Tribunal File Number: 16-000575/AABS
Case Name: 16-000575 v RBC Insurance Company
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:
J. S.
Applicant
and
RBC Insurance Company
Respondent
DECISION
ADJUDICATOR: Samia Makhamra
Counsel for the Applicant: Lisa Bishop
Counsel for the Respondent: Cary Schneider
HEARD in writing: November 14, 2016
Overview
This matter involves a claim arising from a motor vehicle accident on June 6, 2014. The applicant was the driver of the vehicle. He applied for and received benefits under the Statutory Accident Benefits Schedule – Effective after September 1, 2010 (the “Schedule”).
The applicant submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the Tribunal) seeking payment for medical benefits that were denied by the respondent.
The parties disagree on the severity of the applicant’s injuries as a result of the accident, and whether the treatment plans for which funding is sought are warranted.
The applicant believes that he is entitled to the treatment plans on two grounds: his injuries are not minor in nature; and he suffers from pre-existing medical conditions that entitle him to access additional funds for treatment.
The respondent disagrees. Its position is that the applicant has suffered predominantly minor soft tissues injuries, and that it has paid the maximum amount allowed of $3500 for treatment of minor injuries.
Benefits in dispute:
- The benefits in dispute at this hearing are:
i. Is the applicant entitled to receive a medical benefit in the amount $3,371.32, partially approved for $2,200.00, submitted on a Treatment and Assessment Plan (OCF-18) dated August 4, 2014 recommended by Prime Health Care Inc. for physiotherapy?
ii. Is the applicant entitled to receive payment in the amount $1646.80 submitted on a Treatment and Assessment Plan (OCF-18) dated March 31, 2015, recommended by Prime Health Care Inc. for a physiatry assessment?
iii. Is the applicant entitled to receive a medical benefit in the amount $1989.46 submitted on a Treatment and Assessment Plan (OCF-18) dated June 23, 2015, recommended by Prime Health Care Inc. for a psychology assessment?
iv. Is the applicant entitled to receive a medical benefit in the amount $1406.80 submitted on a Treatment and Assessment Plan (OCF-18) dated October 23, 2015, recommended by Prime Health Care Inc. for a physiatry assessment?
v. Is the applicant entitled to payments for the cost of examinations in the amount of $200.00 by Prime Health Care Inc. for a psychology pre-screen?
vi. Is the applicant entitled to payments for the cost of examinations in the amount of $1,229.81 by Prime Health Care Inc. for an attendant care assessment?
vii. Is the applicant entitled to payments for the cost of examinations in the amount of $1,855.39 by Prime Health Care Inc. for a psychological assessment?
viii. Is the applicant entitled to payments for the cost of examinations in the amount of $2,000.00 by Prime Health Care Inc. for a physiatry assessment?
ix. Is the applicant entitled to interest for the overdue payment of benefits?
Issues in dispute:
To determine the applicant’s entitlement to the claimed benefits, I must answer three questions: i. Are the applicant’s injuries predominantly minor? ii. Does the applicant suffer from a pre-existing medical condition that prevents him from reaching maximal recovery if he is subject to the $3500 cap in the Minor Injury Guideline (the “MIG”)? And, iii. Are the treatment plans necessary and reasonable for the applicant’s treatment?
Unless the applicant establishes that his injuries are not predominantly minor, or that he has a pre-existing medical condition, I need not consider whether the treatment plans are reasonable and necessary.
Decision:
- For the reasons that follow, I find that the applicant is not entitled to the treatment plans in dispute. I find that he suffered predominantly minor, soft tissue injuries as a result of the accident, and that he did not put forward the medical evidence necessary to establish that he suffers from a pre-existing medical condition that would take his treatment outside of the cost limits for minor injuries. As there are no benefits owing, the applicant is not entitled to interest.
Analysis:
In s. 3(1) of the Schedule, a “minor injury” is defined in 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”. Section 18(1) sets out the limit of $3,500 for medical and rehabilitation benefits for an insured person who sustains an impairment that is predominantly a minor injury, less any amounts paid in respect of the insured person in accordance with the MIG.
In a recent decision, Scarlett v. Belair Insurance, 2015 ONSC 3635 (Scarlett), the court held that the insured carries the onus of establishing entitlement to coverage beyond the MIG cap limits.
Are the Applicant’s injuries as a result of the accident predominantly minor?
The evidence
The applicant’s evidence includes the Treatment Confirmation Forms for the benefits in dispute, a psychological assessment dated May 21, 2015 by Dr. A. Shaul, a psychologist, a chronic pain assessment dated September 16, 2016, by Dr. S. Karmy, a physician identified as a chronic pain specialist, and correspondence between the parties.
Dr. Shaul diagnosed the applicant with an adjustment disorder and features of specific phobia as a passenger. Dr. Karmy diagnosed the applicant with chronic pain and offered an explanation of how the applicant could be suffering from a concussion as a result of the accident.
The respondent’s evidence includes correspondence between the parties containing Treatment Confirmation Forms for the benefits in dispute, the clinical notes and records of the applicant from his family physician for the period of June 6, 2011 to September 15, 2016, clinical notes and records from another family physician, Dr. Seah for the period of December 23, 2013 to June 30, 2014, the decoded OHIP summary for the period of June 6, 2011 to August 24, 2016, a prescription summary from November 18, 2011 to September 12, 2014, and a s. 44 multidisciplinary insurer’s examination report by Dr. Millard, a physiatrist, and Dr. Ratti, a psychologist, both dated March 3, 2016. Also included were insurer’s examination supplementary reports by Dr. Millard and Dr. Ratti dated November 4, 2016 and October 31, 2016, respectively. The supplementary reports addressed the chronic pain assessment report prepared by Dr. Karmy.
Dr. Millard diagnosed the applicant with the following injuries: lumbar spine sprain/strain, mild impairment in range of motion, within functional range, neurological examination was normal, bilateral knee sprain/strain. No impairment in range of motion. Medial joint line tenderness on the right. She concluded that the applicant’s injuries were soft tissue, minor injuries as defined in s. 3 of the Schedule to which the treatment protocol and monetary cap under the Minor Injury Guideline (MIG) applies. Dr. Ratti found that the applicant did not suffer from a psychological impairment as a result of the accident. The conclusions of Dr. Millard and Dr. Ratti in the supplementary reports did not change after Dr. Karmy’s report with a diagnosis of chronic pain.
Submissions
The applicant submits that the injuries he sustained are not soft tissue or minor. He submits his injuries are: cervical spine strain/sprain, thoracic spine strain/sprain, aggravation of pain in the lumbar spine, aggravation of pre-existing headaches and migraines, difficulty sleeping, fatigue, and anxiety. He argues that the severity of his injuries as described by his assessors in the treatment plans, a psychological diagnosis of an adjustment disorder with features of specific phobia by Dr. Shaul almost one year after the accident, and a chronic pain diagnosis by Dr. Karmy, two years after the accident, are evidence that his injuries are not minor and beyond the scope of the MIG.
The applicant commented on the s. 44 insurer’s examination reports. He questions the results because they were based on assessments of the applicant that were performed in February 2016 (the actual date of the examinations), to determine treatments and assessment plans that had been prepared several months prior.
The respondent relies on the results of insurer’s examinations in support of its position that the applicant’s injuries are minor and fall under the MIG. It submits that there is no medical evidence to suggest that the applicant’s injuries were not within the MIG, or as severe as he claims. The respondent further submits that the findings of the insurer’s examinations are more reliable than the applicant’s assessors: the respondent’s examiners reviewed an extensive list of documents to come to their conclusions regarding the applicant’s injuries and impairments from the accident. While the applicant’s assessors reviewed a limited number of the documents to come to the diagnoses of a psychological impairment and chronic pain.
Analysis
The injuries listed in the disability certificate dated June 18, 2014 are consistent with the definition of a minor injury.
The disability certificate was completed by Dr. Hefford, a treating chiropractor, and the injuries listed are: cervical spine strain/sprain, thoracic spine strain/sprain, lumbar spine strain/sprain; behavior, other anxiety disorder, other sleep disorder, muscle strain, multiple sites, post traumatic headaches and migraines.
Arguably, Dr. Hefford stated that the applicant was unlikely to recover within the limits of the MIG due to the severity of his injuries and related psychological impairment. In addition to the fact that Dr. Hefford is not qualified to give a psychological diagnosis, I note there is no objective corroborating medical evidence to support Dr. Hefford’s opinion, and the applicant’s visits to his family physician tend to undermine Dr. Hefford’s opinion. The first time the applicant saw a treating family physician for a complaint related to the accident was on June 30, 2014, when he saw Dr. Seah. This was over three weeks after the accident. Among other things, Dr. Seah noted headaches; migraines not relieved by Advil; chest wall pain. Dr. Seah did not recommend any treatment. The next time the applicant had a medical appointment was on August 15, 2014 when he saw Dr. Than, his family physician for an unrelated reason, but no treatment of any kind was recommended. The decoded OHIP summary confirms that the rest of the applicant’s medical appointments from the time of the accident to August 2016 were for issues unrelated to the accident, such as a cough and bronchitis.
I assign greater weight to the findings of the insurer’s examiners compared to the applicant’s assessors.
The applicant’s assessors relied on limited information in their reports. Dr. Shaul who diagnosed the applicant with an adjustment disorder, reviewed a disability certificate and treatment plan dated April 15, 2015. Dr. Karmy diagnosed chronic pain without medical records from before or after the accident. Both assessors relied on the applicant’s self-reporting, without the benefit of his medical records, or his medical history such as past referrals to specialists, or results of medical tests or investigations. This suggests to me that their reports are not as comprehensive or complete as the insurer’s examiners.
For the insurer, Dr. Ratti reviewed all the clinical notes and records from the family physician (Dr. Than), all the treatment plans, a diagnostic imaging, and the psychological report of Dr. Shaul. Similarly, Dr. Millard reviewed all the clinical notes and records from the family physician, all the treatment plans, the diagnostic imaging that was available, the psychological report of Dr. Shaul, and the psychological report of Dr. Ratti. The fact that these assessments took place in February 2016 is an unfortunate delay, but because they relied on all the documentation available, which includes medical records from the time of the accident and the treatment plans, I find their results more persuasive than those of the applicant’s assessors.
In conclusion, there is no evidence that the applicant’s injuries are other than minor, as determined by the insurer’s examination reports.
Is there a pre-existing medical condition that would take the Applicant out of the MIG?
Based on the evidence, I find that the applicant did not establish that he suffers from a pre-existing medical condition that would take his treatment out of the MIG.
The applicant may be exempt from the MIG and access additional funds for treatment. Specifically, s. 18(2) provides that treatment in excess of the $3,500 limit can be obtained if the insured person's health practitioner determines and provides compelling evidence that the insured person has a pre-existing medical condition that was documented by a healthcare practitioner before the accident, and that will prevent the insured person from achieving maximal recovery from the minor injury if the insured person is subject to the $3,500 limit.
Submissions
The applicant submits that he suffers from pre-existing headaches and migraines from previous motor vehicle accidents in 2002, 2003, and 2011, which should exempt him from treatment in the MIG. As evidence, he relies on a clinical note from a visit to his family physician on August 5, 2013, as well the assertion by his own assessors, including those who completed the treatment plans.
The respondent relies on Scarlett to submit that the onus in on the applicant to prove his entitlement to coverage beyond the MIG cap limits, and that he has failed to do so.
Analysis
The applicant did not explain how the previous accidents would take him out of the MIG. The clinical notes and records from the two family physicians do not include any visits for a complaint of musculoskeletal or psychological problems that pre-date the accident. In particular, the clinical record of August 5, 2013, to which the applicant refers in his submissions, does not contain a note about migraines; the note is handwritten and difficult to read but I’m able to read a reference to ‘headaches’, ‘clear chest’, but that there is no mention of migraines. Further, the decoded OHIP summary contains no entries for complaints of musculoskeletal or psychological problems prior to the accident either.
The Schedule and Scarlett require that the applicant must provide “compelling evidence” of a pre-existing medical condition documented by a healthcare practitioner to establish entitlement beyond the MIG. He has not done so. He has not submitted a diagnosis of a pre-existing condition from a health practitioner. One recorded visit to a family physician for headaches, and a history of motor vehicle accidents are not enough to convince me that it is more likely than not that the applicant suffers from a pre-existing condition that prevents him from reaching maximal recovery if subject to the $3500 MIG limit.
Did the Respondent give proper notice of denial of the benefits?
This was not one of the issues in dispute at this hearing. The applicant raised it in argument. The respondent provided a response submission without objection. Given that the respondent does not argue that it is prejudiced by the late inclusion of this ground, I address it.
I have considered the parties’ submissions and do not find that the respondent breached procedure in its denials of the benefits.
Submissions
The applicant submits that the respondent failed to properly and fairly adjust his claim for treatment by failing to provide any medical or other reasons to deny the treatment plans in breach of s. 38(8) of the Schedule. He quoted Augustin v Unifund Assurance Company, FSCO A12-000452 in support of his position. The applicant also raises a procedural issue with the manner in which the respondent delayed the scheduling of the s.44 insurer’s examination. He argues that the respondent made no effort to schedule the examinations until December 2015, long after the treatment plans were submitted, which was in September 2014, and not until he contacted the respondent to schedule the examinations.
The respondent submits that it complied with the Schedule in all aspects of its handling of the applicant’s claim. The respondent in particular objects to the applicant’s account of what led to the delay in the scheduling of the insurer’s examination.
Analysis
I do not find that the respondent failed to adequately deny the treatments, or provide adequate reasons for doing so. Based on the correspondence between the parties, which includes the respondent’s denials of the benefits, I find that the respondent complied with the Schedule.
Section 38(8) states that:
“ Within 10 business days after it receives the treatment and assessment 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 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”.
The applicant did not identify a procedural failure in a specific notice of denial. He only made general statements about the respondent’s obligations under this section of the Schedule. His submissions give me no insight into his position. In any event, I note that the respondent did provide the grounds of its denials, with the medical and all other reasons. For example, the respondent explained that the applicant’s injuries were within the MIG; it described the diagnosis, and advised of its intention to schedule an insurer’s examination where applicable. In other words, in looking at the correspondence from the respondent to the applicant, I see no evidence of non-compliance with s. 38(8) of the Schedule.
Regarding the scheduling of the insurer’s examination, I have no evidence that the respondent breached procedure, or is at fault as the applicant alleges. I reviewed the letters that the respondent sent to the applicant between the time the treatment plans were submitted in September 2014, until December 2015 when the respondent sent the applicant the notice of examination. There were several letters in which the respondent advised the applicant that his counsel had refused to allow him to attend an insurer’s examination, but that it intended to schedule one, and that the applicant was required to attend and should advise when he was ready to attend.
Regarding the delay in the scheduling of the insurer’s examination, the respondent provided the letters as part of its evidence. It also submitted a detailed chronology of its correspondence with the applicant in this regard, successfully refuting the applicant’s argument that the respondent was at fault. Despite this, the applicant did not provide a reply submission, or additional evidence to support his claim that respondent inappropriately delayed the examination. This leaves me no alternative but to accept the respondent’s argument that it was not at fault for the late scheduling of the examinations, or in breach of the Schedule.
To give some context to the above, the first time the respondent advised the applicant that it would arrange an assessment pursuant to s. 44 of the Schedule was by way of an explanation of benefits form dated September 26, 2014. This related to a denial of a treatment plan for a psychological assessment. The next time it advised the applicant that it would arrange another assessment was regarding the denial of a treatment plan for chiropractic and massage services, dated March 20, 2015. In this instance the respondent advised the applicant that his counsel would not allow for an in-person assessment or a paper review, and it asked to be notified if the applicant wished to schedule the assessment. The respondent also advised that until the applicant complied with his obligation to attend the assessment the benefits were denied. There were subsequent letters, and in December 2015 the applicant’s counsel agreed to an in-person assessment, which took place in February 2016.
Conclusion:
- I find that the applicant’s injuries, as a result of the accident, are predominantly minor and within the MIG, and that he has produced no medical evidence of a pre-existing condition that would take him out of the MIG. As a result, I find that he is not entitled to the benefits in dispute.
Released: February 2, 2017
___________________________
Samia Makhamra, Adjudicator