Citation: Sarkar v. Certas Direct Insurance Company, 2026 ONLAT 24-002551/AABS

Licence Appeal Tribunal File Number: 24-002551/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:

Hujefa Sarkar

Applicant

and

Certas Direct Insurance Company

Respondent

DECISION

ADJUDICATOR:

Kathleen Wells

APPEARANCES:

For the Applicant:

Sandy Williams, Counsel

For the Respondent:

Brendan Holness, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Hujefa Sarkar, the applicant, was involved in an automobile accident on April 25, 2019, 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, Certas Direct 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:

1. Is the applicant entitled to $1,753.00 ($2,486.00 less $733.00) for a psychological assessment, proposed by Downsview Healthcare Inc. in a treatment plan/OCF-18 (“plan”) submitted August 28, 2023?

2. Is the applicant entitled to $28,162.00 for a dental claim, proposed by Dental Metaverse in a standard dental claim form under s.38(4) of the Schedule submitted April 26, 2023 and denied November 16, 2023?

3. Is the applicant entitled to $25,097.00 for a dental claim, proposed by Dental Metaverse in a standard dental claim form under s.38(4) of the Schedule, submitted April 26, 2023 and denied November 16, 2023?

4. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3I find that:

1. The applicant is not entitled to a psychological assessment.

2. The applicant is not entitled to the Dental Claims in dispute.

3. As no payments are owing, no interest is due.

4. The applicant is not entitled to an award.

5. The application is dismissed.

PRELIMINARY ISSUE

The respondent is raising a new preliminary issue of whether the application was properly constituted because it was filed prior to the appointment of an estate trustee.

4The parties attended a Case Conference on June 19, 2024, and determined the issues in dispute on consent. The substantive issues are set out in the Case Conference Report and Order (“CCRO”), dated June 27, 2024, which does not include a preliminary issue in dispute. The respondent has not directed me to evidence that it took steps after the issuance of the CCRO to add a preliminary issue or that it was arguing that the application was not properly constituted because it was filed prior to the appointment of an estate trustee.

5In its submissions, the respondent contends that the application should be dismissed because the application was not properly constituted and is an irremediable nullity. The insured passed away on February 17, 2024, due to causes unrelated to the accident, and that the application was filed eleven days later on February 28, 2024. The respondent submits that because a litigation guardian was not appointed until July 8, 2024, more than four months after the application was filed, the application was filed when there was no person lawfully authorized to act on behalf of the insured.

6The respondent further submits that it was not informed that the applicant was deceased prior to the filing of the application until it received a copy of his death certificate on February 18, 2025, however the respondent has not made submissions or directed me to evidence that it took any action to file a motion, or to inform the applicant that it intended to raise the issue at the hearing in the four months prior to the filing of its submissions for this hearing.

7I find that the respondent is attempting to raise a new preliminary issue because it is not listed in the CCRO. Further, I find that it would be highly prejudicial to the applicant if the respondent was allowed to raise this new preliminary issue in its responding submissions, as the applicant did not have notice and was deprived of the opportunity to fully consider and prepare for this issue in advance of the hearing.

8As the purpose of the Schedule is to provide accident benefits to individuals while balancing the parties’ rights to a fair adjudication of their dispute, I have decided to disallow the new issue raised by the respondent. I find that it would be procedurally unfair to require the applicant to defend against an issue for which it did not have notice in advance of the hearing.

PROCEDURAL ISSUE

Applicant’s Motion to exclude evidence

9The applicant requests that the November 6, 2023 s. 44 report of Dr. Earl Madger, dentist, be excluded from evidence because the respondent did not comply with the CCRO, by not providing the applicant with Dr. Madger’s complete file, and by not providing the adjuster’s log notes by 45 days after the case conference, or August 4, 2024. The applicant received the file on December 27, 2024.

10The respondent argues that it was compliant with the CCRO, which places the onus on providing a signed authorization with the applicant. in his reply submissions, the applicant argues that the respondent was required to provide an authorization form, and that the applicant had given verbal consent at the case conference.

11Here, I agree with the respondent. The CCRO requires the respondent to provide the applicant with Dr. Madger’s complete file “upon receipt of an authorization form,” and the applicant has not provided me with evidence to suggest that the respondent did not comply with a request for an authorization form.

12With respect to the lateness of the adjuster’s log notes, the respondent argues that its disclosure was sent to the applicant on July 27, 2024, and that the applicant did not inform the respondent that there was a problem with the disclosure until December 4, 2024. The respondent provided the disclosure on December 5, 2024, and provided copies of the email submissions. The applicant has not explained how he was prejudiced by the late disclosure of the adjuster’s log notes.

13For these reasons, I decline to exclude Dr. Madger’s IE report

ANALYSIS

14To receive payment for a treatment and assessment plan under s. 15 and 16 of the Schedule, the applicant bears the burden of demonstrating on a balance of probabilities that the benefit is reasonable and necessary as a result of the accident. To do so, the applicant should identify the goals of treatment, how the goals would be met to a reasonable degree and that the overall costs of achieving them are reasonable.

15The purpose of an assessment is to determine whether a condition exists. For an insured, they bear the onus to demonstrate that there are grounds on which to believe that a condition exists that would warrant further investigation by way of an assessment.

Is the applicant entitled to $1,753.00 ($2,486.00 less $733.00) for a psychological assessment in a treatment plan submitted August 28, 2023?

16I find that the applicant has not established on a balance of probabilities that there is reason to believe that a psychological assessment is warranted.

17The treatment plan, prepared by Dr. Jacqueline Brunshaw, psychologist, is dated August 28, 2023 and seeks $2,486.00, comprising $2,000.00 for a psychological assessment, $286.00 in taxes, and $200.00 for the completion of the OCF-18 form. The remaining amount in dispute is $1,753.00.

18The applicant submits that the assessment is warranted, because, his symptoms had worsened in the more than two years since Dr. Brunshaw’s April 28, 2021 psychological assessment, The applicant relies on Dr. Brunshaw’s pre-screen which was included in the comments section of the OCF-18, wherein Dr. Brunshaw noted that the applicant is experiencing psychological symptoms including irritability, frustration and depression. The applicant also relies on the January 16, 2023 s. 25 orthopaedic assessment of Dr. Henry Ahn, orthopaedic surgeon, who opined that the applicant was experiencing heightened anxiety, increased difficulty with focus and concentration, and sleep disturbance.

19The respondent argues that the assessment was denied because it was duplicative of the previous assessment, and that the applicant had not sought psychological treatment in the intervening two and one-half years since the assessment.

20While I agree with the applicant that a re-assessment could be indicated by worsening psychological symptoms, I find that the evidence does not establish that the applicant’s symptoms have worsened since the previous assessment.

21I assign little weight to Dr. Brunshaw’s pre-screen report, as it is not clear whether Dr. Brunshaw conducted the interview. Further, Dr. Brunshaw does not refer to her previous assessment, or opine on whether the applicant’s symptoms had worsened since 2021.

22The applicant argues that Dr. Ahn reviewed Dr. Brunshaw’s April 28, 2021 psychological assessment report and that his use of the adjectives “increased” and “heightened” indicate that the applicant’s symptoms had worsened in the intervening time. Dr. Ahn listed Dr. Burnshaw’s 2021 assessment report in the list of documents he reviewed, however he did not reference it, or its findings in the body of his report, nor did he opine on the duration or course of the applicant’s psychological symptoms.

23Further, the Tribunal has long held that a treatment plan must be supported by contemporaneous, corroborating medical evidence, and the applicant has not directed me to evidence of any contemporaneous psychological complaints to his treatment providers, or that the applicant has undergone any psychological treatment since his previous 2021 assessment that would corroborate worsening symptoms and the need for a second treatment plan for a psychological assessment.

24As a result, I find that the applicant has not met his onus to prove on a balance of probabilities that a psychological assessment is reasonable and necessary.

Is the applicant entitled to $28,162.00 for a dental claim, in a standard dental claim form under s.38(4) of the Schedule and is the applicant entitled to $25,097.00 for a dental claim, in a standard dental claim form under s.38(4) of the Schedule, both dated April 26, 2023?

25I find that the $28,162.00 and $25,097.00 for dental treatments proposed in the standard dental claim forms (“treatment plans”) dated April 26, 2023 are not payable pursuant to s. 38(11) of the Schedule.

26The applicant does not make submissions with respect to whether the dental claims are reasonable and necessary, rather he submits that the respondent’s November 16, 2023 denial letter is not compliant with s.38(8) of the Schedule, and therefore payable under s.38(11).

Section 38

27Sections 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.

28If an insurer fails to comply with its obligations under s. 38(8), the following consequences set out in s. 38(11) of the Schedule are triggered:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

2. The insurer shall 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 a notice described in subsection (8).

29The applicant submits that the that the respondent’s November 16, 2023 denial letter is not valid because the respondent relied on Dr. Madger’s IE report, which the applicant argues is flawed. While the applicant may disagree with the respondent’s reasons, it is not necessary for those reasons to be legally accurate for the denial to comply with s. 38(8), see Turner v. State Farm Mutual Automobile Insurance Co., 2005 CanLII 2551 (ON CA).

30The applicant fuirther submits that the denial letter is not compliant because it is “poorly and confusingly written” and does not contain a statement that the treatment plan is not reasonable and necessary, and the explanation is not adequate for an unsophisticated person to make an informed decision whether to dispute the denial.

31The respondent submits that the dental forms were properly denied, because the notice clearly states that they were denied based on the findings of the November 6, 2023 s. 44 report of Dr. Earl Madger, dentist, who opined that there was no indication that the applicant required treatment as a direct result of the accident.

32I agree with the respondent, and find that the denial letter is compliant with s.38(8). The denial provides a summary of Dr. Madger’s findings, which identify the applicant’s injuries and his opinion that there was no indication that the injuries were directly related to the accident as a reason for the denial. Further, the denial letter directs the applicant to Dr. Madger’s attached s.44 report. Contrary to the applicant’s submission, the denial letter also includes a statement that the dental claim form is not reasonable and necessary, stating:

Hence I am unable to approve the recommendations submitted on the two Standard Dental Claim Forms, dated April 26, 2023, completed by Dr. Vikhar Ahmed (Dentist) of Dental Metaverse, for $28,162 and $25,097.00 as they are not reasonable and necessary, of a medical nature and essential for your treatment as a result of the subject accident.

33Further, the denial letter includes information about the applicant’s right to dispute the denial and the process by which to do so. Overall, I find that the denial letter is sufficiently clear and understandable for an unsophisticated person to make an informed decision whether to dispute the denial.

34Accordingly, I find that the amounts of $28,162.00 and $25,097.00 are not payable in accordance with s. 38(11).

Interest

35Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As no payments are owing, no interest is due.

Award

36The 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. The Tribunal has determined that an award is justified where the delay or withholding of benefits by the insurer is unreasonable conduct, meaning “behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate.” The onus is on the applicant to prove, on a balance of probabilities, that the respondent’s conduct meets these criteria.

37The applicant submits that the respondent failed to adjust the respondent’s file with respect to the dental plans, because it did not respond to the applicant’s submissions of the treatment plans, which were initially submitted on July 7, 2023, and again on August 8, 2023 by email. The applicant submits that multiple phone calls and voicemail messages were not returned by the adjuster. The respondent did responded to the September 12, 2023 email submission of the dental forms on September 13, 2023 and scheduled an IE. The applicant further submits that the respondent did not appropriately update its log to reflect the correspondence.

38The respondent argues that it did not consent to accept the applicant’s dental claim forms by email, and the submissions were therefore invalid under s. 64 (2)(e) of the Schedule.

39While I agree that the applicant’s email correspondence from July 7, 2023 and August 8, 2023 does not appear to have been recorded in the respondent’s log notes, the applicant does not provide evidence of the time and contents of any unreturned voice mails or calls to the respondent, or any evidence that the applicant requested consent to submit his dental claims by email.

40Further, I found above that the dental claims are not payable under s. 38(11), and the applicant has not made submissions or directed me to any evidence that the dental claims are reasonable and necessary as a result of the accident.

41As I have found that the applicant is not entitled to the treatment plans in dispute, and the applicant has not directed me to evidence that the respondent’s conduct has met the high bar of behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate to attract an award, I find that the applicant is not entitled to an award.

ORDER

42I find that:

1. The applicant is not entitled to a psychological assessment.

2. The applicant is not entitled to the dental claims in dispute.

3. As no payments are owing, no interest is due.

4. The applicant is not entitled to an award.

5. The application is dismissed.