Citation: Singh v. Wawanesa Insurance, 2025 ONLAT 22-013721/AABS

Licence Appeal Tribunal File Number: 22-013721/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:

Inderpreet Singh

Applicant

and

Wawanesa Insurance

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Tina Lubman, Paralegal

Filipe Santos, Counsel

For the Respondent:

Elizabeth Scott, Counsel

Morgan MacDonald, Counsel

HEARD:

By way of written submissions

1Inderpreet Singh, the applicant, was involved in an automobile accident on December 6, 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, Wawanesa Insurance, 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 $3,142.02 for physiotherapy services, proposed by 101 Physio, in a treatment plan dated December 7, 2020?

iii. Is the applicant entitled to $2,791.77 for physiotherapy services, proposed by 101 Physio, in a treatment plan dated April 16, 2021?

iv. Is the applicant entitled to $2,713.68 for physiotherapy services, proposed by 101 Physio, in a treatment plan dated June 21, 2021?

v. Is the applicant entitled to $2,040.00 for psychological services, proposed by 101 Assessments, in a treatment plan dated May 10, 2022?

vi. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments, in a treatment plan dated March 16, 2022?

vii. Is the applicant entitled to $2,460.00 for a chronic pain assessment, proposed by 101 Assessments, in a treatment plan dated June 6, 2022?

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?

3I note that the applicant withdrew the issue of his entitlement to a non-earner benefit, which had been listed as an issue in dispute in the Case Conference Report and Order of August 3, 2023.

RESULT

4The applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG.

5The applicant is entitled to the following treatment plans, plus interest, once incurred and properly invoiced by the applicant, due to the respondent’s failure to comply with s. 38 of the Schedule:

i. $3,142.02 for physiotherapy services, proposed by 101 Physio, in a treatment plan dated December 7, 2020;

ii. $2,791.77 for physiotherapy services, proposed by 101 Physio, in a treatment plan dated April 16, 2021;

iii. $2,713.68 for physiotherapy services, proposed by 101 Physio, in a treatment plan dated June 21, 2021;

iv. $2,040.00 for psychological services, proposed by 101 Assessments, in a treatment plan dated May 10, 2022; and

v. $2,460.00 for a psychological assessment, proposed by 101 Assessments, in a treatment plan dated March 16, 2022.

6The applicant is not entitled to the treatment plan for a chronic pain assessment.

7The respondent is not liable to pay an award.

ANALYSIS

Application of the Minor Injury Guideline

8I find that the applicant has not proven, on a balance of probabilities, that he 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 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.”

10An 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.

11The applicant submits that he should be removed from the MIG as he suffers from chronic pain and psychological symptoms. The respondent disagrees.

Psychological Impairment

12I find that the applicant has not proven, on a balance of probabilities, that he has sustained a psychological impairment such that he should be removed from the MIG.

13The applicant relies on the report of Dr. Konstantinos Papazoglou, psychologist, from an assessment on April 27, 2022. Dr. Papazoglou diagnosed the applicant with Adjustment Disorder (with anxiety). In contrast, the respondent relies on the s. 44 report of Dr. Tatiana Dumitrascu, psychologist, from an assessment on October 11, 2022. Dr. Dumitrascu opined that the applicant did not meet the DSM-5 criteria for a psychological disorder.

14I find that a number of Dr. Papazoglou’s opinions are unsupported by the evidence before me, and I accordingly assign less weight to his report. Dr. Papazoglou opined that, from a purely psychological perspective, the applicant was prevented from engaging in most of his pre-accident tasks including being able to stand for prolonged periods of time, lifting heavy objects or items, and bending. Further, Dr. Papazoglou opined that the applicant’s psychological symptoms prevent him from engaging in cooking, cleaning, and laundry. I find that there is no compelling evidence before me, even within Dr. Papazoglou’s report, of how these activities would have been affected by the applicant’s reported psychological symptoms. Dr. Papazoglou appears to be describing physical limitations, which he is not qualified to opine on, and labelling them as psychological limitations.

15Dr. Papazoglou also wrote that the applicant had not resumed any of his previous social activities, although he did not elaborate as to the types of activities or why they stopped. By contrast, Dr. Dumitrascu described in more detail the applicant’s social life, explaining that he socializes with his friends as usual and sees them mostly on the weekends because everyone works.

16Further, there is no mention within the records of the applicant’s family physician of any psychological symptoms that would corroborate Dr. Papazoglou’s findings, despite the fact that he visited him regularly in the two years following the accident.

17I accordingly find that the applicant has failed to prove on a balance of probabilities that he should be removed from the MIG as a result of a psychological impairment.

Chronic Pain

18I find that the applicant has not met his burden of proving that he suffers from chronic pain with functional impairments such that he should be removed from the MIG. I accept that the applicant may continue to experience some pain as a result of the accident. However, for the following reasons, the evidence before me is that his pain fluctuates and is intermittent, and that it does not cause him to be functionally impaired.

19The applicant cites Y. X. Y. v. The Personal Insurance Company, 2017 CanLII 59515 (“Y. X. Y.”), and acknowledges that for chronic pain to be more than sequelae from soft tissue injuries, it must be chronic pain syndrome or continuous (in that the initial minor injury never fully healed) and it must be of a severity that causes suffering and distress accompanied by functional impairment or disability. A diagnosis of chronic pain without any discussion of the level of pain, its effect on the person’s function, or whether the pain is bearable without treatment will not meet the applicant’s burden to show that chronic pain is more than mere sequelae.

20The applicant relies on the records of his family physician, Dr. Singh. The applicant initially visited Dr. Singh in December 2020 and reported pain to his low back, neck, and shoulder. He was provided with a note requesting modified duties at work until January 20, 2021. He was advised to follow up with Dr. Singh two weeks later, however he did not visit Dr. Singh again until April 23, 2021. He reported that his back pain had improved significantly, but had flared up over the previous two weeks. In May 2021, the applicant reported that the pain was radiating down his left side and into his right knee. However, by July 14, 2021, the applicant reported to Dr. Singh that his back pain was improving, and was no longer radiating. He was able to sit and stand for longer periods of time and was no longer taking any medications. Although Dr. Singh wrote referral letters for massage, physiotherapy, and chiropractic treatments in April 2022, there are no clinical notes from a visit around that time before me. The next and final time he complained to Dr. Singh about accident-related issues was October 3, 2022, when he advised that his back pain was worse when standing for prolonged periods. Dr. Singh indicated that the applicant had chronic low back pain and mild degenerative changes. Aside from the initial letter regarding modified duties in December 2020, Dr. Singh’s notes do not indicate the degree to which the applicant’s sitting and standing tolerance was affected, or whether any of his activities of daily life were curtailed as a result of his pain.

21The applicant also relies on the report of Dr. Grigory Karmy, pain physician, from an assessment on August 24, 2022. Dr. Karmy diagnosed the applicant with chronic post-traumatic headache, mechanical neck pain, mechanical left shoulder pain, lower back pain, and left knee pain, and Chronic Pain Syndrome. For the following reasons, I find that Dr. Karmy’s opinion is inconsistent with the preponderance of the evidence before me, and as such I afford it less weight.

22Dr. Karmy indicated that the applicant had returned to full-time pre-accident work, and that he tolerated ongoing pain while working. However, he also opined that the applicant had a substantial inability to perform the essential tasks of his employment. Considering the applicant has been working full time since the accident, I question how Dr. Karmy arrived at this conclusion. I also note that subsequent to Dr. Karmy’s assessment, the applicant received a promotion at work. I find it more likely that, although the applicant may experience some ongoing pain, this pain does not present a functional barrier to completing his employment tasks.

23I am not convinced by Dr. Karmy’s conclusion that the applicant suffers from Chronic Pain Syndrome. Dr. Karmy referred to the American Medical Association Guide with respect to the diagnosis of Chronic Pain Syndrome, and indicated that the applicant met 4 out of 6 of the criteria: he has been less physically active, less socially active, unable to restore his pre-accident functionality in housekeeping, recreational and social activities, and is suffering from Adjustment Disorder as diagnosed by Dr. Papazoglou. Dr. Karmy’s report does not include sufficient details with respect to what physical, social, or recreational activities the applicant is apparently unable to participate in. Further, as indicated above, I do not accept Dr. Papazoglou’s opinion.

24The respondent relies on the s. 44 report of Dr. Rijka Soric, physiatrist, from an assessment on July 25, 2022. Dr. Soric concluded that the applicant did not present with signs or symptoms that were remotely suggestive of chronic pain disorder. The applicant described pain to Dr. Soric that occurred 2 to 3 times per week, and the intensity does not exceed 4 or 5/10 on a pain scale. He was no longer experiencing radiating leg pain. He reported to Dr. Soric that he did not have any functional limitations, that he had improved 60-70% since the accident, and that he had not been taking any medication for many months. The evidence in Dr. Soric’s report appears to align with the fact that the applicant visited Dr. Singh less often over time, Dr. Singh did not indicate any functional limitations after his initial letter regarding modified duties, and the fact that the applicant was able to continue working and received a promotion.

