Licence Appeal Tribunal File Number: 23-011095/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:
Williams Ankapong
Applicant
and
Toronto Transit Commission
Respondent
DECISION
ADJUDICATOR: Sarah Sheaves
APPEARANCES:
For the Applicant: Vismay H Merja, Counsel
For the Respondent: Maximir Luburic, Counsel
HEARD: By way of Written Submissions
OVERVIEW
1Williams Ankapong, the applicant, was involved in an automobile accident (“accident”) on May 16, 2021, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).
2The applicant was a passenger on a TTC bus, which rear-ended another vehicle.
3The applicant was denied benefits by the respondent, TTC Insurance Company Limited, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
ISSUES
4The 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 $2,944.72 for physiotherapy services proposed by Wanless Rehab in a treatment plan (“plan”) dated May 9, 2022?
iii. Is the applicant entitled to $4,959.62 for psychotherapy service proposed by Injury Management and Medical Assessments in a plan dated June 30, 2022?
iv. Is the applicant entitled to $1,929.43 for physiotherapy services proposed by Wanless Rehab in a plan dated September 15, 2022?
v. Is the applicant entitled to $2,486.00 for the cost of an orthopaedic assessment proposed by Injury Management and Medical Assessments in a plan dated November 10, 2022?
vi. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
vii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
5I find that the applicant has proven, on a balance of probabilities, that his injuries fall outside of the definition of a “minor injury”. Therefore, he is not subject to the MIG limit.
6The applicant is not entitled to any of the plans in dispute.
7The applicant is not entitled to an award.
8There are no overdue benefits, so interest is not payable.
ANALYSIS
9Section 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.”
10An 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.
The applicant does not have a minor injury
11The applicant’s injuries do not fall within the MIG because of pre-existing psychological conditions that would prevent him from reaching maximal recovery within the MIG. The applicant also has psychological conditions as a result of this accident.
12The applicant relies on the on the records of Dr. Nadarajah (family physician), and psychological reports of Dr. Svitashev, and Dr. Langis to confirm his pre-existing psychological conditions, and the exacerbation of them in this accident.
13The applicant had a prior motor vehicle accident in November 2020. He was receiving physiotherapy and psychotherapy at the time of this accident in May 2021. He was subsequently also diagnosed with chronic pain in relation to that accident.
14The respondent submits that the current accident was minor and low speed. It suggests that since the applicant did not mention this specific accident in his visits with his doctor at each visit, that there is no history of ongoing complaints related to this accident. The respondent submits that the applicant’s conditions are related to his 2020 accident.
15The respondent relies on s. 44 reports from Dr. Saplys, orthopaedic surgeon, that say the applicant’s injuries fall within the MIG, and that further treatment is not reasonable and necessary.
Evidence of psychological impairments
16The applicant has provided evidence of pre-existing and accident-related psychological conditions that remove him from the MIG.
17The applicant is a convention refugee who reported anxiety and depression related to persecution in his country of origin prior to this accident.
18At the time of this accident, he was receiving psychological treatment from Dr. Svitashev related to his 2020 accident, and his pre-existing anxiety and depression.
19Dr. Svitashev diagnosed the applicant with chronic pain, an anxiety disorder, and a depressive disorder in April 2021, approximately one month before this current accident.
20Around the time of this accident in May 2021, or shortly after, the applicant stopped taking the medication related to his mental health conditions. He told Dr. Nadarajah he did this because he had been feeling better.
21However, Dr. Nadarajah’s records show that the applicant’s mental health worsened after the May 2021 accident. He began to report panic attacks which were not being reported before the accident. He restarted his medication and began taking additional medication specifically to address panic. I find that the panic attacks were an exacerbation of his pre-existing psychological conditions.
22While the applicant had ceased to take his medication for a short period of time around May 2021, I find his explanation to his doctor about why he stopped was reasonable. When his condition worsened, he resumed his medication. During this time his psychotherapy treatment was ongoing. I do not find the applicant was non-compliant with treatment.
23The applicant reported ongoing panic attacks to Dr. Nadarajah in September 2021, with difficulty sleeping. Continued psychotherapy and use of medication was recommended.
24Dr. Nadarajah referred the applicant to a psychiatrist in December 2021. She said the applicant was no longer benefitting from his medication and therapy in the referral. I find this is further evidence of ongoing psychological conditions that would affect the applicant’s ability to recover from his physical injuries and remove the appellant from the MIG.
25Dr. Langis, psychologist, completed an assessment in March 2022. She diagnosed an adjustment disorder and a somatic symptom disorder with predominant pain in relation to the May 2021 accident. These diagnoses are different than those from the 2020 accident.
26The respondent did not conduct a psychological assessment and there is no medical opinion that contradicts the evidence and psychological diagnoses provided by the applicant.
27The applicant had clearly documented pre-existing psychological conditions at the time of this motor vehicle accident. The conditions were exacerbated, and additional symptoms related to panic attacks, an adjustment disorder, and a somatic symptom disorder developed after this accident that resulted in impairment.
28I do not find the fact that Dr. Nadarajah didn’t specifically cite the May 2021 accident as the cause of the applicant’s symptoms and conditions at every visit after this accident undermined the validity of the clinical notes and records, as submitted by the respondent. The records show ongoing regular psychological complaints, with new symptoms reported after this accident.
29The uncontested report and diagnoses made by Dr. Langis also support the finding that the applicant sustained psychological impairments in this current accident. Dr. Langis rendered her opinion with the knowledge of the 2020 accident and the applicant’s pre-existing psychological conditions.
30The respondent submitted an investigative report from surveillance conducted in August 2022. It details a single short trip for groceries the applicant made, accompanied by a friend. This was the only surveillance captured after two full days of investigation. I do not find that the evidence in this report contradicts the diagnoses made by Dr. Langis and Dr. Svitashev.
31The applicant has demonstrated that his pre-existing and accident-related psychological impairments remove him from the MIG.
The applicant is not entitled to any of the plans in dispute due to non-compliance with s. 33 of the Schedule
32The applicant is not entitled to any of the plans in dispute, due to non-compliance with section 33 of the Schedule, and a failure to provide a reasonable explanation for the non-compliance.
33Section 33(1) of the Schedule requires an applicant to provide any information reasonably required to assist the respondent in determining their entitlement to a benefit, within 10 days of receiving a request.
34Section 33(6) of the Schedule states that an insurer is not liable to pay a benefit in respect of any period during which the applicant fails to comply with section 33(1).
35Section 33(8) of the Schedule says that if an applicant failed to comply with the insurer’s request, but subsequently does comply, the insurer shall pay all amounts that were withheld due to non-compliance if the applicant provides a reasonable explanation for the delay in complying.
36I have considered whether the applicant falls within the MIG in this appeal, because the MIG is not a benefit under the Schedule. It is a designation that determines the level of medical and rehabilitation benefits an insured person may be entitled to. As such, I find that section 33(6) of the Schedule does not apply to a MIG determination.
37The respondent has requested that the Tribunal hold the applicant in non-compliance with section 33 of the Schedule.
38The respondent first made requests pursuant to section 33 of the Schedule on July 6, 2021. It requested an OHIP Summary, the records of the family doctor, and the records of Wanless Rehab.
39The respondent also made additional requests for documents in February 2022, which included the accident benefits file from the November 2020 accident, contact information for the relevant insurer, and confirmation as to whether any non-earner benefits were received from the 2020 accident.
40The respondent confirmed that the applicant was in non-compliance with section 33 of the Schedule when it denied entitlement to the plans in dispute in this appeal. It advised the applicant that his medical and rehabilitation benefits were suspended due to non-compliance. This was one of the reasons the plans were denied.
41The respondent also sent a further follow-up letter on November 28, 2022, reiterating its section 33 requests. The letter requested that the applicant submit a reasonable explanation for his non-compliance when he did comply with the requests.
42I find the applicant complied fully with section 33(1) of the Schedule as of June 19, 2024. That is when his period of non-compliance ended, and he provided the last of the documents requested by the respondent. This finding is based on the applicant’s submissions on when he complied.
43The applicant’s compliance was achieved two months past the deadline given in the Case Conference Report and Order issued by the Tribunal on March 19, 2024. Therefore, the applicant was not only in non-compliance with section 33 of the Schedule, he was in non-compliance with an Order from this Tribunal.
