Licence Appeal Tribunal File Number: 23-012813/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:
Lora Marinic
Applicant
and
Intact Insurance Company
Respondent
DECISION
ADJUDICATOR: Robert Rock
APPEARANCES:
For the Applicant: Olga Poznyakova, Paralegal
For the Respondent: Elisa Cogan, Counsel
HEARD: By way of written submissions
OVERVIEW
1Lora Marinic, the applicant, was involved in an automobile accident on September 26, 2022, 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 an income replacement benefit (IRB) in the amount of $400.00 per week from February 16, 2023, to ongoing?
iii. Is the applicant entitled to the treatment plans/OCF-18 (“plan”) proposed by Prime Health Care Inc. as follows:
a) $3,342.39 for physiotherapy services dated November 8, 2022;
b) $1,836.16 for physiotherapy services dated January 19, 2023;
c) $1,978.64 for physiotherapy services dated March 7, 2023; and
d) $3,192.26 for physiotherapy services dated March 23, 2023?
iv. Is the applicant entitled to $4,950.35 for psychological services proposed by Alcat Assessments Inc. in a plan dated September 22, 2023?
v. Is the applicant entitled to the assessments proposed by Prime Health Care Inc. as follows:
a) $2,200.00 for a psychology assessment in a treatment plan dated November 22, 2022; and
b) $2,000.00 for a functional abilities assessment in a treatment plan dated January 30, 2023?
vi. Is the applicant entitled to the assessments proposed by Alcat Assessments Inc. as follows:
a) $2,460.00 for a chronic pain assessment in a treatment plan dated September 15. 2023; and
b) $2,200.00 for a physiatry assessment in a treatment plan dated October 5, 2023?
vii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
viii. Is the applicant entitled to interest on any overdue payment of benefits?
3Based on the filings of the applicant and respondent, the reference to the chronic pain assessment in the Case Conference Report and Order is incorrect as it indicates it was submitted by Alcat Assessment, when it was submitted by Prime Health Care. Additionally, it was submitted on May 11, 2023, not September 15, 2023. This is reflected in the issues above.
RESULT
4The applicant remains in the MIG.
5The treatment plans at issue are not payable pursuant to s. 38.
6The applicant has not proven on a balance of probabilities that they are entitled to an IRB in the amount of $400.00 per week February 16, 2023, to ongoing.
7No interest is owing, and the respondent is not liable to pay an award.
ANALYSIS
Minor Injury Guideline (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 submits she should be removed from the MIG on the basis of a psychological impairment.
Psychological Condition
11The applicant has not proven on a balance of probabilities that she suffers from a psychological impairment that warrants removal from the MIG.
12The applicant argues that she suffers from adjustment disorder with mild anxiety and depressed mood, somatic symptom disorder with predominant pain, sleep pattern difficulties and cognitive functioning difficulties as a result of the subject accident. The applicant relies on a psychological assessment by Dr. Jazayeri, clinical psychologist, completed on September 15, 2023.
13The psychological assessment by Dr. Jazayeri diagnoses the applicant with adjustment disorder (mild anxiety and depressed mood). However, I am not directed in the assessment to how Dr. Jazayeri came to this diagnosis. In review of the psychometric testing, they show results in the mild or minimal range. The symptom checklist for two of the three dimensions seems to show results below the clinical scale, with one showing a level that is only suggestive of potential for mental health issues, not a level that confirms one.
14The respondent argues that the applicant has not met her onus to prove on a balance of probabilities that she suffers from a psychological condition as a result of the accident that warrants her removal from MIG. The respondent relies on a psychological examination by Dr. Nesovic, clinical psychologist, completed on February 2, 2023.
15The psychological examination by Dr. Nesovic does not support the applicant’s claim that she suffers from a psychological condition. The applicant completed psychometric testing that predominately showed below average results, or results in the mild range. Based on these test results, Dr. Nesovic found that the applicant did not meet the DSM-5 criteria for a diagnosis.
16I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological impairment as a result of the subject accident. While Dr. Jazayeri’s report indicates a diagnosis of adjustment disorder (mixed anxiety and depression), the psychometric testing results were similar to those of Dr. Nesovic, indicating most test results as being mild, or below average. As set out above, the two reports come to differing conclusions about the applicant’s diagnosis based on this testing, but I find that Dr. Jazayeri’s opinion attracts less weight because it does not explain the departure from the test results.
