Lawrence v. Intact Insurance Company, 2025 CanLII 55810

Licence Appeal Tribunal File Number: 23-009223/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:

Elvis Lawrence

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Nathan Prince

APPEARANCES:

For the Applicant: Nicholas Whelan, Paralegal

For the Respondent: Mahroze Khan, Counsel

HEARD: By way of written submissions

OVERVIEW

1Elvis Lawrence, the applicant, was involved in an automobile accident on August 9, 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. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $400.00 per week from August 16, 2021, to February 9, 2022?

ii. Is the applicant entitled to an IRB in the amount of $400.00 per week from August 9, 2022, to August 9, 2023?

iii. 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?

iv. Is the applicant entitled to $3,390.28 for physiotherapy services, proposed by 101 Physio in a treatment plan/OCF-18 (“plan”) submitted August 18, 2021?

v. Is the applicant entitled to $3,051.33 for physiotherapy services, proposed by 101 Physio in a plan submitted February 1, 2022?

vi. Is the applicant entitled to $2,210.00 for psychological services, proposed by 101 Assessments in a plan submitted February 7, 2022?

vii. Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessments in a plan submitted September 27, 2021?

viii. Is the applicant entitled to $2,460.00 for an orthopaedic assessment, proposed by 101 Assessments in a plan submitted February 15, 2022?

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

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

RESULT

3The applicant is not entitled to IRBs.

4The applicant remains in the MIG.

5The applicant is not entitled to the plans in dispute.

6As there are no benefits payable, the applicant is not entitled to interest or an award.

ANALYSIS

The applicant is not entitled to IRBs

7I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitled to pre-104-week IRBs for the periods of August 16, 2021 to February 9, 2022 and August 9, 2022 to August 9, 2023.

8To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.

9The applicant submits that he is entitled to IRBs from August 16, 2021 to February 9, 2022 and again from August 9, 2022 to August 9, 2023. During the period from February 9, 2022 to August 9, 2022 the applicant was working on a full-time basis and he is therefore not seeking IRBs during this period.

10The applicant’s submissions regarding entitlement to IRBs are scant and do not identify the essential tasks of employment, which tasks he is unable to perform, and to what extent he is unable to perform them.

11In reviewing the applicant’s OCF-2, it appears that he was working as a sorter with Purolator Inc. at the time of the accident and his job involved loading and unloading freight; however, the OCF-2 is largely illegible, and I am unable to ascertain the full details of the essential tasks of employment as listed in the document.

12While the applicant’s submissions indicated that he would be outlining various clinical notes and records (“CNRs”) and medical documentation which spoke to his inability to work, the applicant ultimately did not discuss these records in his submissions.

13As such, I find on a balance of probabilities that the applicant has not demonstrated that he is entitled to IRBs.

The respondent’s denial letters are compliant with the Schedule

14The applicant argues that the respondent’s denials for each of the plans in dispute was not compliant with section 38(8) of the Schedule and therefore pursuant to section 38(11), the respondent is precluded from taking the position that the MIG applies to these plans and further, that they are payable. For the reasons that follow, I find that the respondent’s denial letters are compliant with section 38(8) of the Schedule.

15Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to section 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in section 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.

16The adequacy of a denial letter was canvased in T.F. v Peel Mutual, 2018 CanLII 39373 [“T.F.”] in which it was held that to be compliant with section 38(8) of the Schedule, “an insurer’s “medical and any other reasons” 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. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” 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. Only then will the explanation serve the Schedule’s consumer protection goal.”

17The applicant submits that he should be entitled to the five plans in dispute on the basis that the denial letters are not compliant with section 38(8) of the Schedule as they are boilerplate denials and do not identify the medical and other reasons for the denial.

18All five of the denial letters use similar wording as outlined below.

19With respect to the plan for physiotherapy services in the amount of $3,390.28, the respondent’s denial letter states:

The Treatment and Assessment Plan (OCF-18) recommends the following goods and services:

Physical rehabilitation, Therapy, etc. in the amount of $3390.28.

For the purpose of the Statutory Accident Benefits Schedule, a "minor injury" is defined 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.

I have reviewed the Treatment and Assessment Plan noted above and the medical documentation provided and compared it to the criteria in the Minor Injury Guideline (MIG). I have determined that your impairment is predominantly a minor injury.

The information I currently have on file does not allow me to determine if the recommendations are appropriate at this time. As per Section 38(8) of the Statutory Accident Benefits Schedule, I am unable to consider funding for the above noted goods and services for the following medical and all of the other reasons: at this time there is not enough medical evidence on file to indicate your injuries fall outside of the Minor Injury Guideline therefore, we are requesting a second medical opinion.

20With respect to the plan for physiotherapy services in the amount of $3,051.33, the respondent’s denial letter states:

We acknowledge and thank you for a Treatment and Assessment Plan (OCF-18) completed on your behalf by 101 Physio on January 31, 2022 and received in our office on February 1, 2022. The OCF-18 recommends goods/services in the amount of $3051.33.

The Treatment and Assessment Plan (OCF-18) recommends the following goods and services:

All items as outlined in Part 12 of the Treatment and Assessment Plan.

Under the Statutory Accident Benefits Schedule (SABS), a “minor injury” is defined as one or more of a sprain, strain, whiplash, bruising, cut, or partially dislocated joint. This also includes any clinically related symptoms to the above injuries.

We have reviewed this Treatment and Assessment Plan (OCF-18) with the medical documentation provided and compared it to the criteria in the Minor Injury Guideline (MIG). We have determined that your impairment is predominantly a minor injury.

Under Section 38,

there is insufficient compelling medical evidence provided by your health practitioner showing that your prior medical condition will not allow for a full recovery under $3,500.00 limit

the medical and other reasons for this denial include: Further to IE report dated October 6, 2021 by Dr. Frank Loritz, MD, The insured has sustained a minor injury as defined by the SABS as a result of the accident. The information we currently have on file does not allow us to determine if the recommendations are appropriate at this time. As per Section 38(8) of the Statutory Accident Benefits Schedule, we are unable to consider funding for the above noted goods and services for the following medical and all of the other reasons: at this time there is not enough medical evidence on file to indicate your injuries fall outside of the Minor Injury Guideline therefore, we are requesting a second medical opinion.

21With respect to the plan for psychological services in the amount of $2,210.00, the respondent’s denial letter states:

We acknowledge and thank you for a Treatment and Assessment Plan (OCF-18) completed on your behalf by 101 Assessment Centre on December 22, 2021 and received in our office on February 7, 2022. The OCF-18 recommends goods/services in the amount of $2210.00.

The Treatment and Assessment Plan (OCF-18) recommends the following goods and services:

Counseling, mental health and addictions etc. (as outlined in part 12 of the Treatment and Assessment Plan) in the amount of $2210.00

Under Section 38,

there is insufficient compelling medical evidence provided by your health practitioner showing that your prior medical condition will not allow for a full recovery under $3,500.00 limit

the medical and other reasons for this denial include: information we currently have on file does not allow us to determine if the recommendations are appropriate at this time. As per Section 38(8) of the Statutory Accident Benefits Schedule, we are unable to consider funding for the above noted goods and services for the following medical and all of the other reasons: at this time there is not enough medical evidence on file to indicate your injuries fall outside of the Minor Injury Guideline therefore, we are requesting a second medical opinion.

22With respect to the plan for a psychological assessment in the amount of $2,460.00, the respondent’s denial letter states:

The Treatment and Assessment Plan (OCF-18) recommends the following goods and services:

Assessment, mental health and addictions etc. (as outlined in part 12 of the Treatment and Assessment Plan) in the amount of $2460.00

The medical reasons and all of the other reason why includes: The information I currently have on file does not allow me to determine if the recommendations are appropriate at this time. As per Section 38(8) of the Statutory Accident Benefits Schedule, I am unable to consider funding for the above noted goods and services for the following medical and all of the other reasons: at this time there is not enough medical evidence on file to indicate your injuries fall all of outside of the Minor Injury Guideline therefore, we are requesting a second medical opinion.

It is my position that the Minor Injury Guideline applies and the treatment claimed is not reasonable or necessary.

23With respect to the plan for an orthopaedic assessment in the amount of $2,460.00, the respondent’s denial letter states:

The OCF-18 recommends goods/services in the amount of $2460.00.The Treatment and Assessment Plan (OCF-18) recommends the following goods and services:

Assessment and Documentation as outlined in Part 12 of the Treatment and Assessment Plan.

24Under Section 38, there is insufficient compelling medical evidence provided by your health practitioner showing that your prior medical condition will not allow for a full recovery under $3,500.00 limit.

The medical and other reasons for this denial include: Information we currently have on file does not allow us to determine if the recommendations are appropriate at this time. As per Section 38(8) of the Statutory Accident Benefits Schedule, we are unable to consider funding for the above noted goods and services for the following medical and all of the other reasons: at this time there is not enough medical evidence on file to indicate your injuries fall outside of the Minor Injury Guideline therefore, we are requesting a second medical opinion.

It is our position that the Minor Injury Guideline applies and the treatment claimed is not reasonable or necessary.

25The applicant relies on the decisions in Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318 [“Hedley”]and M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT) [“M.B.”] and submits that these cases stand for the proposition that boilerplate denials are insufficient to meet the requirements of section 38(8).

26In reviewing the five notice letters, although there is a lot of similarity between the notices, I find that this does not automatically render them non-compliant with section 38(8) as being boilerplate denials.

27I find that the notices are sufficient in that they identify the issues in dispute and provide clear reasons to support the denials. Specifically, the notices indicate that the applicant’s injuries are minor, and they provide a definition of what is considered a minor injury under the Schedule to assist the applicant in making an informed decision to either accept or dispute the decision at issue. Furthermore, indicating that the Minor Injury Guidelines applies, in and of itself, may be considered to be valid “medical and any other reasons” (See: M.B. at para 24).

28Furthermore, the notices indicate that there is insufficient medical evidence in the file and that second medical opinions will need to be obtained. I find that this further strengthens the compliance of the letters as it identifies information about the applicant’s condition that the respondent does not have but requires, which again may be considered valid “medical and any other reasons” (See: M.B. at para 26 and T.F. at para 19).

29I find that the detail provided in the notice letters is clear and sufficient such that the applicant was able to make an informed decision to either accept or dispute the decision at issue and find that the notices contain the specificity required of a proper denial under section 38(8) of the Schedule. Therefore, the benefits are not payable under section 38(11).

The applicant remains in the MIG

30I find the applicant has not demonstrated, on a balance of probabilities, that his accident-related injuries warrant removal from the MIG.

31Section 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.”

32An 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.

33The applicant submits that he should be removed from the MIG on the basis of his ongoing back and knee pain more than 4 months post-accident. He relies on the clinical notes and records (“CNRs”) of Trillium Health Partners and Dr. Bikramjit Nanar, family doctor.

34I find that the CNRs which the applicant relies upon do not support a finding that he suffers from chronic pain. CNRs from Trillium Health Partners dated October 18, 2021 and from Dr. Nanar dated October 5, 2021 indicate that the applicant presented with reports of pain in his knee and back and that he was unable to stand for long periods and had difficulty lifting. However, by February 8, 2022 the CNR of Dr. Nanar indicates that the applicant was ready to return to work and had no other complaints outside of occasional back pain. Dr. Nanar’s assessment of the applicant at this time was that his lumbar strain was resolving. The applicant saw Dr. Nanar again on June 7, 2022 and there is no mention of any accident-related impairment in this CNR. Outside of the CNRs from one month post-accident, I was not pointed to any medical records which would indicate that the applicant suffered from chronic pain.

35Furthermore, even if I were to accept that the applicant suffers from chronic pain, this is only the first half of the two-part test as set out above. The applicant must also show that the chronic pain is causing a level of functional impairment sufficient to warrant removal from the MIG. The applicant’s submissions do not address functional impairment outside of the aforementioned CNR which indicated that the applicant reported an inability to stand for long periods of time and difficulty lifting. I find this CNR to lack the specificity required to demonstrate that there is functional impairment associated with the applicant’s pain - it does not address how, or to what extent, the pain is impacting his activities of daily living or his ability to complete tasks which he completed pre-accident.

36As such, I find on a balance of probabilities that the applicant has not met his onus of demonstrating that he suffers from chronic pain with functional impairment that would warrant removal from the MIG.

Interest

37Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is not entitled to any of the benefits in dispute, no interest is payable.

Award

38The 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.

39As the respondent has not withheld or delayed any payment of benefits, there is no basis for an award under s. 10 of Reg. 664.

ORDER

40For the reasons outlined above, I find:

i. The applicant is not entitled to IRBs;

ii. The applicant remains in the MIG;

iii. The applicant is not entitled to the plans in dispute;

iv. The applicant is not entitled to interest or an award; and

v. The application is dismissed.

Released: June 9, 2025

Nathan Prince

Adjudicator