Licence Appeal Tribunal File Number: 23-005910/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:
Schylan Samuels
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Olga Poznyakova, Paralegal
For the Respondent:
Odette Ansell, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Schylan Samuels, the applicant, was involved in an automobile accident on September 30, 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, Intact 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 described in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 Minor Injury Guideline limit?
ii. Is the applicant entitled to $3,622.73 for chiropractic services, proposed by Mackenzie Medical Rehab in a treatment plan dated September 12, 2022?
iii. Is the applicant entitled to the assessments and services proposed by ALCAT Assessments Inc., as follows:
(i) $2,200.00 for a psychological assessment, in a treatment plan dated December 13, 2021;
(ii) $4,980.87 for psychological services, in a treatment plan dated March 21, 2022; and
(iii) $2,200.00 for a psychiatric assessment, in a treatment plan dated July 10, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
v. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3The applicant’s accident-related injuries are predominantly minor and she is therefore subject to treatment within the $3,500.00 limit of the MIG.
4The applicant is not entitled to the treatment plans dated September 12, 2022, December 13, 2021, March 21, 2022 and July 10, 2023.
5No interest is payable.
6The respondent is not liable to pay an award under s. 10 of Reg. 664.
ANALYSIS
The applicant sustained predominantly minor injuries as defined under the Schedule
7I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.
8Section 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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”
9An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.
10In this matter, the applicant submits that she should be removed from the MIG because of her psychological condition. She further submits that she should be removed from the MIG on the basis of her pre-existing medical conditions, which she argues were exacerbated by the accident and would preclude her maximal recovery.
a) Psychological Condition
11I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition that would warrant removal from the MIG.
12The applicant submits that she should be removed from the MIG based on her psychological impairments diagnosed by Dr. Shirin Jazayeri, psychologist, in his report dated February 28, 2022. The report diagnosed the applicant with “adjustment disorder with mixed anxiety and depressed mood, sleeping pattern difficulties, cognitive functioning issues, and driving phobia”. No other submissions were made by the applicant in respect to her removal from the MIG based on her psychological condition.
13The respondent submits that the applicant has failed to discharge her burden that she suffered a psychological condition that would remove her from the MIG. The respondent submits that there is no record of the applicant reporting any psychological issues to her family doctor, Dr. Jamal Alwan, following the accident. The Clinical Notes and Records (“CNRs”) of Dr. Alwan following the accident do not mention any physical or psychological accident-related issues. In addition, the respondent submits that the CNRs of Dr. Jazayeri, psychologist, make it clear that the subject accident is not the cause of the applicant’s psychological complaints. The records note that the applicant had some anxiety with driving, but that her living situation and relationship with her mother was causing her emotional distress. The CNR dated January 26, 2023, notes that she reports she is more anxious driving as a result of the subject accident, but she continues to drive every day to and from multiple jobs.
14The respondent relies upon the Insurer’s Examination (“IE”) report of Dr. Jason Bacchiochi, psychologist, dated April 25, 2022. Dr. Bacchiochi concluded that there is “no clear, valid evidence of accident-related psychological symptoms that warrant a DSM-5 diagnosis”.
15I find that the applicant has not met her onus of proving that she suffers a psychological condition as a result of the accident that would remove her from the MIG. I find that in the applicant’s submissions, apart from providing the psychological report dated February 28, 2022, the applicant has not directed the Tribunal to any corroborating evidence or CNRs that mention or reference her psychological complaints after the accident.
16I find upon review of the CNRs of Dr. Alwan, provided by the respondent, there is no mention of any psychological complaints following the accident. The first mention of the accident to Dr. Alwan is on December 6, 2021, where Dr. Alwan advised that he has received a letter from the applicant’s legal counsel about providing his CNRs and requested her consent to provide the documents. The CNR notes an accident in September 2021, but there is no discussion about injuries arising from the accident. I find that other than this CNR, there is no mention of the accident or any injuries arising from it throughout the records of Dr. Alwan.
17I find upon review of Dr. Jazayeri’s psychological report dated February 28, 2022, that it significantly relies upon the applicant’s self-report and there is a lack of supporting medical documentation for the conclusions. There is no indication as to what if any medical evidence was reviewed in completing the report. Upon review of the CNRs of Dr. Jazayeri, I agree with the respondent that the applicant’s main complaints are in reference to her living conditions and her relationship with her mother. While there is mention of anxiety with driving and sleep issues, the applicant notes that she has continued to drive to and from work on a consistent basis and is not limited by her driving anxiety.
18I find the IE report of Dr. Bacchiochi, psychologist, dated May 9, 2022, persuasive, that there is no valid evidence of a significant accident-related psychological impairment. Dr. Bacchiochi concluded that the results from the psychometric testing revealed some significant symptom over-reporting or exaggeration on both clinician-administered and self-report measures, which raises concerns about the applicant’s self-report. I find that the applicant referenced other stressors, both pre-existing and post-accident, which are not related to her involvement in the accident.
19For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition as a result of the accident and therefore she is not removed form the MIG on this basis.
b) The applicant is not removed from the MIG on the basis of a pre-existing medical condition
20I find on a balance of probabilities, that the applicant does not suffer from a pre-existing medical condition that would warrant removal from the MIG.
21The applicant submits that she should be removed from the MIG based on her pre-existing right knee condition that was exacerbated by the accident. She submits that she has not achieved maximum improvement and that her pre-existing condition would affect her recovery within the MIG. She relies upon a right knee ultrasound report dated September 10, 2019. The applicant further submits that she should be removed from the MIG based on her pre-existing scoliosis which prevents her from reaching maximum medical recovery. She relies upon a lumbar spine diagnostic imaging report, dated September 10, 2019. No other submissions were made by the applicant in respect to her removal from the MIG based on her pre-existing medical conditions.
22The respondent submits that the applicant has failed to meet her onus of proving that she suffers a pre-existing medical condition that would warrant removal from the MIG. The respondent submits that the applicant has not pointed to a medical opinion to support her submissions.
23I do not find that the applicant has provided sufficient documented evidence by a health practitioner of a pre-existing medical condition. Other than providing the September 10, 2019 right knee ultrasound report and lumbar spine diagnostic imaging report, the applicant has not pointed the Tribunal to any other medical evidence to support her pre-existing conditions. I further find that even if I were to accept that the applicant has provided sufficient documentation to support a pre-existing condition, the applicant has not met her onus of providing evidence from a health practitioner that a pre-existing medical condition will prevent her from achieving maximal medical recovery if she is subject to the MIG limits. I find that the applicant has not met the two-part test under s. 18.2 of the Schedule.
24For the reasons set out above, I find that the applicant has not proven on a balance of probabilities that she suffers from a pre-existing medical condition that would prevent maximal medical recovery if she is subject to the MIG and therefore she is not removed from the MIG on this basis.
Entitlement to the treatment plans in dispute
25As I have found that the applicant remains subject to the MIG, it is unnecessary for me to consider whether the disputed treatment plans are reasonable and necessary.
26As an alternative argument, the applicant submits that all of the treatment plans in dispute are payable pursuant to s. 38(11) of the Schedule, as the respondent did not comply with the notice requirements of s. 38(8) of the Schedule.
27The respondent submits that all of its denial notices are compliant with s. 38(8) of the Schedule.
28Section 38(8) of the Schedule 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 any insurer fails to comply with its obligations under s. 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 notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
a. Denial in respect to the treatment plan dated September 12, 2022
29I find that the applicant is not entitled to the chiropractic services proposed in the treatment plan, dated September 12, 2022, on the basis that the respondent’s denial letter was non-compliant with s. 38(8) of the Schedule.
30The applicant submits that the respondent’s denial dated September 26, 2022, in respect to the treatment plan for $3,622.73 in chiropractic services, proposed by Mackenzie Medical Rehab, dated September 12, 2022, was non-compliant with s. 38(8) of the Schedule.
31The applicant submits that the denial letter dated September 26, 2022, did not mention the applicant’s conditions, and provides a vague, non-specific reference to “injuries” without further detail. The applicant submits that the only reason that is being communicated for the denial of the treatment plan is MIG, which is not sufficient to make the notice compliant. The applicant further submits that the notice is unclear and confusing. The applicant states that there is no adequate information provided to explain why the respondent believes that the amount of treatment is excessive and how it is relevant to the treatment already received.
32The respondent submits that its denial letter dated September 26, 2022, fully complies with s. 38 of the Schedule. It submits that the letter was on time, specifically comments on the MIG, and notes that the applicant’s injuries are soft tissue injuries. The notice further requests a s. 44 assessment to assess the applicant’s injuries and requests were made under s. 33 for further information and documents.
33I agree with the respondent that the notice dated September 26, 2022, was compliant with s. 38(8) of the Schedule, in that it contains the medical reasons and all other reasons for the denial. Specifically, I find that the notice clearly denies payment of the treatment plan; it refers to the details of the applicant’s impairments as being minor, which is a medical reason; it references the MIG (satisfying s. 38(9)); and it invites the applicant to provide further documentation under s. 33 for the respondent to reconsider.
34I further find that the letter contains sufficient details to enable an unsophisticated person to make an informed decision to accept or dispute the respondent’s decision. The letter notes that based on the medical documentation on file and the injuries listed on the treatment plan, the applicant’s injuries qualify her for treatment under the MIG. The respondent notes that there are no CNRs on file supporting that her diagnosis falls outside of soft tissue injuries. The respondent requests a s. 44 assessment to confirm the applicant’s diagnosis of the injuries she sustained, as to whether she suffers a “minor injury” and whether there is a need for ongoing treatment. A request is also made for compelling medical information to assist in determining her entitlement to medical and rehabilitation benefits outside of the MIG pursuant to s. 33 of the Schedule.
35For the reasons set out above, I find that the applicant has not demonstrated on a balance of probabilities that the treatment plan dated September 12, 2022 is payable due to non-compliance with s. 38(8) of the Schedule.
b. Denial in respect to the treatment plan dated December 13, 2021
36I find that the applicant is not entitled to the psychological assessment proposed in the treatment plan, dated December 13, 2021, on the basis that the respondent’s denial letter was non-compliant with s. 38(8) of the Schedule.
37The applicant submits that the respondent’s denial dated December 29, 2021, in respect to the treatment plan for $2,200.00 for a psychological assessment, proposed by ALCAT Assessments Inc., dated December 13, 2021, was non-compliant with s. 38(8) of the Schedule.
38The applicant submits that the denial letter dated December 29, 2021, did not mention the applicant’s conditions and provides a vague, non-specific reference to “minor injuries” without further detail. The applicant submits that the notice is unclear and confusing and includes excessive and irrelevant information. The applicant states that the notice refers to the review of medical documentation without specification, based on which the injuries sustained qualify her for treatment under the MIG. The applicant argues that this statement creates uncertainty as to what psychological injuries the respondent considers to be under the MIG. The applicant further submits that the respondent did not explicitly inform the applicant that it would not pay for the treatment plan and mistakenly refers to treatment when the treatment plan recommends an assessment.
39The respondent submits that the December 29, 2021 letter specifically provides medical and other reasons why the treatment plan is not reasonable and necessary. The letter advises that there are “no clinical notes and records on file supporting any objective compelling medical documentation suggesting you require a psychological assessment as a direct result of the motor vehicle accident or that you have pre-existing psychological conditions which may affect your recovery” within the MIG. The letter enclosed a s. 44 Notice of Examination.
40I agree with the respondent that the notice dated December 29, 2021, was compliant with s. 38(8) of the Schedule, in that it contains the medical reasons and all other reasons for the denial. Specifically, I find that the letter clearly denies payment of the treatment plan; it refers to the details of the applicant’s impairments as being minor (a medical reason); and it references the MIG (satisfying s. 38(9)). I do not find that the respondent has mistakenly referred to treatment, rather than an assessment, as suggested by the applicant.
41I further find that the reasons cited by the respondent were clear and sufficient to allow an unsophisticated person to make an informed decision as to whether to dispute the decision. The denial letter states that there are no CNRs on file supporting any objective compelling medical documentation suggesting the applicant requires a psychological assessment. As a result, the respondent advises that a s. 44 assessment is required to determine if the OCF-18 is reasonable or necessary. Also, the reasons provided satisfy the requirement, well-established in the jurisprudence, that an insurer provide reasons capable of giving an insured a principled rationale, based fairly on the insured’s file, to which and insured person can respond.
42For the reasons set out above, I find that the applicant has not demonstrated on a balance of probabilities that the treatment plan dated December 13, 2021, is payable due to non-compliance with s. 38(8) of the Schedule.
c. Denial in respect to the treatment plan dated March 21, 2022
43I find that the applicant is not entitled to the psychological services proposed in the treatment plan dated March 21, 2022, on the basis that the respondent’s denial letter was non-compliant with 38(8) of the Schedule.
44The applicant submits that the respondent’s denial dated April 5, 2022, in respect to the treatment plan for $4,980.87 for psychological services, proposed by ALCAT Assessments Inc., dated March 21, 2022, was non-compliant with s. 38(8) of the Schedule.
45The applicant submits that she is entitled to the treatment plan in dispute because the respondent’s denial letter was not provided within 10 days and failed to adhere to the time requirements of s. 38(8) of the Schedule. The applicant submits that because the denial letter was provided one day late, the respondent is precluded from relying on the MIG, as per s. 38(11). The applicant argues that since the basis of the denial was the application of the MIG, the notice no longer has a medical reason. As the notice was never cured, and there are no other reasons provided for the denial other than the MIG, the notice is deficient.
46The respondent has not provided submissions with respect to the denial letter being late in accordance with s. 38(8) of the Schedule. The respondent submits that it advised the applicant by letter dated April 5, 2022, that the injuries she sustained in the accident qualify for treatment under the MIG and there are no clinical notes and records supporting objective compelling medical documentation suggesting she requires psychological treatment as a result of the accident. By letter dated May 20, 2022, the respondent encloses Dr. Bacchiochi’s report, dated May 9, 2022 advising that the treatment plan in dispute is not approved as it is not reasonable or necessary.
47I find that the respondent has breached s. 38(8) of the Schedule as it failed to respond to the treatment plan within 10 business days. The treatment plan was submitted on March 21, 2022, and the respondent responded one day late on April 5, 2022. Pursuant to s. 38(11), as the respondent failed to give notice in accordance with subsection (8), the respondent is prohibited from taking the position that the applicant has an impairment to which the MIG applies and the respondent shall pay for all goods and services that relate to the period on the 11th business day after the respondent received the treatment plan and ending on the day the respondent gives a notice described in subsection (8).
48However, I find that the respondent gave proper notice of the denial on April 5, 2022. In the context of Turner v. State Farm Mutual Automobile Insurance Co. 2005 CanLII 2551 (ON CA), I find that a notice does not need to be legally correct to be sufficient. In this matter, even if the respondent’s reliance on the MIG was legally incorrect because of the breach of s. 38(8) of the Schedule, that does not necessarily mean the notice itself was deficient. The notice provided sufficient reasons for the denial, namely that there was no compelling medical documentation suggesting she requires psychological treatment. The notice was clear and unequivocal and gave the applicant sufficient information to challenge the denial.
49For the reasons set out above, I find that the applicant has not demonstrated on a balance of probabilities that the treatment plan dated March 21, 2022, is payable due to non-compliance with s. 38(8) of the Schedule.
d. Denial in respect to the treatment plan dated March 21, 2023
50I find that the applicant is not entitled to the psychiatric assessment proposed in the treatment plan, dated March 21, 2023, on the basis that the respondent’s denial letter was non-compliant with s. 38(8) of the Schedule.
51The applicant submits that the respondent’s denial dated July 24, 2023, in respect to the treatment plan for $2,200.00 for a psychiatric assessment, proposed by ALCAT Assessments Inc., dated March 21, 2023, and submitted to the respondent on July 10, 2023, was non-compliant with s. 38(8) of the Schedule.
52The applicant submits that the denial letter dated July 24, 2023, did not mention the applicant’s conditions and provides a vague, non-specific reference to “minor injuries” without further detail. The applicant submits that the notice is unnecessarily complex and confusing and includes excessive and irrelevant information.
53The respondent submits that the July 24, 2023 letter specifically provides medical and other reasons why the treatment plan is not reasonable and necessary. The letter advises that the treatment plan is denied based on the fact that the medical documentation submitted indicates that the applicant qualifies for treatment under the MIG. The letter references the IE report of Dr. Bacchiochi confirming that there is no accident-related psychological diagnosis or impairment. The letter further states that there are no CNRs supporting an objective accident-related or pre-existing psychological condition which may affect recovery under the MIG.
54I agree with the respondent that the notice dated July 24, 2023, was compliant with s. 38(8) of the Schedule, in that it contains the medical reasons and all other reasons for the denial. Specifically, I find that the letter clearly denies payment of the treatment plan; it refers to the details of the treatment plan and lists the benefits sought therein, namely a mental health diagnostic assessment; it refers to the details of the applicant’s impairment as being minor (a medical reason); it references the MIG (satisfying s. 38(9)); and it refers to the report of Dr. Bacchiochi relied on.
55I further find that the reasons cited by the respondent were clear and sufficient to allow an unsophisticated person to make an informed decision as to whether to dispute the decision. The denial letter states that the applicant previously participated in an IE with Dr. Bacchiochi which confirmed that she did not have an accident-related psychological diagnosis or impairment and that psychological intervention was not reasonable and necessary. The letter notes that there are no CNRs on file supporting any objective compelling medical documentation suggesting the applicant requires a similar assessment. The respondent then requests medical evidence pursuant to s. 33 of the Schedule. I find that these reasons provided the applicant with a principled rationale based on review of the applicant’s file, which the applicant could respond to.
56For the reasons set out above, I find that the applicant has not demonstrated on a balance of probabilities that the treatment plan dated December 13, 2021, is payable due to non-compliance with s. 38(8) of the Schedule.
Interest
57Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that there is no payment of benefits owing, no interest is payable.
Award
58I find that the applicant has not established that the respondent is liable to pay an award.
59Pursuant to section 10 of Regulation 664, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an 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.
60I find that the applicant has not provided any submissions with respect to the award in her initial submissions. Instead, she has set out her claim in a separate document entitled “Particulars of the claim under s. 10 of Regulation 664.” The applicant submits that because the respondent failed to provide a valid denial of the treatment plans, within the prescribed time, the respondent is liable to pay an award as it unreasonably withheld and delayed payment of this recommended incurred benefit.
61The respondent submits that insurers are not held to a standard of perfection and an award will only be granted if their actions are stubborn, inflexible or imprudent.
62I do not find that the applicant has provided compelling evidence that the respondent’s behaviour was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate, in the handling of her accident benefits claim. Having found that the treatment plans in dispute are not payable due to non-compliance with s. 38(8) of the Schedule, I do not find that an award is granted based on any notice deficiency.
63The applicant further submits that the respondent misinformed her of the available funding remaining in the MIG limits. The applicant submits that the respondent advised her that there was no further funding in the MIG limits, yet the Statement of Benefits dated October 1, 2022, January 19, 2023 and May 9, 2023, shows that there is $935.00 available. The applicant submits in her reply submissions that the accounts from Mackenzie Medical and ALCAT show that there are incurred outstanding amounts which the respondent is not paying and therefore it is withholding funding of available funds without any valid reason. The applicant submits that the respondent continues to act in an “excessive, imprudent, stubborn, unyielding, or immoderate way”.
64The respondent submits that it has not misinformed the applicant with respect to the availability of funding and that she was informed of the amounts approved, incurred and remaining. The respondent submits that its letter to the applicant dated April 26, 2022 notes that as of April 19, 2022, a total of $2,565.00 has been paid in medical and rehabilitation benefits and a total of $3,412.42 had been approved in medical and rehabilitation benefits, leaving a balance of $87.58. The amounts for treatment approved but not yet paid is $847.42. The respondent submits that the applicant has failed to utilize the remaining funds available under the MIG for treatment.
65I find that the respondent did not mislead the applicant with respect to the availability of funding. I find that the respondent’s letter to the applicant dated April 26, 2022, notes that the total medical and rehabilitation benefits paid to date is $2,565.00 and the total approved but not paid is $847.42. The balance remaining is $87.58. I find that the Standard Benefit Statements provided by the applicant in her submissions note that the total medical and rehabilitation benefits paid to date is $2,565.00 while the total medical and rehabilitation benefits remaining under the policy is $935.00. This is consistent with the letter dated April 26, 2022.
66I do not accept the applicant’s submission that the respondent has withheld funding. I find that the accounts from ALCAT and Mackenzie Medical Rehabilitation, provided by the applicant in her submissions, are for treatment that was not approved by the respondent. Therefore, the respondent cannot be said to be withholding funding for this treatment. I accept the submissions of the respondent that the amount of $847.42 that was approved but not paid, is for treatment that has been approved by the respondent but not incurred by the applicant. I do not find that the applicant has addressed this argument in her submissions or provided me with evidence to prove otherwise.
67For the reasons set out above, I find that the respondent is not liable to pay an award under s. 10 of Reg. 664.
ORDER
68For the reasons set out above, I find,
i. The applicant’s accident-related injuries are predominantly minor and she is therefore subject to treatment within the $3,500.00 limit of the MIG;
ii. The applicant is not entitled to the treatment plans dated September 12, 2022, December 13, 2021, March 21, 2022 or July 10, 2023;
iii. No interest is payable; and
iv. The respondent is not liable to pay an award under s. 10 of Reg. 664.
Released: June 4, 2025
Melanie Malach
Adjudicator