Citation: Berisa v. Intact Insurance Company, 2025 ONLAT 23-002023/AABS

Licence Appeal Tribunal File Number: 23-002023/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:

Hasan Berisa

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Ahmad Khan, Counsel Kalim Khan, Counsel

For the Respondent: Navjot Banipal, Counsel

HEARD: By way of written submissions

OVERVIEW

1Hasan Berisa, the applicant, was involved in an automobile accident on December 2, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by 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 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 $2,195.89 for physiotherapy services, proposed by Atiq Farooqui of Seksek Chiro PC, in a treatment plan dated July 9, 2021?

iii. Is the applicant entitled to $1,844.25 for physiotherapy services, proposed by Jaimikkumar Mehta of Seksek Chiro PC, in a treatment plan dated December 14, 2020?

iv. Is the applicant entitled to $2,200.00 for a MIG assessment, proposed by Pivotal Medical Assessments, in a treatment plan dated June 23, 2022?

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?

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

RESULT

3The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and he is therefore subject to treatment within the MIG. The applicant is not entitled to the treatment plans in dispute or interest. The respondent is not liable to pay an award. This application is dismissed.

PROCEDURAL ISSUE

4The Case Conference Report and Order of October 16, 2023 (“CCRO”) specified that the applicant’s submissions were not to exceed 10 pages, excluding evidence and case law. During the case conference, the applicant requested a minimum of 12 pages, however the case conference adjudicator decided that in the interests of efficiency and proportionality, each party’s submissions could not exceed 10 pages. The CCRO specified that submissions were to be double-spaced. The CCRO also states that the hearing adjudicator may choose not to consider submissions which exceed the page limit.

5The applicant provided ten pages of submissions, including endnotes. However, the applicant also appended a document at “Tab R” to his submissions which was comprised of an additional nine pages of submissions, single-spaced. The applicant also included a document at “Tab Y” consisting of four pages of submissions. Further, the applicant included what he labelled “optional tabs”, both of which included arguments rather than strictly evidence or case law.

6Given the express wording of the CCRO regarding the page limit, it was not appropriate to append additional submissions to the applicant’s main submissions. Tribunal orders must be followed to ensure fairness in the hearing process. As such, I will not consider the submissions made in the appended documents at “Tab R”, “Tab Y”, or either of the two “optional tabs”. I will, however, consider the exhibits following “Tab R”, as they are comprised of the treatment plans in dispute and denial letters, which is evidence directly relevant to the issues before me and are referred to generally in the body of the applicant’s main submissions.

ANALYSIS

Application of the Minor Injury Guideline

7I find that the applicant has not met his burden to establish that he should be removed from the MIG.

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) 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.”

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), 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.

10The applicant does not point to any evidence with respect to his injuries that would explain why he should be removed from the MIG. He submits that his argument pertaining to the substantive issues is focused exclusively on sections 38(8), 38(11)1, 38(11)2, and 44(5) of the Schedule. As will be discussed further below, he submits that the respondent failed to provide proper notice of the denied treatment plans, and therefore pursuant to s. 38(11), the respondent is prohibited from maintaining the position that the MIG applies, and the treatment plans are payable in full.

11The Divisional Court was clear in Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707, that even if the consequence of s. 38(11) is triggered, that only applies to the specific treatment plan in question. It does not impose a permanent prohibition on the insurer with respect to whether the impairment is covered by the MIG. The applicant cannot be removed from the MIG simply by operation of this section.

12The respondent relies on the s. 44 report of Dr. Charanjit Sandhu, occupational medicine physician, from an assessment on May 12, 2022. Dr. Sandhu diagnosed the applicant with residual symptoms from myofascial sprains to his cervical spine, shoulders, and lumbar spine, as well as post-traumatic headaches. He opined that the applicant’s injuries fell within the scope of the MIG. The applicant does not make any submissions regarding the substance of Dr. Sandhu’s report and has not pointed me to any compelling evidence that would contradict Dr. Sandhu’s findings.

13I am not persuaded by checked boxes in the treatment plans indicating that the applicant’s impairments are not predominantly minor. There is no indication before me as to how the applicant’s treatment providers came to that conclusion. The applicant has not provided me with any clinical notes and records or reports to substantiate or corroborate this. I do not find the treatment plans to be compelling evidence that the applicant does not belong in the MIG.

14For the reasons above, on a balance of probabilities, I find that the applicant has not met his burden of proving that he should be removed from the MIG.

15I find that the applicant is not entitled to the treatment plans in dispute.

16As I have determined that the applicant is not removed from the MIG, I need not determine whether the treatment plans in dispute are reasonable and necessary pursuant to s. 15 and 16 of the Schedule. However, the applicant’s submissions with respect to the treatment plans focus exclusively on s. 38(8), 38(11), and 44(5).

17Under s. 38(8), an insurer has the obligation to, within 10 business days after it receives a treatment plan, provide an insured person with a notice identifying the medical and all of the other reasons why the insurer finds the treatment plan not to be reasonable and necessary. If the insurer fails to give a notice in accordance with s. 38(8) in connection with a treatment plan, the following rules found in s. 38(11) apply: (a) the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies, and (b) the insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

18Pursuant to s. 38(10) and 44(1), an insurer may notify an insured person that they are required to be examined by a regulated health professional. Section 44(5) requires an insurer to provide a Notice of Examination which sets out “the medical and any other reasons for the examination.”

19The Tribunal in M. B. v. Aviva Insurance Canada, 2017 CanLII 87160, considered an insurer’s obligation to provide medical and other reasons:

In my view, an insurer satisfies its obligation to provide its “medical and any other reasons,” whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, 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.

20Although I am not bound by this decision, I agree with the reasoning of the Tribunal on this issue.

21The respondent requested that the applicant attend a s. 44 assessment to determine his entitlement to the treatment plans in dispute. The applicant attended the assessment, and the benefits were ultimately denied based on the s. 44 report resulting from that assessment, and the denials were reaffirmed as a result of a subsequent paper review report and an addendum report from the same assessor. The applicant submits that the denial letters and requests under s. 44 were deficient, and even though he attended the assessment, the resulting reports were “void ab initio” and the respondent was not entitled to rely on them in denying the benefits. He argues that the respondent failed to meet the notice requirements set out in s. 38(8), and the mandatory payment provision of s. 38(11)2 is triggered as a result.

22The treatment plan dated July 9, 2021, was initially denied by way of letter dated July 23, 2021. The respondent indicated that there was insufficient documentation provided by the applicant’s health practitioner that would support his removal from the MIG and requested additional documents pursuant to s. 33. However, the respondent did not explain why it believed the applicant belonged in the MIG and did not clearly specify whether the treatment plan was approved or denied on that basis. I find that this letter was not compliant with s. 38(8) as it was devoid of a medical reason and lacked clarity.

23Both treatment plans for physiotherapy were subsequently denied by way of letter dated August 10, 2021. The respondent indicated that, based on the medical documentation on file, the applicant’s injuries were believed to be predominantly soft tissue, and therefore the MIG applied, and the treatment plans were not reasonable and necessary. The respondent indicated that a s. 44 assessment would be arranged with Dr. Sandhu. I find that this letter was not compliant with s. 38(8) or s. 44(5), as it failed to refer to the medical documentation the respondent reviewed to reach its decision. In my view, the letter lacked specifics such that an uninformed person would not understand the reason for the denial and therefore could not make an informed decision to accept or reject it.

24In a letter dated June 15, 2022, the respondent provided a copy of Dr. Sandhu’s report and indicated that it would not pay for the physiotherapy treatment plans. It provided a summary of Dr. Sandhu’s findings, including his diagnosis, his opinion that the applicant’s injuries fell within the scope of the MIG, and that he had likely achieved maximum therapeutic benefit from facility-based treatment. I find that this letter was compliant with s. 38(8) as it provided medical reasons and was sufficient and clear enough to allow an unsophisticated person to make an informed decision to accept or dispute the denials.

25In arguing that the respondent was not entitled to ground its denial of the benefits on the s. 44 report, he relies on Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (“Taksali”). The Tribunal found that there is “no provision for an insured to waive their right to a benefit, most especially by attending an examination at which their non-attendance would threaten their entitlement to the benefit that they are seeking” (para. 22). The Tribunal stated that the insured is placed in the position of either attending an examination for inadequate reasons, or not attending, thereby incurring the immediate loss of a benefit and the financial cost of appealing to the Tribunal. It found that this was contrary to the spirit and intent of the Schedule. The Tribunal held that providing the findings from improperly procured assessments as the medical reason for the denial of a benefit cannot remedy the insufficiency of the notice that led to those assessments.

26I am not bound by Taksali, and I am not compelled by the reasoning in that decision. I do not agree that attending a s. 44 assessment, where insufficient notice has been provided, means that the applicant has waived his right to a benefit. The only right the applicant would waive by attending the s. 44 assessment is the right to argue that he should not have attended the assessment in the first place. That is not a “benefit” under the Schedule. If the insurer has not provided clear and sufficient reasons for the s. 44 request, the insured legitimately does not have to attend, and the entitlement is not threatened by the insured’s non-attendance.

27Further, I do not agree with the Tribunal’s statement in Taksali that the Schedule makes no provision for an insured to be able to waive requirements under the Schedule, and only allows an insurer to do so. Section 44(6) allows the parties to mutually agree to waive a requirement for notice, and s. 46(2) allows an insured person to waive a conflict of interest with respect to a referral. It therefore cannot be said that the spirit and intent of the Schedule was such that an insured person could never waive any of its requirements.

28The Schedule is consumer protection legislation. However, I do not find that the interpretation suggested by the applicant would merely serve to protect insured persons. If the applicant’s interpretation was correct, it would allow insureds to make a tactical decision to attend assessments, and if the assessment was not favourable, argue that the treatment plan is payable based on a technicality. This would result in an insurer paying for an assessment that it assumed the insured person agreed to, only to have the insured person turn around and argue otherwise. I find that this would be an absurd result and would allow an insured person to obtain a tactical benefit which goes further than the consumer protection the Schedule affords.

29Without the Schedule explicitly stating otherwise, and in light of the absurd result that would ensue, I do not accept the applicant’s argument. I accordingly find that the s. 44 report is not “void ab initio”, and the respondent was entitled to rely on it in its denial letter.

30The Divisional Court in Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000 (“Catic”), determined that only the goods and services that are incurred up until the date that the deficient notice is cured are payable. Although neither party relied on this decision, I am bound by it. The applicant has not directed me to evidence that these treatment plans were incurred prior to the deficient notice being cured. As such, I find that the treatment plans for physiotherapy are not payable as a result of s. 38(11).

31On August 12, 2022, the respondent denied the treatment plan for a general practitioner assessment with Dr. Satam Al-Attar. The letter referred to the conclusions in Dr. Sandhu’s report regarding the MIG and stated that it was the respondent’s position that the MIG applied, and that the treatment claimed was not reasonable and necessary. The letter also indicated that the respondent had scheduled a s. 44 paper review with Dr. Sandhu to determine if the proposed treatment plan was reasonable and necessary and if the applicant’s injuries fell outside the MIG.

32I find that this letter complied with s. 38(8), as a medical reason was provided for the denial, and it was clear what treatment plan was being denied and for what reason. In my view, the denial was clear and sufficient such that an unsophisticated person could make an informed decision to accept or dispute the denial. While it was unclear why the respondent was requesting a s. 44 paper review, I find that the request for a paper review did not take away from the clear denial of the treatment plan in dispute or the medical reasons provided in support of the denial, and therefore the s. 44 request did not render the letter non-compliant with s. 38(8). I accordingly find that the applicant is not entitled to this treatment plan.

Interest

33Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefits are overdue, interest is not applicable.

Award

34The 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. As no benefits are payable, I find that the respondent is not liable to pay an award.

ORDER

35The applicant’s injuries are predominantly minor as defined in s. 3 of the Schedule and he is therefore subject to treatment within the MIG. The applicant is not entitled to the treatment plans in dispute or interest. The respondent is not liable to pay an award. This application is dismissed.