Awad v. Intact Insurance Company, 2025 CanLII 61167

Awad v. Intact Insurance Company

Citation: Awad v. Intact Insurance Company, 2025 ONLAT 23-010069/AABS Licence Appeal Tribunal File Number: 23-010069/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:

Salma Awad

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR: Rasha El Sissi

APPEARANCES:

For the Applicant: Shahzad Ayub, Counsel Sagar Shah, Counsel

For the Respondent: Cindy Leung, Counsel

HEARD: By way of written submissions

OVERVIEW

1Salma Awad, the applicant, was involved in an automobile accident on March 9, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, 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:

1. 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?
2. Is the applicant entitled to $2,200.00 for a Psychological Assessment, proposed by Sarvin Sabet Psychological Services in a treatment plan dated September 2, 2021 (“OCF-18 for a Psychological Assessment”)?
3. Is the applicant entitled to $2,230.85 for psychological services, proposed by Sarvin Sabet Psychological Services in a treatment plan dated November 10, 2021 (“OCF-18-1 for Psychological Services”)?
4. Is the applicant entitled to $2,230.85 for Psychological Services, proposed by Sarvin Sabet Psychological Services in a treatment plan dated February 4, 2022 (“OCF-18-2 for Psychological Services”)?
5. Is the applicant entitled to $1,300.00 for chiropractic services proposed by Back to Play Chiropractic and Sports Injuries in a treatment plan dated August 17, 2020 (“OCF-18-1 for Chiropractic Services”)?
6. Is the applicant entitled to $2,862.81 for chiropractic services proposed by Back to Play Chiropractic and Sports Injuries in a treatment plan dated June 26, 2021 (“OCF-18-2 for Chiropractic Services”)?
7. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is subject to treatment within the $3,500.00 MIG limit.

4The applicant is entitled to payment for goods, services, assessments and examinations described in the following treatment plans, plus applicable interest, pursuant to s. 38(11):

1. OCF-18-1 for Psychological Services that were incurred by the applicant anytime after November 25, 2021, once properly invoiced (issue 3);
2. OCF-18-2 for Psychological Services that were incurred by the applicant anytime after February 21, 2022, once properly invoiced (issue 4);
3. OCF-18-1 for Chiropractic Services that were incurred by the applicant from September 1, 2020 to July 5, 2023, once properly invoiced (issue 5);

5The applicant is not entitled to the following treatment plans:

1. OCF-18 for a Psychological Assessment (issue 2); and
2. OCF-18-2 for Chiropractic Services (issue 6).

ANALYSIS

MIG

6Section 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.”

7The applicant may be removed from the MIG if she can establish her accident-related injuries fall outside of the MIG or, under s. 18(2), that she has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if she is kept within 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.

8To 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.

9Sections 38(8) and 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person within ten business days after it receives an OCF-18 which goods, services, assessments, and/or examinations it agrees to pay for, and which it does not, as well as the medical and other reasons why it considered any of the goods and services to not be reasonable and necessary.

10If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered as a mandatory consequence:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
2. 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).

Application of the MIG and ss. 15 and 16 of the Schedule

11The applicant submits that her argument pertaining to the substantive issues is focused exclusively on sections 38(8), 44(5) and 38(11) of the Schedule. As will be discussed further below, she submits that the respondent failed to provide proper medical and other reasons in notices denying the treatment plans in dispute, and therefore pursuant to s. 38(11), the respondent cannot maintain the position that the MIG applies, and the treatment plans are payable in full, with interest. The respondent disagrees.

12In Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 (Divisional Court), the court held that under s. 38(11)1, the insurer is prohibited from taking the position that the insured person has an impairment to which the MIG applies only with respect to claim for the specific treatment plan in question. The court held that s. 38(11)1 does not impose a permanent prohibition with respect to whether the impairment is covered by the MIG. I am bound by this decision.

13I also note that, in the event the applicant did not succeed in her arguments under ss. 38(8), 44(5) and 38(11), she did not make any other arguments. Specifically, the applicant did not make any other submissions or provide any evidence about whether her injuries should be treated outside of the $3,500.00 MIG limit, on what grounds she sought removal from the MIG, nor whether the treatment plans in dispute are reasonable and necessary under ss. 15 and 16 of the Schedule.

14It is the respondent’s position that, as the applicant has failed to make such submissions or tender such evidence, she has not met her evidentiary burden and thus this application to the Tribunal must be dismissed. Specifically, the respondent requests an order that the applicant’s injuries are predominantly minor and fall with the MIG and that the disputed treatment plan is not reasonable and necessary.

15It is well-settled that the onus is on the applicant to establish that the treatment plans in dispute are reasonable and necessary and that her injuries cannot be treated within the MIG. It is also well-settled that more than just the treatment plan itself is required to show that that the proposed goods, services, or assessments are reasonable and necessary. There must be compelling contemporaneous evidence in support of the treatment plan.

16The applicant argued, based on interpretation of the Schedule and its forms, that OCF-18 plan forms once signed by health practitioners trigger an obligation of the insurer to pay for the subject benefits, unless properly denied by the insurer under s. 38(8). The applicant did not cite any binding authorities for this specific argument. I do not find this argument persuasive.

17As the applicant did not make submissions or provide evidence on whether she is entitled to treatment outside of the MIG, I find that the applicant is subject to treatment within the $3,500.00 MIG limit.

18As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the disputed treatment plans under ss. 15 and 16 of the Schedule.

Sections 44 and 44(5) of the Schedule – Application to the Issues in Dispute

19As noted, the applicant argues, for all of the OCF-18s in dispute, that the respondent failed to comply with the notice provisions denying the applicant benefits under s. 38(8) of the Schedule and compelling insurer’s examinations in respect of the same under s. 44(5). She submits that the respondent did not provide sufficient “medical and other reasons” thereby triggering, as mandatory consequences, the remedies under s. 38(11).

20The respondent states, for all of the OCF-18s in dispute, that at all material times, proper notice letters with sufficient medical reasons were provided to the applicant as per s. 38(8). It argues that when reasons are provided by an insurer with respect to a denial, it is not required that the reasons must be legally correct. Rather, the purpose of providing reasons is to permit an insured “to decide whether or not to challenge” the denial. The respondent states that reasons “should not be measured by the inch or held to a standard of perfection” and allowances should be made as “reasonable minds may disagree about the content of an insured’s file”.

21Section 44 provides that an insurer may require an insured person to be examined at an insurer’s examination (“IE”) to assess entitlement to a benefit under the Schedule, but not more than is reasonably necessary. A proper notice under. 44(5) must state the medical and any other reasons for the IE; whether the insured’s attendance is required at the IE; the name, title and designation of the assessor conducting the IE; and the date, time and location of the assessment. The insurer must make reasonable efforts to schedule the IE for a day, time and location that are convenient for the insured.

22The applicant submits that if an IE is determined to have been improperly procured by an insurer, its results are void ab initio, and that insurer may not rely on its results. The applicant cites decisions of the Tribunal Taksali v. Aviva Insurance Company, 2023 CanLII 96347 (ON LAT) and Taksali v Aviva Insurance Company, 2024 CanLII 128 (ON LAT), which I am not bound by and do not find compelling.

23A non-compliant s. 44 notice under s. 44(5) does not trigger the consequences of s. 38(11) because it is not a notice “in accordance with” s. 38(8). The remedies available to an insured person for a non-compliant s. 44 notice under s. 44(5) may include not attending the IE or attending the IE under protest. The insured person may also challenge whether the IE was “reasonably necessary” under s. 44(1). Contrary to the applicant’s argument, there is no consequence in the Schedule that the insurer is not entitled to rely on the IE report made pursuant to a s. 44 notice that was non-compliant with s. 44(5), when denying a benefit under s. 38(8).

24The applicant appears to have attended each of the IEs requested by the respondent based on the contents of the “subsequent denial” letters discussed later in these reasons. There is no evidence before me that the applicant did so under protest. Nor did the applicant make separate submissions on whether the notices were “reasonably necessary” under s. 44(1). Therefore, in the balance of these reasons, I will consider only whether the notices denying benefits complied with s. 38(8) and if not, what consequences are triggered under s. 38(11).

OCF-18 for a Psychological Assessment (dated September 2, 2021)

25I find that the applicant is not entitled to payment for the OCF-18 for a Psychological Assessment pursuant to s. 38(8) and s. 38(11).

26By letter dated September 8, 2021, the respondent denied benefits claimed by the applicant under the OCF-18 for a Psychological Assessment (“Psychological Assessment Initial Denial”). In this letter, the respondent requested the applicant attend a s. 44 IE and enclosed a notice of examination (“NOE”).

27In T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT) the Tribunal stated that “medical reasons” for denying a plan should: engage the specific details about the insured’s condition forming the basis for the insurer’s decision; and be adequate enough to allow an unsophisticated person to understand them and make an informed decision in response. The Tribunal stated that in evaluating the sufficiency of such notice, the Tribunal should be mindful of those who adjust insurance files. Further, it would be naïve or impractical to expect them to articulate something resembling a medical opinion. Lastly, in T.F., the Tribunal stated that, if the notice offers a principled rationale based fairly on an insured’s file, an insurer will have satisfied its obligation under s. 38(8). Although I am not bound by this decision, I agree with it.

28The applicant submits that the “medical and other reasons” provided by the respondent in the Psychological Assessment Initial Denial were insufficient because they lacked specific details regarding the applicant, her medical condition or the psychological assessment proposed.

29The Psychological Assessment Initial Denial contains the following statements:

i. I have reviewed the Treatment and Assessment Plan noted above and the medical documentation provided and compared it to the criteria in the MIG. ii. I have determined that your impairment is predominantly a minor injury. As well: iii. There is insufficient compelling evidence which indicates that you have a preexisting medical condition, that was documented by a health practitioner before the accident, and that would prevent you from achieving maximal recovery from the injuries sustained in the motor vehicle accident under the MIG or the $3,500 limit. iv. “The medical reasons and all of the other reasons why includes: A review of the documentation on file suggests that the injuries suffered as a result of the motor vehicle accident appear to be minor in nature.” v. Due to the lack of evidence supporting a psychological impairment, we feel it is appropriate to have a medical professional determine whether the proposed treatment plan for psychological treatment is reasonable or necessary.

30I find that the Psychological Assessment Initial Denial complies with the s. 38(8) requirement to state the “medical and other reasons” for the denial because it offers a principled, fair rationale in context. The notice is also timely and states that the respondent believes that the MIG applies.

31The Psychological Assessment Initial Denial meets the requirements of s. 38(8) as discussed in T.F. It cites the treatment plan in question for “assessment, mental health and addictions, as outlined in part 12”, thus engaging the applicant’s condition. It describes a principled reason for the denial insofar as it states the Schedule definition of “minor injury” in full, that the respondent has compared the documentation on file to the definition and believes that it applies, and that the applicant’s impairment is predominantly minor.

32The applicant submits that the Psychological Assessment Initial Denial does not contain a specific explanation as to how the respondent arrived at its conclusion that the applicant’s “impairment is predominantly a minor injury” and that the MIG applies, and the treatment claimed is not reasonable or necessary, in light of the information provided, including the pre-screen interview by a psychologist. However, I find that this is not required by s. 38(8) as discussed in T.F.

33The applicant raises that the respondent did not engage substantively with the information provided about the psychological injuries of the applicant in the OCF-18 for a Psychological Assessment, including the summary of the pre-screening interview. In T.F., the Tribunal said it would be naïve or impractical to expect individuals adjusting claims to articulate something resembling a medical opinion. I find that applies in this case as well. The respondent was required to provide a principled rationale based fairly on the file in the Psychological Assessment Initial Denial, but it was not required to specifically refer to the description of the pre-screening interview and potential presence of psychological impairment diagnoses.

34The Psychological Assessment Initial Denial states that there is a lack of evidence supporting an accident-related psychological impairment and accordingly requests a s. 44 IE to determine whether the proposed treatment plan for “psychological treatment” is reasonable or necessary. The applicant raises that it incorrectly referred to “psychological treatment” (not “psychological assessment”) and this was repeated in the NOE.

35I find that the Psychological Assessment Initial Denial still properly identified the benefit being denied and that this was a clear typographical error. The respondent provided a citation to the correct OCF-18, including name of the signing health practitioner and the date of the OCF-18 in the letter. In addition, it appears from the evidence that the applicant attended the s. 44 IE.

OCF-18-1 for Psychological Services (dated November 10, 2021) - Initial Denial

36I find that the respondent’s initial denial letter dated November 16, 2021 for the OCF-18-1 for Psychological Services (“Psychological Services 1 Initial Denial”), does not comply with s. 38(8).

37As discussed by the court in Aviva General Insurance Company v. Vesna Catic, 2022 ONSC 6000 (Divisional Court), the requirement for an insurer to pay for any items pursuant to s.38(11)2. applies if the expenses for the items were incurred by the insured person. Moreover, the court indicated that such expenses are payable only for the period during which a denial notice complying with s. 38(8) remains outstanding.

38In the Psychological Services 1 Initial Denial letter, the respondent denied benefits claimed by the applicant for therapy, testing and documentation. A s.44 IE psychological assessment “paper review” by Dr. Mandel was scheduled for November 30, 2021 and a NOE was enclosed.

39The applicant submits that the “medical and other reasons” provided by the respondent in the Psychological Services 1 Initial Denial were insufficient because they lacked specific details regarding the applicant, her medical condition or the psychological treatment proposed.

40The respondent submits that it advised the applicant in the Psychological Services 1 Initial Denial that $2,200.00 was pre-approved under the MIG for the OCF-18-1 Psychological Services. The respondent states that only $30.85 remains in dispute for this treatment plan as a result.

41The Psychological Services 1 Initial Denial includes the following statements:

i. The medical reasons and all of the other reasons why includes: A review of the documentation on file suggests that the injuries suffered as a result of the motor vehicle accident appear to be minor in nature. ii. It is my position that the Minor Injury Guideline applies and the treatment claimed is not reasonable or necessary. iii. Pending the outcome of the examination, you are entitled to receive treatment in accordance with the MIG. iv. I will be unable to consider payment beyond $2,200.00 for any goods or services recommended by the Treatment and Assessment Plan OCF-18 until I am in receive of the IE report.

42These are essentially the same reasons as provided in the Psychological Assessment Initial Denial, which I have found were sufficient under s. 38(8) because they were principled in the context and fair considering the information of the applicant’s file at the time. However, in light of the respondent’s submission that $2,200.00 was pre-approved under the MIG for this treatment plan, and accordingly only $30.85 is in dispute, I have considered if the Psychological Services 1 Initial Denial meets all of the requirements of s. 38(8).

43Section 38(8) requires that the insurer give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for.

44The Psychological Services 1 Initial Denial is vague as to what was approved under the OCF-18-1 for Psychological Services. The letter says the applicant is entitled to treatment under the MIG but that the insurer would not consider payment beyond $2,200.00. There is no statement in the letter clarifying whether the MIG limit of $3,500.00 had been reached.

45I do not find the wording of the letter meets the purpose of the section 38(8) discussed in T.F. to allow an unsophisticated person to understand and make an informed decision. Accordingly, I find that the Psychological Services 1 Initial Denial did not comply with s. 38(8).

OCF-18-1 for Psychological Services (dated November 10, 2021) – Subsequent Denial

46By letter dated December 23, 2021, the respondent again denied the benefits claimed by the applicant under the OCF-18-1 for Psychological Services (“Psychological Services 1 Subsequent Denial”). The respondent referred to and attached Dr. Mandel’s IE “paper review” report dated December 14, 2021 (“Addendum”).

47The applicant submits that the medical and other reasons in the Psychological Services 1 Subsequent Denial were inconsistent with s. 38(8) and no valid medical and other reasons for the continuing denial were provided.

48The Psychological Services 1 Subsequent Denial includes the following statements:

i. The Addendum was required to address new medical information that was received in our office. ii. It was determined that new medical information did not change the initial medical opinion of the assessor. iii. Based on the findings of this report, our decision outlined in our correspondence dated November 25, 2021 [i.e., the Psychological Services 1 Initial Denial] remains unchanged. iv. The medical and all other reasons for this decision are that the paper review report completed on December 14, 2021 by Dr. Mandel concluded that based on the information gathered during the current assessment, the [OCF-18-1 for Psychological Services] is unreasonable and unnecessary.

49The Psychological Services 1 Subsequent Denial omits the actual medical reasons of Dr. Mandel in the Addendum, i.e., “that there is a lack of consistent objective information present that would support DSM V diagnosis and or suggest that [the applicant] suffers clinically significant symptoms that would indicate a substantial psychological impairment or disability as a direct result of the subject motor vehicle accident at this time”.

50The statement in the Psychological Services 1 Subsequent Denial that the treatment plan is unreasonable and unnecessary is a conclusion based on these reasons; it is not the actual medical reasons. Therefore, I find that Psychological Services 1 Subsequent Denial does not comply with s. 38(8) and that the consequences of s. 38(11) are triggered with respect to OCF-18-1 for Psychological Services.

51The OCF-18-1 for Psychological Services is payable by operation of s. 38(11) anytime after November 25, 2021, once incurred and properly invoiced. November 25, 2021 is the 11th business day after the day the insurer received OCF-18-1 for Psychological Services (November 10, 2021).

OCF-18-2 for Psychological Services (dated February 4, 2022)

52I find that the respondent’s denial letter dated February 24, 2022 for this OCF-18 (“Psychological Services 2 Denial”) does not comply with s. 38(8) of the Schedule, and the consequences of s. 38(11) are triggered. In this letter, the respondent denied benefits claimed by the applicant under the OCF-18-2 for Psychological Services, citing Dr. Mandel’s Addendum.

53The applicant submits that the medical and other reasons in the Psychological Services 2 Denial were inconsistent with s. 38(8) and no valid medical and other reasons were provided.

54The Psychological Services 2 Denial contains the following statements:

i. A review of our file indicates that the goods and services recommended by this Treatment and Assessment Plan (OCF-18) are substantially similar to the goods and services that were previously submitted on a Treatment and Assessment Plan (OCF-18) completed by Sabet Ghadam, Sarvin Psychologist on February 4, 2022 [sic]. ii. As you may recall, those goods and services were deemed not reasonable and necessary based on an Insurer’s Examination completed by Dr. Marc Mandel on December 14, 2021 [i.e., the Addendum]. Please refer to our correspondence of November 25, 2021 [i.e., the Psychological Services 1 Initial Denial]. iii. Please accept this correspondence as notice that as per Section 38 (8) of the Statutory Accident Benefits Schedule, and based on the findings of the above mentioned Insurer’s Examination, we are not in a position to accept the goods and services recommended in the newly submitted Treatment and Assessment Plan (OCF-18)

55I find that the Psychological Services 2 Denial does not comply with s. 38(8). Although it cited and enclosed the Addendum, which included Dr. Mandel’s medical reasons, it did not accurately describe or summarize them. It also cited the previous correspondence about the Addendum, which I have found was deficient in summarizing the medical and other reasons for the denial of the previous OCF-18-1 for Psychological Services.

56Accordingly, I find that the respondent is not able to take the position that the applicant’s psychological impairment falls within the MIG for the purposes of the OCF-18-2 for Psychological Services, and must pay for all goods, services, assessments and examinations described in the treatment plan that were incurred by the applicant anytime after February 21, 2022. February 21, 2022 is the 11th business day after the day the insurer received the OCF-18-2 for Psychological Services (February 4, 2022).

OCF-18-1 for Chiropractic Services (dated August 17, 2020)

57I find that the respondent’s two denial letters for this OCF-18 do not comply with s. 38(8) and that the consequences of s. 38(11) are triggered.

58By letter dated August 31, 2020, the respondent denied benefits claimed by the applicant under the OCF-18-1 for Chiropractic Services (“Chiropractic Services 1 Initial Denial”). The respondent requested the applicant attend a s. 44 IE to determine if treatment was necessary and enclosed a NOE scheduling a physician examination.

59The Chiropractic Services 1 Initial Denial contains the following statements:

i. A review of the documentation on file suggests that the injuries suffered as a result of the motor vehicle accident appear to be minor in nature. ii. Due to the lack of evidence supporting a more serious impairment, we feel it is appropriate to have a medical professional determine whether the proposed treatment plan is reasonable or necessary. iii. Based on the above, in accordance with Sections 38(10) and Section 44 of the Statutory Accident Benefits Schedule, arrangements have been made for your participation in an independent medical examination with a qualified Health Practitioner to assist in determining if the recommended goods and services are reasonable, necessary, and as a result of your motor vehicle accident. iv. Please note that I will be unable to consider payment for any goods or services recommended by the Treatment and Assessment Plan (OCF-18) until I am in receipt of the Insurer’s Examination report. If the report determines that the recommended goods and services are not reasonable and necessary, you may be responsible for any expenses that have already been incurred.

60The applicant submits that the “medical and other reasons” provided by the respondent were insufficient because they lacked specific details regarding the applicant, her medical condition or any specific, substantive aspect of the treatment proposed. The applicant also submits that the Chiropractic Services 1 Initial Denial does not explain the significance of a “minor injury” or address the MIG.

61I agree with the applicant and find that the respondent did not explain what minor injuries are or cite the MIG. This was fatal to the letter’s compliance with s. 38(8) because minor injuries are the sole medical reason for the denial cited by the respondent, but the reason is not adequately set out to allow the applicant to understand the reason why and decide on her response.

62Therefore, I find that the Chiropractic Services 1 Initial Denial did not comply with s. 38(8) and that the consequences of s. 38(11) are triggered with respect to the OCF-18-1 for Chiropractic Services.

63The respondent submitted that it sent a follow-up letter to the applicant on December 15, 2021, after receipt of clinical notes and records of the applicant’s family general practitioner (“Chiropractic Services 1 Subsequent Denial”).

64The Chiropractic Services 1 Subsequent Denial states, “as per section 38(8) of the Schedule, we are unable to approve the treatment proposed,” that the amounts are denied and provides the following medical and other reasons: “A review of the documentation on file suggests that the injuries suffered as a result of the motor vehicle accident appear to be minor in nature.” Due to the lack of evidence supporting a more serious impairment, the respondent requested a medical professional determine whether the proposed treatment plan is reasonable or necessary.

65I find that the Chiropractic Services 1 Subsequent Denial also does not comply with s. 38(8) for the same reasons as the Chiropractic Services 1 Initial Denial fails to do so.

66I find that the respondent is not able to take the position that the applicant’s physical impairment falls within the MIG with respect to the OCF-18-1 for Chiropractic Services and must pay for all goods, services, assessments and examinations described in this plan that were incurred by the applicant from September 1, 2020 to July 5, 2023. September 1, 2020 is the 11th business day after the day the insurer received the OCF-18-1 for Chiropractic Services (August 17, 2020). July 5, 2023 is the date of the third denial letter for the OCF-18-1 for Chiropractic Treatment, which, in the next following section, I find is a compliant notice under s. 38(8).

OCF-18-2 for Chiropractic Services (dated June 26, 2021)

67I find that the respondent’s initial denial letter for this OCF-18 dated July 2, 2021 (“Chiropractic Services 2 Initial Denial”), complies with s. 38(8).

68The applicant submits that her submissions made in respect of the OCF-18-1 for Chiropractic Services also generally apply to the OCF-18-2 for Chiropractic Services.

69The Chiropractic Services 2 Initial Denial contains the following statements:

i. We acknowledge receipt of a Treatment and Assessment Plan (OCF-18) completed on your behalf by Yousif, Zaid (DC) of Back to Play Chiropractic & Sport Injuries on June 28, 2021 and received in our office on June 28, 2021. The amount of the Treatment and Assessment Plan is $2862.81 ii. For the purpose of the Statutory Accident Benefits Schedule (“SABS”), 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. iii. The Treatment and Assessment Plan (OCF-18) indicates you should qualify for treatment outside of the minor injury limit. iv. Following a review of the Treatment and Assessment Plan (OCF18) there is insufficient documentation provided by your health practitioner that would support your removal from the minor injury limit. v. In order to qualify for a medical and rehabilitation coverage limit in excess of $3,500.00, it must be determined that: your impairment is by definition not predominantly a "minor injury" as per Section 38(3) (c) (i) (a) [sic], or there is compelling evidence, which indicates that you have a pre-existing medical condition, that was documented by a health practitioner before the accident, that will prevent you from achieving maximal recovery under the MIG or the $3,500 limit.

70I find the Chiropractic Services 2 Initial Denial complies with s. 38(8) and the principles set out in T.F. It acknowledges receipt of the OCF-18 and lists the treatment proposed. It clearly states a denial of all amounts. It cites the full definition of minor injury from the Schedule. It notes that the plan in dispute indicates that the applicant should qualify for treatment outside of the MIG limit, but that the adjuster has reviewed OCF-18 and finds there is insufficient information provided that would support removal from the MIG limit (which is also explained). In totality, the denial provides clear and sufficient medical and other reasons for the denial. It then requests clinical notes and records from the applicant’s family general practitioner. The notice is also timely.

Subsequent Denial covering both OCF-18-1 for Chiropractic Services (dated August 17, 2020) and OCF-18-2 for Chiropractic Services (dated June 26, 2021)

71I find this denial letter complies with s. 38(8) with respect to both OCF-18-1 for Chiropractic Services and the OCF-18-2 for Chiropractic Services.

72By letter dated July 5, 2023, the respondent again denied the benefits claimed by the applicant under the OCF-18-1 for Chiropractic Services and the OCF-18-2 for Chiropractic Services (“Chiropractic Services Subsequent Denial”). This time, the respondent cited the conclusion of the s. 44 IE physician assessment dated June 19, 2023 that Dr. Chaudhry found no valid indicators to support ongoing accident-related musculoskeletal injury and therefore further facility-based management was not reasonable and necessary.

73The applicant submits that the medical and other reasons in the Chiropractic Services Subsequent Denial were inconsistent with s. 38(8) and no valid reasons were provided.

74I find that the Chiropractic Services Subsequent Denial is comparatively detailed and specific about the applicant’s physical injuries and impairments. It provides a 15-line extract from Dr. Chaudhry’s report that explains the medical reasons for the doctor’s opinion. It also cites the MIG.

75I find the Chiropractic Services Subsequent Denial complies with s. 38(8) with respect to both OCF-18-1 for Chiropractic Services and the OCF-18-2 for Chiropractic Services because it specifies the applicant’s condition and explains clearly and fully the reasons for the respondent’s position that the injuries are minor and that the two chiropractic treatment plans are not considered reasonable and necessary at this time.

Interest

76Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Interest applies on all amounts payable by the respondent concerning the OCF-18-1 for Psychological Services, the OCF-18-2 for Psychological Services and the OCF-18-1 for Chiropractic Services.

ORDER

77I find that:

1. The applicant is subject to treatment within the $3,500.00 MIG limit.
2. The applicant is entitled to payment for goods, services, assessments and examinations described in the following treatment plans, plus applicable interest, by operation of s. 38(11): a. OCF-18-1 for Psychological Services that were incurred by the applicant anytime after November 25, 2021, once properly invoiced (issue 3); b. OCF-18-2 for Psychological Services that were incurred by the applicant anytime after February 21, 2022, once properly invoiced (issue 4); and c. OCF-18-1 for Chiropractic Services that were incurred by the applicant from September 1, 2020 to July 5, 2023, once properly invoiced (issue 5);
3. The applicant is not entitled to the following treatment plans: a. OCF-18 for a Psychological Assessment (issue 2); and b. OCF-18-2 for Chiropractic Services (issue 6).