Licence Appeal Tribunal File Number: 24-008848/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:
Marvin Walker
Applicant
and
Co-operators General Insurance Company
Respondent
DECISION
VICE-CHAIR:
Robert Maich
APPEARANCES:
For the Applicant:
Mehrdad Michael Salehi-Moghaddam, Counsel
William Coke, Counsel
Lily Rodriguez, Paralegal
For the Respondent:
Sonya Reid, Counsel
Lloyd Inglis, Representative
HEARD: In Writing
OVERVIEW
1Marvin Walker, the applicant, was involved in an automobile accident on December 23, 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, Co-operators General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2This application was filed on July 16, 2024.
3A case conference was held on November 24, 2024.
PRELIMINARY ISSUE
4Is the applicant barred from proceeding to a hearing for the following benefits: 1, 6, 7 & 8 as listed in the application, herein listed below as issues [5]2, [5]5, [5]6iii and iv, because the applicant failed to dispute their denial within the 2-year limitation period?
ISSUES
5The issues in dispute are:
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? Note: The parties agree the MIG limits have been exhausted.
Is the applicant entitled to a non-earner benefit (“NEB”) of $185.00 per week from January 28, 2022, to date and ongoing?
Is the applicant entitled to $2,560.00 for psychological services, proposed by 101 Assessment Centre in a treatment plan dated September 6, 2022?
Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessment Centre in a treatment plan dated September 1, 2022?
Is the applicant entitled to $2,460.00 for a psychological assessment, proposed by 101 Assessment Centre in a treatment plan dated February 7, 2022?
Is the applicant entitled to the chiropractic services proposed by Mackenzie Medical, as follows:
i. $1,417.70, in a plan dated July 7, 2022;
ii. $1,417.70, in a plan dated August 16, 2022;
iii. $3,795.50, in a plan dated December 28, 2021; and
iv. $2,026.55, in a plan dated May 12, 2022?
Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6The applicant is not barred from proceeding to a hearing for the benefits listed as issues [5]2 and [5]6iv, because the applicant failed to dispute their denial within the 2-year limitation period.
7The applicant is barred from proceeding to a hearing for the benefits listed as issues [5]5 and [5]6iii, because the applicant failed to dispute its denial within the 2-year limitation period.
8The applicant’s injuries are not predominantly minor as defined in s.3 of the Schedule and therefore are not subject to treatment within the $3,500.00 MIG limit.
9The applicant is entitled to a NEB of $185.00 per week from January 27, 2022, to May 27, 2022.
10The applicant is entitled to $2,560.00 for psychological services, proposed by 101 Assessment Centre in a treatment plan dated September 6, 2022.
11The applicant is entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessment Centre in a treatment plan dated September 1, 2022.
12The applicant is entitled to $1,417.70 for chiropractic services, proposed by Mackenzie Medical in a plan dated July 7, 2022.
13The applicant is entitled to $1,417.70 for chiropractic services, proposed by Mackenzie Medical in a plan dated August 16, 2022.
14The applicant is entitled to $2,026.55 for chiropractic services, proposed by Mackenzie Medical in a plan dated May 12, 2022.
15The respondent is not liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
16The applicant is entitled to interest on any overdue payment of benefits.
PRELIMINARY ISSUE
17The respondent raised the preliminary issue that the applicant is barred from proceeding to a hearing for the benefits described as issues [5]2, [5]5, [5]6 iii and [5]6 iv, because the applicant failed to dispute their denial within the 2-year limitation period.
Limitation Period for NEB - Issue [5]2
18The respondent submitted that the applicant had notice of the denial of benefits for NEB, listed above as issue [5]2, as of March 2, 2022 or alternatively May 27, 2022 or July 6, 2022 at the latest. However, the application with the Tribunal was filed on July 16, 2024, which the respondent argues is outside the two-year limitation period. Section 56 of the Schedule provides that an application to the Tribunal in respect of a benefit shall be commenced within two years after the respondent’s refusal to pay the amount claimed.
19In order for the provision under section 56 to be triggered, the respondent must have provided a proper notice of denial, in accordance with the principles set out in Smith v. Co-operators General Insurance Co., (“Smith”) 2002 SCC 30. Pursuant to Smith, the refusal to pay the benefit must contain straightforward and clear language, it must be directed towards an unsophisticated person, it must outline the dispute resolution process and the relevant time limits that govern the process.
20Specifically, the respondent submitted it received the applicant’s OCF-3 on March 2, 2022 requesting both income replacement benefit (“IRB”) and NEB; the respondent submitted on the same date it advised the applicant was ineligible for either specified benefit due to insufficient information and made a s.33 request. After receiving partial information from the applicant, the respondent advised the applicant remained ineligible for either benefit and made a further s.33 request. The respondent further requested by letter of June 1, 2022 an insurer’s examination in respect of NEB entitlement, scheduled for June 14, 2022, which the applicant attended. The insurer issued a notice of denial of benefit for NEB by letter of July 6, 2022.
21The applicant submitted that the Schedule imposes a limitation period from the date of denial that is subject to the principle of discoverability: when the insured knew or ought to have known the material facts giving rise to the claim as per Tomec v. Economical, 2019 ONCA 882. Further, the applicant submitted that the Schedule is consumer protection legislation and absent a clear denial, the limitation period does not begin to run as in Pioneer Corp. v. Godfrey, 2019 SCC 42.
22I find that a notice of denial accompanied by a request for information or a notice of insurer examination is not a clear and unequivocal denial, rather, it is an interim denial pending further information. The insurer’s duty to continually adjust requires it to make informed decisions about insured benefits and may cause an insurer to change its position depending on the results of further information requested or an examination. In light of this duty, a notice of denial of benefit accompanied by either request for information or insurer examination cannot be found to be a denial from which an insured could reasonably know to the test to be met as the situation is still fluid. I find that Pioneer Corp. v. Godfrey, 2019 SCC 42 firmly binds this Tribunal to fix a limitation date from when discoverability occurred. A limitation period cannot run until an unequivocal denial is issued that is not accompanied by a request for further information or notice of insurer examination; discoverability does not become certain and known until the matter is fully investigated and an unequivocal notice of denial of benefit is issued.
23I find in this circumstance the notices of denial accompanied by a request for further information as issued by the respondent on March 2, 2022 and May 27, 2022 together with the notice of examination of June 1, 2022 cannot serve as dates from which the limitation period can run as it is not an unequivocal notice of denial of benefit. The notice of denial issued by the respondent on July 6, 2022 is the first notice of denial sent to the applicant with the medical reason for the denial of benefit as per s.36 of the Schedule, unlike the additional information request and insurer examinations accompanying the previous notices. However, there are complicating factors whether a denial of benefit was delivered with the faxed letter of July 6, 2022.
24I note the Schedule specifies at s.64(19)(e) that a notice delivered by fax must state in the fax confirmation the date and time the fax was sent. I further note there is no evidence before the Tribunal to indicate compliance with this requirement of the Schedule for the notice of denial dated July 6, 2022, however, the balance of the notices of denial produced herein contain a fax confirmation compliant with this s.64(19)(e). I note neither party made submissions in respect to s.64 compliance and the Tribunal will not comment further other than to identify the inconsistency in the manner of production with respect to the notices of denial before it.
25I note the respondent in its letter of August 17, 2022 issued a notice of denial of NEB after consideration of an activities of normal life questionnaire completed by the applicant on August 2, 2022. This calls into question if the July 6, 2022 notice of denial is an unequivocal notice of denial since it is obvious from the insurer’s August 17 correspondence that NEB was still under consideration
26Given the Schedule is consumer protection legislation and subject to the interpretation directive of the Supreme Court of Canada in Pioneer Corp. v. Godfrey, 2019 SCC 42 that binds this Tribunal, I am compelled to find that the applicant received an unequivocal notice of denial of benefit for NEB delivered on August 17, 2022; it is from this date when a valid unequivocal notice of denial of benefit occurs, that discoverability also occurs and the limitation period must run. I find the application herein was filed on July 9, 2024 within the two year limitation period running from August 17, 2022 as prescribed by s. 56 of the Schedule; accordingly, I find the issue of NEB is not statute barred.
Limitation Period for Issues [5]5, [5]6 iii and iv
27The respondent submitted issues [5]5, [5]6 iii and iv are beyond the two year limitation period; and further, there is no justification for the Tribunal to extend the limitation period in respect to any of the issues. The respondent submitted the applicant has not answered the four factor test from Manuel: Manuel v. Registrar, 2012 ONSC 1492 (“Manuel test”); the respondent cited the Manuel test from Fratarcangeli v. North Blenheim, 2021 ONSC 3997, at para. 81 , and Singh v TD General, 2023 CanLII 9245, at para. 9.
28The applicant conceded late filing but submitted section 7 of the Licence Appeal Tribunal Act grants the Tribunal discretion to extend the limitation under s.56 of the Schedule where reasonable grounds exist. The applicant also relied upon Fratarcangeli for the proposition that the LAT has jurisdiction to grant an extension to the limitation period in appropriate cases and cited, Singh v TD General, 2023 CanLII 9245, for the Manuel test. The applicant submitted the Tribunal must take a fact-specific, fairness-based approach, especially where denial was unclear or the insured believed the benefit was still under review.
29The Manual test comprises of four factors to be considered: 1) bona fide intention to appeal, 2) length of delay, 3) prejudice, 4) merits of the appeal.
30The applicant submitted a timetable with explanation for each benefit in dispute to address the Manuel test. Specifically, he conceded issue [5]5, a claim of $2,460.00 for a psychological assessment in a treatment plan dated February 7, 2022, denied February 22, 2022 is a significant delay, however the treatment plan remains relevant and is well supported by the medical evidence; issue [5]6 iii, a claim of $3,795.50 for chiropractic services in a plan dated December 28, 2021, denied January 14, 2022 is a significant delay, but the issue remains relevant and is well supported by the medical evidence; and issue [5]6 iv, a claim of $2,026.55 for chiropractic services in a plan dated May 12, 2022, denied May 27, 2022 is not significant delay and but remains relevant and well supported by the medical evidence. I understand the applicant’s wording of “remains relevant” in his submissions is meant to address whether these plans are reasonable and necessary.
31The applicant submitted there was a bona fide intention to appeal demonstrated through continued engagement with the respondent in respect to the treatment plans in dispute.
32The applicant conceded the delay was significant for bringing the appeal of issues [5]5 and [5]6iii, but submitted the delay was due to a change in counsel; and in respect to issue [5]5 the delay also involved the timing of an assessment. The applicant submitted the delay for issue [5]6iv was minor at less than two months.
33The applicant submitted there is no demonstrative prejudice to the respondent by extension of the limitation periods.
34The applicant submitted there are strong merits to the appeal supported by medical evidence based upon relevance; however, I note the applicant did not direct the Tribunal to any specific medical evidence to consider. I find a general basket statement of a proposition with a general statement of the existence of supporting evidence without directing the Tribunal to specific evidence is of no assistance to the Tribunal or the advocating party, it is merely an invitation for the Tribunal to construct a submission on behalf of the advocating party; the Tribunal cannot construct argument for any party as to do so would run against procedural fairness.
35The respondent submitted the applicant did not demonstrate an intention to appeal, that the delays in filing an appeal were significant and that it would be prejudiced if the benefits in issue proceeded as it may have ordered further surveillance and may have scheduled further examinations if it had known the issues in dispute would be appealed; the respondent also submitted the appeals were without merit.
36I find the applicant did not demonstrate a bona fide intention to appeal as it did not direct the Tribunal to any evidence of the alleged continued engagement and communication with the respondent in respect to the treatment plans in dispute.
37I find the applicant conceded that the delay was significant for issues [5]5 and [5]6iii. I find a change in counsel after the limitation period had passed is not a compelling reason for delay; the limitation period had passed, changing counsel cannot cure it. However, I find the delay of less than two months in respect to issue [5]6 iv, to be a minor delay of no significance.
38I find no procedural or actual prejudice was demonstrated to the respondent. I note the respondent submitted that it was deprived of the opportunity to obtain surveillance, however I do not find opportunity for surveillance to be an issue of procedural fairness that would prejudice the respondent, rather I find it is a tactical litigation decision that may or may not have been utilized. The respondent also submitted it may have scheduled further examinations if it had known the issues in dispute would be appealed. I find the respondent had examined the applicant on the issues in dispute in May, 2023 and no further reports by the applicant were submitted after that time; in essence there was no new evidence requiring a reply by the respondent. I find the respondent had the most recent medical reports in respect to the issues in dispute; in effect, I find the respondent had the last word on the relevant medical reports. If there is any prejudice to the respondent, I find it is mitigated by the absence of any new evidence.
39I find that the applicant’s submissions on the merit of the appeal to be focused on relevance, and the lack of medical evidence referenced in support of the appeal’s merits is deficient to discharge its onus. It is not enough for the applicant to merely state the appealed treatment plans are relevant to the applicant’s injuries and issues in dispute, the applicant must direct the Tribunal to some specific medical evidence to support merits of the appeal. The medical evidence need not be extensive nor is it necessary to demonstrate that the applicant would succeed on a balance of probability analysis to establish merit to the appeal; however, the medical evidence must be sufficient to tie the medical need to the applicant’s condition in order to be persuasive to the Tribunal that there is merit to the appeal; this onus functions as a low bar screening test for merit. I find the applicant did not meet his burden to establish that the appeals have merit.
40I find not all four factors need be present for a limitation period to be extended by the Tribunal, however, I find insufficient favourable factors to meet the Manuel test for issue [5]5 and [5]6iii; the Tribunal declines to extend the limitation period as I find the applicant did not establish a reason for the delay or that there is merit to the appeal; the issues remains statute barred.
41In respect to issue [5]6 iv, the Tribunal will extend the limitation period because the delay is found to be minor at less than 2 months and any prejudice to the respondent is minor, as the respondent was not excluded from a committed course of action to answer the issue in dispute and the respondent was the last party to examine the applicant on the issue in dispute.
42I find issue [5]6iv may be heard with the balance of the issues in dispute.
PROCEDURAL ISSUES
Did the applicant’s written submissions exceed page limits and if so, is it permissible?
43The respondent submitted that pages 11 through 13 of the applicant’s written submissions should be excluded because it contains legal arguments and exceeded the page limit prescribed in the Case Conference Report and Order (“CCRO”) of November 29, 2024.
44The applicant submitted that the tables contained in pages 11 through 13 of its written submission are evidence, not legal argument, and should not be excluded as the evidence contained is essential to his case and he would be significantly prejudiced by its exclusion. The applicant submitted the tables contained in pages 11 through 13 contains a summary of facts and includes evidence relating to the Manuel test (or Singh factors as described by the applicant); to exclude the pages would severely prejudice the applicant. Conversely, the applicant submitted that the respondent did not demonstrate if it suffered any prejudice.
45I find that the tables outlined in pages 11 through 13 of the applicant’s written submissions contains mostly facts that are generally not in dispute. However, I note two examples wherein applicant included both evidence and legal argument; specifically, the “Singh Factor Table” and “Table 6 Applicant’s AMA Guides Evidence”. I find that creating tables in an appendix cannot function to extend a party’s page limits as prescribed in a CCRO.
46I find that the “Singh Factor Table” relates primarily to a limitation period preliminary issue. I also note that this table lacked specific references to documents referred to as medical evidence. I conclude much of the material that ran to argument was not helpful to the Tribunal or the applicant’s case as it lacked specific references to medical evidence connecting the submission to the applicant’s injuries; it is of limited probative value and is of marginal prejudice, if any, to the respondent. However, the table is factual in tabulating the timeline of the issues in dispute; in this regard the table is helpful to the Tribunal and will only be referenced for timelines.
47I find Table 6 relates to substantive issues about the applicant’s condition and expert opinion evidence that is subjective in part and contains conclusions tied to expert opinion, evidence that the runs to the heart of the applicant’s submissions. This table occupies approximately two-thirds of a page and extends the applicant’s submissions by a minimal amount, I will permit it under the Tribunal’s discretion pursuant to the Rules as two thirds of a page extra submissions by the applicant is of minimal prejudice to the respondent, but its exclusion would operate to almost entirely exclude the applicant’s submissions on a substantive issue. I also note that the first page and a half of the applicant’s submissions restated the issues in dispute and did not include any substantive argument.
48I also find the attached tables in the appendix attract the same analysis as exceeding the limits of the CCRO as in the main body of its written submissions. I also find the use of appendices cannot serve to expand prescribed page limits.
Does the Redactions of Adjuster Log Notes Constitute a Breach of Procedural Fairness and Disclosure Obligations?
49The applicant submitted that the respondent heavily redacted adjuster log notes and files without explanation for the redactions as required in the CCRO; this practice is a breach of disclosure rules and undermines procedural fairness in a benefits dispute. The applicant submitted the insurer’s internal communications have been redacted without a disclosed justification; the applicant submitted it is prejudiced by the unidentified redactions as the content may be directly relevant to the issues in dispute.
50The applicant submitted that an adverse inference should be drawn from the redactions particularly relating to the timing or denial of benefits or the rationale for doing so. Specifically, pages 153-229 addressing NEB are heavily redacted breaching disclosure obligations and procedural fairness in absence of the reasons being disclosed for the redaction. Pages 194-229 cover the period December 24, 2021 through February 24, 2022, but there is no record of when the OCF-3 was received; page 193 notes a March 2, 2022 response and page 194 contains a misstatement identifying a s.33 request due March 16, 2022 that does not match the date on the corresponding letter. The applicant states these gaps raise serious concerns as to how/when the OCF-3 was received and handled. In addition, the applicant submits any adjuster log note directly related to the issues before the Tribunal should be struck for procedural unfairness.
51The respondent asserted litigation privilege in reply to the submissions of the applicant.
52I find an adverse inference may be drawn by the Tribunal depending on the specific context of the redaction, although I find it difficult to envision how an adverse inference against the respondent may rise out of a redacted log note. Nevertheless, the Tribunal will address any adverse inference in respect to redactions in the context of the analysis of the issues in dispute should this issue arise. Further, I find the absence of reasons for redactions of the adjuster’s log notes do not relieve the applicant from its burden to prove the treatment plans are reasonable and necessary.
ANALYSIS
NEB
53I find the applicant is entitled to an NEB of $185.00 per week from January 28, 2022 to May 27, 2022.
54Pursuant to section 12 of the Schedule, the applicant must suffer a complete inability to carry on a normal life as a result of and within 104 weeks of the accident in order to qualify for NEBs. The test for NEBs involves a consideration of the applicant’s activities and life circumstances pre-accident and compares them to his activities and life circumstances post-accident. Sustaining serious injuries or minor life changes does not automatically entitle the applicant to NEBs. Rather, according to the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), he must demonstrate that his life circumstances have changed and that the change must be significant enough to continuously prevent him from substantially engaging in all the activities that he engaged in before the accident.
NOTICE OF DENIAL - SECTION 36 COMPLIANCE ISSUES
55The applicant submitted that the OCF-3 was submitted to the respondent and received by the respondent on January 27, 2022; however, the respondent not reply until March 1, 2022 in violation of s.32(2)(d), s.35(1) and s.36(4) of the Schedule. Further, the applicant submitted he was in compliance with the respondent’s s.33 requests and was entitled to benefits until a procedurally valid denial was delivered by the respondent. The applicant also submitted the respondent delivered an OCF-9 and a denial letter on June 1, 2022 that were defective pursuant to the requirements of s.44(5) of the Schedule, because it did not disclose a medical reason and only referred to the letters of May 27, 2022 and June 1, 2022, nor did the respondent’s subsequent letter of July 6, 2022 cure the defect; further no procedurally valid denial has been issued to date and the payment of the benefit should continue to run from January 28, 2022.
56The respondent submitted that the notices of denial of NEB were in compliance with the Schedule. The respondent submitted that s.32(2)(d) did not apply in the circumstances as the applicant qualified for neither NEB nor IRB.
57I note the provisions of s.32(2)(d) of the Schedule applies to an OCF-1, not an OCF-3; also s.44(5) applies to IE notices, not NEB notices. Further, I note the statutory requirement to provide medical and any other reasons regarding NEBs is pursuant to s.36(4)(b) of the Schedule.
58The respondent submitted it was not required to deliver election forms to the applicant because he was not entitled to either benefit. I disagree, respondent decided under the provisions of the Schedule that neither benefit was payable, therefore the provisions of s.35(1) do apply; this is not correct. The provisions of s.35(1) clearly state “may qualify” and triggers the insurer’s obligation under the Schedule to provide information. However, I find a violation of s.35(1) of the Schedule does not result in an insurer obligation to pay.
59The respondent also submitted that it was in compliance with its obligations pursuant to s.36(4) of the Schedule by its letter of March 2, 2022 which provided reasons why the applicant was not entitled to NEB and included a s.33 request for information. Further, the respondent submitted the applicant’s OCF-3 was not submitted on January 28, 2022 as the applicant submitted, but on March 2, 2022; the respondent relies upon the adjuster’s log notes at pages 193 and 194 of its materials.
60I have reviewed the adjuster’s log notes at pages 193 and 194 of the respondent’s materials and find it does not establish the OCF-3 was received by the respondent on March 2, 2022. Further, I find the OCF-3 was faxed to the respondent on January 27, 2022 by Mackenzie Medical as evidenced by the fax transmission page and fax transmission copy with date/time stamp of January 27, 2022 at 13:15. I further find that the respondent replied to the OCF-3 on March 1, 2022 at 23:02:42 by attached letter dated March 2, 2022. I find March 2, 2022 is the effective service date of the response as it was faxed past 5:00pm on March 1, 2022 past the service cut-off time prescribed by s.64 of the Schedule making March 2, 2022 the effective service date.
61I have previously found the respondent’s notice of denial of benefit letter of March 2, 2022 was not an unequivocal denial of benefit. I have reviewed the respondent’s letter of March 2, 2022 advising of a denial of IRB or NEB pending fulfillment of requested further information due by March 16, 2022.
62I find the respondent’s letter of March 2, 2022 was not a valid request for further information under s.33 of the Schedule as it did not identify the Schedule as its authority to make the request; rather the insurer referred to s.33 of the “policy” which I find confusing and unclear.
63I find the respondent was in breach of s.36(4) as it failed to request further information or pay the benefit within 10 days of the OCF-3 submitted January 27, 2022 triggering an insurer obligation to pay NEB.
64I find it was not until May 27, 2022 that the respondent made a valid request for further information pursuant to s.33 of the Schedule as it correctly and precisely stated its authority for the request.
65I find that the respondent’s letter of May 27, 2022 cured the respondent’s obligation pursuant to s.36(4) of the Schedule triggered by the OCF-3 submitted on January 27, 2022.
66I find the applicant is entitled to NEB from January 27, 2022 until May 27, 2022 for the above stated reasons.
SUBSTANTIVE ISSUE OF THE NEB TEST
67The applicant made no submissions as to his substantive entitlement to NEBs under s. 12 of the Schedule, other than to assert that he was entitled to this benefit and to direct the Tribunal to the clinical notes and records (“CNRs”) of Dr. Go from 2018 through 2022, the Mackenzie Medical file, the applicant’s activities of normal living checklist (“ANL-C”) dated August 4, 2022 and the report of Dr. Papazoglou, psychiatrist, dated August 9, 2022.
