Citation: Mazour v. TD General Insurance Company, 2025 ONLAT 24-000078/AABS

Licence Appeal Tribunal File Number: 24-000078/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:

Julia Mazour

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Maka Metreveli, Paralegal

For the Respondent:

Jagdeep Khela, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Julia Mazour, the applicant, was involved in an automobile accident on October 3, 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, TD 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 described 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 the treatment and assessments proposed by 101 Physio, as follows:

1. $2,460.00 for a psychological assessment, in a treatment plan dated October 31, 2022;

2. $3,341.86 for psychological services, in a treatment plan dated December 21, 2022; and

3. $2,152.71 for chiropractic services, in a treatment plan submitted March 22, 2023?

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

3The Case Conference Report and Order (“CCRO”) dated June 6, 2024, lists issue 2 as, “Is the applicant entitled to $2,447.96 for chiropractic services, proposed by 101 Physio in a treatment plan submitted October 5, 2022?” The applicant advised in her submissions that this issue is withdrawn. Therefore, I have not included it as an issue in dispute.

RESULT

4The applicant’s accident-related injuries are predominantly minor as defined in s. 3 of the Schedule and therefore she is subject to treatment within the $3,500.00 limit of the MIG. The applicant is not entitled to the treatment plans in dispute or interest.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

5I find that the applicant sustained a minor injury as a result of the accident and, therefore, is subject to the $3,500.00 funding limit on treatment.

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) of the Schedule defines a “minor injury” as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

7An 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) of the Schedule, that they have a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal medical 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.

8The applicant submits that she should be removed from the MIG because she suffers from a psychological condition. The applicant relies upon the psychological assessment report prepared by Dr. Konstantinos Papazoglou, psychologist, dated December 12, 2022, where Dr. Papazoglou diagnosed the applicant with an adjustment disorder (with anxiety).

9The respondent submits that the medical evidence shows on a balance of probabilities that the applicant is suffering from predominantly minor injuries. The respondent submits that there is a lack of reference to any psychological injuries in the records provided by the applicant. It argues that the only clinical notes and records (“CNRs”) received from the applicant are from Dufferin Vaughan Medical Clinic from the day after the accident and from 101 Physio. The respondent submits that despite the CCRO ordering production of an OHIP summary, family physician CNRs, and any collateral benefits the applicant may be entitled through her employer/school, these records have not bee provided and an adverse inference should be drawn.

10The respondent further relies upon the Insurer’s Examination (“IE”) psychological assessment report of Dr. Amena Syed, psychologist, dated February 27, 2023, which opined that the applicant is not suffering from any psychological impairment that would warrant a diagnosis as per the DSM-5 as a result of the subject accident. The respondent notes that Dr. Syed reported that the applicant subjectively reported that she had feelings of sadness once every two weeks and rated her driver’s anxiety as a 5/10, although she continues to drive. The applicant stated that she felt 15% disabled from a psychological perspective.

11I find that the applicant has provided insufficient evidence to support that she suffers from a psychological condition that would remove her from the MIG. I find that apart from Dr. Papazoglou’s report, the applicant has not pointed me to corroborating evidence or CNRs that mention or reference her psychological complaints after the accident. I find that despite the CCRO ordering the applicant to provide the CNRs of her family physician and any health care practitioner seen from one-year pre-accident to date, the OHIP summary, and collateral benefit records, the applicant did not comply with this order and did not produce the requested documentation. The applicant has not provided any submissions as to why these documents were not provided.

12Upon review of the CNR from Dufferin Vaughan Medical Clinic, dated October 4, 2022, the applicant did not make any psychological complaints and there is a note that “psychological screen negative for depression/anxiety”. Upon review of the Disability Certificate (“OCF-3”), dated October 14, 2022, while under injuries it lists “reaction to severe stress, adjustment disorder”, there are no particulars provided and the OCF-3 was prepared by a chiropractor who is not qualified to assess psychological impairments. I therefore give little weight to the OCF-3. I find that the applicant has not pointed me to any additional medical evidence to support her psychological complaints following the accident.

13I find that upon review of the report of Dr. Papazoglou, that while she concluded that the applicant has developed emotional/psychological problems which are consistent with the ICD-10 diagnosis of an adjustment disorder (with anxiety), I find that the psychometric testing results are not sufficient to support this diagnosis. The applicant scored in the mild range of anxiety on the Beck Anxiety Inventory (BAI) and on this measure she did not severely endorse any of the items. On the Beck Depression Inventory (BDI-II), the applicant scored in the minimal range. In the Pain Catastrophizing Scale (PCS), she was determined to be low risk. In the Pain Disability Index (PDI), she was low risk for development of chronicity. For the Pain Patient Profile (P3), she scored in the average range for depression, anxiety, and somatic problems compared to other pain patients. For the Travel Anxiety Questionnaire (TAQ), the applicant reported that she does drive but restricts her speed

14I further find that while Dr. Papazoglou states that the accident has negatively affected the applicant’s activities of normal living and affected her function, she notes that the applicant had returned to work as a teaching assistant and social media manager, is able to return to her educational course albeit she has limited concentration and focus, has resumed light housekeeping and continues to be independent with matters of self care. The applicant has not provided sufficient submissions as to the actual functional limitations she claims to suffer as a result of the accident.

15I have no evidence before me that any treating practitioners or independent assessors other than Dr. Papazoglou provided a psychological diagnosis or any objective evidence that the applicant suffers from a psychological impairment as a result of the accident, nor any evidence that the applicant received any treatment for same.

16I find the IE report of Dr. Syed, persuasive. Dr. Syed noted in her report that the applicant stated that she felt 15% disabled from a psychological perspective. The applicant subjectively noted that she was feeling sadness once every two weeks and rated her driving anxiety as a 5/10, although she continues to drive. Dr. Syed concluded based on her examination and psychometric testing, that the applicant is not suffering from any psychological impairment that would warrant a diagnosis as per the DSM-5 as a result of the accident.

17The applicant challenges Dr. Syed’s report on the basis that it does not include underlying data or the actual test scores. In fact, I find that Dr. Papazoglou also did not provide the actual test scores, however I did not give her opinion less weight for this reason. I gave Dr. Papazoglou’s findings less weight because the test results themselves did not support the conclusions.

18I find that the applicant has not discharged her onus of establishing that she should be removed from the MIG, as the medical evidence does not support the existence of a psychological condition arising from the accident. I find that the presence of psychological symptoms as mentioned by Dr. Papazoglou, does not necessarily give rise to a psychological impairment to warrant removal from the MIG.

19For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that she suffers from a psychological condition as a result of the accident and therefore she is not removed from the MIG on this basis.

The applicant is not entitled to the disputed treatment plans

20Since 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 treatment plans in dispute are reasonable and necessary. I find that the applicant is not entitled to the disputed treatment plans.

The respondent’s denial of the treatment plan was compliant with s. 38(8) of the Schedule

21I find that the applicant has not proven on a balance of probabilities, that the respondent’s denial notices for the treatment plans dated October 31, 2022 and March 23, 2023, do not conform to the requirements of s. 38 of the Schedule.

22Section 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 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.

23If an insurer fails to comply with s. 38(8), the Schedule sets out two consequences under s. 38(11). First, an insurer 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 an insurer must 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 notice as described in s. 38(8).

24The Tribunal has recognized medical reasons for a 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.

Denial of the treatment plan dated October 31, 2022 for a psychological assessment

25The applicant argues that the treatment plan dated October 31, 2022, for a psychological assessment, was improperly denied by the respondent. The respondent advised the applicant by letter dated November 22, 2022, that the treatment plan was denied. The applicant argues that the respondent’s denial did not identify the issues listed in the psychological screening interview which she submits must be included in the medical reasons provided for the denial.

26I find that the November 22, 2022 letter was a valid denial letter. It indicates that the list of injuries previously described in the treatment plans submitted, which is set out in the letter, fall under the definition of minor injury, and the respondent has not received compelling evidence to indicate that the applicant’s injuries warrant removal from the MIG. As such, I find that the respondent’s reference to the MIG in the denial letter based on the injuries previously reported and listed in the letter was a valid denial of the treatment plan. I do not accept the applicant’s argument that the respondent was also required to identify the issues listed in the psychological screening interview when it was relying on previously submitted medical documentation to support the denial.

27I find that the respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons or its assessment of the medical documentation, it does not render the notice invalid.

28For the reasons outlined out above, I find on a balance of probabilities, that the applicant has not met her burden of proving that this treatment plan is payable under s. 38(11) of the Schedule.

Denial of the treatment plan dated March 22, 2023 for chiropractic services

29The applicant argues that the treatment plan dated March 22, 2023, for chiropractic services, was improperly denied by the respondent. The respondent advised the applicant by letter dated April 6, 2023, that the treatment plan was denied. The applicant argues that the respondent’s denial did not identify or describe the goods, services, or the examination described in the treatment plan. The applicant further argues that the respondent refers to the IE report only by date of the document without identifying the author or the speciality of the assessor. The applicant in her reply submissions argues that the respondent failed to mention specific medical reasons for the denial or the applicant’s condition and that referencing an earlier letter with a s. 44 assessment is not adequate to satisfy s. 38 of the Schedule. The applicant relies on the Tribunal decision in Campbell v. Aviva Insurance Company, 2021 CanLII 13194 (ON LAT) (“Campbell”).

30I find that the April 6, 2023 letter was a valid denial letter. The letter advises of the date of the treatment plan prepared by 101 physio dated March 22, 2023. It indicates that the treatment plan is denied based on the applicant’s injuries falling within the MIG based on the IE reports dated February 27, 2023, that had previously been provided to the applicant one month before on March 6, 2023. While the letter does not identify the names of the assessors who performed the IE assessments, I do not find that this is a necessary requirement because the respondent has clearly provided the date of the reports it is relying on with reference to the March 6, 2023 letter where the three assessors as well as the reasoning why the applicant was deemed to remain in the MIG are specifically set out. The letter further advises that as the applicant has reached the MIG limits, it was unable to approve the submitted treatment plan.

31While the applicant relies upon the decision in Campbell to support its position, I am not bound by previous Tribunal decisions. I find that the facts in Campbell are different from the facts before me. In Campbell, a defining reason for the notice being deficient was that the IE report was not enclosed in any of the insurer’s denial notices, despite it being referenced in each letter. In this matter, the respondent had provided a copy of the IE reports one month prior in its letter dated March 6, 2023, with a description of the assessor’s findings. In addition, while in Campbell it was found that the insurer did not sufficient identify the insured’s condition, I find that in this matter, the applicant’s injuries were identified as minor.

32I find that the respondent provided clear medical and other reasons in its notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I find this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons, it does not render the notice invalid.

33For the reasons outlined out above, I find on a balance of probabilities, that the applicant has not met her burden of proving that this treatment plan is payable under s. 38(11) of the Schedule.

Interest

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, the applicant is not entitled to interest.

ORDER

35For the reasons outlined out above, I find:

i. The applicant’s accident-related injuries are predominantly minor as defined in s. 3 of the Schedule and therefore she is subject to treatment within the $3,500.00 limit of the MIG;

ii. The applicant is not entitled to the treatment plans in dispute;

iii. The applicant is not entitled to interest; and

iv. The application is dismissed.