Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 25-001064/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:
Matthew England, Applicant
and
Definity Insurance Company, Respondent
DECISION
ADJUDICATOR: Aric Bhargava
APPEARANCES:
For the Applicant: Jeremy Magence, Counsel
For the Respondent: Sue Yingxue Li, Counsel
HEARD: By way of written submissions
OVERVIEW
1Matthew England, the applicant, was involved in an automobile accident on November 8, 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, Definity 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 section 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 the proposed services by Mackenzie Medical Rehab Centre, as follows: a) $2,023.03 for chiropractic services, in a treatment plan/OCF-18 (“plan”) dated March 16, 2023; and b) $1,525.84 for chiropractic services in a plan dated May 24, 2023?
iii. Is the applicant entitled to the proposed assessment and service by Pro Life Wellness Centre Inc., as follows: a) $2,200.00 for a psychological assessment, in a plan dated July 27, 2023; and b) $4,389.16 for psychological services, in a plan dated October 16, 2023?
iv. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3For the reasons below, I find that:
i. The applicant’s injuries are predominantly minor, thus, the MIG applies.
ii. Because the applicant is subject to the MIG, it is unnecessary for me to consider whether the treatment plans are reasonable and necessary.
iii. Pursuant to section 38(11) of the Schedule, the applicant is entitled to the amounts incurred for the psychological assessment between the 11th day after it was submitted until August 10, 2023, plus interest.
iv. Interest is payable on any outstanding amount in accordance with section 51 of the Schedule.
ANALYSIS
Application of the Minor Injury Guideline
4I find the applicant has not established his injuries fall outside of the MIG.
5Section 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.”
6The applicant may be removed from the MIG if he can establish his accident-related injuries fall outside of the MIG or, under section 18(2), that he has a documented pre-existing condition combined with compelling medical evidence stating that the condition precludes maximal recovery if he is kept within 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.
7The applicant submits that he sustained a psychological impairment as a result of the accident which warrants removal from the MIG. The applicant relies on the treatment notes of the treatment providers at Mackenzie Medical Rehabilitation Centre, the Disability Certificate/OCF-3 dated November 16, 2022, prepared by Dr. Cindy Jakeer, chiropractor, the Minor Injury Treatment Discharge Report/OCF-24 dated February 1, 2023, prepared by Dr. Jakeer, and the psychological pre-screen report dated July 21, 2023, prepared by Dr. Jasmine Bains, psychologist, supervised by Dr. Harinder Mrahar, psychologist.
8The respondent submits that the applicant sustained minor injuries within the MIG and that the treatment plans are not reasonable and necessary.
Does the applicant have a psychological impairment?
9I find the applicant has not met his burden to prove that he suffers from a psychological impairment that warrants removal from the MIG.
10I do not find the treatment notes by Mackenzie Medical Rehabilitation Centre persuasive because the applicant has not directed me to any contemporaneous reports, assessments, physician clinical records, or other evidence from an independent medical practitioner to support his claim. The treatment notes of Mackenzie Medical Rehabilitation note the applicant self-reported some anxiety on his initial assessment, however, there is no reference made to a psychological diagnosis, and there is no consistent reporting of psychological symptoms or related treatment of psychological symptoms. The treatment notes alone do not establish the applicant suffers from psychological impairment as a result of the accident.
11I do not place weight on the OCF-3, the OCF-24, and Dr. Bains’ Additional Comments in the OCF-18 alone as the applicant did not direct me to supporting documentation, such as, clinical notes and records (“CNRs”) or objective medical examinations to support the information contained in the OCFs. The applicant does not direct me to any CNRs from his treating physician to support a psychological diagnosis or reports of ongoing psychological symptoms. While the applicant refers to Dr. Bains’ “psychological assessment”, this is actually the Additional Comments in the OCF-18. Dr. Bains’ notes did not include reference to the completion of objective tests required for a formal diagnosis. Furthermore, it is well established by this Tribunal that OCF forms on their own are not sufficient to establish that an applicant has an accident-related impairment.
12The respondent submits that the applicant has failed to prove that his psychological complaints are more than sequelae of minor injuries.
13I find on a balance of probabilities that the applicant has not met his burden to establish that he has a psychological impairment as a result of the accident that warrants removal from the MIG.
Are the treatment plans reasonable and necessary?
14Having found that the applicant is subject to the MIG and the $3,500.00 funding limit for treatment, I do not need to consider whether the treatment plans in dispute are reasonable and necessary.
Are the insurer’s denial notices compliant with section 38(8) of the Schedule?
15In the alternative, the applicant submits that the respondent’s denial notices for the disputed treatment plans did not comply with section 38(8) of the Schedule. The applicant argues the denials were not provided within 10 days of receiving the treatment plans and use boilerplate language for the denial. The applicant relies on Hedley v. Aviva Insurance Company of Canada, 2019 ONSC 5318, stating that boilerplate statements do not provide sufficient reason for a denial and that denial reasons must be “meaningful and specific” to allow an insured person to understand and challenge the denial.
16Section 38(8) and section 38(11) of the Schedule set out strict notice requirements for insurers responding to treatment plans and specific consequences if they fail to comply. Section 38(8) requires an insurer to inform an insured person, within ten business days after it receives 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.
17Pursuant 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.
Chiropractic services in the amount of $2,023.03 denied March 31, 2023 and chiropractic services in the amount of $1,525.84 denied June 5, 2023
18I find the respondent’s denial notices dated March 31, 2023 and June 5, 2023 for chiropractic services are compliant with section 38(8) of the Schedule.
19In his reply submissions the applicant submits the denial letters dated March 31, 2023 and June 5, 2023 rely on boilerplate statements for the denial.
20The respondent submits the denials are valid and identify the OCF-18, state the applicant’s injuries are within the MIG, referenced the Schedule, and confirmed willingness to reconsider upon receipt of additional medical documentation supporting a non-MIG finding. The respondent also submits that the applicant did not reply to the multiple section 33 requests dated December 13, 2022, February 16, 2023, and October 26, 2023 for his medical history records to determine his current level of disability and pre-accident level of function to determine his eligibility for treatment and benefits.
21I find the respondent’s denial letters dated March 31, 2023 and June 5, 2023 satisfy the requirements in section 38(8) and comply with the principles set out in T.F. v. Peel Mutual Insurance Company, 2018 CanLII 39373 (ON LAT). In T.F. v. Peel, the Tribunal concluded that an insurer’s “medical reasons” for denying a plan should engage the specific details about the insured’s condition forming the basis for the insurer’s decision. The reasons provided should also be adequate enough to allow an unsophisticated person to understand them and make an informed decision in response. If the denial offers a principled rationale based fairly on an insured’s file, contains straightforward and clear language, and outlines the dispute resolution process and relevant time limits that govern the process, then an insurer will have satisfied it obligation under section 38(8). While T.F. v. Peel is not binding upon me, I agree with the reasoning in it and its application.
22I find the March 31, 2023 denial letter for the treatment plan submitted March 17, 2023, and the June 5, 2023 denial letter for the treatment plan submitted May 26, 2023 each comply with section 38(8) because each letter provides a clear and unequivocal denial. The denial letters are timely, include the date of loss, identify the treatment plan and the denied goods and services. Further, it lists the applicant’s injuries and each letter states “we have yet to receive any supporting medical documentation”, that the MIG applies, outlines the insurer’s reasons for the denial, including the lack of medical evidence to demonstrate that it is not a minor injury, and informed the applicant in plain language that he is entitled to dispute the refusal at the Tribunal.
23Accordingly, I find that the applicant has not established that the respondent was non-compliant with section 38(8) or that the treatment plans in the amount of $2,023.03 and $1,525.84, are payable pursuant to section 38(11).
Psychological assessment for $2,200.00 denied August 10, 2023
24I find the applicant is entitled to the psychological assessment incurred between the 11th day after it was submitted until August 10, 2023.
25In his reply submissions the applicant argues the denial was not timely and the medical and other reasons provided are boilerplate and generic.
26I find the respondent’s denial notice dated August 10, 2023 does not comply with section 38(8) of the Schedule, specifically the denial is not within the 10-day period called for in section 38(8).
27Given the respondent’s non-compliance with section 38(8), section 38(11) of the Schedule is triggered, however, I find the section 38(8) non-compliance was cured on August 10, 2023 because the denial references the benefit in dispute, refers to the insufficient medical documentation by the applicant and is provided in a manner that is clear and allows an unsophisticated person to make an informed decision whether to dispute the decision. Accordingly, the applicant is entitled to incurred expenses in relation to the psychological assessment between the 11th day after it was submitted by the applicant to August 10, 2023.
28I find the applicant is entitled to the psychological assessment for amounts incurred between the 11th day after it was submitted until August 10, 2023.
Psychological services for $4,389.16 denied November 27, 2023
29The applicant submits in his reply submission that the November 27, 2023 denial letter for the treatment plan submitted November 13, 2023 does not comply with section 38(8), the denial is not timely, provides boilerplate medical or other reasons for the denial and it takes the position that the MIG applies.
30The respondent submits the denial letter referenced the treatment plan and explained that the applicant’s injuries fall within the MIG and refers to the outstanding section 33 requests.
31I find that the denial letter dated November 27, 2023 is compliant because it identifies the disputed service, states that the MIG applies, and provides reasons for the denial, including a lack of medical documentation supporting entitlement to the treatment. An unsophisticated person would understand why their claim is being denied, what information was looked at to come to this conclusion or that additional information is required, what is keeping them in the MIG, and whether this is something they wish to dispute. In my view, the respondent’s denial letter is compliant with section 38(8) and thus the consequences under section 38(11) are not triggered.
32Accordingly, I find the denial letter dated November 27, 2023 is compliant with section 38(8), and section 38(11) is not engaged. I find the psychological services for $4,389.16 is not payable.
Interest
33Interest applies on the payment of any overdue benefits pursuant to section 51 of the Schedule. As I have found that the applicant is entitled to the incurred amount for the psychological assessment, it follows that interest applies on the incurred amount as in accordance with section 51. The applicant is not entitled to interest on the remaining treatment plans as I have found the applicant remains within the MIG and the treatment plans are not payable.
ORDER
34The applicant is subject to the MIG.
35As the applicant is subject to the MIG, it is not necessary to consider if the treatment plans in dispute are reasonable and necessary.
36Pursuant to section 38(11) of the Schedule, the applicant is entitled to the incurred amount between the 11th day after it was submitted until August 10, 2023 for the psychological assessment dated July 27, 2023, plus interest.
37Interest is payable on any outstanding amount in accordance with section 51 of the Schedule.
Released: June 16, 2026
Aric Bhargava Adjudicator