Citation and File Number

Citation: Shivrattan v. Intact Insurance Company, 2026 ONLAT 24-007791/AABS

Licence Appeal Tribunal File Number: 24-007791/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:

Polly Shivrattan Applicant

and

Intact Insurance Company Respondent

DECISION

ADJUDICATOR: Melanie Malach

APPEARANCES:

For the Applicant: Bianca Crocetti, Paralegal

For the Respondent: Aaron Weinroth, Counsel

HEARD: By way of written submissions

OVERVIEW

1Polly Shivrattan, the applicant, was involved in an automobile accident on February 3, 2022, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by the respondent, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUES

2The preliminary issue to be decided is:

i. Is the applicant barred from proceeding to a hearing in respect of the treatment plans prepared by HM Medical Network Ltd., dated May 16, 2023 and May 29, 2023, because he failed to attend the insurer examinations under s. 44 of the Schedule?

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 (“MIG”) limit?

ii. Is the applicant entitled to $2,200.29 for a psychological assessment proposed by Scarborough South Physio and Rehab Centre in a treatment plan dated June 27, 2022?

iii. Is the applicant entitled to the assessments proposed by HM Medical Network Ltd., as follows:

a) $2,460.00 for a psychological assessment, in a treatment plan dated May 16, 2023; and

b) $2,618.20 for a chronic pain assessment, in a treatment plan dated May 29, 2023?

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

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

RESULT

4I find that the applicant is barred from proceeding to a hearing in respect of the treatment plans prepared by HM Medical Network Ltd., dated May 16, 2023 and May 29, 2023, because he failed to attend the insurer examinations under s. 44 of the Schedule.

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

6I find that the applicant is not entitled to the treatment plan for a psychological assessment, dated June 27, 2022, interest or an award.

PRELIMINARY ISSUE

The applicant failed to attend s. 44 assessments

7I find that the applicant is barred from proceeding to a hearing in respect of the treatment plans prepared by HM Medical Network Ltd., dated May 16, 2023 and May 29, 2023, because he failed to attend the insurer examinations (“IE”) under s. 44 of the Schedule, and he did not provide a reasonable explanation for his 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 the application is made, but no more often 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.

9The requirements for a Notice of Examination (“NOE”) are set out in s. 44(5) of the Schedule:

i. If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

a. The medical and other reasons for the examination;

b. Whether the attendance of the insured person is required at the examination;

c. The name of the person or persons who will be conducting the examination, any regulated health profession to which they belong and their titles, designations indicating their specialization, if any, in their professions; and

d. If the attendance of the insured person is required at the examination, the day, time, and location of the examination and, if the examination will require more than one day, the same information for the subsequent days.

10Section 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 with its request for attendance.

11I find upon review of the respondent’s letter dated August 8, 2023, that it advised the applicant that she was to attend an IE on June 28, 2023 and July 12, 2023. It received confirmation that these IEs did not take place. It therefore advised the applicant that these examinations are re-scheduled and continue to be required under s. 44 of the Schedule. Details of the IEs were provided in the attached NOEs.

12The first NOE, dated August 8, 2023, sets out that the IE with Dr. Sabrina Ming-Wai Tu, general practitioner, was scheduled for September 13, 2023, to assess the applicant’s entitlement to the treatment plan dated May 29, 2023 in the amount of $2,618.20. The NOE states the reason and description of the examination as follows:

Based on the medical records received to date, you have sustained uncomplicated soft tissue physical injuries as a result of this motor vehicle accident. We are 1.5 years post date of loss and there is no compelling medical evidence to suggest your injuries are chronic in nature and would require a chronic pain evaluation. We are therefore proceeding to a Section 44 Insurer’s Examination to make a determination.

13The second NOE, dated August 8, 2023, sets out that the IE with Dr. Deborah Cowman, psychologist, was scheduled for September 19, 2023, to assess the applicant’s entitlement to the treatment plan dated May 16, 2023 in the amount of $2,460.00. The NOE states the reason and description of the examination as follows:

The information we currently have on file does not allow us to determine if the recommendations are appropriate at this time as there is no medical evidence to indicate the injuries you sustained are not minor injury in nature. As per s. 38(8) of the Statutory Accident Benefits Schedule, we are unable to consider funding for the above noted goods and services and require a s. 44 Insurer Examination to determine if the goods and services in the Treatment and Assessment Plan (OCF-18) are reasonable and necessary.

14By letter dated September 28, 2023, the respondent advises the applicant that he was initially scheduled to attend an IE on June 28, 2023. This assessment was re-scheduled to take place on September 19, 2023. Notification was received from the assessor that the applicant did not attend the re-scheduled examination. As a result, the treatment plan dated May 16, 2023 remains denied. The letter further advises the applicant that the IE would be rescheduled if he confirms in writing that he will attend the re-scheduled appointment, and a reasonable explanation is provided as to why he was unable to attend the previous assessments within 10 business days.

