Schedule.

iii. The applicant is not entitled to the remaining OCF-18 in dispute or interest.

iv. The respondent is not liable to pay an award.