25Further, although it was in the context of a psychological assessment, the applicant reported to Dr. Dumitrascu that he had problems with pain and mobility at first, but lately he was ok. In my view, this is further evidence that the applicant is not suffering from chronic pain with functional impairments as contemplated by the Tribunal in Y. X. Y.

26For the reasons above, I find that the applicant has not proven on a balance of probabilities that he suffers from chronic pain with functional impairments such that he should be removed from the MIG.

27The parties have agreed that the $3,500.00 MIG limit has been exhausted. As I have found that the MIG applies, I need not conduct an analysis with respect to whether the treatment plans in dispute are reasonable and necessary. However, the applicant submits that the treatment plans are payable due to the respondent’s failure to provide appropriate notice in accordance with s. 38(8) of the Schedule.

28Section 38(8) of the Schedule requires an insurer to provide its medical and all other reasons for a denial within 10 business days after receipt of a treatment plan. Section 38(10) states that a notice under s. 38(8) may notify an insured person that it requires them to undergo an examination under s. 44. If an insurer fails to provide the requisite denial, under s. 38(11)2, it is required to pay for all goods and services described in the treatment plan that relate to the period incurred from the 11^th business day after the treatment plan was submitted until the proper denial is given.

29The “medical and all other reasons” provided 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. The reasons provided 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. Pursuant to the decision in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318, mere “boilerplate” statements do not provide a principled rationale to which an insured can respond, and essentially constitute no reason at all.

$3,142.02 for physiotherapy services in a treatment plan dated December 7, 2020

$2,791.77 for physiotherapy services in a treatment plan dated April 16, 2021

$2,713.68 for physiotherapy services in a treatment plan dated June 21, 2021

30I find that the treatment plans for physiotherapy services in dispute are payable pursuant to s. 38(11) of the Schedule.

31By way of letter dated December 23, 2020, the respondent indicated that it did not agree to pay for the treatment plan dated December 7, 2020. The reason for the denial was that the respondent had reviewed the treatment plan and the medical information and other information in its file, and it had not received objective, compelling medical documentation supporting an injury or impairment that would be considered “greater than a predominantly soft tissue injury”, nor had it received evidence of a pre-existing injury or condition that would prevent recovery within the MIG. It advised that it would not be arranging a s. 44 assessment.

32I find that the letter of December 23, 2020, failed to provide adequate notice in accordance with s. 38(8), as it did not identify the applicant’s condition, nor did it explain what medical evidence it reviewed in order to reach its conclusion. Its reasons were vague and non-specific, and I find that they were not clear or sufficient such that an unsophisticated person would understand whether to accept or dispute the denial.

33Similarly, the letter of May 3, 2021, denying the treatment plan of April 16, 2021, referred vaguely to “medical documentation and other information” the respondent had on file, and did not identify specific details regarding the applicant’s condition, other than to say it believed the MIG applied. The language used in this letter can best be described as “boilerplate”. I find that this letter also failed to provide sufficient notice in accordance with s. 38(8).

34Finally, the letter of July 7, 2021, denied the treatment plan of June 21, 2021. The language in this letter was essentially identical to that in the letter of December 23, 2020, and I accordingly find that it did not comply with s. 38(8).

35While the parties did not refer me to the case of Aviva Insurance Company of Canada v. Danay Suarez, 2021 ONSC 6200, I am bound by it. The Divisional Court ruled that where an insurer fails to provide a proper s. 38(8) notice and does not cure the deficiency before the Tribunal has adjudicated the dispute in favour of the insured, then the insured can proceed to consume the disputed OCF-18. The insurer shall pay for that disputed OCF-18 in accordance with s. 38(15) and cannot cure their defective denial.

36I note that the respondent did not make any submissions with respect to whether it complied with s. 38(8) for the treatment plans in dispute.

37I accordingly find that the treatment plans for physiotherapy services in dispute are payable once incurred and properly invoiced by the applicant.

$2,040.00 for psychological services in a treatment plan dated May 10, 2022

38I find that this treatment plan is payable pursuant to s. 38(11).