15The applicant has not provided any submissions with respect to the preliminary issue.

16I accept the respondent’s submissions that the applicant failed to attend both of the IEs scheduled for September 13, 2023 and September 19, 2023.

17I find that the NOEs provided by the respondent were proper and that the applicant’s failure to attend these assessments bars him from proceeding with his claim for the two treatment plans dated May 16, 2023 and May 29, 2023 for the following reasons.

18First, I am satisfied that the NOEs provide comprehensive reasons for the assessments which satisfy the requirements of the Schedule.

19Second, I find that the applicant did not provide the respondent with a reason for his non-attendance despite having counsel at the time. 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 he viewed the assessments as unreasonable.

20Third, I find that the NOE and letters were sent directly to the applicant and his counsel was copied. There is no evidence before me that the applicant’s address or counsel’s fax number was incorrect or that they did not receive the respondent’s letters.

21Finally, I find that the assessments scheduled by the respondent were reasonably necessary pursuant to s. 44(1) of the Schedule to assess whether the applicant was entitled to the treatment plans in dispute.

22For the reasons outlined above, I find that the applicant is statute barred from proceeding with his application before the Tribunal with respect to the treatment plans dated May 16, 2023 and May 29, 2023, pursuant to s. 55(1)(2) of the Schedule.

ANALYSIS

The applicant sustained predominantly minor injuries as defined under the Schedule

23I 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.

24Section 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.”

25An 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.

26In this matter, the applicant submits that his injuries are not predominantly minor, and he relies upon on all of the medical evidence submitted in support of that position. He submits that throughout the clinical notes and records (“CNRs”) of his family physician, Dr. John Oryema, there are numerous notations, beginning on February 9, 2022, indicating the injuries he sustained in the accident. He notes that on February 9, 2022, he complained of pains in his neck, shoulder and back. On February 23, 2022, an MRI of his shoulder showed a partial thickness tear. On April 11, 2022, he returned with complaints of neck and shoulder pain. On August 29, 2022, he had complaints of knee pain. On October 4, 2023, he had an MRI of his left knee which showed a meniscus tear. On November 23, 2023, an x-ray showed degenerative change and mild lipping in L2-3 and L3-4. On November 30, 2023, he complained of lower back pain and reported he was still doing physiotherapy.

27The applicant further submits that he attended Scarborough South Physio and Rehab Centre for his rehabilitation needs. The CNRs note complaints of the same symptoms he was reporting to Dr. Oryema, as well as headaches, sleep disturbance, nervousness while driving, anxiety, nightmares and flashbacks.

28The respondent submits that the applicant has sustained only a minor injury as a result of the subject accident. The respondent argues that the applicant has not provided any evidence to support that he suffers a pre-existing medical condition, chronic pain with a functional impairment or a psychological impairment, that would warrant removal from the MIG.

29The respondent also submits that while the applicant makes reference to a meniscal tear in his submissions, it is clear that this is unrelated to the injuries sustained in the accident and is not causally connected to the accident. It relies upon the Disability Certificate, dated February 4, 2022, which makes no mention of a knee injury or meniscal tear following the accident.

30I find that the applicant has not identified on what basis he should be removed from the MIG. He has not made specific submissions that he should be removed from the MIG due to chronic pain or a psychological impairment.

31I find that the applicant has not made any submissions that he suffered a chronic pain condition as a result of the accident which would warrant removal from the MIG. I find that his claim that his injuries are outside of the MIG is based on the CNRs of Dr. Oryema where he made complaints about pain.

32I find that ongoing pain alone is insufficient to remove the applicant from the MIG, as the pain must be of a severity that it causes suffering and distress accompanied by functional impairment or disability. I find that the applicant has not proved on a balance of probabilities that his ongoing pain was of a significant level or was accompanied by some functional impairment or disability. I find that the applicant’s pain was merely sequelae or a symptom of his minor injuries. I find that there is minimal evidence provided by the applicant to demonstrate that his pain prevented him from pursuing work, family or recreational needs, or that he developed psychosocial sequelae.

33I find that the applicant’s accident-related impairments fall squarely within the definition of minor injuries under the Schedule. I find limited medical evidence to support the applicant’s submission that his accident-related impairments are significant, or really what specific impairments he believes fall outside of the scope of the MIG. Further, while I accept the applicant’s claims that he had ongoing pain and has regularly attended for treatment, he has not provided a medical opinion or other medical evidence that states he would be prevented from reaching maximal medical recovery if he is kept within the MIG as required by s. 18(2) of the Schedule.

34I further find that there is no actual diagnosis of chronic pain or chronic pain syndrome in the CNRs, and the applicant’s submissions do not engage with any of the six criteria under the AMA Guides. Indeed, while the applicant may have ongoing pain, I do not find that his pain causes the type of functional impairment that would warrant removal from the MIG, as his accident-related prescription history has not been provided, he has not been referred to any specialists, and he did not point the Tribunal to any functional issues with his daily activities.

35The applicant also suggests that the CNRs of Scarborough Physio and Rehab Centre support that he has a psychological impairment that justifies removal from the MIG. However, the Tribunal was not directed to an actual diagnosis of an accident-related psychological impairment that would warrant removal from the MIG. The applicant has not pointed the Tribunal to any evidence of psychological complaints.

36With respect to the applicant’s submission that he suffered a meniscal tear as a result of the accident, the respondent submits that there is no evidence that this injury is related to the accident. I agree with the respondent that there is no mention of a knee injury in the Disability Certificate or in the CNRs from Scarborough South Physio and Rehab Inc. I note that the referral for the MRI of the applicant’s knee was not made until August 2, 2023. The MRI report dated October 4, 2023, indicates a “probable meniscus tear”. The Orthopaedic Surgery report of Dr. Jose Guerra, dated October 24, 2023, notes that the applicant is seen for left knee pain, and he has “had this pain for two or three months approximately and there is no history of injury or trauma.” Therefore, I find that there is no evidence that the applicant’s knee complaints are related to the accident.

37For the reasons outlined above, I find that the applicant has not proven on a balance of probabilities that his accident-related impairments warrant removal from the MIG.

Entitlement to the treatment plan for a psychological assessment, dated June 27, 2022

38The applicant is not entitled to the treatment plan for a psychological assessment, dated June 27, 2022.

39As I have found that the applicant remains within the MIG, and the treatment plan in dispute seeks treatment outside of the MIG, it is unnecessary for me to determine whether the treatment plan for a psychological assessment is reasonable and necessary.

40In the alternative, the applicant submits that the respondent did not comply with s. 38(8) of the Schedule in its notice denying the treatment plan in dispute.

41Section 38(8) of the Schedule sets out that within 10 business days of receipt of the treatment plan, insurers are required to provide an insured with a notice, identifying the goods and services described in the treatment plan that it agrees to pay for and the medical and all other reasons why it considers the goods and services not to be reasonable and necessary. In addition, if an insurer believes that the MIG applies it shall indicate so in its denial pursuant to s. 38(9). The consequences of an insurer’s failure to comply with s. 38(8) and (9) is that the benefits are payable as set out in s. 38(11). If an insurer fails to advise that it believes the MIG applies, then an insurer must pay the benefits.

42The applicant submits that the respondent’s denial letter did not provide a proper medical reason as to why it did not agree to pay the treatment plan. The statements appear to be mere boilerplate responses to the submission of the treatment plan and provide an opinion of the injuries from the adjuster’s perspective rather than from a medical one.

43The respondent submits that the treatment plan was denied based on the s. 44 Psychological Assessment report of Dr. Deborah Cowman, psychologist, dated October 14, 2022, as set out in its denial letter dated October 20, 2022.

44I find that other than submitting that the reasons in the respondent’s denial letter were boilerplate and provide an opinion of the injuries from the adjuster’s perspective rather than from a medical one, the applicant has not provided specific submissions on the content of the respondent’s initial denial letter dated July 12, 2022, or the denial letter sent after the IE assessment dated October 20, 2022. In addition, I find that the applicant has not attached a copy of the initial denial letter. He did attach a copy of the respondent’s denial letter dated October 20, 2022, which I have reviewed.

45I find upon review of the October 20, 2022 denial letter, that it is a valid denial letter. The letter advises of the date of the treatment plan recommending a psychological assessment. It indicates that the treatment plan is denied based on the applicant’s injuries falling within the MIG based on the IE report of Dr. Cowman, dated September 28, 2022, a copy of which is provided. A summary of Dr. Cowman’s findings is set out. I find that the respondent provided clear medical and other reasons in its denial notice, sufficient to allow the applicant to make an informed decision as to whether to accept or dispute the decision. I find that this was a clear and unequivocal denial. Although the applicant may disagree with the respondent’s stated reasons, it does not render the notice invalid.

46For the reasons outlined above, I find on a balance of probabilities, that the applicant has not met his burden of proving that this treatment plan is payable under s. 38(11) of the Schedule.

Interest

47Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no benefits owing, the applicant is not entitled to interest.

Award

48The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 percent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. As I have found that the respondent did not unreasonably withhold or delay payment of any benefit, no award is warranted.

ORDER

49For the reasons outlined above, I find:

i. The applicant is barred from proceeding to a hearing in respect of the treatment plans prepared by HM Medical Network Ltd., dated May 16, 2023 and May 29, 2023, because he failed to attend the insurer examinations under s. 44 of the Schedule;

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

iii. The applicant is not entitled to the treatment plan for a psychological assessment, dated June 27, 2022, interest or an award; and

iv. The application is dismissed.