Citation: Arora v. Economical Insurance Company, 2026 ONLAT 24-001163/AABS

Licence Appeal Tribunal File Number: 24-001163/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:

Deep Arora

Applicant

and

Economical Insurance Company

Respondent

DECISION

ADJUDICATOR: Gordon Stencell

APPEARANCES:

For the Applicant: Kelisa Reyes, Paralegal

For the Respondent: Stephen Whibbs, Counsel

HEARD: By way of written submissions

1Deep Arora, the Applicant, was involved in an automobile accident on March 30, 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, Economical 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:

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 $2,200.00 for Cost of Examinations, proposed by Rehab & Pain Management Inc., submitted January 2, 2023?

iii. Is the Applicant entitled to the assessments proposed by Centre for Psychological and Counselling Services Inc. as follows:

a. $2,486.00 for a mental health and addiction assessment, in a treatment plan submitted, November 7, 2022?

b. $4,959.75 for psychological services, in a treatment plan submitted December 16, 2022?

c. $4,959.75 for psychological treatment, submitted on July 31, 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

3I find that:

i. The Applicant's injuries are predominantly minor, and he is subject to the MIG, and its $3,500.00 spending limit.

ii. The Applicant is entitled to $4,959.75 for psychological treatment, proposed by Centre of Psychological and Counselling Services Inc., in a plan dated July 27, 2023.

iii. The Respondent is not liable to pay an award under s. 10 of O. Reg 664.

iv. Interest is payable pursuant to s. 51 of the Schedule.

PROCEDURAL ISSUES

Is the application barred under s. 55 of the Schedule?

4In the Respondent's submissions for this hearing, it argues that the Applicant should be barred from proceeding with the application pursuant to s. 55(1)2 of the Schedule. It submits that the Applicant failed to attend scheduled and rescheduled s. 44 insurer examination assessments (IEs) which had been requested to assess the Applicant's entitlement to psychological services. The Respondent further submits that the Applicant did not provide an explanation for the non-attendance. Since the Applicant failed to attend these IEs, the Respondent argues that the Applicant should be barred pursuant to s. 55 from pursuing the treatment plan.

5I do not find that the Applicant is barred from proceeding with his application pursuant to s. 55(1)2 of the Schedule. The Respondent did not raise this preliminary issue at the case conference held on June 18, 2024, nor was this preliminary issue added as an issue in dispute for this hearing. The Respondent also did not bring a motion at any point prior to this hearing to request to add the preliminary issue to this hearing. Rather, it appears to have raised it for the first time in its responding submissions. I find that it would be procedurally unfair to the Applicant to consider this preliminary issue at this late stage, particularly as the Respondent has not provided any explanation as to why the issue had not been raised at any point prior to this hearing.

ANALYSIS

APPLICABILITY OF THE MINOR INJURY GUIDELINE ("MIG")

The Applicant's injuries are / not predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 MIG limit.

6I find that the Applicant has not demonstrated, on the balance of probabilities, that he suffers from an injury or condition that warrants removal from the MIG.

7Section 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) 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."

8An 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.

9The treatment and assessment plans in dispute propose treatment that falls outside the MIG. Thus, the Applicant's entitlement to them is contingent on a finding that his injuries are not included in the minor injury definition. If so, the Applicant must then demonstrate that the treatment and assessment plans are reasonable and necessary on a balance of probabilities.

10The Applicant submits he has suffered chronic pain and a psychological impairment as a result of the accident that warrant removal from the MIG.

Is the Applicant removed from the MIG due to chronic pain with a functional impairment?

11I find the Applicant has not established on the balance of probabilities that he suffers chronic pain with functional impairment as a result of the accident to be removed from the MIG.

12Chronic pain with functional limitations is not included in the minor injury definition and a finding that the Applicant sustained chronic pain with functional limitations as a result of the accident would permit him to seek treatment beyond the $3,500.00 funding limit provided by the MIG.

13The Applicant submits he should be removed from the MIG on the basis of chronic pain with functional impairment. To support his claim, the Applicant is relying on the clinical notes and records ("CNRs") of the family physician, Dr. Khalil, an OCF-18 dated January 2, 2023, for a Chronic Pain Assessment completed by Nadir Al- Jazwari, physician, with Rehab Pain Management Inc., and a psychological assessment by Dr. El-Saidi, a psychiatrist, the Applicant underwent on December 8, 2022. The resulting psychological report is dated that same day, December 8, 2022.

14The Applicant argues that because pain related to his motor vehicle accident (MVA) has persisted for over six months, he suffers chronic pain with functional limitations. The Applicant relies on the CNRs of his family physician and providers as evidence of persisting pain, although he did not point me to specific CNRs with specific dates. The Applicant argues the s. 25 psychological report dated December 8, 2022, by Dr. El-Saidi, a psychiatrist, indicates the Applicant requires a chronic pain assessment. The Applicant submits he cannot sit for long periods without stretching and that he has been able to sustain his employment by attending to his discomfort through stretching as he works from home. The Applicant argues the IE report by Dr. Howard Platnick, physician, dated February 28, 2023, should not be considered as Dr. Platnick is not noted to be a chronic pain specialist nor is he noted to identify as a pain management specialist in any of the online literature pertaining to him. The Applicant cites Mirzazadeh vs Aviva Insurance Company, 2024 CanLII 13092 (ON LAT), containing a reference Z.K. v. Allstate Insurance Company Canada, 2020 CanLII 106429 (ON LAT) in asserting his position that a chronic pain diagnosis is not required to be removed from the MIG and I have considered it.

15The Respondent submits the Applicant does not have chronic pain with functional impairment resulting from the accident. The Respondent relies on the CNRs of family physician, Dr. Khalil, dated April 14, 2022, where X-rays found mild degenerative changes to the lumbar spine and cervical spine, revealing mild degenerative change, non-accident-related. The Respondent further relies on the OCF-1 completed by Dr. Khalil on April 21, 2022, that the Applicant can not attend physiotherapy because he will be in India for five weeks. The Respondent also relies on CNRs of Dr. Dinna Icatar, chiropractor, at HealthMax Physiotherapy – Scarborough, dated September 12, 2022, that the Applicant did not attend physiotherapy for almost six months post-accident. The Respondent also argues the s. 25 report should be given less weight as it relies on the Applicant's self-reporting only and compared his self-reports to medical information.

16Further, the Respondent relies on the CNRs of HealthMax, showing that the Applicant expressed improvement in his back pain on September 19, 2022, on October 5, 2022, on October 12, 2022, on November 22, 2022, on November 25, 2022, on December 1, 2022, and on December 6, 2022; and, that after December 6, 2022, the Applicant did not visit any healthcare practitioners until June 24, 2024. Finally, the Respondent points me to the IE report of Dr. Platnick dated February 28, 2023. Dr. Platnick concluded the Applicant sustained soft tissue injury to his neck and back as a result of the MVA. Dr. Platnick noted that the Applicant self reported that two months prior to the IE he had injured his back (nine to 10 months post-MVA).

17Despite the onus being upon the Applicant to prove chronic pain with a functional impairment, I was not led to any submissions which point to evidence of chronic pain with functional impairment. Furthermore, I give little weight to the Applicant's argument that his psychological assessment is evidence of chronic pain with functional impairment. The Applicant relies on the s. 25 psychological report dated December 8, 2022, by Dr. El-Saidi, who wrote "…a chronic pain evaluation may be necessitated pending the outcome of this patient's status after the psychotherapeutic alliance." I turned my mind to the Applicant's argument the chronic pain assessor, a general practitioner, is not qualified to assess chronic pain. The Applicant gives little else to rely on for supporting his onus.

18For the reasons outlined above, I find that the Applicant has not proven on a balance of probabilities that he suffers from chronic pain with functional impairment, that warrants removal from the MIG.

Is the Applicant removed from the MIG due to psychological impairment?

19Psychological impairments are not included in the minor injury definition. An impairment is defined in s. 3(1) of the Schedule as a "loss or abnormality of a psychological, physiological or anatomical structure or function."

20The Applicant submits he should be removed from the MIG on the basis of psychological impairment. The Applicant relies on the CNRs of Dr. Khalil, dated March 30, 2019, to April 21, 2022, on an OCF-3 dated September 13, 2022, completed by Dinna Icatar, a chiropractor, and the s. 25 and psychological assessment by Dr. El-Saidi, a psychiatrist, the Applicant underwent on December 8, 2022. I reviewed the CNRs of Dr. Khalil and did not find any reference to psychological complaints related to the MVA. I was directed to a list of injuries in the OCF-3 that include other symptoms and signs of emotional state, nightmares, and disorders initiating and maintaining sleep. There is no explanation provided as to why these were indicated by Dinna Icata, chiropractor, therefore I give it little weight. According to the s. 25 psychological report, the Applicant sustained the psychological injuries of Major Depressive Disorder, the current episode moderate; Somatic Symptom Disorder, with predominant pain, persistent, moderate severity; and Post-Traumatic Stress Disorder.

21In his reply submissions, the Applicant directed me to the CNRs of Registered Psychotherapist Arianne Rochelle Payos Apelo, dated March 9, 2023, to May 11, 2023, as corroborating medical evidence for the s. 25 psychological report dated December 8, 2022. I was not directed to these CNRs in his initial submissions. Not knowing the Applicant was relying on these CNRs, the Respondent did not make submissions.

22The Respondent disagrees with the Applicant. The Respondent submits that there is no corroborating evidence of any of the Applicant's self-reported psychological impairments to Dr. El-Saidi contained in the CNRs of Dr. Khalil or of HealthMax Physiotherapy. The Respondent also submits Dr. El-Saidi's did not review any medical evidence. The Respondent also submits the Applicant did not seek any treatment for medical issues until March 9, 2023, nearly a year post MVA. The Respondent also argues the applicant failed to attend a reasonably necessary IE assessment for psychological services on December 20, 2022, and did not provide notification of non-attendance nor an explanation. The Respondent submits that an email sent January 3, 2023, to the Applicant and to his counsel for an explanation went unanswered. The Respondent submits that in good faith, it rescheduled the IE on January 10, 2023, and the Applicant did not attend and did not provide notification nor explanation.

23There is no dispute between the parties that the applicant has not attended any of the scheduled IEs for psychological services. As no notification nor reasonable explanation for non-attendance were provided, I find the Applicant is not in compliance with s. 44(1) of the Schedule and that this is prejudicial to the Respondent. For this reason, I give the s. 25 assessment limited weight.

24I am not persuaded of a psychological impairment due to a lack of corroborating evidence in the CNRs of the family doctor, that the applicant did not seek any treatment for nearly a year post-MVA, and I assigned little weight to the s. 25 report because it was not supported by any corroborating evidence and the Applicant did not attend a reasonably necessary IE.

25For these reasons, I find on the balance of probabilities that the Applicant has not met the onus to prove he should be removed from the MIG based on Psychological Injury.

Entitlement to treatment plans in dispute

26As the Applicant is being held to the MIG, it is not necessary for me to do a reasonable and necessary analysis as to the treatment plans in dispute

27The Applicant submits that three treatment plans are payable pursuant to s. 38(11) of the Schedule, as the Respondent did not comply with the notice requirements of s. 38(8) of the Schedule.

28The Respondent submits the Applicant should be barred from proceeding with the treatment plans however, above, I already determined the Applicant is not barred from proceeding and I therefore must turn my mind to the treatment plans.

29Section 38(8) of the Schedule 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 any insurer fails to comply with its obligations under s. 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 notice described in s. 38(8) and it is prohibited from taking the position that the insured person has an impairment to which the MIG applies.

a. Denial in respect to the treatment plan dated November 7, 2022

30I find that the Applicant is not entitled to the psychological services proposed in the treatment plan, dated November 7, 2022, and submitted November 10, 2022, on the basis that the Respondent's denial letter was non-compliant with s. 38(8) of the Schedule, and that the s. 44 letters dated December 2, 2022, and January 10, 2022, are not compliant with s. 44(5).

31The Applicant argues the Respondent is prohibited from taking the MIG position with respect to this treatment plan because the Respondent did not advise the insured person that it believes the MIG applies. The Applicant also argues that the s. 44 letters dated December 2, 2022, and January 10, 2022, are not compliant with s. 44(5) because they do not make any reference to the specific provision of the Schedule that it relies upon nor does it refer to the applicant's specific medical conditions beyond listing what documents they reviewed and what injuries are listed in and unspecified OCF-18.

32The Respondent presented no additional argument to the Applicant being barred.

33Upon reviewing the letter of denial dated November 17, 2022, I agree with the Applicant, the letter is not compliant with s. 38(9) as it does not advise the Applicant that the MIG applies and is therefore non-compliant with s. 38(8). I find the Respondent came into compliance with s. 38(8) within 10 days of this treatment plan based on its denial letter dated November 24, 2022, that referenced the minor injury limit because it provided specific and detailed reasons for the denied OCF-18, referenced the medical documents received to date, and identified that the denials were based on the MIG (along with the lack of evidence to support removal from the MIG).

34For the reasons set out above, I find that the Applicant has not demonstrated on a balance of probabilities that the treatment plan dated November 7,2022, and submitted on November 10, 2022, is payable due to non-compliance with s. 38(8) of the Schedule.

b. Denial in respect to the treatment plan dated December 16, 2022

35I find that the Applicant is not entitled to the psychological services proposed in the treatment plan, dated December 16, 2022, and submitted on December 21, 2022, for non-compliance with s. 38(8) of the Schedule.

36The Applicant submits that the plan was partially incurred in the amount of $2,930.93 and should be payable due to the Respondent's lack of compliance. The Applicant did not specify how the letter from the Respondent dated January 6, 2023, is not compliant with s. 38(8).

37The Respondent presented no additional argument to the Applicant being barred.

38Upon reviewing the letter of denial, dated January 6, 2023, I find the letter is compliant with s. 38(8) because it provided specific and detailed reasons for the denied OCF-18, referenced the medical documents received to date, and identified that the denials were based on the MIG (along with the lack of evidence to support removal from the MIG).

39For the reasons set out above, I find that the Applicant has not demonstrated on a balance of probabilities that the incurred amount for a treatment plan dated December 16, 2021, and submitted December 21, 2022, is payable due to non-compliance with s. 38(8) of the Schedule.

c. Denial in respect to the treatment plan dated July 27, 2023

40I find that the Applicant is entitled to the psychological services proposed in the treatment plan, dated and submitted on July 27, 2023, on the basis that the Respondent's denial was non-compliant with s. 38(8) of the Schedule.

41The Applicant argues the Respondent is prohibited from taking the MIG position with respect to this treatment plan for not responding.

42The Respondent presented no additional argument to the Applicant being barred. There is no evidence before me that the Respondent has provided a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that 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.

43For the reasons set out above, I find that the Applicant has demonstrated on a balance of probabilities that the treatment plan dated July 27, 2023, is payable due to non-compliance with s. 38(8) of the Schedule.

Interest

1Interest is payable pursuant to section 51 of the Schedule.

Award

2Pursuant to section 10 of Reg. 664, an award of up to 50% of the amounts withheld may be payable by the Respondent if it is determined that it unreasonably withheld or delayed payment of a benefit. Awards 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.

3The Applicant submits the Respondent did not produce the AB file despite several requests however the Applicant has not pointed me to how this documentary matter resulted in any benefits being unreasonably withheld or delayed.

4With the onus being on the Applicant, I have not been persuaded that any benefits were unreasonably withheld or delayed. The Respondent is not liable to pay an award under s. 10 of Reg. 664.

ORDER

5I find that: