Citation: Shepherd v. Intact Insurance Company, 2026 ONLAT 24-012217/AABS

Licence Appeal Tribunal File Number: 24-012217/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:

Nickolene R Shepherd

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Maka Metreveli, Paralegal

For the Respondent:

Robbie Brar, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Nickolene Shepherd, the applicant, was involved in an automobile accident on June 19, 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.

PRELIMINARY ISSUE

2The preliminary issue in dispute is:

i. Is the applicant barred from proceeding to a hearing for the issue of entitlement to a non-earner benefit ("NEB") because the applicant failed to attend an insurer's examination ("IE") under s. 44 of the Schedule?

SUBSTANTIVE ISSUES

3The substantive 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 limit?

ii. Is the applicant entitled to a non-earner benefit of $185.00 per week from July 29, 2022 to August 28, 2023?

iii. Is the applicant entitled to $1,283.04 for chiropractic services, proposed by Bagheri Chiropractic Professional Corporation in a treatment plan submitted October 11, 2023?

iv. Is the applicant entitled to the assessment and services proposed by HM Medical Network Ltd. as follows:

1. $2,200.00 for a psychological assessment, in a treatment plan submitted October 4, 2023; and

2. $4,947.56 for psychological services, in a treatment plan submitted December 13, 2023?

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

RESULT

4I find the applicant is entitled to one day of NEBs plus interest.

5I find that the applicant's injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

6I find that the applicant is not entitled to the treatment plans in dispute.

PRELIMINARY ISSUE

The applicant failed to attend s. 44 assessments

7I find that the applicant is entitled to one day payment of NEBs due to the timeliness of the respondent's denial notice. I find that the applicant is statute barred from proceeding to the substantive hearing with respect to her claim for a NEB, because she failed to attend the IEs under s. 44 of the Schedule, and she did not provide a reasonable explanation for her non-attendance.

8Section 44(1) of the Schedule provides that, for the purposes of assisting an insurer to determine if an insured person is or continues to be entitled to a benefit for which an application is made, but no more than is reasonably necessary, an insurer may require an insured person to be examined by one or more persons chosen by the insurer who are regulated health professionals or who have expertise in vocational rehabilitation.

9Section 36(2) of the Schedule provides that an insured's application for a specified benefit shall include a completed Disability Certificate ("OCF-3") along with her application under s. 32 of the Schedule.

10Section 36(4) of the Schedule provides that within ten business days after the insurer receives the application and completed OCF-3, the insurer shall,

a. Pay the specified benefit;

b. Give the applicant a notice explaining the medical and any other reasons why the insurer does not believe that the applicant is entitled to the specified benefit and, if the insurer requires an examination under s. 44 relating to the specified benefit, advising the applicant of the requirement for an examination; or

c. Send a request to the applicant under subsection 33(1) or (2).

11Section 36(5) of the Schedule further states that if an insurer fails to comply with subsection (4) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed OCF-3 and ending, if the insurer subsequently gives a notice described in subsection (4)(b), on the day the insurer gives the notice.

12Section 55(1)2 of the Schedule provides that an insured person shall not apply to the Tribunal if the insurer has provided the insured person with notice that it requires an examination under s. 44, but the insured person has not complied. The onus is on the insured person to put forth a reasonable explanation for non-attendance at an IE. The Tribunal may, under s. 55(2) of the Schedule permit an insured person to apply to the Tribunal despite a failure to comply with s. 44, subject to terms and conditions.

13The applicant submitted an Application for Accident Benefits ("OCF-1") to the respondent on July 29, 2022 and a Disability Certificate ("OCF-3") on July 28, 2022.

14The respondent provided a denial notice with respect to the applicant's claim for NEBs on August 16, 2022. The letter notes:

In accordance with Section 36(4)(b) and Section 44 of the (SABS), we have arranged Insurer Examination(s) with qualified health practitioner(s) to help us determine if you are entitled to the Non-Earner Benefit.

The medical and all other reasons for these examinations include: To determine your initial entitlement to the Non-Earner Benefit.

15The four Notices of Examination, all dated August 16, 2022, advise of the Insurer Examinations ("IE") scheduled with Dr. Roy Baskind, Neurologist, on September 22, 2022, Nicholas Livades, occupational therapist, on August 30, 2022, Dr. Rakesh Ratti, psychologist, on September 27, 2022 and Dr. Edwin Urovitz, orthopedic surgeon, on August 29, 2022.

16The applicant attended the psychological and occupational therapy IEs as scheduled. She did not attend the neurological or orthopedic assessments.

17By correspondence dated December 19, 2022, the respondent advised the applicant that she had failed to attend the scheduled IEs on August 29, 2022 and September 22, 2022. These assessments were re-scheduled and were to take place on October 18, 2022, December 12, 2022, October 14, 2022 and December 12, 2022. It notes that it is prepared to re-schedule the IEs once the applicant confirms in writing that she will attend the re-scheduled appointments and a reasonable explanation for her non-attendance is provided.

18By letter dated August 28, 2023, the respondent noted the applicant's attendance at the IEs with Mr. Livades on August 30, 2022 and with Dr. Ratti on September 27, 2022. It notes that she was a no show for the orthopedic and neurological assessments. It advises that based on the two IE reports, "we have determined that you continue to be not eligible for the Non-Earner Benefit as you do not suffer a complete inability to carry on a normal life as a result of the accident". It then states, "Please discuss with your representative and advise if and when an Orthopedic Assessment and a Neurological Assessment should be rescheduled to address the Non-Earner Benefit."

19The applicant submits that the respondent's denial letter is insufficient because it did not explain "the medical reasons" as prescribed by s. 36(4)(b) of the Schedule and therefore it cannot rely on s. 55(1)2 of the Schedule. She submits that she is entitled to a NEB from July 29, 2022 to August 28, 2023.

20The respondent submits that as the applicant did not attend the orthopedic assessment and neurological assessment, she is in non-compliance with s. 44(1) of the Schedule. It argues that the applicant is conflating the medical rationale requirement for a typical denial of medical benefits with the request by an insurer that an insured person attend for an IE for determination of entitlement to specified benefits. The respondent submits that a medical rationale is not required when simply determining entitlement to the NEB, which is a specified benefit.

21In reply, the applicant argues that the respondent is non-compliant with s. 36(4) of the Schedule because it failed to send a timely response within the required 10 business day period and only replied 12 business days after receiving the completed OCF-3, thus rendering the notice noncompliant.

22I find that the applicant only raised the issue with respect to the timeliness of the respondent's denial notice in her reply. I find that this prevented the respondent from providing any submissions in reply. However, no motion was brought by the respondent to submit a sur-reply to provide responding submissions. I agree with the applicant, that she provided her OCF-1 on July 29, 2022 and the respondent provided its denial notice on August 16, 2022. Upon looking at the calendar and the Statutory Holiday on August 1, 2022, this means that the respondent's denial notice was provided 11 business days after submission of the OCF-1, which is one day late. The non-compliance of one day was then rectified by the respondent providing its denial notice on August 16, 2022. Pursuant to s. 36(5), the remedy for the respondent being one day late is that the applicant would be entitled to a NEB for the period of non-compliance. I therefore find that the applicant is entitled to payment of a NEB for one day.

23I find that the respondent's denial letter dated August 16, 2022 was a valid denial and satisfied the requirements of the Schedule. The letter set out the specified benefit in dispute and advised that the "medical and all other reasons" for the s. 44 assessments was to assess her initial entitlement to a NEB. I find that the respondent was only in a position to provide specific medical reasons for the denial upon receipt of the commissioned IE reports.

24I find that despite the applicant's arguments that the notice was insufficient, she still attended the scheduled psychological and occupational therapy assessments. I find that there is no evidence that the applicant communicated the reasons for her non-attendance at the neurological and orthopedic surgery IEs, she simply did not attend in contravention of the Schedule. The purpose of s. 44(5)(a) of the Schedule, is to protect an insured from unreasonable or unnecessary assessments, not to provide a shield for an applicant not to attend. The applicant provided no evidence or submissions that she viewed the assessments as unreasonable. I further find that the applicant has not provided a reasonable explanation for her non-attendance.

25For the reasons outlined above, I find that the applicant is entitled to payment of one day of NEBs due to the respondent's non-compliance with the timelines set out in s. 36(4) of the Schedule. I further find that the applicant is statute barred from proceeding to the substantive hearing with respect to her claim for a NEB, pursuant to s. 55(1) of the Schedule.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

26I 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.

27Section 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."

28An 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. In all cases, the burden of proof lies with the applicant.

29In this matter, the applicant did not provide specific submissions with respect to her removal from the MIG in her initial submissions and her submissions focused on the preliminary issue and her entitlement to the treatment plans in dispute.

30The respondent submits that the applicant's injuries are predominantly minor and do not warrant removal from the MIG. It relies upon the reports of its IE assessors, Dr. Ratti, dated August 17, 2023, December 21, 2023 and January 29, 2024; Mr. Livadas, dated August 17, 2023; and Dr. Mohamed Khaled, dated December 19, 2023. It further argues that there is a lack of any substantive and compelling medical evidence from the applicant to support removal from the MIG.

31In reply, the applicant addressed the submissions of the respondent with respect to her removal from the MIG. She submits that the Psychological IE report of Dr. Ratti, dated August 17, 2023 and the Psychological report of Dr. Julie Gosselin, dated November 8, 2023, both rendered diagnoses of Major Depressive Disorder and Anxious Distress, which are psychological injuries that fall outside of the MIG.

32I find that the applicant has not provided any submissions as to how her accident-related physical injuries fall outside of the MIG. I find that the only submissions made about her physical injuries is in respect to the treatment plan in dispute for physiotherapy. She argues that Dr. Rebecca Cohen's records note that she was suffering with left shoulder pain and injury as a result of the accident which was considered to be a chronic issue. She also refers to the left shoulder ultrasound completed in August 2023. Upon review of Dr. Cohen's CNRs, I find that the applicant was seen post-accident on June 20, 2022 with respect to her accident-related injuries. I find that despite the applicant subsequently seeing Dr. Cohen multiple times thereafter, none of these visits were for any accident-related injuries. It was not until October 16, 2023, that she reported left shoulder pain since the accident and Dr. Cohen noted "L shoulder injury s/p MVA – chronic issue, recently restarted physio, some limitations and functional impact". The applicant continued to see Dr. Cohen on an ongoing basis, but no physical complaints were made with respect to any accident-related injuries. I find that the applicant has not made any specific submissions that she suffers from a chronic pain condition as a result of the accident. Therefore, I conclude that the applicant is not removed from the MIG on the basis of any physical impairments or a chronic pain condition.

33With respect to the applicant's argument that she should be removed from the MIG based on her psychological impairments, I find that she has not proved removal from the MIG on this basis for the following reasons.

34I give significant weight to the CNRs of Dr. Cohen, who the applicant saw on multiple occasions post-accident with respect to her psychological complaints. The applicant submits that her visits to Dr. Cohen are significant for her anxiety and stress complaints that were caused by the accident. I find upon review of the CNRs from Dr. Cohen, that at her initial appointment post-accident on June 20, 2022, she reported "feels anxious about what happened". However, in the subsequent CNRs starting in June 2023, the applicant reported stress and issues due to her relationship with her partner, losing her job and moving in with her mother and there is no mention of any psychological complaints due to her involvement in the subject accident. I therefore find that while the applicant submits that she saw Dr. Cohen for her accident-related psychological complaints following the accident, these complaints were not accident related and instead centered on her relationship with her partner and life circumstances. I therefore do not find that Dr. Cohen's records support that the applicant suffered a psychological accident-related impairment.

35I find that there are competing opinions as to the applicant's psychological impairments from Dr. Ratti and Dr. Gosselin. I find that neither assessor relied on contemporaneous records from Dr. Cohen to support the applicant's psychological complaints. Neither assessor had a copy of Dr. Cohen's CNRs which clearly sets out the applicant's ongoing psychological complaints and the reasons for her reported psychological difficulties. I find that both assessors relied upon the self-reporting of the applicant and self-report measures to form the basis of the psychological testing, which is problematic because the applicant's self-reporting does not align with the records of Dr. Cohen. As a whole, this goes to the credibility of the self-reports made by the applicant and undermines the validity of the conclusions and diagnoses made.

36I do give weight to the Addendum report of Dr. Ratti, where he reviewed the report of Dr. Gosselin. He notes that Dr. Gosselin's report does not include any testing measures that contain validity scores. He further notes that the report does not reference a number of past and recent emotional stressors for the applicant, including traumatic childhood experiences, being fired from her job due to a "breakdown" at work which she attributed stress caused by hostile acts by the father of her younger children while she was separating from him, and harassment by his family members. He therefore concluded that there was no accident-related diagnosable condition at the time of assessment to remove the applicant from the MIG.

37While I do not deny that the applicant suffers a psychological impairment, I do not find that she has proven on a balance of probabilities that her psychological impairment is accident-related.

38For the reasons outlined above, I find that the applicant has not met her burden of proving on a balance of probabilities that she should be removed from the MIG.

Medical and Rehabilitation Benefits

39As I have found that the applicant has failed to prove that her accident-related impairments warrant treatment beyond the MIG limits, it is unnecessary for me to consider the reasonableness and necessity of the dispute treatment plans.

Interest

40Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I have found that the applicant is entitled to be paid one day of NEBs, interest is payable on that amount.

ORDER

41For the reasons outlined above, I find:

i. The applicant is entitled to one day of NEBs plus interest;

ii. The applicant's injuries are predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit; and

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