Darell Surju v. The Personal Insurance Company, 2025 CanLII 524

Citation: Surju v. The Personal Insurance Company, 2025 ONLAT 23-001942/AABS

Licence Appeal Tribunal File Number: 23-001942/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:

Darell Surju

Applicant

and

The Personal Insurance Company

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Vanessa Liang, Counsel

For the Respondent: Danielle Ralph, Counsel

HEARD: By way of written submissions

OVERVIEW

1Darell Surju, the applicant, was involved in an automobile accident on July 10, 2018, 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, The Personal 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. Is the applicant entitled to $4,572.00 ($16,272.00 less $11,700.00 approved) for a catastrophic impairment assessment, proposed by Omega Medical in a treatment plan dated May 4, 2022?

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

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

3The applicant advised that the other issues in dispute, listed in the Motion Order of March 20, 2024, have either been resolved or withdrawn.

RESULT

4The applicant is entitled to $2,312.00 for the cost of the mental/behavioural assessment, HST on the cost of the assessment, and HST on the cost of completing the OCF-18 and OCF-19. The applicant is also entitled to interest on this amount pursuant to s. 51.

5The applicant is not entitled to the cost of the comprehensive file review.

6The applicant is entitled to interest on the income replacement benefits previously suspended or denied by the respondent and paid on January 30, 2024. Interest on these benefits is payable at a rate of 1% per month compounded monthly from the date on which the benefits became overdue to February 19, 2023. Thereafter, the prejudgment interest rate described in s. 128(3) of the Courts of Justice Act applies until January 30, 2024.

7The respondent is liable to pay an award of $370.00.

RESPONDENT’S MOTION

8The respondent brought a motion to be heard at this hearing to exclude new evidence included with the applicant’s reply submissions. The applicant did not make any submissions in response to the motion.

9The respondent seeks an order excluding a May 8, 2024, email from Omega Medical from this hearing. It submits that this document was only included with the applicant’s reply submissions, and was not provided prior to the submissions being served. As the document was provided after the respondent served and filed its submissions, the respondent argues that it does not have the opportunity to address the new evidence.

10Rule 9.2 of the Common Rules of Practice & Procedure (“Rules”) states that each party to a hearing shall at least 10 days before the hearing disclose to the other parties the existence of every document and anything else the party intends to present as evidence at the hearing. Under Rule 9.4, if a party fails to comply with the Rules regarding the disclosure of documents, that party may not rely on the document as evidence without the consent of the Tribunal.

11Further, in a Motion Order dated March 20, 2024, the Tribunal ordered the applicant to provide all evidence 30 calendar days prior to the hearing. The hearing date was set for May 21, 2024. The applicant provided his reply submissions, including the email from Omega Medical, on May 14, 2024, only seven calendar days prior to the hearing date.

12The Rules and Tribunal orders must be followed. Further, I find that it would be procedurally unfair if the respondent would not be able to respond to this new evidence. In the absence of any reasons or explanation from the applicant, I grant the respondent’s motion and have excluded the email from Omega Medical from this hearing, as well as paragraph 4 of the applicant’s reply submissions as it is comprised of a block quote from the email.

ANALYSIS

Catastrophic Impairment Assessment

13I find that the applicant is entitled to $2,312.00 for the cost of the mental/behavioural assessment, HST on the cost of the assessment, and HST on the cost of completing the OCF-18 and OCF-19. The applicant is not entitled to the cost of a comprehensive file review.

14To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

15The applicant submitted a treatment plan for catastrophic impairment assessments in the amount of $16,272.00 on May 4, 2022. The respondent approved $11,700.00 of the treatment plan, and denied $4,572.00, comprising of:

i. Comprehensive file review to be completed by Mina Ibrahim, physiotherapist - $2,000.00

ii. Mental/behavioural assessment to be completed by Dr. Pushpa Kanagaratnam, psychologist - $2,000.00

iii. HST on the file review and mental/behavioural assessment - $520.00

iv. HST on the OCF-18 and OCF-19 - $52.00

Comprehensive File Review

16I find that the applicant is not entitled to the cost of a comprehensive file review.

17The applicant submits that a file review requires significant time, and that requiring every practitioner to conduct a file review separately would increase the cost of each assessment. He submits that it would be unrealistic to contain the cost of each assessment within the $2,000.00 cap under s. 25(5) if every practitioner also had to complete their own file review. As catastrophic impairment assessments are complex, he argues that a comprehensive file review saves the practitioner’s time and makes the process more efficient.

18I have reviewed the reports of the practitioners at Omega Medical. Dr. Robert Hastings, who conducted a neurophysiatry evaluation, wrote: “prior to the assessment, I undertook a detailed review of the full medical brief, which is summarized in the accompanying File Review.” I do not take that to mean that he only reviewed the File Review conducted by Ms. Ibrahim. He specified that he undertook his own detailed review of the full medical brief.

19Similarly, Dr. Kanagaratnam wrote in her psychological and mental/behavioural evaluation reports that her assessment included review of medical documentation, and that “in addition to reading the file review, I have reviewed those documents deemed most relevant to the current evaluation”. Dr. Kanagaratnam did not just rely on the file review.

20Finally, Melissa Paniccia, occupational therapist, wrote that Omega Medical provided the applicant’s clinical file to her. She directed the reader to the file review that accompanied the report for all medical documents received and reviewed at the time of her assessment. I interpret this to mean that Ms. Paniccia reviewed the clinical file that she received, and not just the file review.

21It appears to me that the practitioners read the relevant medical documents themselves anyway, despite having access to the file review. I therefore do not accept the applicant’s argument that a comprehensive file review necessarily saves time for the assessors. I find that the comprehensive file review appears to be a duplication of services. Further, there is no evidence to suggest, as the applicant argues, that doctors would charge separate fees if they had to complete their own file reviews.

22I find that the applicant has not proven on a balance of probabilities that the comprehensive file review is reasonable and necessary.

Mental/Behavioural Assessment

23I find that the applicant is entitled to this assessment.

24The treatment plan proposed $2,000.00 for a psychological evaluation to analyze criterion 7 of s. 3.1(1) of the Schedule, which the respondent approved. The denied assessment was for a mental/behavioural assessment to analyze criterion 8. Both assessments were conducted by Dr. Kanagaratnam.

25The applicant was assessed by Dr. Kanagaratnam on June 13, 2023. Two reports were completed. The body of the reports are almost identical. Both reports include the same psychometric testing results as well as the same diagnoses. The main difference between the reports is that one involved an analysis regarding criterion 7 and one involved an analysis regarding criterion 8.

26Section 25(5) of the Schedule stipulates that the insurer shall not pay more than $2,000.00 in respect of fees and expenses for conducting any one assessment or examination and for preparing reports in connection with it. I agree with the respondent that the plain meaning of s. 25(5) is that an insured is not entitled to $2,000.00 for each report generated as a result of one assessment. They are only entitled to $2,000.00 whether that one assessment resulted in more than one report.

27Under FSRA’s Cost of Assessments and Examinations Guideline (“Guideline”), an assessment or examination is a clinical evaluation or appraisal of a claimant’s health status. The Guideline indicates that, in certain circumstances, an assessment may be limited to a file review and does not require the attendance of a claimant.

28Although the applicant was only assessed by Dr. Kanagaratnam on one day, based on the wording of the Guideline, in my view that is not determinative of this issue. The question is whether there were two separate “assessments”, or clinical evaluations or appraisals of the applicant’s health status. If there were two assessments, and they were both reasonable and necessary, the applicant would be entitled to a maximum of $2,000.00 for each one.

29I note that the respondent directed me to Fang v. Aviva Insurance Company of Canada, 2023 CanLII 19847, and Wu v. Aviva General Insurance, 2022 CanLII 92741. Neither decision addressed whether assessments under criteria 7 and 8 were separately payable, so I find that they are not directly relevant to the issue before me. In any event, I am not bound by them.

30Dr. Kanagaratnam utilized two different instruments to evaluate whether the applicant was catastrophically impaired under criteria 7 or 8. Criterion 7 is assessed using the 6th edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, and criterion 8 is evaluated using the 4th edition. I find that this involved two different clinical evaluations and appraisals of the applicant’s condition, which in my view fits squarely within the definition of “assessment” as contemplated by the Guideline. Considering the severity of the applicant’s psychological condition, I find that it was reasonable and necessary for the applicant to have undergone assessments to evaluate both criteria.

HST

31I find that the applicant is entitled to $312.00 for HST on the cost of the mental/behavioural assessment, OCF-18, and OCF-19.

32The respondent’s only submission in this regard is that HST is not payable for assessments that are not reasonable and necessary. The Professional Services Guideline, Superintendent’s Guideline No. 03/14 (“PSG”) stipulates that where the CRA considers HST to be applicable to any of the services or fees listed in the PSG, then HST is payable by an insurer in addition to the fees set out in the PSG. The PSG refers directly to s. 25(5)(a) of the Schedule and the $2,000.00 maximum fee for an assessment. As I have found that the mental/behavioural assessment is reasonable and necessary, the applicant is entitled to HST in the amount of $260.00 for that assessment.

33The respondent did not address why it refused to pay HST on the OCF-18 and OCF-19, although in its denial letter it stated that these fees are not taxable. The PSG mentions the OCF-18 directly, so I find that HST is payable for its completion.

34Although the PSG is silent on the OCF-19 specifically, I am mindful of the consumer protection mandate of the Schedule which requires insurance coverage provisions to be interpreted broadly, while coverage exclusions or restrictions to be construed narrowly in favour of the insured. I find that it would not be in keeping with that mandate to require an applicant to pay HST out of pocket in order to submit a form that is required to access benefits. I also find that this is in keeping with the general wording of the PSG that if the CRA requires HST to be paid, the insurer must pay it.

35I find that the applicant is accordingly entitled to $52.00 in HST for the completion of both of these forms.

Interest

36Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to $2,312.00 for the cost of the mental/behavioural assessment and HST, I find that interest is applicable on that amount.

37The applicant also requests interest on overdue income replacement benefits (“IRBs”) which it submits were reinstated after the applicant was deemed catastrophically impaired. He claims that there are two periods of overdue IRBs for which interest is payable: December 6, 2022, to January 30, 2023, and February 28, 2023, to January 24, 2024. The respondent submits that interest is not payable for the IRBs received during these time periods.

38For the following reasons, I find that interest is payable for both time periods.

December 6, 2022, to January 30, 2023

39The respondent arranged for the applicant to attend a s. 44 assessment on December 6, 2022, for the purpose of assessing his entitlement to IRBs. The applicant submits that he was having Covid symptoms and feeling unwell the night before the assessment, called the assessment company just past midnight, and left a voicemail advising he would not be able to attend. As a result of his non-attendance, the respondent suspended payment of the IRBs, and then resumed payment when the applicant attended the rescheduled assessment on January 30, 2023.

40The respondent submits that the benefit was properly suspended pursuant to s. 37(7) as the applicant was in non-compliance with the Schedule. The respondent relies on M. P. v. Aviva Insurance Canada, 2019 CanLII 119727 (“M. P.”), where the Tribunal held that no interest was owing for the period of time an IRB was not paid due to non-compliance with s. 33.

41Under s. 37(7), where an insured failed or refuses to comply with s. 44(9), the insurer may refuse to pay specified benefits until the insured complies with that section. Section 37(8) states that if the insured person subsequently complies with s. 44(9), the insurer shall reconsider their entitlement to the specified benefit. If it is determined that they are still entitled to the benefit, the insurer shall resume payment of the benefit and pay all withheld amounts if, not later than the 10th business day after the failure or refusal to comply or as soon as practicable after that day, the insured person provides a reasonable explanation for their non-compliance.

42Section 51 states that a benefit is overdue if the insurer fails to pay the benefit within the time required under the Schedule.

43On February 16, 2023, counsel for the applicant wrote to the respondent explaining his illness and his phone call to the assessment company. The letter indicates that the applicant’s counsel already communicated multiple times with the adjuster as well as reached out to the unit manager, and that a reasonable excuse had been provided multiple times. It also notes that the applicant only missed one of a series of s. 44 assessments due to illness.

44In M. P., the insured did not make any submissions on the issue and did not provide evidence that she provided the requested information in a timely manner. The Tribunal held that she did not meet her burden in proving that she was entitled to interest. Considering the applicant made submissions on this issue and provided evidence of a reasonable explanation, I find that M. P. is not analogous to the facts before me. I am not bound by it in any event.

45The respondent’s submissions do not address the explanation provided by the applicant or his counsel as to his non-attendance at the assessment. In a letter dated December 10, 2022, the respondent invited the applicant to provide a reason why he did not participate in the assessment, and it advised that it would consider paying the benefits during the time they were stopped. I have no reason to disbelieve the contents of the applicant’s letter of February 16, 2023, which indicated that the explanation was provided to the respondent on multiple occasions.

46I find that the applicant’s illness, which was communicated to the assessment company and to the respondent, constitutes a reasonable explanation for his non-attendance. As he was subsequently compliant with s. 44(9), and the benefit was resumed after he attended the rescheduled assessment, I find that the suspended benefit should have been paid pursuant to s. 37(8). I accordingly find that the suspended benefit was “overdue”, and therefore the applicant is entitled to interest pursuant to s. 51.

February 16, 2023, to January 24, 2024

47The applicant attended s. 44 assessments to address his entitlement to an IRB. On February 16, 2023, the applicant was advised that he was no longer entitled to IRBs as a result of these assessments. After subsequently receiving additional s. 44 reports that determined that the applicant was catastrophically impaired, the respondent reinstated the IRB on January 30, 2024.

48The respondent argues that interest is not payable because there is no time required under the Regulation to pay a denied benefit. It submits that simply because a benefit is denied, and later approved, does not mean that it is overdue. The respondent also acknowledges that the term “overdue” is not defined in the Schedule, but that it implies a benefit was denied wrongly at the time of the denial. It submits that the IRB was denied in accordance with the Schedule and with evidence it had at the time of the denial. As the benefit was paid immediately after receiving the new evidence contained in the catastrophic impairment reports, the respondent argues that the benefit was not overdue.

49I disagree. If through the receipt of the s. 44 reports the respondent determined that the applicant was, in fact, entitled to the benefit during the time that it was denied, the initial denial was incorrect. The respondent made a decision based on the evidence before it, which I agree it was entitled to do. However, just because the respondent relied on the initial set of s. 44 reports to deny the benefit does not mean that the applicant did not actually meet the test for an IRB during that time. If subsequent evidence shows that the applicant should have been entitled to the benefit all along, I find that it is by definition overdue.

50I accordingly find that interest is payable for this time period as well.

Calculation of Interest

51The respondent submits that if interest is payable on the IRBs, it is payable at a rate of 1% per month compounded monthly from the date on which the amount becomes overdue, to the date which the applicant commenced his application at the Tribunal, which was February 19, 2023. Thereafter, the prejudgment interest rate described in s. 128(3) of the Courts of Justice Act applies until January 30, 2024, which is when the respondent submits that the IRBs were paid.

52The applicant did not make any submissions in this regard. It appears that the respondent’s interpretation aligns with s. 51(3) and (4) of the Schedule and I accordingly accept it with respect to the calculation of interest on the IRBs.

53Neither party made submissions with respect to the calculation of interest on the cost of the assessment or HST. The method of interest calculation for those items is less complicated, as they have not yet been paid by the respondent. I find that interest on the cost of the assessment and HST shall be calculated to the date of this decision in accordance with s. 51(3) and (4).

Award

54The 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.

55The applicant submits that he is entitled to an award of 50% of the previously suspended IRBs from December 6, 2022, to January 30, 2023, which totaled $1,480.00 in benefits, plus the accrued interest. The applicant does not request an award with respect to the other issues in dispute, so I will narrow my analysis to the previously suspended IRBs and the accrued interest on that amount.

56The applicant submits that the respondent acted in an imprudent, stubborn, inflexible, unyielding, and immoderate manner and exceeded what was reasonable by suspending the applicant’s IRBs and refusing to reinstate them, despite being aware of his explanation for not attending the assessment. The applicant submits that the maximum of 50% should be awarded due to the vulnerability of the applicant, the need for deterrence, and the seriousness of the circumstances.

57The respondent submits that insurers are not held to a standard of perfection in their adjusting decisions. It argues that as the benefit was appropriately suspended due to the applicant’s non-compliance with s. 44, the respondent complied with the provisions of the Schedule when denying, re-instating, and eventually paying the IRB.

58As indicated above, the respondent has not explained why it continued to withhold the benefit even after a reasonable explanation was provided for the applicant’s non-attendance at the assessment. The suspended benefit was not paid until January 30, 2024, one year later. In ignoring the applicant’s explanation, I find that the respondent behaved in a manner that was stubborn, inflexible, and unyielding, and that the benefit was unreasonably withheld. As such, the applicant is entitled to an award with respect to the suspended IRBs. However, I find that the respondent is not liable to pay an award on the accrued interest, as I agree that insurers are not held to a standard of perfection, and the applicant did not provide an explanation as to why an award should be payable for that item.

59I agree with the applicant that the respondent’s conduct with respect to the suspended IRB needs to be deterred, and I accept based on the evidence contained in the catastrophic impairment reports before me that the applicant is a vulnerable individual. However, I do not agree that the circumstances were as serious as the applicant suggests, given the amount of the benefit that was withheld and the fact that it was eventually paid. I find that the applicant is entitled to an award of $370.00, which represents 25% of the $1,480.00 withheld.

ORDER

60The applicant is entitled to $2,312.00 for the cost of the mental/behavioural assessment, HST on the cost of the assessment, and HST on the cost of competing the OCF-18 and OCF-19. The applicant is also entitled to interest on this amount pursuant to s. 51.

61The applicant is not entitled to the cost of the comprehensive file review.

62The applicant is entitled to interest on the income replacement benefits previously suspended or denied by the respondent and paid on January 30, 2024. Interest on these benefits is payable at a rate of 1% per month compounded monthly from the date on which the benefits became overdue to February 19, 2023. Thereafter, the prejudgment interest rate described in s. 128(3) of the Courts of Justice Act applies until January 30, 2024.

63The respondent is liable to pay an award of $370.00.