68I have reviewed the report of Dr. Papazoglou who found negative changes to the applicant’s activities of daily living and affective functioning. As a consequence of the impairments, he no longer is employed as he cannot sustain the physical movements required for work stocking goods in a grocery store. He is no longer able to engage in housekeeping as prior to the accident but engages in light duties with family assistance required but with pain and physical restrictions. He is somewhat independent with self-care but requires more time and support with showering as opposed to full independence prior to the accident. He no longer maintains a social lifestyle and does not engage in social activities or hobbies with friends, preferring to stay at home.
69I note Dr. Papazoglou’s observations are based upon the applicant’s self-reporting and without the benefit of reviewing objective testing and observations of an occupational therapist or similar qualified health care professional. Dr Papazoglou also found the applicant to have sustained a complete inability to carry on the activities of normal living from the above outline of his analysis. I find Dr. Papazoglou’s analysis in this area to be quite brief with limited detail to support his conclusions; accordingly, I determined Dr. Papazoglou’s report requires independent medical evidence to corroborate his finding of a complete inability to carry on a normal life.
70I have reviewed Dr. Go’s CNRs in this regard as well and find only one reference to the applicant’s pre-accident condition in the year prior to the accident noting self limited walking due to back pain; I note diagnosis of chronic pain as far back as 2018. Post accident notes are limited to five entries from one week post-accident to roughly every three months in 2022, with each visit noting neck, shoulder and back pain similar to the pre-accident note of neck shoulder and back pain.
71I find Dr. Go’s CNRs lack sufficient detail to corroborate Dr. Papazoglou’s finding that the applicant sustained a complete inability to carry on the daily activities of normal living. Accordingly, I assign little weight to Dr. Papazoglou’s finding that the applicant sustained a complete inability to carry on the daily activities of normal living.
72The respondent submitted that the applicant did not discharge his onus to establish entitlement to NEB. Further, the respondent submitted that the applicant did not provide sufficient information to apply the test in Heath v. Economical Mutual Insurance Company, 2009 ONCA 391 (“Heath”), at paragraphs 49-50. Specifically, the respondent submitted that the applicant’s medical records one year prior to the accident is limited to one entry wherein Dr. Go noted the applicant was walking for half an hour twice a week but had to limit himself due to back pain. Further, the respondent submitted this sole notation in the applicant’s medical record is insufficient to describe his pre-accident condition in order to compare it with his post-accident condition as required in the Heath analysis.
73In addition, the respondent submitted that the insurer’s report by Dr. Zabieliauskas, physiatrist, dated June 28, 2022 contained inconsistencies with the applicant’s reporting as compared to his self-reporting with Dr. Papazoglou, suggesting exaggeration of symptoms. Specifically, the applicant reported to Dr. Zabieliauskas that he was independent pre-accident in his personal care and would exercise on a treadmill in contrast to the more limited activity reported to Dr. Papazoglou.
74I find Dr. Zabieliauskas physiatry report has a more detailed history of the applicant’s physical issues as compared to the psychological report of Dr Papazoglou; I find this to be in the usual course as the applicant’s physical issues are not the primary focus of a psychological assessment. I find it is understandable that the detail on physical issues varies due to the distinct types of assessments conducted in each report, and do not find the reports to be inconsistent in a manner as the respondent suggests.
75I previously noted the applicant made no substantive submissions on the Heath test for entitlement to NEB, I nevertheless have reviewed the applicant’s psychology report by Dr. Papazoglou as referenced by the respondent and find its object is focused on the issue of the MIG and does not directly make a finding on the NEB test.
76I previously assigned little weight to Dr. Papazoglou’s finding that applicant sustained a complete inability to carry on the daily activities of normal living. I find that the applicant has not meet his burden to demonstrate he applicant sustained injuries as a result of the accident that resulted in a complete inability to carry on the daily activities of normal living.
77Further, I find the applicant has not made sufficient submissions detailing his pre-accident activities or the extent to which he was prevented from engaging in those activities post-accident. I note the Tribunal cannot construct a legal argument or submissions on a party’s behalf. I find the applicant has not discharged his onus to establish entitlement under the NEB test.
78I find the applicant has not meet its onus and is not entitled to NEB after May 27, 2022.
79The period for NEB between January 27, 2022 and May 27, 2022 has previously been addressed and awarded for Schedule compliance reasons found in the previous section of this decision at paragraphs [55] through [66].
MIG
80I find the applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and therefore not subject to treatment within the $3,500.00 MIG limit.
81The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.
82An 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.
83The onus is on the applicant to demonstrate that he sustained an injury that is not included in the minor injury definition outlined in section 3 of the Schedule.
84The applicant submitted Dr. Go diagnosed him with chronic pain pre-accident and since 2018, accompanied by depression, anxiety, sleep issues, and functional impairment that significantly impacts daily activities.
85The applicant further submitted that the Tribunal should apply the criteria for chronic pain under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 6th edition (“Guides”) to assess whether the severity warrants removal from the MIG, based on the medical records.
86The applicant submitted he would meet 3 to 4 of the criteria in the Guides as listed in Table 5 of his materials with the applicant’s evidence in Table 6. I note the applicant made no specific submissions as to what Guides criteria he meets or what specific evidence in Table 6 is to be considered. The applicant submitted:
“Dr. Go diagnosed the applicant with CP since 2018, accompanied by depression, anxiety, sleep issues, and functional impairment that significantly impacts daily activities. The applicant submits that the Tribunal should apply the Guides criteria for CP to assess whether the severity warrants removal from the MIG, based on the medical records.
By using these criteria, the Tribunal can make findings of fact to determine whether the applicant meets the definition test under s. 3 of the Schedule or [“for”] taking out of the MIG.”
87The applicant submitted the accident exacerbated his pre-existing chronic pain causing a direct impairment and that the accident need not be the sole cause of an injury, but a necessary one citing Sabadash v. State Farm et al., 2019 ONSC 1121.
88I have reviewed the applicant’s evidence in Table 6 of his materials and summarized as follows:
i. The applicant has ongoing functional impairment, requiring help with self-care and household tasks, he avoids work, mobility, and social activities due to pain, low mood, and lack of motivation, has difficulty walking due to back pain, chest pain, and risk of syncope;
ii. He has withdrawn from employment and no longer participates in social events with family or friends or recreational activities like golf, cricket, walking, and his relationship with his partner has deteriorated and he distances himself from her to avoid arguments, limited driving further restricts social interaction;
iii. He tried returning to work but could not continue beyond one day due to pain and psychological symptoms; he requires assistance with self-care and household tasks, nor has he resumed hobbies or social activities and limits driving to short essential trips, pain remains unchanged preventing a return to pre-accident roles; and
iv. Dr. Papazoglou’s report noted he has not regained prior levels of personal or occupational functioning, his impairments limit employability, reduce competitiveness, and interfere with recreational activities and psychological well-being.
89Upon extensive review of Table 5 and Table 6 of the applicant’s submissions together with paragraphs [17], [18] and [19] representing the totality of his written submissions in respect to MIG, I find the applicant’s legal argument for removal from the MIG is non-specific, unclear and indiscernible.
90The respondent submitted that the applicant seeks to be removed from the MIG on the basis of chronic pain syndrome or chronic pain with functional impairment or psychological impairment. The Tribunal is obligated to review and comment on the submissions of both parties.
CHRONIC PAIN SYNDROME or CHRONIC PAIN & FUNCTIONAL IMPAIRMENT
91The respondent submitted that an applicant may be removed from the MIG due to the development of chronic pain syndrome (“CPS”) which is defined as “severe, debilitating pain accompanied by a functional impairment” by the LAT. The respondent also submitted that the applicant has not established he has functionally impairing pain as a result of the accident; further the applicant in his submissions admitted Dr. Go diagnosed him with chronic pain in 2018, approximately three years prior to the 2021 accident.
92I find the CNRs of Dr. Go and Mackenzie Medical are the sources of evidence available for corroborative independent medical evidence. I have reviewed the CNRs of Dr. Go and find that pre-accident he noted in November 2020 the applicant had complained of pain in lower back, neck, across shoulders, headaches, increased pain with physical activity, and constant pain with relief from medication, on at least 18 office visits since 2016; however, I also note my previous finding that the applicant only visited Dr. Go only once in the year prior to the accident.
93I find the post accident CNRs of Dr. Go indicate exacerbation of previous symptoms with pain now constant with functional impairments detailing full rotation of neck with pain, shoulder abduction and flexion to 90 degrees with pain and unable to achieve 180 degrees, full interior/exterior extension, pain in entire left arm, numbness in bicep area and unable to lift with right arm. I have also reviewed the applicant’s file with Mackenzie Medical and note that it is consistent with the clinical notes and records of Dr. Go.
94I find the medical evidence of Dr. Go establishes pre-existing chronic pain, exacerbated post-accident with new physical functional limitations due to the accident, specifically detailed as shoulder abduction and flexion limited to 90 degrees and unable to achieve 180 degrees and an inability to lift with the right arm. I find Dr. Go’s medical evidence established a finding of chronic pain with functional impairment.
95I find the applicant has sustained an injury of chronic pain with functional impairment as a result of the accident and is removed from the MIG.
PSYCHOLOGICAL IMPAIRMENT
96The respondent submitted that the applicant has not established a psychological impairment as the report of Dr. Papazoglou is not corroborated by any independent medical evidence; it argues the Tribunal regularly declines to remove applicants from the MIG in situations when there is no supporting medical evidence and the s.25 report is not corroborated by independent medical records. The respondent cites and relies upon 16-004033 (C.A.) v The Dominion of Canada General Insurance Company, 2017 CanLII 63662 (ON LAT), at paras. 27-30.
97The respondent submitted that it was not necessary to introduce medical evidence to impugn Dr. Papazoglou’s report; rather the respondent submitted there was no corroborative medical to evidence to support his findings and as such the report was insufficient for the applicant to discharge his onus; the respondent relied upon 16-004033 (C.A.) v The Dominion of Canada General Insurance Company. The respondent submitted the applicant should not be removed from the MIG as the evidence it relied upon was insufficient to discharge his onus.
98I have reviewed the report of Dr. Papazoglou with a view towards the respondent’s submissions and note the measures and procedures included a clinical interview and objective psychological testing measures, however the report does not include a medical record review.
99Specifically, Dr. Papazoglou applied the following tests with the accompanying reported results:
i. Beck depression inventory second edition (“BDI-II”) scored severe; Beck anxiety inventory (“BAI”) scored severe;
ii. pain catastrophizing scale (“PDS”) scored high risk for development of chronicity;
iii. pain disability index (‘PDI”) score indicated significant disability from chronic pain;
iv. pain patient profile (“P3”) score indicated an invalid profile with the assessor’s notation that due to the patient’s candid manner the result was likely attributable to patient’s level of distress, as opposed to over endorsement of symptoms in an attempt to malinger;
v. travel anxiety questionnaire (“TAQ”) scored in various categories from some anxiety to moderate anxiety to severe anxiety.
100I note Dr. Papazoglou found the applicant did not report a history of mental health problems prior to the accident, and he noted the applicant reported he sustained injuries in a prior accident that he did not fully recover from at the time of the accident. Dr. Papazoglou also noted the applicant reported that despite rehabilitation treatment he continued to experience pain and physical limitations, as well as sleep disturbances and lack of restorative sleep resulting in significant daytime fatigue.
101I further note Dr. Papazoglou diagnosed the applicant with psychological problems consistent with ICD-10 diagnosis of adjustment disorder with mixed anxiety and depressed mood, specific isolated phobia driving/passenger and somatic symptom disorder (“SSD”) with predominant pain.
102I find Dr. Papazoglou’s evidence to be significant in respect to his objective testing and results of the BDI-II, BDI, PDS, PDI, TAQ and P3. However, the result of the P3 as invalid profile is a cause for concern and exposes an inconsistency of reporting in the assessment.
103I find the respondents submissions persuasive that inconsistency in Dr. Papazoglou report triggers an analysis in line with 16-004033 (C.A.) v The Dominion of Canada General Insurance Company, specifically the inconsistency exposed with the P3 profile as invalid taken together with the absence of a medical record review. I find these circumstances beg for corroboration of symptoms with other independent medical evidence to support Dr. Papazoglou’s diagnosis of adjustment disorder with mixed anxiety and depressed mood, specific isolated phobia driving/passenger and somatic symptom disorder SSD with predominant pain in accordance with 16-004033 (C.A.) v The Dominion of Canada General Insurance Company.
104I also find Dr. Go’s CNRs corroborate the post-accident physical symptoms detailed in Dr. Papazoglou’s report that he noted as self-reported by the applicant. I also take notice that chronic pain is a condition that may lead to the development of SSD and I accept Dr. Go’s finding of chronic pain as sufficient corroboration of symptoms that contributed to Papazoglou’s diagnosis of SSD with predominant pain. Accordingly, I assign significant weight to Dr. Papazoglou diagnosis of SSD with predominant pain.
105I find the applicant sustained a psychological injury of SSD with predominant pain as a result of the accident and is removed from the MIG.
106I find based upon the evidence before the Tribunal and for the above stated reasons, that the applicant has sustained an injury that is not a minor injury as defined in s. 3 of the Schedule and therefore not subject to treatment within the $3,500.00 MIG limit.
Legal Test
107To 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.
Is the applicant entitled to $2,560.00 for psychological services, proposed by 101 Assessment Centre in a treatment plan dated September 6, 2022?
108I find that the applicant is entitled to $2,560.00 for psychological services, proposed by 101 Assessment Centre in a treatment plan dated September 6, 2022.
109The applicant submitted the respondent’s denial did not comply with its obligations pursuant to s. 38(8) of the Schedule, as its denial did not rely upon medical reasons and only contained procedural reasons. Therefore, the applicant argues that this plan is payable pursuant to s.38(11) of the Schedule.
110Section 38(8) requires an insurer to inform an insured person, within 10 business days after it receives the treatment plan, of the medical and other reasons why it considered the goods and services not to be reasonable and necessary if it denies a plan. Pursuant to s. 38(11), if an insurer fails to comply with its obligations under section 38(8), it must pay for the goods and services that relate to the period starting on the 11th business day after the insurer received the application and ending on the day the insurer gives a notice described in s. 38(8) and it is prohibited from taking the position that the insured person has a impairment to which the MIG applies.
111The respondent submitted that it properly denied the plan and valid notice was given in compliance with s.38(8) of the Schedule as the applicant was treatable within the MIG; accordingly, s.38(11) does not apply.
112I find the respondent’s notice of denial of benefits was in compliance with s.38 of the Schedule as it disclosed MIG as the medical reason along with insufficient evidence from Dr. Go to determine otherwise.
113The applicant submitted post-accident, he developed psychological impairments. The purpose of psychological services proposed in the treatment plan is to address the applicant’s symptoms and to improve coping skills and restore his pre-accident functioning. The applicant further submits that the plan is reasonable and necessary as it targets pain-related anxiety and daily functioning issues.
114The respondent submitted the plan is not reasonable and necessary and put the applicant to his onus as he bears the burden of proof. The respondent further submitted that an OCF-18 is not sufficient evidence to meet the applicant’s onus.
115I find the goal of the treatment plan to return to activities of normal living to be reasonable and necessary with response to treatment to be evaluated by clinical observation and upon completion of the treatment plan a comprehensive reassessment to monitor progress. I find this evidence sufficient for the applicant to meet his burden.
Is the applicant entitled to $2,460.00 for a neurological assessment, proposed by 101 Assessment Centre in a treatment plan dated September 1, 2022?
116I find that the applicant is entitled to $2,360.00 for a neurological assessment, proposed by 101 Assessment Centre in a treatment plan dated September 1, 2022.
117The applicant submitted the respondent’s denial did not comply with its obligations pursuant to s.38(8) of the Schedule, as the denial was too vague.
118The respondent submitted that it properly denied the plan and valid notice was given in compliance with s.38(8) of the Schedule as the applicant was assessed to be treatable within the MIG.
119I find the respondent’s notice of denial was in compliance with s.38 of the Schedule as it disclosed MIG as the medical reason for the denial and also cited insufficient medical evidence from Dr. Go to find otherwise.
120The applicant submitted post-accident, he developed psychological impairments including adjustment disorder, specific phobia, and SSD together with Dr. Go’s diagnosis of chronic pain. The purpose of a neurological evaluation is to gather information to assess the applicant’s pain; this is supported by the family doctor’s notes. The applicant further submits that the plan is reasonable and necessary as it targets pain-related anxiety and daily functioning issues with the goal to improve coping skills and restore his pre-accident functioning.
121The respondent submitted the plan is not reasonable and necessary and puts the applicant to his onus as he bears the burden of proof. The respondent further submitted that an OCF-18 is not sufficient evidence to meet the applicant’s onus. In the alternative, the respondent submitted that the applicant is limited to $2,000.00 for an assessment pursuant to the Schedule.
122I find the applicant’s submissions to be persuasive in part; I find the goals of pain reduction and return to activities of normal living to be reasonable and necessary and it is reasonable for the applicant to undergo a neurological assessment to determine the extent of the neurological component to his current condition. I find the CNRs of Dr. Go identified symptoms that warrant further investigation through a neurological assessment; I find this evidence sufficient for the applicant to meet his burden.
123In respect to the $2,000.00 limit recoverable for an assessment, I find the respondent’s submissions persuasive in part; while the Schedule limits assessment fees to $2,000.00, additional fees are permitted for administrative filing of the OCF-18 at $200.00; also, HST is not inclusive of the $2,000.00 assessment limit and is properly claimed at $160.00 on the OCF-18 for the $2,000.00 assessment; however the identified sums total $2,360.00 without any indication of how the total of $2,460.00 requested on the OCF-18 was reached.
124I find applicant is entitled to $2,360.00 for a neurological assessment, proposed by 101 Assessment Centre.
Is the applicant entitled to the chiropractic services proposed by Mackenzie Medical, as follows: i. $1,417.70, in a plan dated July 7, 2022; ii. $1,417.70, in a plan dated August 16, 2022; iv. $2,026.55, in a plan dated May 12, 2022?
125I find that the applicant is entitled to the chiropractic services proposed by Mackenzie Medical, as follows: i. $1,417.70, in a plan dated July 7, 2022; ii. $1,417.70, in a plan dated August 16, 2022; and iv. $2,026.55, in a plan dated May 12, 2022.
126The applicant submitted the respondent failed to address the core elements of each plan’s goals, its relevance to the applicant’s ongoing symptoms, and whether the plan served the applicant’s best interests, including whether it duplicated prior treatment; he argues the omissions render the denials procedurally deficient, legally inadequate, and substantively unresponsive to the applicant’s needs triggering the provisions of s.38(11) of the Schedule.
127The respondent submitted that it properly denied the plan and valid notice was given in compliance with s.38(8) of the Schedule as the applicant was treatable within the MIG.
128I have reviewed the notices of denial of the treatment plans herein and find all notices to be in compliance with the provisions of the Schedule. The notices disclose a medical reason for the denial as conceded by the applicant; the respondent is not held to such a standard the medical reason(s) for the denial need be correct, the notice serves to allow the applicant to know what medical evidence must be addressed in the event of an appeal; consequently I find the notices of denial of benefits do not trigger the provisions of s.38(11).
129The applicant submitted the chiropractic treatment plans are reasonable and necessary as follows:
i. The chiropractic and massage therapy proposed treatment plan with goals for neck and back pain reduction, improving cervical and lumbar ROM, increasing strength and addressing sleep disturbances with provocation testing to identify pain sites to guide targeted therapies such as stimulation, manual therapy, and manipulation to provide symptom relief with functional goal of returning to activities of normal living;
ii. The proposed treatment plan for massage and exercise clearly set out goals for accident-related pain reduction, increased ROM and increase in strength for the purpose of returning to activities of normal living;
iii. The chiropractic and massage therapy proposed treatment plan set out the goals of pain reduction, increased ROM, and increased strength for the purpose of returning to the activities of normal living.
130The applicant submitted the need for the treatment plans are supported by the medical evidence of continuous and ongoing pain as noted in Dr. Go’s CNRs outlined in Table 4 of his submissions. Dr. Go’s notes confirm chronic and continuous myofascial pain affecting the back, neck and shoulders with functional limitations as a result of the accident. Specifically, the accident aggravated symptoms and led to severe flare ups and functional limitations impacting activities of daily living. I assign substantial weight to the evidence of Dr. Go, as the applicant’s primary care physician, he has strong knowledge of the applicant’s condition over time with CNRs made contemporaneously to the applicant’s complaints.
131The respondent submitted the plan is not reasonable and necessary and puts the applicant to his onus as he bears the burden of proof. The respondent further submitted that an OCF-18 is not sufficient evidence to meet the applicant’s onus.
132I find that the CNRs of Dr. Go is sufficient evidence that the plans are reasonable and necessary to address the applicant’s continuous and chronic pain. Dr. Go’s CNRs confirm long standing chronic and continuous myofascial pain affecting the applicant’s neck, back, and shoulders, with post-accident observations that the accident caused an aggravation of symptoms, resulting in worsening neck and shoulder pain, increased back pain leading to severe flare-ups, and functional limitations, such as lifting with the right arm, difficulty showering and dressing due to shoulder pain.
133I find that the applicant is entitled to the chiropractic services proposed by Mackenzie Medical, as follows: i. $1,417.70, in a plan dated July 7, 2022; ii. $1,417.70, in a plan dated August 16, 2022; and iv. $2,026.55, in a plan dated May 12, 2022.
Interest
134I find interest applies on the payment of any overdue benefits owed to the applicant pursuant to s. 51 of the Schedule.
Award
135The 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.
136Awards are determined on an individual basis and generally depend on a finding that the respondent’s withholding or delay was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
137I find the applicant is not entitled to an award.
138The applicant submitted it is entitled to an award due to the respondent’s failure to adjust the claim in good faith, issue proper denial notices, and comply with procedural and statutory duties and relies upon K.W. v Aviva General Insurance, 2020 CanLII 35506 (ON LAT).
139Upon review of the evidence, I find that the respondent’s denials were underpinned by medical reasons or requests for further information. I am unable to make any findings of fact that would support the test for an award that the respondent’s withholding or delay was excessive, imprudent, stubborn, inflexible, unyielding, or immoderate.
ORDER
140The Tribunal’s final Orders:
i. The applicant is not barred from proceeding to a hearing for the following issues [5]2 and [5]6 iv.
ii. The applicant is barred from proceeding to a hearing for issues [5]5 and [5]6 iii, because the applicant failed to dispute its denial within the 2-year limitation period.
iii. The applicant’s injuries are not predominantly minor as defined in s. 3 of the Schedule and therefore not subject to treatment within the $3,500.00 MIG limit.
iv. The applicant entitled to a NEB of $185.00 per week from January 27, 2022, to May 27, 2022.
v. The applicant is entitled to $2,560.00 for psychological services, proposed by 101 Assessment Centre in a treatment plan dated September 6, 2022.
vi. The applicant is entitled to $2,360.00 for a neurological assessment, proposed by 101 Assessment Centre in a treatment plan dated September 1, 2022.
vii. The applicant is entitled to $1,417.70 for chiropractic services, proposed by Mackenzie Medical in a plan dated July 7, 2022.
viii. The applicant is entitled to $1,417.70 for chiropractic services, proposed by Mackenzie Medical in a plan dated August 16, 2022.
ix. The applicant is entitled to $2,026.55 for chiropractic services, proposed by Mackenzie Medical in a plan dated May 12, 2022.
x. The respondent is not liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant.
xi. The applicant is entitled to interest on any overdue payment of benefits.
Released: April 9, 2026
Robert Maich
Vice-Chair