17I have also reviewed the clinical notes and records (CNRs) of the applicant’s family doctor. The notes do not reference psychological issues at any point post-accident which would corroborate the diagnosis of Dr. Jazayeri. Additionally, I note that in the psychological examination by Dr. Nesovic, the applicant states that, “she works in a pain clinic and knows the difference between psychological and physical symptoms, and that she believed that her main issues are physical and not psychological”. The applicant further stated that, “she was not interested in psychological treatment. She indicated that she did not ask for psychological help, but that it was recommended by her physical rehabilitation clinic.”
18Accordingly, I put more weight on the report of Dr. Nesovic because I find that it is consistent with the preponderance of evidence before me, including the applicant’s own reporting that she does not believe she sustained a psychological impairment and is not interested in treatment for same. I agree with the respondent that the applicant has not met her onus on the basis of the cumulative evidence of the psychometric testing, the CNRs of the applicant’s family doctor, and her reporting to Dr. Nesovic.
19I find on a balance of probabilities that the applicant has not established that she should be removed from the MIG.
20The applicant is in the MIG, so it is not necessary to consider if the treatment plans at issue are reasonable and necessary.
21However, the applicant takes the position on all treatment plans that the respondent did not comply with s. 38(8) of the Schedule and therefore the treatment plans are payable in accordance with s. 38(11).
22Section 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 s. 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 s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.
Physiotherapy Services for $3,342.39
23The applicant has not proven on a balance of probabilities that the denial notification for the treatment plan for physiotherapy services in the amount of $3,342.39 is non-compliant with s. 38(8).
24The applicant argues that the denial notice was received late as it was delivered by mail and received 5 days late as a result. Additionally, the applicant argues that the denial does not provide specific references to the applicant’s medical condition which formed the basis of the decision. Additionally, the applicant argues that the denial notification fails to explain in any meaningful way what the treatment plan was that was denied.
25I find that the denial notice complies with s. 38(8). The denial sets out the treatment plan in review, refers to the MIG limits for funding of treatment plans, and what is necessary to determine if an injury falls outside of the MIG. Further, the denial notification indicates that there is insufficient medical documentation on file to support the treatment plan, and the respondent requested the clinical notes and records (CNRs) of the applicant’s family doctor and any other treating physician to reasonably assist in the determination of entitlement pursuant to s. 33. It included release of information forms for the applicant to fill out.
26As to the applicant’s claim that the notification was 5 days late, the respondent has provided a fax record indicating that it was delivered to the treating facility on the 10th day, and that multiple attempts were made to fax the document to the applicant at the fax number provided, but that all attempts were unsuccessful. The attempted delivery by fax was an attempt to satisfy section 64(2)(a) of the Schedule which states, “by faxing the document to the person or to the solicitor or authorized representative, if any, of the person in accordance with subsection (19)”. When the fax delivery to the applicant failed, the respondent reverted to delivery of the notification by mail.
27Irrespective on the late delivery, the applicant has made no argument that any portion of the treatment plan was incurred during the shall pay period that would start on the 11th business day and ending when the applicant received the mail delivery.
28The applicant has not proven on a balance of probabilities that the denial notification for physiotherapy services for $3,342.39 is non-compliant with s. 38(8).
Physiotherapy Services for $1,836.16
29The applicant has not proven on a balance of probabilities that the denial notification for the treatment plan for physiotherapy services for $1,836.14 is non-compliant with s. 38(8).
30The applicant argues that the denial notification does not provide specific references to the applicant’s medical condition which formed the basis of the decision. Additionally, the applicant argues that the denial notification fails to explain in any meaningful way what the treatment plan is that was denied. Finally, the applicant asserts that the notice does not indicate that the recommended treatment will be paid or that no further funding is available under the policy, so the applicant asserts she understood that the respondent had increased the policy limit for her treatment to $65,000, and proceeded with treatment.
31I find that the denial notification complies with s. 38(8). The denial sets out the treatment plan in review including the submitted HCAI reference number, refers to the MIG limits for funding of treatment plans, and states that the applicant’s injuries fall within the MIG. Further, the denial notification indicates that there is insufficient medical documentation on file to support the treatment plan, and the respondent reiterated its request that the CNRs of the applicant’s family doctor, initially requested on both October 6, 2022 and January 6, 2023, along with any other treating physician to reasonably assist in the determination, be provided as it had yet to receive any information pursuant to s. 33. With respect to the applicant’s assertion that the limit had been increased, the denial notification states: “Pending the outcome of the examination, you are entitled to receive treatment in accordance with the Minor Injury Guideline”. There is no indication in the denial that the funding limit was increased, rather, I find that the requests for further information clearly support that the denial was maintained and that the applicant remained in the MIG.
32I find that the denial notification is compliant with s. 38(8), as it provided all the required elements of the section. The denial notification was timely, and provided clear reasoning for the denial, indicated the applicant’s injuries fell within MIG, outlined multiple requests for additional medical documentation to help assess the request, and informed the applicant that a s. 44 examination would be scheduled.
33As to the applicant’s claim that the notification was 5 days late, the respondent has provided a fax record indicating that it was delivered to the treating facility on the 10th day, and that multiple attempts were made to fax the document to the applicant at the fax number provided, but that all attempts were unsuccessful. I use the same reasoning as laid out above.
34The applicant has not proven on a balance of probabilities that the denial notification for physiotherapy services for $1,836.16 is non-compliant with s. 38(8).
Physiotherapy Services for $1,978.64
35The applicant has not proven on a balance of probabilities that the denial notification for the treatment plan for physiotherapy services for $1,978.64 is non-compliant with s. 38(8).
36The applicant argues that the denial notification does not provide specific references to the applicant’s medical condition which formed the basis of the decision, and the applicant argues that the denial notification fails to explain in any meaningful way what the treatment plan was denied. Additionally, the applicant argues that the denial notification was received late as it was delivered by mail and received 5 days late as a result.
37I find that the denial notification complies with s. 38(8). The denial sets out the treatment plan in review, refers to the MIG limits for funding of treatment plans, and states that based on a s. 44 examination and the CNRs from the applicant’s family doctor, that her injuries fall within MIG. The denial notification provides specific details from the CNRs of Dr. Gupta that find normal range of motion of the applicant’s back. The denial acknowledges that the treatment plan indicates non-minor injuries but adds that the respondent lacks medical support for that claim and requests additional information from the applicant’s family doctor pursuant to s. 33.
38I find that the denial notification is compliant with s. 38(8), as it provided all of the required elements of the section. The denial notification was timely, and provided clear reasoning for the denial, indicated the applicant’s injuries fell within MIG, provided specific reasoning for why they determined the injuries fell within MIG, and requested additional medical documentation to help assess the determination.
39The applicant has not proven on a balance of probabilities that the denial notification for physiotherapy services for $1,978.64 is non-compliant with s. 38(8).
Psychological Treatment for $3,192.26
40The applicant has not proven on a balance of probabilities that the denial notification for the treatment plan for psychological treatment for $3,192.26 is non-compliant with s. 38(8).
41The applicant argues that the denial notification does not provide specific references to the applicant’s medical condition which formed the basis of the decision. Additionally, the applicant argues that the denial notification fails to explain in any meaningful way what the treatment plan was denied.
42I find that the denial notification does comply with s. 38(8). The denial sets out the treatment plan in review, refers to the MIG limits for funding of treatment plans, and that based on a s. 44 examination and the CNRs from the applicant’s family doctor, that her injuries fall within the MIG. The denial notification provides specific details from the s. 44 examination indicating that Dr. Nesovic opined that the applicant did not meet diagnostic criteria for any psychological impairment. It also refers to the CNRs of Dr. Gupta and that they do not refer to any psychological issues to provide reasoning for the determination that the injuries fall within the MIG. The denial acknowledges that the treatment plan indicates non-minor injuries but adds that the respondent lacks medical support for that claim and requests additional information from the applicant’s family doctor.
43I find that the denial notification is compliant with s. 38(8), as it provided all of the required elements of the section. The denial notification was timely, and provided clear reasoning for the denial, indicated the applicant’s injuries fell within the MIG, provided specific reasoning for why they determined the injuries fell within the MIG, and requested additional medical documentation to help assess their determination.
44The applicant has not proven on a balance of probabilities that the denial notification for psychological treatment for $3,192.26 is non-compliant with s. 38(8).
Psychological Treatment for $4,950.35
45The applicant has not proven on a balance of probabilities that the denial notification for the treatment plan for psychological treatment for $4,950.35 is non-compliant with s. 38(8).
46The applicant argues that the denial notification does not provide specific references to the applicant’s medical condition which formed the basis of the decision. Additionally, the applicant argues that the denial notification fails to explain in any meaningful way what the treatment plan was denied.
47I find that the denial notification does comply with s. 38(8). The denial sets out the treatment plan in review, refers to the MIG limits for funding of treatment plans, and that based on a previous s. 44 examination completed in February 2023, that the applicant denied any significant anxious, depressive, or post-traumatic stress, and reported not being interested in treatment. Based on that reasoning, the treatment plan was not deemed reasonable and necessary.
48I find that the denial notification is compliant with s. 38(8), as it provided all of the required elements of the section. The denial notification was timely, and provided clear reasoning for the denial, indicated the applicant’s injuries fell within MIG, provided specific reasoning for why they determined the injuries fell within MIG, and requested for additional medical documentation to help assess their determination.
49As to the applicant’s claim that the notification was 5 days late, the respondent has provided a fax record showing multiple attempts were made to fax the document to the applicant at the fax number provided, but that all attempts were unsuccessful. I use the same reasoning as laid out above.
50The applicant has not proven on a balance of probabilities that the denial notification for psychological treatment for $3,192.26 is non-compliant with s. 38(8).
Psychological Treatment for $4,950.35
51The applicant has not proven on a balance of probabilities that the denial notification for the treatment plan for psychological treatment for $4,950.35 is non-compliant with s. 38(8).
52The applicant argues that the denial notification does not provide specific references to the applicant’s medical condition which formed the basis of the decision, and the applicant argues that the denial notification fails to explain in any meaningful way what the treatment plan was denied. Additionally, the applicant argues that the denial notification was received late as it was delivered by mail and received 5 days late as a result.
53I find that the denial notification does comply with s. 38(8). The denial sets out the treatment plan in review, refers to the MIG limits for funding of treatment plans, and that based on a s. 44 examination and the CNRs from the applicant’s family doctor, that her injuries fall within MIG. The denial notification provides specific details from both the s. 44 examination and the CNRs to provide reasoning for their determination of the injuries falling in MIG. The denial acknowledges that the treatment plan indicates non-minor injuries, but add that the respondent lacks medical support for that claim and request additional information from the applicant’s family doctor.
54I find that the denial notification is compliant with s. 38(8), as it provided all of the required elements of the section. The denial notification was timely, and provided clear reasoning for the denial, indicated the applicant’s injuries fell within MIG, provided specific reasoning for why they determined the injuries fell within MIG, and requested for additional medical documentation to help assess their determination.
55As to the applicant’s claim that the notification was 5 days late, the respondent has provided a fax record showing multiple attempts were made to fax the document to the applicant at the fax number provided, but that all attempts were unsuccessful. I use the same reasoning as laid out above.
56The applicant has not proven on a balance of probabilities that the denial notification for psychological treatment for $4,950.35 is non-compliant with s. 38(8).
Psychological Assessment
57The applicant has not proven on a balance of probabilities that the denial notification for the treatment plan for psychological assessment is non-compliant with s. 38(8).
58The applicant argues that the denial notification does not provide specific references to the applicant’s medical condition which formed the basis of the decision, and the applicant argues that the denial notification fails to explain in any meaningful way what the treatment plan was denied. Additionally, the applicant argues that the denial notification was received late as it was delivered by mail and received 5 days late as a result.
59I find that the denial notification does comply with s. 38(8). The denial sets out the treatment plan in review, refers to the MIG limits for funding of treatment plans, and indicates that currently there is insufficient compelling medical evidence provided by the applicant’s health practitioner showing that they should be removed from MIG. The denial notice also informed the applicant that a s. 44 examination would be set up and that attendance would be required.
60As to the applicant’s claim that the notification was 5 days late, the respondent has provided a fax record showing multiple attempts were made to fax the document to the applicant at the fax number provided, but that all attempts were unsuccessful. I use the same reasoning as laid out above.
61The applicant has not proven on a balance of probabilities that the denial notification for psychological assessment is non-compliant with s. 38(8).
Functional Abilities Assessment
62The applicant has not proven on a balance of probabilities that the denial notification for the treatment plan for functional abilities assessment is non-compliant with s. 38(8).
63The applicant argues that the denial notification does not identify the what the OCF-18 is for.
64I find that the denial notification complies with s. 38(8). The denial notices refers to the date and amount of the submitted plan under review, as well as the provider of the treatment plan. The denial outlines the results of the s. 44 examination and includes that Dr. Nesovic states that while the applicant continues to experience some residual issues, the applicant denied that these symptoms were having a negative impact on everyday functioning.
65I find that the denial notification is compliant with s. 38(8), as it provided all of the required elements of the section. The denial notification was timely, and provided clear reasoning for the denial, indicated the applicant’s injuries fell within MIG, provided specific reasoning for why the respondent determined the injuries fell within the MIG, and requested for additional medical documentation to help assess their determination.
66The applicant has not proven on a balance of probabilities that the denial notification for functional abilities assessment is non-compliant with s. 38(8).
Chronic Pain Assessment
67The applicant has not proven on a balance of probabilities that the denial notification for the treatment plan for a chronic pain assessment is non-compliant with s. 38(8).
68The applicant argues that the denial notification does not provide specific references to the applicant’s medical condition which formed the basis of the decision, and the applicant argues that the denial notification fails to explain in any meaningful way why the treatment plan was denied. Additionally, the applicant argues that the denial notification was received late as it was delivered by mail and received 5 days late as a result.
69I find that the denial notification does comply with s. 38(8). The denial refers to the date and amount of the submitted the treatment plan in review, refers to the contents of the OCF-19 that indicate injuries that are minor in nature, and the CNRs of Dr. Gupta that did not support the treatment plan as being reasonable and necessary. Additionally, the denial indicated that they would be scheduling a s. 44 examination to assist in determining entitlement.
70I find that the denial notification is compliant with s. 38(8), as it provided all of the required elements of the section. The denial notification was timely, and provided clear reasoning for the denial, indicated the applicant’s injuries fell within the MIG, provided specific reasoning for why the respondent determined the injuries fell within the MIG, and requested additional medical documentation to help assess their determination.
71As to the applicant’s claim that the notification was 5 days late, the respondent has provided a fax record showing multiple attempts were made to fax the document to the applicant at the fax number provided, but that all attempts were unsuccessful. I use the same reasoning as laid out above.
72The applicant has not proven on a balance of probabilities that the denial notification for chronic pain assessment is non-compliant with s. 38(8).
Physiatry Assessment
73The applicant has not proven on a balance of probabilities that the denial notification for the treatment plan for a physiatry assessment is non-compliant with s. 38(8).
74The applicant argues that the denial notification does not provide specific references to the applicant’s medical condition which formed the basis of the decision, and the applicant argues that the denial notification fails to explain in any meaningful way what the treatment plan was denied. Additionally, the applicant argues that the denial notification was received late as it was delivered by mail and received 5 days late as a result.
75I find that the denial notification does comply with s. 38(8). The refers to the date and amount of the submitted the treatment plan in review, refers to the MIG limits for funding of treatment plans, and outlines that there is insufficient medical evidence to remove the applicant from MIG. The denial further request’s the CNRs of the applicant’s family doctor to use in help determining if the applicant’s injuries are minor.
76I find that the denial notification is compliant with s. 38(8), as it provided all of the required elements of the section. The denial notification was timely, and provided clear reasoning for the denial, indicated the applicant’s injuries fell within MIG, provided specific reasoning for why they determined the injuries fell within MIG, and requested for additional medical documentation to help assess their determination.
77As to the applicant’s claim that the notification was 5 days late, the respondent has provided a fax record showing multiple attempts were made to fax the document to the applicant at the fax number provided, but that all attempts were unsuccessful. I use the same reasoning as laid out above.
78The applicant has not proven on a balance of probabilities that the denial notification for chronic pain assessment is non-compliant with s. 38(8).
Pre-104 Week IRB
79To 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.
80The applicant argues that the respondent’s notices for s. 44 assessments for the purposes of the IRB evaluations were non-compliant as argued above.
81The applicant also argues that the applicant is entitled to payment for IRB up to March 3, 2023, to comply with the Schedule. The applicant has not specified which section of the Schedule she is referring to.
82Section 37(2)(c) states that an insurer is able to discontinue IRB payments when in receipt of a s. 44 examination report and has determined that the applicant is not entitled to the benefit. Additionally, s. 37(6) states that within 10 business days after receiving the report of a s. 44 examination the insurer shall provide the insured person with a notice of determination. The section 44 reports were received by the applicant on February 16, 2023, and the notice was sent on March 3, 2023, which is the 10th business day, and provides the benefit the insurer refuses to pay, provides clear medical and other reasons for the insurer’s decision, and the date the benefit will be stopped.
83The applicant also appears to argue that she is entitled to the IRB because of her psychological symptoms. She does not, however, address the relevant test for entitlement to an IRB under s. 5 or s. 6 of the Schedule in her submission.
84Therefore, I find on a balance of probabilities that the applicant is not entitled to IRB in the amount of $400.00 from February 16, 2023, to ongoing.
Interest
85Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no benefit payments are overdue, no interest is owing.
Award
86The 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 benefit payments were unreasonably withheld or delayed, no award is owing.
ORDER
87I find that:
i. The applicant remains in MIG.
ii. The treatment plans at issue are not payable pursuant to s. 38.
iii. The applicant has not proven on a balance of probabilities that she is entitled to IRB from February 16, 2023, to ongoing.
iv. No interest is owing, and the respondent is not liable to pay an award.
Released: September 3, 2025
Robert Rock
Adjudicator