Citation: Ali v. Intact Insurance Company, 2026 ONLAT 24-010793/AABS

Licence Appeal Tribunal File Number: 24-010793/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:

Hussein Ali

Applicant

And

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Applicant:

Julia Logoutova, Paralegal

For the Respondent:

Jesse Braun, Counsel

HEARD:

By way of written submissions

1Hussein Ali, the applicant, was involved in an automobile accident on August 15, 2023, 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.

ISSUES

2The 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 limit? Note: The parties agree the MIG limits have been exhausted.
Is the applicant entitled to $3,185.19 for physiotherapy services, proposed by 2430303 Ontario Inc in a treatment plan/OCF-18 (“treatment plan”) submitted December 22, 2023?
Is the applicant entitled to $2,227.73 for physiotherapy services, proposed by 2430303 Ontario Inc in a treatment plan submitted March 3, 2024?
Is the applicant entitled to $1,749.00 for physiotherapy services, proposed by 2430303 Ontario Inc in a treatment plan submitted May 3, 2024?
Is the applicant entitled to $2,641.62 for aquatherapy services, proposed by 2430303 Ontario Inc in a treatment plan submitted January 4, 2024?
Is the applicant entitled to $1,073.32 for an attendant care assessment, proposed by 2430307 Ontario Inc in a treatment plan submitted August 23, 2023?
Is the applicant entitled to $2,300.00 for a psychological assessment, proposed by 2430307 Ontario Inc in a treatment plan submitted September 5, 2023?
Is the applicant entitled to $2,300.00 for a neurological assessment, proposed by 2430307 Ontario Inc in a treatment plan submitted January 12, 2024?
Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3After reviewing both parties’ submissions and all of the evidence, I find as follows:

The applicant sustained a minor injury and is subject to treatment within the MIG limit.
The applicant is not entitled to $2,200.00 for the OCF-18 for a psychological assessment proposed by 2430307 Ontario Inc.
The applicant is entitled to incur the following OCF-18s proposed by 2430307 Ontario Inc. because I find the respondent’s notices denying the benefits did not comply with s. 38(8) of the Schedule:

i. $3,185.19 for physiotherapy services submitted December 22, 2023.

ii. $1,749.00 for physiotherapy services submitted May 3, 2024.

iii. $2,641.62 for aquatherapy services submitted January 4, 2024.

The applicant is entitled to the following OCF-18s, proposed by 2430307 Ontario Inc. if incurred after the 11th business day of their submission until the respondent issued a compliant notice pursuant to s. 38(8) of the Schedule:

i. $2,227.73 for physiotherapy services submitted March 3, 2024.

ii. $1,073.32 for an attendant care assessment submitted August 23, 2023.

iii. $2,300.00 for a neurological assessment, submitted January 12, 2024.

The applicant is entitled to interest pursuant to s. 51 of the Schedule.

ANALYSIS

The applicant sustained a minor injury.

4Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor in accordance with the MIG. Section 3(1) defines a “minor injury” as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.”

5An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG. The applicant bears the onus of proving on a balance of probabilities that his accident-related impairments fall outside of the MIG.

6I find the applicant’s submissions unclear with respect to why he should be removed from the MIG. He refers to a pre-screen report which notes anxiety and psychological symptoms and a pre-existing condition but did not make specific arguments with respect to why these conditions would remove him from the MIG, which will be discussed further below. He relies on his family doctor’s clinical notes and records (“CNRs”).

7The respondent submits that the applicant’s accident-related impairments fall within the definition of a minor injury. It maintains that the applicant has not met his onus in proving that he should be removed from the MIG. It relies on the insurer examination (“IE”) reports of Dr. Choi, medical doctor and Dr. Galit-Kleiner, neurologist who determined that the applicant’s accident-related impairments fit within the MIG. It also relies on the report of Dilina Mohan, occupational therapist who found no evidence of any functional limitations and Dr. Mandel, psychologist who determined that the applicant did not sustain a psychological impairment as a result of the accident.

Pre-existing Condition

8The applicant is not removed from the MIG as a result of any pre-existing medical condition.

9I find the CNRs of the applicant’s family doctor unpersuasive in establishing he should be removed from the MIG due to a pre-existing condition. A CNR from April 2021 the doctor notes to “C4/5 narrowing and osteophyte and low L spine NF narrowing.” I find it unclear what this means. A CNR dated August 22, 2023, diagnosed the applicant with a msk (“musculoskeletal”) injury as a result of the accident. In a subsequent CNR dated September 12, 2023, the family doctor diagnoses lumbar radiculopathy. I find these CNRs unpersuasive evidence to support that the applicant should be removed from the MIG due to a pre-existing condition. What I find lacking in this case is compelling medical evidence of a treating practitioner stating that the applicant’s pre-existing condition would prevent maximal recovery within the MIG, which is the test that must be met pursuant to s. 18(2) of the Schedule.

10In contrast, the respondent relies on the IE reports of Dr. Choi who conducted physical examinations which were normal, and the doctor concluded that the applicant sustained soft tissue injuries which could be treated in the MIG. Dr. Choi also opined that the applicant did not have any pre-existing medical conditions that would prevent him from achieving maximal medical recovery in the MIG. I accept Dr. Choi’s opinion because the applicant has not submitted sufficient medical evidence to refute it. The respondent also relies on the IE reports of Dilina Mohan, occupational therapist and Dr. Galit-Kleiner. Dilina Mohan did not find any evidence of any functional limitation and Dr. Galit-Kleiner found no evidence of any neurological impairment as a result of the accident. I find it unnecessary to address the findings of these assessors further because the applicant has not met his onus in proving that his accident-related impairments are outside of the MIG.

11For the above reasons, I find the applicant has not met his onus in proving that he had a pre-existing condition which would prevent him from achieving maximal medical recovery within the MIG.

Psychological Impairment

12The applicant is not removed from the MIG due to a psychological impairment.

13The applicant relies on a pre-screen checklist filled out by a doctor in support of his position that he sustained a psychological impairment as a result of the accident. I do not find this checklist persuasive evidence that he sustained a psychological impairment because this checklist is based on the applicant’s self-reports, and there is no diagnosis or finding of an impairment. Further, the applicant has not relied on any other corroborating evidence to support that he sustained a psychological impairment.

14In contrast, the respondent relies on the IE of Dr. Mandel who concluded that the applicant does not have any diagnoseable psychological impairment as a result of the accident. The assessor conducted a clinical interview, administered psychometric tests and reviewed documents which supported the doctor’s conclusion. I prefer Dr. Mandel’s opinion over the checklist prepared by the family doctor because the doctor’s assessment was more thorough, and the conclusions are consistent with the medical record before me.

15For the above reasons, I find the applicant fell short of meeting his evidentiary burden in proving that any of his accident-related impairments fall outside of the MIG.

16Since both parties agree that the MIG limits have been exhausted, I find the applicant is not entitled to the OCF-18s in dispute because they seek treatment outside the MIG. However, the bulk of the applicant’s submissions argued that he is entitled to payment of the OCF-18s in dispute because the respondent did not comply with s. 38(8) of the Schedule which I will discuss next.

Non-Compliance with s. 38(8) of the Schedule

17Section 38(8) of the Schedule outlines that within 10 business days of receiving a treatment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary. Section 38(11) 2 of the Schedule supports that if an insurer’s notice does not comply with s. 38(8) it is liable to pay for the OCF-18 if it is incurred by the insured after the 11th business day after receipt of the OCF-18 and the day the insurer provides a compliant notice.

18The requirement of medical reasons in s. 38(8) of the Schedule was explained in the reconsideration decision of T.F. v. Peel Mutual Insurance Company (T.F. v. Peel), in which Executive Chair Lamoureux stated:

“An insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires. Additionally, an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies. Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue. Only then will the explanation serve the Schedule’s consumer protection goal.”

19The applicant submits that the respondent’s denials of all the OCF-18s in dispute did not comply with s. 38(8) of the Schedule in that it did not identify the goods, services or assessments being denied or the amount being denied. As a result, he maintains the respondent is liable to pay for the OCF-18s in dispute.

20The respondent made no submissions to support that its various notices complied with s. 38(8) of the Schedule.

OCF-18s for Physiotherapy - $3,185.19

21In response to the first OCF-18 in the amount of $3,185.19 for physiotherapy, submitted December 22, 2023, the respondent sent the applicant a letter dated January 8, 2024, wherein it advised that a medical examination was necessary to address medical and rehabilitation benefits and the applicability of the MIG. The medical reason provided was “We are now five months removed from your motor vehicle accident which occurred on August 15, 2023, and presently are not in the possession of any medical documentation to support that you have sustained non-minor injuries.” It then advised that a paper review would be conducted by Dr. Choi. The letter referenced the HCAI # and that it was an OCF-18 received on December 28, 2023, in the amount of $3,185.19 for goods and services. Then the letter indicated that the amounts being denied are “exercises, multiple body sites etc, (as outlined in Part 12 of the Treatment and Assessment Plan”).” The OCF-18 was attached to the letter.

22The respondent sent the applicant a subsequent letter dated February 15, 2024, which indicated that further to our letter dated January 8, 2024, they had received the IE of Dr. Choi dated January 24, 2024, who determined his injuries were in the MIG. The letter indicated that the amount approved is zero. We are unable to provide funding for the following goods and services: “ALL GOODS AND SERVICES DENIED.” It then provided a summary of Dr. Choi’s IE who determined that the applicant sustained a minor injury and that the treatment plan is not reasonable and necessary.

23Although I find that the respondent responded to the first OCF-18 in the amount of $3,185.19 within 10 days and its notice provided adequate medical reasons based on the MIG and the IE of Dr. Choi, I find that neither letter indicated that it was denying an OCF-18 in the amount of $3,185.19 for physiotherapy. Based on the contents of the first two letters, I find an unsophisticated party would be confused about what benefit was being denied. Nor does Dr. Choi’s IE provide the full details regarding the OCF-18 being denied. In addition, I find that attaching a copy of the OCF-18 being denied does not cure a deficient notice.

24Consequently, I find that s. 38(11) 2 is triggered, and since this notice is defective the applicant may incur the OCF-18 for physiotherapy and the respondent is liable to pay it.

OCF-18 for Physiotherapy - $2,227.73

25The respondent’s letter denying the second OCF-18 in the amount of $2,227.73 was similar in that it sent the applicant a letter dated March 17, 2024, which advised that medical examinations are necessary to address medical and rehabilitation benefits and the applicability of the MIG. It quoted the amount of the OCF-18 and HCAI number. It also advised that it had not received medical documentation to suggest further treatment beyond the MIG are necessary. It referred to medical goods and services, the date of the OCF-18 and service provider. It then states that all amounts denied are “all items in the amount of $2,227.73 as outlined in part 12 of the treatment and assessment plan.”

26The respondent issued a subsequent letter dated April 25, 2024, which indicated that it was following up on its letter dated March 19, 2024, and that it had received the IE report of Dr. Choi and attached a copy to the letter. The letter advised that the applicant’s injuries qualify for treatment under the MIG and that the amount approved was zero. It then indicated that it was unable to provide funding for the goods and services and cited each line of the OCF-18, which referenced amounts for each treatment modality being sought. It then discussed Dr. Choi’s IE report in more detail.

27The applicant submits that the respondent’s letter dated March 17, 2024, denying the second OCF-18 for physiotherapy was deficient because it referred to medical goods and services and did not clearly state what benefit (i.e. physiotherapy) was being denied.

28I find the respondent’s letter dated March 17, 2024, denying the OCF-18 in the amount of $2,227.72 deficient because it refers to medical goods and services and does not clearly state what benefit was being denied. However, I find the respondent’s subsequent notice dated April 25, 2024, cured the deficient notice because it specifically identified the amounts and types of therapy denied. As a result, I find the applicant is entitled to amounts incurred after the 11th business day until April 25, 2024, when the respondent issued a compliant notice.

OCF-18 for physiotherapy - $1,749.00

29In response to the OCF-18 in the amount of $1,749.00 for physiotherapy services submitted May 3, 2024, the respondent sent the applicant a letter dated May 14, 2024, advising that IE assessments were required to address medical and rehabilitation benefits and the applicability of the MIG. The medical reason indicated that based on the medical information received it believed the MIG applied. The second page of the letter indicated that it was an OCF-18, the name of the service provider, the date it was received and that it was recommending goods/services in the amount of $1,749.00. The letter then indicated that the amounts denied are an “assessment (examination), total body etc. (as outlined in part 12 of the Treatment and Assessment Pian) in the amount of $1749.00,” and attached a copy of the OCF-18 being denied.

30I find the respondent’s denial letter did not comply with s. 38(8) of the Schedule because it erroneously advised that it was denying an “assessment (examination), total body etc” and not an OCF-18 for physiotherapy. I find an unsophisticated person would be confused about what benefit was being denied. As a result, I find that 38(11) 2 applies and since this notice is defective the applicant may incur the OCF-18 for physiotherapy and the respondent is liable to pay it.

OCF-18 for Aquatherapy - $2,641.62

31In response to the OCF-18 in the amount of $2,641.62 for aquatherapy submitted January 4, 2024, the respondent sent the applicant a letter dated January 19, 2024, advising that an IE assessment was necessary to address medical and rehabilitation benefits and the applicability of the MIG. It referred to the date of the OCF-18, the amount and the HCAI #. It indicated that it had certain medical records but that it did not have compelling medical documentation to support that the applicant sustained a non-minor injury as a result of the accident and advised that a paper review would be held with Dr. Choi and stated the date of the assessment. The letter then advised that the amounts denied are “Physical rehabilitation, Exercise equipment, etc. as outlined in Part 12 of the Treatment and Assessment Plan,” and attached a copy of the OCF-18 being denied.

32I find that the respondent’s letter did not comply with s. 38(8) of the Schedule because it did not indicate that it was denying an OCF-18 for aquatherapy or the amount being denied. Based on the contents of the notice, I find that an unsophisticated party would not understand what benefit was being denied. Therefore, I find that the s. 38(11) 2 of the Schedule is triggered and the applicant may incur the OCF-18 for aquatherapy and the respondent is liable to pay it.

OCF-18 for Attendant Care Assessment - $1,073.32

33In response to the OCF-18 in the amount of $1,073.32 for an attendant care assessment, submitted August 25, 2023, the respondent sent the applicant a letter dated September 8, 2023 advising that IE assessments were required to address medical and rehabilitation benefits and the applicability of the MIG, and that his attendance was required and advised of the assessor, date, time and location. The second page of the letter indicated that it was an OCF-18, the name of the service provider, the date it was received and that it was recommending goods/services in the amount of $1,073.32. The letter then indicated that the amounts denied are: “Documentation, support activity for claim form (e.g. for insurance, third party payor, worker's compensation) etc. (as outlined in part 12 of the Treatment and Assessment Plan) in the amount of $1073.32,” and attached a copy of the OCF-18 being denied.

34The respondent sent a subsequent letter dated November 20, 2023, which indicated that it had requested an IE to assist in determining whether the applicant sustained a minor injury. The letter then referred to (and attached) the IE report of Dr. Choi and indicated that his injuries qualified him for treatment under the MIG. It indicated that it was unable to approve the following goods and services and referred to each line of the OCF-18 which included a reference to an attendant care benefit determination.

35I find the respondent’s first letter did not comply with s. 38(8) because it was not sent within 10 days of the submission of the OCF-18 and was unclear with respect to what benefit was being denied. As a sophisticated party, I find it unclear as to what is being denied because it referenced “Documentation, support activity for claim form (e.g. for insurance, third party payor, worker's compensation) etc.” I find that an unsophisticated would not know what benefit was being denied. However, I find the respondent’s second notice dated November 20, 2023, cured this deficiency because it stated that it was for an attendant care benefit determination and cited each line of the OCF-18. As a result, I find the applicant is entitled to amounts incurred after the 11th business day until November 20, 2023, when the respondent issued a compliant notice.

OCF-18 for Psychological Assessment - $2,300.00

36In response to the OCF-18 in the amount of $2,300.00 for a psychological assessment submitted September 5, 2023, the respondent sent the applicant a letter dated September 15, 2023, which under medical reason stated “At this time we do not have any medical documentation to suggest that you suffer a psychological impairment as a result of your accident which occurred on August 15, 2023. As such, in order to determine if the intervention of a psychologist is reasonable and necessary for your continued recovery we are sending you for an insurers examination.” The second page of the letter indicated that it was an OCF-18, the name of the service provider, the date it was received and that it was recommending goods/services in the amount of $2,300.00. The letter then stated the amounts denied are “Assessment, mental health and addictions etc., (as outlined in Part 12 of the Treatment and Assessment Plan)”, and attached a copy of the OCF-18 being denied.

37I find the respondent’s letter complied with s. 38(8) of the Schedule because it indicated that it does not have sufficient information to suggest the applicant has a psychological impairment and that an IE was required to determine if the intervention by a psychologist is reasonable and necessary. It then referred to the service provider and the amount of the OCF-18 and indicated that an “assessment, mental health and addictions” was being denied. Although the letter does not explicitly state the amount that was being denied, I find when the letter is read as a whole an unsophisticated party would understand that a psychological assessment was being denied and why.

OCF-18 – Neurological Assessment - $2,300.00

38In response to the OCF-18 in the amount of $2,300.00 for a neurological assessment, submitted January 12, 2024, the respondent sent the applicant a letter dated January 18, 2024, acknowledging receipt of the OCF-18 recommending goods and services in the amount of $2,300.00. It stated the OCF-18 recommends the following goods and services “Assessment (examination), total body etc. (as outlined in part 12 of the Treatment and Assessment Plan) in the amount of $2300.00.” The letter then advised that it believed the MIG applies based on the medical documentation provided. It then indicated that it had received CNRs from Dr. Bruni but not the applicant’s family doctor, and that an IE with a neurologist was being scheduled to address whether the OCF-18 was reasonable and necessary. The letter then stated, “It is our position that the MIG applies, and the treatment claimed is not reasonable and necessary,” and attached a copy of the OCF-18 being denied.

39The respondent sent a subsequent letter dated April 10, 2024, which indicated that further to its last letter dated January 18, 2024, it was in receipt of the IE of Dr. Kleiner and attached a copy of it to the letter. The letter again indicated that the applicant’s injuries qualify for treatment under MIG and that the amount of approved was zero and cited each line of the OCF-18. Under medical reasons, the letter indicated that “Following an insurers examination with Gail Kleiner (MD) to address whether a Neurological Assessment is reasonable for your continued recovery, it has been determined that a Neurological assessment is not reasonable or necessary. In the report it states that your only current complaint is neck pain and that a Neurological exam was entirely normal" and that your prognosis for recovery is "excellent". Given these findings, this treatment and assessment plan proposing a Neurological assessment is deemed to not be reasonable or necessary for your ongoing recovery and remains denied.”

40I find the respondent’s first letter did not comply with s. 38(8) of the Schedule because it did not state that a neurological assessment was being denied. Similar to the denial letter referenced above, I find that an unsophisticated party would not understand what an “Assessment (examination), total body etc. (as outlined in part 12 of the Treatment and Assessment Plan)” is. However, I find the second letter dated April 10, 2024, cured the deficiency because it clearly stated that a neurological assessment was being denied. As a result, I find the applicant is entitled to amounts incurred after the 11th business day until April 10, 2024, when the respondent issued a compliant notice.

Interest

41Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant is entitled to interest in accordance with s. 51 of the Schedule

ORDER

42For the above-noted reasons, I order as follows:

The applicant sustained a minor injury and is subject to treatment within the MIG limit.
The applicant is not entitled to $2,200.00 for the OCF-18 for a psychological assessment proposed by 2430307 Ontario Inc.
The applicant is entitled to incur the following OCF-18s proposed by 2430307 Ontario Inc. because I find the respondent’s notices denying the benefits did not comply with s. 38(8) of the Schedule: