Citation: Nelson v. Allstate Insurance Company of Canada, 2025 ONLAT 23-010744/AABS

Licence Appeal Tribunal File Number: 23-010744/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:

Bryan Nelson

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Kathleen Wells

APPEARANCES:

For the Applicant: Filipe Santos, Counsel

For the Respondent: Evan Argentino, Counsel

HEARD: By way of written submissions

OVERVIEW

1Bryan Nelson, the applicant, was involved in an automobile accident on September 1, 2021, 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, Allstate Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

Preliminary issue

2The preliminary issue in dispute is:

1. Is the applicant statute-barred from proceeding with his application to dispute entitlement to a non-earner benefit (NEB) by operation of section 55 of the Schedule because he failed to attend a properly scheduled insurer’s examination?

Substantive Issues

3The substantive issues in dispute are:

1. Is the applicant entitled to a non-earner benefit of $185.00 per week for the period from October 1, 2021 to September 1, 2023?

2. Are the applicant’s injuries predominantly a minor injury as defined in section 3 of the Schedule and therefore subject to treatment within the Minor Injury Guideline (MIG) and the $3,500.00 funding limit?

3. Is the applicant entitled to medical benefits proposed by 101 Physio as follows:

(i) $3,216.18 for physiotherapy proposed in a treatment plan/OCF-18 (“treatment plan”) dated September 15, 2021;

(ii) $2,460.00 for a psychological assessment proposed in a treatment plan dated October 6, 2021, and

(iii) $1,298.79 for physiotherapy proposed in a treatment plan dated October 10, 2023?

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

RESULT

Preliminary Issue:

4I find that the applicant is barred from bringing his application for an NEB.

Substantive Issues:

5I find that:

1. The applicant sustained primarily minor injuries and is subject to the MIG and its $3,500.00 limit.

2. The applicant not entitled to $3.216.38 for physiotherapy in a treatment plan dated September 15, 2021.

3. The treatment plan for $2,460 for a psychological assessment dated October 6, 2021 is payable in accordance with s. 38(11)

4. The applicant is not entitled to $1,298.79 for physiotherapy in a treatment plan dated October 10, 2023.

5. The applicant is entitled to interest on any overdue payments in accordance with s. 51.

ANALYSIS

PRELIMINARY ISSUE:

6I find that the applicant is barred from proceeding with his application for an NEB.

7Section 55(1) of the Schedule states than an insured person shall not apply to the Tribunal under s.280(2) of the Insurance Act, R.S.O. 1990, c. I.8 if the insurer has provided the insured person with notice in accordance with the Schedule that it requires an examination under s.44, but the insured person has not complied with that section. Section 55(2) permits an insured person to apply despite this non-compliance, subject to permission being granted by the Tribunal.

8Section 44(5)(a) states that, if an insurer requires an examination under this section, the insurer shall give the insured person a notice setting out the medical and any other reasons for the examination, whether the attendance of the insured person is required, the name of the person conducting the examination, any regulated health profession to which they belong including their titles, and designations indicating their specialization, if any. The notice must also include the day, time, and location of the examination and if the examination will require more than one day, the same information for the subsequent days is also required.

9While the respondent submits that the applicant should be barred from proceeding with his application for accident benefits before the Tribunal, the Case Conference Report and Order (CCRO), dated April 29, 2024 refers only to the applicant’s entitlement to a non-earner benefit. As such, I will consider only whether the applicant should be barred from proceeding with his application for an NEB, under s. 55 of the Schedule.

10The respondent submits that the applicant should be barred from proceeding with his application because he did not attend a scheduled s.44 examination (‘IE”) on December 8, 2021 or the rescheduled IE on January 12, 2022. The applicant has made no submissions with respect to the preliminary issue.

11I find that the November 12, 2021 notice of examination (“NOE”) for the December 8, 2021 IE and the December 20, 2021 NOE for the January 12, 2021 examination are both compliant with s. 44(5). The notices contain identical wording and identify that the purpose of the examination is to determine the applicant’s eligibility for an NEB, in addition to assessing whether the MIG applies and whether a treatment plan dated October 6, 2021 is reasonable and necessary. While the NOEs do not identify the applicant’s injuries, they set out that the respondent does not have sufficient supporting medical information to determine whether the applicant had sustained injuries that fell outside of the MIG, or the applicant’s eligibility for the benefits sought. The reason cited for the NEB is that, “after reviewing the medical information provided to date,” the respondent is unable to determine the applicant’s eligibility because it does not have sufficient information about his pre-accident activities, which I find sufficiently clear for an unsophisticated person to make an informed decision whether to dispute the notice.

12The respondent submits that the applicant was provided a notice of examination (“NOE”) on November 12, 2021 for an IE on December 8, 2021, and that the applicant had not provided a reasonable explanation or evidence to support his failure to attend the IE. I agree with the respondent that the faxes sent by the applicant’s counsel informing the respondent that the applicant would not attend the December 8, 2021 do not provide a reasonable explanation for his non-attendance. The first, dated November 21 2021, states that the applicant is “waiting for Section 25”, and the second, which was sent less than 24 hours before the scheduled IE, stated that the applicant had a conflict due to an appointment with a psychologist, but the applicant did not provide evidence that the appointment with the psychologist or any s. 25 examination took place. The respondent provided the applicant with a subsequent NOE on December 20, 2021 for a January 12, 2022 examination. The applicant did not attend, and did not provide a reason for his non-attendance.

13As such, I find that the applicant is barred from bringing his application for an NEB, because he did not attend a scheduled s. 44 examination without a reasonable explanation.

Substantive Issues:

Applicability of the MIG

14Section 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.”

15An 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.

16The applicant submits that he should be removed from the MIG because of the severity of his accident-related injuries, and because he has a psychological impairment. The respondent argues that the applicant has not met his onus to prove that his accident-related injuries warrant his removal from the MIG.

Physical Injuries

17I find that the applicant has not established that his physical injuries warrant his removal from the MIG.

18The applicant submits that he should be removed from the MIG because he complained of knee pain and was diagnosed with strains to his shoulder and forearm and advised to continue physiotherapy by Dr. Chin, on September 14, 2021. Dr Chin’s CNRs reveal no further complaints related to the accident.

19The treatment plan dated September 7, 2021 was prepared by Dr. Nikols, and identifies accident-related sprain and strain injuries of the spine, shoulder, and wrist, as well as headaches. I place less weight on the treatment plan, as it is only partially corroborated by Dr. Chin’s contemporaneous CNRs.

20I agree with the respondent that the applicant’s soft tissue injuries as identified by both Dr. Chin and Dr. Nikols, fall squarely within the MIG. As such, I find that the applicant has not met his onus to prove on a balance of probabilities that his physical injuries warrant his removal from the MIG.

Psychological Impairment

21I find that the applicant has not established that he has a psychological impairment as a result of the accident that warrants his removal from the MIG.

22The applicant submits that the applicant should be removed from the MIG because he has sustained a psychological injury as a result of the accident, and he has a history of “psychological issues” which were exacerbated by the accident. In addition to Dr. Chin’s CNRs, the applicant relies on the treatment plan of Dr. Konstantinos Papazoglou, psychologist, which contains a pre-screening assessment conducted by Camillo Restrepo, clinical counsellor, under the supervision of Dr. Papazoglou.

23I assign little weight to the treatment plan and pre-screening assessment report, because they are not supported by contemporaneous medical evidence. The report indicates that the applicant’s complaints of sleeping difficulties, nervous and anxious driving, and concerns related to his recovery from his physical injuries support a provisional diagnosis of Adjustment Disorder and recommends a psychological assessment. The pre-screening assessment was conducted by Mr. Restrepo by telephone, and it is not clear whether Dr. Papazoglou had any interaction with the applicant.

24Dr. Chin’s CNRs reveal that the applicant complained of insomnia on September 27, 2018 and April 4, 2019, following a previous accident in 2017, and was referred to a psychologist on both occasions As the respondent notes, the CNRs do not reflect any further psychological complaints in the more than two years prior to the September 1, 2021 accident, or after the accident, and the applicant has not directed me to any evidence that he received a psychological diagnosis or treatment. At the pre-screening assessment, the applicant told Mr. Restrepo that he had psychotherapy after a previous accident, but no further details were recorded in the report.

25Absent any corroborating medical or other evidence, I find the self-reports of the applicant to his assessors are insufficient basis for a finding that the applicant sustained a psychological impairment as a result of the September 1, 2021 accident.

26As such, I find that the applicant has not met his onus to prove on a balance of probabilities that he has an accident-related psychological impairment that warrants his removal from the MIG.

27The applicant remains within the MIG and its $3,500.00 funding limit.

28As I have found that the applicant remains within the MIG, it is not necessary for me to consider whether the treatment plans in dispute are reasonable and necessary.

29I will consider the applicant’s submissions with respect to whether the disputed treatment plans are payable under s. 38(11) of the Schedule.

30Sections 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.

31S. 38(9) provides an additional notice requirement. Under s. 38(9), if the insurer believes the MIG applies, the notice must advise the insured of that as well.

Is the applicant entitled to $3,216.18 for physiotherapy in a treatment plan dated September 15, 2021?

32I find that the treatment plan dated September 15, 2021 is not payable under s. 38(11).

33The applicant argues that the denial dated September 22, 2021 is not compliant with s.38(8) because the respondent does not identify the applicant’s injuries, and does not request specific information about the injuries that it does not have. The respondent counters that the medical reasons are sufficient because the applicant had not provided medical records.

34The applicant relies on Tribunal decision T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373. I agree with the reasoning in T.F. v. Peel Mutual, which sets out the following as to what “medical and any other reasons” requires:

In my view, an insurer satisfies its obligation to provide it’s “medical and any other reasons” whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. Therefore, it would be unwise to attempt to outline a comprehensive approach to doing so. Nevertheless, an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.

35I find that the EOB complies with s. 38(8), because the EOB is a clear an unequivocal denial, sets out the goods and services requested in the treatment plan, and provides an explanation of the MIG and the amounts previously approved, and remaining within the MIG. While the EOB does not identify the applicant’s injuries, it does explain that the respondent has not received any compelling medical evidence that the applicant’s injuries fall outside of the MIG, and requests that the applicant provide specific medical records if he disagrees with its determination. As such, I find that the EOB Is sufficiently clear and understandable for an unsophisticated person to make an informed decision whether to dispute the denial.

36For these reasons, I find that applicant has not met his onus to prove that the September 22, 2021 denial is payable due to non compliance with s.38 (8).

Is the applicant entitled to $2,460.00 for a psychological assessment in a treatment plan dated October 6, 2021?

37I find that the treatment plan dated October 6, 2021 is payable under s.38(11).

38The applicant submits that the October 26, 2021 denial of the treatment plan is not compliant with s. 38(8) because the respondent did not respond to the treatment plan within ten business days. The applicant further argues that the notice is not compliant with s. 38(9) because the respondent does not mention the MIG in the EOB.

39The respondent argues that, while the treatment plan was dated October 6, 2021, it was not submitted until October 19, 2021 and the respondent provided its response on the on October 26, 2021. The respondent submitted a copy of the treatment plan attached to the EOB indicates that it was submitted on October 19, 2021. Therefore, I find that the respondent informed the applicant of its denial of the treatment plan within 10 business days.

40However, I agree with the applicant that the EOB is not compliant with s.38(9) because it does not mention the MIG. I read s. 38(9) as adding to the notice requirement in s. 38(8) where the insurer believes the MIG applies, a compliant s. 38(8) notice must always include mention of the MIG.

41No evidence was submitted to indicate that a subsequent notice cured the non-compliant denial. As such, the treatment plan is payable under s.38(11) if incurred.

Is the applicant entitled to $1,298.79 for physiotherapy in a treatment plan dated October 10, 2023?

42I find that the October 10, 2023 treatment plan is compliant with s. 38(8), and therefore the treatment plan is not payable under s. 38(11).

43The applicant submits that the medical reasons in the denial were insufficient to satisfy s. 38(8). I disagree. While the EOB did not identify the applicant’s injuries, it noted that the respondent had no compelling evidence that the applicant had an ongoing impairment as a result of the accident and identified a list of records that the respondent required, and that had previously been requested under s.33. The EOB also referred the applicant to previous correspondence with respect to the requests for records under s.33, and explained that the respondent also required an explanation for the applicant’s non-attendance at previously scheduled s.44 examinations in order to re-schedule the examinations. I find that the EOB was a clear and unequivocal denial and contained sufficient detail for an unsophisticated person to decide whether to dispute the denial.

44For these reasons, I find that the October 26, 2023 EOB is compliant with s,38(8), and therefore the treatment plan is not payable under s. 38(11).

Interest

45Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest on any overdue payment in accordance with s.51.

ORDER

46I find that:

1. The applicant is subject to the MIG and its $3,500.00 funding limit.

2. The applicant is not entitled to $3.216.38 for physiotherapy in a treatment plan dated September 15, 2021.

3. The applicant is entitled to $2,460 for a psychological assessment in a treatment plan dated October 6, 2021.

4. The applicant is not entitled to $1,298.79 for physiotherapy in a treatment plan dated October 10, 2023.

5. The applicant is entitled to interest on any overdue payment in accordance with s. 51.