N. C. v. RBC General Insurance Company, 2016 CanLII 93134

LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2016/12/07 Tribunal File Number: 16-000282/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:

N. C. Applicant

and

RBC General Insurance Company Respondent

DECISION

Adjudicator: Chris Sewrattan

Appearances: For the Applicant: David Carranza, representative for the Applicant For the Insurance Company: Ashu Ismail, counsel for the Insurance Company

HEARD: Written Hearing: October 17, 2016

Overview

1The Applicant was injured in a motor vehicle accident on August 10, 2015. He applied for medical and income replacement benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). RBC General Insurance Company (“RBC”) denied two claims for medical benefits and adjusted the Applicant’s income replacement benefit from January 2016 onwards. The Applicant appeals to the Licence Appeal Tribunal principally on these issues.

Issues in Dispute:

2The following issues are in dispute before the Tribunal:

1. Do the Applicant’s injuries fall outside the Minor Injury Guideline?
2. Is the Applicant entitled to $2,916.86 for passive (chiropractic) treatment recommended in a treatment plan dated January 27, 2016, less the amount of $1,070.44 approved by RBC?
3. Is the Applicant entitled to $2,701.38 for passive (chiropractic) treatment recommended in a treatment plan dated March 21, 2016?
4. What is the amount of the Applicant’s income replacement benefit from January 2016 onwards?
5. In determining the income replacement benefit from January 2016 onwards, is the Applicant entitled to claim a weekly business loss amount?
6. Is the Applicant entitled to interest on outstanding benefits?

Result:

3The Applicant’s injuries fall outside the Minor Injury Guideline. He is entitled to the following:

1. $2,916.86 for passive (chiropractic) treatment recommended in a treatment plan dated January 27, 2016m, less the amount of $1,070.44 already approved by RBC.
2. $2,701.38 for passive (chiropractic) treatment recommended in a treatment plan dated March 21, 2016.
3. Interest on the above two treatment plans.
4. The amount of the applicant’s weekly income replacement benefit is $280.16 from January 2016 and ongoing.

4The Applicant is not entitled to claim a weekly business loss amount for the time period in which he is not operating a business.

Facts:

5The Applicant is 38 years old. On August 10, 2015 he was involved a motor vehicle accident in which he T-boned a vehicle exiting a gas station that was turning left. The Applicant was taken to hospital by ambulance. On November 19, 2015, the Applicant underwent an MRI that revealed a small amount of fluid in the distal radialulnar joint, suggesting carpal tunnel syndrome (CTS). Since then the Applicant has undergone neurological testing which concludes that there is “possible crush syndrome” with ulnar neuropathy below the elbow. Further testing has been recommended, including an electromyogram (EMG) and nerve conduction studies. The results of those tests are not before the Tribunal.

6The Applicant has received passive treatment (physical therapy, massage therapy, etc.) in varying degrees as a result of the accident. He initially received passive treatment twice a week from Dr. Anita Bongers; however, he reduced this regimen to once per week after treatment was denied by RBC. In total, the Applicant has received 27 hours of passive treatment. Dr. Bongers advises that the 27 hours of passive treatment he has received yielded 10% improvement. In January 2016, Dr. Arabenzhad, a chiropractor, stated that the Applicant’s injuries were as follows:

• Possible lateral epicondylitis
• Possible medial epicondylitis
• Right carpel tunnel syndrome
• Sprain and strain of cervical spine
• Sprain and strain of thoracic spine
• Sprain and strain of lumbar spine
• Sprain and strain of right wrist
• Sprain and strain of right forearm

7At the time of the accident, the Applicant was self-employed working in construction. He stopped working after the accident. He attempted to resume working from December 7-31, 2015, but was unable to continue. He has stopped operating his business since January 4, 2016.

Discussion:

The two disputed treatment plans

i. Does the Minor Injury Guideline apply?

8Both parties provided submissions on the whether the Applicant’s treatment is governed by the Minor Injury Guideline. The Applicant has attended a neurologist, Dr. Basile, since the commencement of the Application. In a report dated September 4, 2016, Dr. Basile concludes that the Applicant has some features of post concussive syndrome. Looking specifically at the Applicant’s right arm and hand, Dr. Basile concludes that there is possible crush injury with ulnar neuropathy below the elbow. Dr. Basile recommends further testing, including an EMG and nerve conduction studies. Since the release of this report, RBC has approved an assessment for the Applicant beyond the Minor Injury Guideline. RBC provides the following comments on this issue in its written submissions:

Since the commencement of the within proceeding and due to the ongoing need to inquire about the origin of the applicant’s hand/wrist/forearm issues, the applicant has been approved for an assessment beyond the guideline limit. The minor injury issue is therefore be resolved [sic] at this time.

This is a poor occasion for a grammatical error. RBC provided no additional information that would clarify its position.

9After reviewing the medical evidence, I am convinced that the Applicant is entitled to treatment beyond the Minor Injury Guideline. Dr. Basile’s neurology report dated September 4, 2016 and the November 19, 2015 MRI show that the Applicant’s impairment to his arm and hand is not a predominantly minor injury. Dr. Basile’s report concludes that the Applicant has a possible “crush injury” (a form of nerve entrapment) with ulnar neuropathy below the elbow. The MRI report shows a small amount of fluid in the distal ulnar joint, indicative of carpal tunnel syndrome. I note that the applicant has seen little improvement with these injuries despite the treatment already provided. Dr. Arabenzhab’s January 2015 list of eight exam findings includes five supporting elbow and wrist issues. Carpal tunnel syndrome is a significant neurological issue that cannot be equated with soft tissue “sprain and strain” injuries. Collectively, this evidence establishes that it is more likely than not that the Applicant suffers carpal tunnel syndrome, an injury beyond those described in the Guideline. This is sufficient to satisfy me on a balance of probabilities that the Applicant’s treatment belongs outside of the Guideline.

ii. Is each treatment plan reasonable and necessary?

10Approval of the treatment plans turns on whether they are reasonable and necessary. RBC submits that the Tribunal should approach the question as whether each treatment plan could be considered reasonable and necessary based on the information that was available to the insurer at the time the treatment plans were submitted. If that approach is taken, RBC submits, the treatment plans were properly denied. The Applicant does not provide submissions directly on this issue; instead, he couches his submissions in an assertion that his impairment falls outside the Guideline, and that RBC is unreasonable to have denied treatment.

11I disagree with RBC in method and result. When an appeal is brought to the Tribunal and the issue is the approval of a treatment plan, the test is whether the treatment plan is reasonable and necessary considering the evidentiary record. Looking at the evidence presented to the Tribunal, I am satisfied on a balance of probabilities that each of the two treatment plans is reasonable and necessary.

12RBC approved 27 hours of similar passive treatment for the Applicant in the past. The Applicant received 10% improvement from this treatment, according to Dr. Bongers. Dr. Basile’s report states that the Applicant should continue with his treatments as this has given him some improvement in the past. In addition, the Treatment and Assessment Plans (OCF 18s) suggest that the passive treatment is designed to reduce pain, among other things. One might ask if 50 more hours of passive treatment is reasonable and necessary for a person who has thus far received 27 hours of treatment with 10% improvement. In my view, it is.

13The goal of treatment is to improve functionality in an attempt to return the Applicant to his pre-accident condition as far as that can be achieved. Pain reduction assists in that goal, and is therefore a legitimate end to which treatment can be directed. I accept that pain reduction is a valid goal for treatment in the Applicant’s circumstance. I further accept that the additional passive treatment will reduce the Applicant’s pain, thereby improving function.

14The parties raised a sub-issue about whether proper compliance with s. 38(8) of the Schedule prohibits the denial of the second treatment plan. Given my analysis, I need not consider this sub-issue.

Interest

15The Applicant is entitled to interest for the two outstanding treatment plans in accordance with s. 51 of the Schedule.

Income Replacement Benefit

16The parties agree that the Applicant is entitled to an income replacement benefit. They disagree on the weekly amount of the benefit from January 2016 and ongoing. It appears that the Applicant was paid the maximum rate of $400 per week prior to January 2016. RBC adjusted the income replacement benefit for the period time period beginning in January 2016. Since January 2016 RBC has paid the Applicant $291.94 per week.

17Since the Applicant was self-employed 52-weeks before the accident, the amount to be determined is comprised of two elements: the weekly income benefit and the weekly business loss amount. I will consider each of these elements in turn.

18The Applicant retained the accounting firm McCully & Associates to provide three reports, each of which attempted to establish his weekly income benefit and weekly business loss amount.

19The first report was based on the Applicant’s estimated sales 52-weeks before the accident. The weekly income benefit was calculated to be $291.94. The second report was based on the Applicant’s 2014 income tax return. The weekly income benefit was calculated to be $275.33. The third report was authored after McCully & Associates received the actual sales invoices and bank deposits from the Applicant. The weekly income benefit was calculated to be $280.16. The three reports calculated the weekly business loss amount to be $108.79, $108.79, and 97.43, respectively.

20RBC retained H&A Forensic Accounting to provide reports establishing the Applicant’s weekly income benefit and weekly business loss amount. H&A’s three reports concluded the Applicant’s weekly income benefit to be $291.94, $275, and $275, respectively. In the third report, H&A complained that it could not confirm McCully’s last weekly income benefit calculation because, unlike McCully, H&A did not receive the Applicant’s invoices and accounting books. To be clear, the difference between McCully’s and H&A’s third report’s calculation of the weekly income benefit is $5.16.

21After considering all of the reports, I find that the Applicant’s weekly income benefit from January 2016 and ongoing should be $280.16, that is, the amount identified in McCully’s third report. While I appreciate that H&A did not have the Applicant’s invoices and accounting books, I base my decision on the evidentiary record before the Tribunal. The Tribunal has McCully’s third report, which was based on the invoices and accounting books. After reviewing the report, I am comfortable placing weight on it. I find it more convincing than the other reports because it considers the sales invoices and bank deposits.

22Turning to the weekly business loss amount, RBC submits that the Applicant is not entitled to claim for business loss from January 2016 and ongoing because he is not operating his business. According to RBC, section 4(4) of the Schedule provides that business losses are determined in the same manner as they would be determined under subsection 9(2) of the Income Tax Act. Under this subsection, one may post a business loss only while they are operating a business. RBC submits that since the Applicant has ceased operating his business as of January 2016, he is not entitled to claim a business loss for this period and ongoing.

23The Applicant did not provide submissions on this issue.

24I agree with RBC’s position. A plain and purposeful reading of section 4(4) of the Schedule makes clear that subsection 9(2) of the Income Tax Act governs. Moreover, the H&A’s third report shows how subsection 9(2) should govern a business loss from a non-operating business. I have no evidence from the Applicant to the contrary. The Applicant is not entitled to claim a weekly business loss from January 1, 2016 and ongoing, provided he continues to not operate his business. A business loss amount may be claimed if he is able to operate his business.

25To summarize, for the period of January 2016 and ongoing the Applicant is entitled to a weekly income benefit of $280.16 and not entitled to claim a weekly business loss amount if he does not operate his business. The $280.16 weekly income benefit is not in addition to the $291.94 per week that RBC has paid the Applicant in good faith in 2016 pending the result of this hearing.

Costs

26The issue of costs was not listed in the July 27, 2016 Order. Notwithstanding this, each party claimed for costs. Costs, under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, is an exceptional remedy requiring an evidentiary record. There must be evidence before the Tribunal that the opposing party has acted unreasonably, frivolously, vexatiously, or in bad faith in the Tribunal’s proceeding. Setting aside the fact that the parties did not formally raise the costs issue at the case conference, the parties have not articulated cogent submissions in this regard, nor have they provided sufficient evidence. The costs claim for each party is easily dismissed.

Conclusion

27The Applicant’s treatment falls outside Minor Injury Guideline. He is entitled to the two treatment plans in dispute: $2,916.86 for passive (chiropractic) treatment recommended in a treatment plan dated January 27, 2016, less the amount of $1,070.44 approved by RBC; and $2,701.38 for passive (chiropractic) treatment recommended in a treatment plan dated March 21, 2016. The Applicant is entitled to interest for these two treatment plans.

28The Applicant is entitled to a weekly income benefit of $280.16. This amount/calculation does not take into account the $291.94 per week that has been paid to the Applicant since January 2016. So long as the Applicant is not operating his business, he is not entitled to claim a weekly business loss amount.

29Neither party is entitled to costs.