44The applicant has not provided any reasonable explanation for the delay in complying with section 33(1) of the Schedule. He did not do so when he sent the requested documents to the respondent, and he did not do so in his submissions to this Tribunal for this proceeding.
45The applicant has not suggested that the information requested by the respondent pursuant to section 33 of the Schedule was not reasonably required to assist it in determining his entitlement to benefits. He also has not explained why it took close to three years to comply with the respondent’s initial request for documentation, made in July 2021.
46The applicant submits that the respondent was still able to conduct examinations pursuant to section 44 of the Schedule and was able to adjust the claim without the documents. He says that the issues in dispute related to his medical and rehabilitation benefits should be decided on their merits.
47The respondent relies on I.A. v. TTC Insurance Company Limited, 2019 CanLII 63358 ONLAT (“I.A.”). In this case, the Tribunal found that an applicant was not entitled to attendant care and non-earner benefits due to non-compliance with section 33 of the Schedule. This rationale for this outcome has not been overturned in the subsequent decisions at this Tribunal where the decision has been cited.
48While the benefits in dispute in I.A. are different, the fact situation is similar in that the applicant did not comply with the insurer’s requests made pursuant to section 33 of the Schedule for more than two years after they were made, and not until well into the Tribunal’s proceeding.
49In the case of I.A., the applicant did try to submit a reasonable explanation for non-compliance to the Tribunal. The applicant also argued that the requests made by the insurer were not reasonable, but only during the Tribunal’s proceeding. In that case the applicant also argued that since the insurer conducted section 44 assessments that permitted it to adjust the claim, the consequences of non-compliance with section 33 should be eliminated.
50In I.A. the adjudicator did not find that the applicant had a reasonable explanation for non-compliance. He found that the requests made by the insurer, which included clinical notes and records of treating facilities, were reasonable. He also found that the fact that the insurer conducted section 44 assessments that permitted it to adjust the claim did not relieve the applicant from the consequences of non-compliance with section 33 of the Schedule.
51I agree with the respondent’s submission that attendance at section 44 assessments does not relieve an applicant from the consequences of non-compliance with section 33. I have not been pointed to any authority that suggests otherwise.
52In this appeal, the applicant has not submitted that the requests made by the respondent were not reasonably required to assist it in determining entitlement to a benefit. While this issue was not placed before me, I considered it anyway.
53I find that the respondent’s request made pursuant to section 33 were reasonably required. The requests related specifically to medical records, and details related to the applicant’s other ongoing claim for accident benefits related to his 2020 accident. Given the context of the prior accident, that occurred less than one year before this accident, I find that the respondent’s requests were reasonably required.
54I have considered the fact that the Schedule is consumer protection legislation and should be interpreted broadly. However, I am not able to ignore the clear and plainly worded consequences of non-compliance with section 33 that are set out in the Schedule.
55I am also not prepared to ignore the precedent found in I.A., particularly because the applicant has not made any arguments in his reply submissions as to why I should not follow it, nor has he provided any alternate case law or interpretation of the Schedule that would persuade me it is incorrect. I find that I.A. is on point with the facts of this appeal.
56The law requires a respondent to pay benefits it may have withheld under section 33, but only when it has received a reasonable explanation for the delay in compliance.
57No reasonable explanation has been provided to the respondent or the Tribunal for non-compliance with section 33. Therefore, the applicant is not entitled to these benefits as of the date of the hearing.
Award
58The applicant is not entitled to an award.
59The 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 the respondent unreasonably withheld or delayed the payment of benefits.
60The applicant has the burden to prove he is entitled to an award and that the respondent acted unreasonably.
61The applicant did not make any submissions to the Tribunal on the issue of an award. Therefore, he has not met his burden of proof.
Interest
62The applicant is not entitled to interest.
63Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. I find there are no overdue benefits to which interest applies.
ORDER
64For the reasons provided, I order as follows:
i. The applicant does not fall within the MIG.
ii. The applicant is not entitled to any of the plans in dispute.
iii. The applicant is entitled to interest.
iv. The applicant is not entitled to an award.
Released: August 6, 2025
Sarah Sheaves
Adjudicator