39In a letter dated June 7, 2022, the respondent advised that it had reviewed the treatment plan and the medical documentation and other information on file, and it determined that the treatment plan was not reasonable and necessary. I find that this alone does not constitute proper medical reasons pursuant to s. 38(8), as it did not identify the applicant’s condition or refer to the specific medical documents the respondent reviewed in reaching its decision. However, the respondent also advised that an insurer’s examination would be required in order to determine whether the applicant met the criteria for a psychological disorder and if psychological intervention was necessary.

40The respondent has not provided me with any subsequent denial letters for this treatment plan. A s. 44 psychological assessment took place, but a different treatment plan was denied as a result. The respondent denied the treatment plan in its letter of June 7, 2022, without providing medical reasons pursuant to s. 38(8), and apparently never remedied the deficiency.

41I accordingly find that the treatment plan for psychological services is payable once incurred and properly invoiced by the applicant.

$2,460.00 for a psychological assessment in a treatment plan dated March 16, 2022

42I find that this treatment plan is payable pursuant to s. 38(11).

43This treatment plan was initially denied in a letter dated April 5, 2022. The respondent indicated that it had reviewed the treatment plan and the medical documentation and other information on file, and determined that it was not reasonable and necessary. The respondent also requested a s. 44 assessment to determine if the treatment plan was reasonable and necessary and to determine if the applicant sustained a minor injury. No details were provided regarding the applicant’s medical condition or the specific documentation the respondent reviewed to come to its decision, and I find that the letter can best be described as “boilerplate”. I accordingly find that the respondent failed to provide medical reasons and therefore this letter did not comply with the notice requirements of s. 38(8).

44The applicant ultimately attended the assessment with Dr. Dumitrascu on October 11, 2022. On November 2, 2022, the respondent provided a copy of Dr. Dumitrascu’s report to the applicant, and indicated that the treatment plan for a psychological assessment was not reasonable and necessary. The letter included quotes from Dr. Dumitrascu’s report. I find that this letter provided clear and sufficient medical reasons such that unsophisticated person would understand whether to accept or dispute the denial, and it accordingly complied with s. 38(8).

45However, the applicant underwent the psychological assessment with Dr. Papazoglou on April 27, 2022, prior to the respondent providing a proper denial on November 2, 2022. As the applicant incurred the cost of the assessment prior to the deficient notice being cured, I find that the treatment plan is payable pursuant to s. 38(11) once properly invoiced.

$2,460.00 for a chronic pain assessment in a treatment plan dated June 6, 2022

46I find that the applicant is not entitled to this treatment plan.

47On July 6 and 13, 2022, the respondent provided similar letters to the applicant denying the treatment plan for a chronic pain assessment. In both letters, the respondent referenced an OCF-3 of December 11, 2020, and listed the injuries contained therein. It stated that there was insufficient clinical rationale to support the proposed chronic pain assessment, and it requested a s. 44 assessment. The letter of July 13, 2022, also included information regarding the assessment. I do not agree with the applicant that the letter of July 6, 2022, did not include medical reasons for the denial. It provided details about the applicant’s condition, referred to a specific medical document, and identified the information it did not have but was seeking to obtain by way of s. 44 assessment. I find that the letters provided sufficient information such that an unsophisticated person would understand whether to accept or dispute the denial. I accordingly find that these letters were compliant with s. 38(8), and therefore the treatment plan is not payable as a result of s. 38(11).

Interest

48Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find that interest is applicable on the benefits that I have deemed to be payable.

Award

49The 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. I find that the respondent is not liable to pay an award.

50The applicant submits that the respondent unreasonably withheld funding for the treatment plans by deliberately ignoring medical evidence. I do not agree. The only reason I found that some of the benefits in dispute are payable was due to the respondent’s failure to comply with s. 38(8). However, I do not find that the respondent’s conduct in that regard was so unreasonable such that an award should be granted. It is well-settled that insurers are not held to a standard of perfection, and that an award should not be granted simply because an insurer made an error or an incorrect decision. The insurer’s conduct must be excessive, imprudent, inflexible, unyielding, or immoderate. The applicant has not persuaded me that the respondent behaved in such a manner.

ORDER

51The applicant’s accident-related injuries are predominantly minor and he is therefore subject to treatment within the $3,500.00 limit of the MIG.

52The applicant is entitled to the following treatment plans, plus interest, once incurred and properly invoiced by the applicant, due to the respondent’s failure to comply with s. 38 of the Schedule: