Licence Appeal Tribunal File Number: 23-013151/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:
Elaine Penaloza
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Lisa Holland
APPEARANCES:
For the Applicant:
Nidhi Vinayak, Counsel
For the Respondent:
Peter Durant, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Elaine Penaloza, the applicant, was involved in an automobile accident on February 7, 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, Co-operators General 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 14, 2022 to August 10, 2022?
iii. Is the applicant entitled to the following assessments proposed by Meditecs Independent Medical Examinations:
a. $4,011.50 for a psychological assessment, in an OCF-18/treatment plan (“plan”) submitted April 12, 2023?
b. $2,787.95 for an attendant care assessment, in a plan submitted April 12 ,2023?
c. $3,616.00 for a functional ability evaluation, in a plan submitted April 12 ,2023?
d. $3,412.60 for an optometric concussion assessment, in a plan submitted April 12, 2023?
e. $4,011.50 for a chronic pain assessment, in a plan submitted April 12, 2023?
iv. Is the applicant entitled to chiropractic services, proposed by Scarborough Physiotherapy and Rehabilitation Clinic as follows:
a. $3,285.00 in a plan submitted June 17, 2022?
b. $1,319.00 in a plan submitted May 5, 2022?
v. Is the applicant entitled to $23.91 ($58.91 less $35.00 approved) for transportation in an OCF-6 submitted March 15, 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
3The parties do not indicate in their written hearing submissions whether the MIG limits are exhausted. It is not necessary to consider whether the treatment plans and expenses in dispute are reasonable and necessary.
4The respondent’s denial of treatment plans in the amounts of $4,011.50, $2,787.95, $3,616.00, $3,412.60, $4,011.50, and $3,285.00 were proper notices in accordance with s. 38(8) of the Schedule and therefore, those treatment plans are not payable pursuant to s.38(11) of the Schedule.
5The applicant is not entitled to an IRB, interest or an award.
ANALYSIS
The applicant has not demonstrated that she suffers from accident-related injuries that warrant removal from the MIG
6The applicant submits that her sprain and strain type injuries and other injuries involving her cervical, thoracic and lumbar spine; sacroiliac joint; wrist; dislocation of the shoulder; bone cysts; periarthritis; and chronic headaches are not minor injuries within the definition of the MIG.
7The applicant does not point or direct me to any medical evidence in support of the substantive basis for her removal from the MIG. Further, the applicant makes no submissions as to the reasonableness or necessity of the treatment plans and expenses in dispute. The applicant’s focus in her submissions is on alleged procedural errors made by the respondent and it is submitted that these procedural errors should result in finding the disputed benefits are payable.
8The respondent submits that the applicant sustained minor injuries as a result of the accident. The respondent relies on the Insurer Examination (“IE”) report dated August 28, 2024, by Dr. Rod Day, psychologist; and the IE report dated August 28, 2024, by Dr. Fathi Abuzgaya, orthopaedic surgeon. The respondent submits that Dr. Abuzgaya concluded that the applicant sustained soft tissue injuries to her left shoulder and right wrist and there was no evidence of fracture or dislocation of the left shoulder. The respondent further submits that Dr. Day found that the applicant has no psychological disorder.
9I find that the applicant sustained minor injuries to her left shoulder and right wrist based on the medical evidence from her treating physicians and the IE assessors.
10Therefore, I find that the applicant has not demonstrated on a balance of probabilities that she sustained accident-related injuries to warrant removal from the MIG.
The applicant is not entitled to an IRB
11The applicant seeks an IRB for the period of February 14, 2022 to August 10, 2022 which is within the period of 104-weeks after the accident.
12To receive payment for an IRB under s.5(1) of the Schedule, the applicant must be employed or self-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 asks 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.
13The applicant makes no submissions to address her entitlement to an IRB based on her pre-accident employment, other than the physical demands of her job require prolonged standing and moderate lifting, and she does not have the physical and cognitive capacity to return to her employment duties. However, the applicant does not identify her pre-accident employment, nor does she explain the details regarding the essential duties of that employment or the reason she is unable to perform these tasks.
14The respondent submits that the applicant has not met her onus of establishing her entitlement to an IRB by satisfying the test under s. 5(1) of the Schedule. The respondent further submits that applicant has not provided income documentation from March 14, 2022 to August 10, 2022, which was requested pursuant to s. 33, and it is not liable to pay an IRB during the periods of non-compliance. In addition, the respondent submits that the applicant returned to work by April 19, 2022. The respondent submits that it advised the applicant by letter dated September 18, 2023, that her IRB was terminated as of August 10, 2022, because she had returned to work.
15I find that the Application for Accident Benefits (“OCF-1”) dated February 15, 2022, indicates that the applicant was employed as a nurse at Centenary Hospital in the 52-weeks before the accident. I further find that an Employer’s Confirmation of Income form (“OCF-2”) dated March 3, 2022, completed by Brynne Johnson, Human Resources Associate, at Scarborough Health Network, indicates the applicant receives sick benefits at 66.67% of her regular income and she is eligible for income continuation benefits. I find that the applicant advised her doctor and assessors that she returned to work in April 2022, and she has produced her work schedule, which indicates she returned to full-time, modified duties on April 19, 2022.
16I find that the applicant has not met her burden of proving on a balance of probabilities that she is entitled to an IRB of $400.00 per week based on a calculation of her pre-accident income less any post-accident income. I find that the respondent did not terminate the applicant’s IRB until September 18, 2023, when it advised the applicant that she was not eligible for an IRB after August 10, 2022, because she had returned to regular duties. I find that the clinical notes and records of Dr. Andrew Vellathottam, family physician indicate that the applicant was able to return to modified work by March 9, 2022, or April 4, 2022, and she had returned to work by April 19, 2022.
17Therefore, I find that the applicant has not established, on a balance of probabilities, that she is entitled to an IRB for the period from February 14, 2022 to August 10, 2022 because she continued to receive post accident income.
Quantum of IRB
18Although the applicant submits that she is entitled to an IRB in the amount of $400.00 per week from February 14, 2022 to August 10, 2022, she has made no submissions in support of a calculation of an IRB.
19The respondent submits that the applicant has not produced sufficient employment documentation within the production deadlines set out in the Case Conference Report and Order (“CCRO”) dated April 30, 2024. The respondent submits that it was unable to calculate an IRB beyond March 13, 2022, because the applicant did not produce the documentation before the deadline. The respondent submits that the applicant has only produced paystubs from Centenary Hospital up until March 13, 2022, and since she continued to receive income after the accident, there is no entitlement to an IRB.
20I find that the respondent made calculations of the applicant’s IRB based on paystubs it received up until March 13, 2022, which take into consideration the applicant’s post accident sick pay, and results in an IRB entitlement of nil. Further, since the applicant has not produced updated income documentation within the production deadlines, or offered a calculation of her IRB entitlement, the respondent is not liable to pay an IRB during the period of time this information remains outstanding. I find that although the applicant has included her paystubs for the period from March 13, 2022 to April 29, 2022 with her written hearing submissions, she has not offered any calculation of an IRB, and it appears she continued to receive sick pay until she returned to modified duties in April 2022.
21I find that since the applicant has not provided evidence of updated income documentation from her employment from March 13, 2022 to August 10, 2022, within the production deadlines, and she has not established that she is entitled to an IRB in the amount of $400.00 per week.
The respondent’s letter dated March 25, 2022 was proper
22The applicant submits that the respondent’s letter dated March 25, 2022 is non-compliant with s. 37(4) of the Schedule because the respondent gave vague and inadequate reasoning in its denial of an IRB.
23Section 37(4) of the Schedule states that if an insurer determines that an insured person is no longer entitled to receive an IRB on any one or more grounds set out in s. 37(2), the insurer shall advise the insured person of its determination and the medical and any other reasons for its determination.
24Section 37(2)(g) states that an insurer may discontinue paying a specified benefit where the insured person is not entitled to the specified benefit for a reason unrelated to whether he or she has an impairment that entitles the insured person to receive the specified benefit.
25The applicant submits that she is entitled to an IRB in the amount of $400.00 per week from February 14, 2022 to August 10, 2022, when she returned to regular duties. However, the applicant has not provided evidence of income documentation in support of her entitlement or a calculation of an IRB in an amount of $400.00 per week.
26The respondent submits that it sent a letter dated March 25, 2022 to advise the applicant that her IRB calculation for the period from February 14, 2022 to March 13, 2022 was nil, after deducting post accident sick time benefits on her paystubs. The respondent requested updated paystubs to make further calculations.
27I find that the March 25, 2022 letter was not a denial but rather a calculation of the applicant’s IRB based on the submitted income documentation. I find that the applicant has not provided evidence that she received an IRB or was entitled to an IRB in the amount of $400.00 per week. Therefore, s. 37(4) is not triggered because the applicant has not established that she was receiving an IRB, in the amount of $400.00 per week, and then she was no longer entitled to receive an IRB in that amount.
The applicant is not entitled to the disputed treatment plans and expenses
28Since I have found that the applicant’s accident-related injuries do not remove her from the MIG, it is not necessary for me to consider whether the plans and expenses are reasonable and necessary.
Section 38(8) of the Schedule
29As noted above, the focus of the applicant’s argument is that the respondent did not properly deny the five disputed treatment plans for assessments, including a psychological assessment, an attendant care assessment, a functional abilities evaluation, an optometric concussion assessment, and a chronic pain assessment, as well as two plans for chiropractic services in accordance with s. 38(8) of the Schedule.
30Section 38(8) of the Schedule provides that an insurer shall respond to a treatment and assessment plan within 10 business days of receiving it by identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment and assessment plan is not reasonable and necessary.
31If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11) 1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11) 2 provides that if an insurer fails to provide proper notice of the reasons for its denial it must pay for all incurred 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 notice as described in s. 38(8). See: Aviva General Insurance Company v. Catic, 2022 ONSC 6000.
32The Tribunal in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ONLAT), has recognized medical reasons for denial as specific details about the insured’s condition forming the basis for the insurer’s decision or identifying information about the insured’s condition that the insurer still requires. In addition, the insurer should refer to the specific benefit or determination at issue with the relevant section of the Schedule.
Sufficiency of the Respondent’s Denials of five OCF-18’s dated April 8, 2023 in the amounts of $4,011.50, $2,787.95, $3,616.00, $3,412.60 and $4,011.50
33The applicant argues that the five plans dated April 8, 2023 for the following assessments: a psychological assessment for $4,011.50; an attendant care assessment for $2,787.95; a functional abilities evaluation for $3,616.00 an optometric concussion assessment for $3,412.60; and a chronic pain assessment for $4,011.50, completed by Dr. Tobias Chung, chiropractor, of Meditecs Independent Medical Examinations were improperly denied by the respondent. The respondent wrote five letters to the applicant on April 18, 2023 denying the benefits, within 10 business days after receiving the plans on April 12, 2023. The applicant argues that the respondent’s denials of these plans do not comply with s.38(8) of the Schedule because they do not provide medical and other reasons for the denials.
34The applicant also submits that the respondent’s denials were generally improper and do not provide particulars regarding these plans.
35The respondent stated in its denial letters dated April 18, 2023, that the applicant’s list of injuries falls under the MIG, and the information provided does not support compelling evidence of a pre-existing condition that would prevent recovery under the MIG limit. The respondent made requests for further medical documentation in support of the applicant’s removal from the MIG.
36I find that the April 18, 2023 were valid denial letters. The respondent indicates that the applicant’s injuries fall under the MIG, and it had not received any objective medical information to support an injury to warrant removal from the MIG. The respondent further indicates that it previously requested medical information by letters dated July 4, 2022 and October 28, 2022 to determine whether she sustained a non-minor injury or a pre-existing condition that would prevent recovery under the MIG. The respondent states in the April 18, 2023 letters that it has not received the requested information.
37In my view, this rationale meets the standard set out in 17-003774/AABS v. Aviva Canada Inc, 2018 CanLII 84051 ON LAT (“Aviva”). While not binding on me, I find the following reasoning in Aviva to be persuasive “…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 decisions or, alternatively, identify information about the insured’s condition that the insurer does not have but requires.”
38Here, the respondent has requested information about the insured’s pre-existing conditions and accident-related injuries that the insurer does not have but requires to determine whether the applicant’s injuries fall outside the MIG. As such, I find the respondent’s reference to the MIG in the denial letter was a valid denial of the plan.
39In sum, I find that the April 18, 2023 were valid denial letters. I find that the respondent provided clear medical and other reasons in its notices, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I find these were clear and unequivocal denials. Although the applicant may disagree with the respondent’s stated reasons or its assessment of medical documentation, it does not render the notices invalid.
40I find on a balance of probabilities that the applicant has not met her burden to establish that these plans are payable under section 38.
Sufficiency of the Respondent’s Denial of OCF-18 dated June 27, 2022 for $3,285.00
41The applicant submitted a plan in the amount of $3,285.00, for chiropractic services and massage therapy, completed by Dr. Andrew Woo, chiropractor of Scarborough Rehabilitation and Physiotherapy Clinic. The respondent wrote to the applicant on July 4, 2022, denying the benefits, within 10 business days of receiving the plan on June 27, 2022.
42The applicant submits that it was an improper denial as it was based only on the MIG, and so the denial lacked a specific medical reason. I find that the July 4, 2022 was a valid denial letter. It indicates that the respondent requested specific medical documentation including: hospital records; CNR’s of the family physician, and treating health practitioners, psychologists and psychiatrists; decoded OHIP summary; prescription history; collateral benefits file; and Ontario Works benefit file. The respondent further stated that on review of the documents on file, the applicant’s injuries appeared to be minor and subject to the $3,500.00 limit. I accept that a “minor injury” as defined in the Schedule is a medical reason. 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.”
43I find that the July 4, 2022 letter was a valid denial letter. It indicates that the respondent has reviewed the medical information which does not support the applicant’s entitlement to medical and rehabilitation benefits beyond the MIG. In addition, the respondent has requested specific medical documentation is does not have but requires in determining whether the applicant’s injuries require treatment beyond the MIG limits. I find the respondent’s reference to the MIG or minor injury is a valid medical reason.
44Therefore, I find on a balance of probabilities that the applicant has not met her burden to establish that this plan is payable under section 38.
Sufficiency of the Respondent’s Denial of OCF-18 dated April 28, 2022 for $1,319.00
45The next plan in the amount of $1,319.00 for chiropractic services and massage therapy, completed by Dr. Andrew Woo. The respondent wrote to the applicant by letter dated May 5, 2022, within 10 business days of receiving the plan on May 5, 2022.
46The applicant submits that this plan was an improperly denial based on non-specific minor injuries and the MIG.
47The respondent submits that the plan for chiropractic services, in the amount of $1,319.00 was approved, subject to the MIG limits.
48I find that the May 5, 2022 letter approves the proposed plan up to the MIG limits, and after the claim for benefits is submitted to the collateral benefits carrier. The respondent did not deny payment of the plan, but rather advised the applicant she must submit her claim to her collateral carrier first. I note that $3,500.00 remained available as of May 5, 2022.
49Therefore, I find on a balance of probabilities that the applicant has not met her burden to establish that this plan is payable under section 38 since it was approved.
The applicant is not entitled to interest and an award
50Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule.
51Under 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.
52Since there are no benefits owing, there is no interest or an award payable to the applicant.
ORDER
53For the reasons set out above, I find that:
i. The applicant’s injuries are predominantly minor and therefore are subject to treatment within the MIG treatment limit.
ii. The applicant is entitled to treatment up to the MIG limits and, it is not necessary to consider whether the disputed plans and expenses are reasonable and necessary.
iii. The respondent’s denials of the five OCF-18’s dated April 8, 2022 for assessments; and an OCF-18 dated June 27, 2022 for chiropractic services were proper in accordance with s. 38(8) of the Schedule.
iv. The applicant is not entitled to an IRB, interest, or an award.
v. The application is dismissed.
Released: September 22, 2025
Lisa Holland
Adjudicator