16-003333 v Wawanesa Mutual Insurance Company
Tribunal File Number: 16-003333/AABS
Case Name: 16-003333 v Wawanesa Mutual 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:
S. U.
Applicant
and
Wawanesa Mutual Insurance Company
Respondent
AMENDED DECISION
ADJUDICATOR: Christopher A. Ferguson
APPEARANCES
Michael Ellis, Counsel for the Applicant
Tim Gillibrand, Counsel for the Respondent:
HEARD IN WRITING: May 8, 2017
DECISION
BACKGROUND
1This is an Application to the Licence Appeal Tribunal (the “Tribunal”) with respect to the resolution of the applicant’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which the applicant is entitled.
2The applicant was involved in an automobile accident on July 21, 2009, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Accidents on or after November 1, 1996 (“the Schedule'').
3A case settlement conference held on January 12, 2017 failed to resolve the issues in dispute. Accordingly, a written hearing was ordered to take place on May 8, 2017.
4The hearing was delayed to permit the applicant to respond specifically to an affirmative defence raised by the respondent, set out below as Issue 1. Permission was granted for a late reply for the reasons set out in my order dated June 13, 2017. I resumed the written hearing on June 23, 2017.
ISSUES
1. Compliance with s.33 of the Schedule
5The applicant seeks payment of two treatment plans, but before I consider those plans, I must consider the respondent’s submission that it is not currently liable to pay the benefits in dispute, because the applicant has failed to meet the respondent’s requests for production of documents as required by s. 33(1)1 of the Schedule.
6I find that s.33 of the Schedule is inapplicable to the facts of this case. Accordingly, I find that the respondent is currently liable to pay the benefits in dispute, if they are determined to be reasonable and necessary.
Analysis and Reasons
7Under section 33 of the Schedule, an insurer may request that an applicant provide any information reasonably required to assist it in determining the applicant’s entitlement to a benefit. If the applicant fails to provide the insurer with the requested information, then the insurer is not liable to pay him the benefit until he does. If the applicant eventually complies with the insurer’s request with a reasonable explanation for the delay the insurer must pay the withheld benefit.
8The applicant never provided the respondent with the information it requested. Accordingly, I must determine whether the information requested by the respondent was reasonably required to help it determine the applicant’s entitlement to the benefits claimed.
9The respondent has submitted as evidence its letters to the applicant, in which it requests production of the applicant’s updated family physician records, decoded OHIP summary and hospital records. These letters to the applicant are dated March 28, 2016, April 12, 2016 and June 13, 2016.
10The respondent’s letter dated March 28, 2016 indicated that the requested records were required within ten business days, failing which no benefits were payable pursuant to Section 33(6) [sic] of the Schedule. The respondent also requested complete production of medical and other records in its initial response to the applicant’s appeal to the Tribunal. The respondent concedes that applicant did furnish the respondent with requested treatment records from Trillium Rehabilitation Centre dating up to 2010. The remaining information requested by the respondent has not been provided to date.
11The applicant points out that:
(i) Both disputed treatment plans were denied promptly by the respondent without reference to the applicant’s non-compliance with s.33(1)1. The claims were denied on the basis that they were not reasonable and necessary.
(ii) At no time did the respondent’s adjuster tell the applicant that more information was required to determine his entitlement to the benefit.
(iii) The examining physicians in two insurer examinations (IEs) attended by the applicant – Dr. Saplys, orthopedic surgeon and Dr. Ian Smith, psychologist – in response to a direct question from the respondent, indicated that adequate information had been provided to them to complete their evaluations.
12The applicant argues that the evidence set out above in para.12 shows that the information requested was not “reasonably required to assist the insurer in determining [his] entitlement to a claimed benefit” as prescribed by s.33(1)1. of the Schedule.
13Based on the evidence, I find that the respondent’s handling of the applicant’s claims indeed indicates that the information it requested was not “reasonably necessary” for it to determine the applicant’s entitlement to the disputed benefits, as required by s.33(1)1. of the Schedule.
14The insurer decided that it had enough information to determine the applicant’s claim. In my view, an insurer cannot deny a claim on the grounds that it is “not reasonable and necessary”, with no reference to information it has requested under s.33, and then go on to use non-compliance with s.33 of the Schedule as a bar against its liability to pay the benefits in that claim after its decision is appealed to the Tribunal.
15Accordingly, I deny the respondent’s request to find that it is not currently liable to pay the disputed medical benefits. I will proceed to determine the applicant’s entitlement to the disputed benefits set out below.
2. Substantive Issues: Entitlement to Medical Benefits
16The substantive issues before me are:
(i) Is the applicant entitled to a medical benefit outlined in a chiropractic treatment plan recommended by Dr. Pearl Mehra on March 22, 2016 in the amount of $2,216.18, denied by the respondent on April 4, 2016?
(ii) Is the applicant entitled to the cost of a psychological assessment recommended by Dr. M. Lotfielizadeh on June 24, 2016 in the amount of $2,144.94, denied by the respondent on July 16, 2016?
21I find that:
(i) The medical benefit for chiropractic treatment is not reasonable and necessary.
(ii) The medical benefit for psychological assessment is not reasonable and necessary.
Analysis and Reasons: Chiropractic Treatment Plan
22The respondent’s submission is that the clinical evidence contradicts the applicant’s claim of necessity for the chiropractic treatment plan, for example:
(i) Extensive evidence from the applicant’s own submissions in the form of medical notes and reports during the first year after the MVA indicating that notwithstanding some continuing issues, the applicant required no further passive treatments:
a. Dr. Murthy, family physician, in a clinical note dated July 31, 2009, advises the applicant that physiotherapy is not necessary;
b. Dr. Gawal, neurologist, in a neurological examination report suggests that further passive therapies such as acupuncture or chiropractic would be ineffective and recommends an independent exercise program [October 3, 2009];
c. Dr. Kumbhare, physiatrist, recommends an independent exercise program, report dated January 27, 2010.
(ii) An IE report by Dr. S. Henderson, chiropractor, dated June 18, 2010, notes that maximum therapeutic benefit had been obtained from a six-month course of various treatments including massage, spinal manipulation and electromagnetic therapies at the Trillium Rehabilitation Centre.
(iii) The IE report from Dr. Saplys dated May 26, 2016 states that there is no evidence of impairment or need for further facility-based treatment.
23The respondent also contends that the lengthy dormant period on claims from the applicant, from 2010-2016, undermines the applicant’s case that further treatment is required for MVA-related problems.
24The applicant does not offer any clinical evidence beyond the treatment plan to demonstrate the necessity or efficacy of the proposed treatments. She cites affordability as a reason for not actively engaging in treatments, but offers no evidence of having sought and been denied coverage by the respondent after 2010.
25I find that the applicant has not met her onus of proof. On the balance of probabilities, the preponderance of evidence is that the treatment plan for chiropractic treatment is not reasonable and necessary.
Analysis and Reasons: Psychological Treatment Plan
26The respondent’s submission is that the clinical evidence contradicts the applicant’s claim of necessity for the psychological treatment plan, for example:
(i) An IE report by Dr. Ian Smith, psychologist, dated July 21, 2016, a paper review, found no evidence of psychological impairment in the medical records.
(ii) An IE report by Dr. Allan Peterkin, psychiatrist, dated February 19, 2010, notes that the applicant had, at that time, described her problems as “100% physical” and failed to endorse any symptoms requiring psychological treatment.
(iii) A lack of clinical notes and records from the applicant’s family physician, referrals to specialists or any other medical evidence of psychological issues from 2010 to 2016.
26The applicant offers as evidence for the necessity of the proposed treatment plan:
(i) The submitted assessment treatment plan itself, which included provisional diagnoses of adjustment disorder with mixed anxiety and depressed mood and passenger-related phobias.
(ii) A psychological report by Dr. Mel Perlmutter, clinical psychologist, dated October 30, 2009, in which the doctor diagnosed a number of conditions including adjustment disorder with mixed anxiety and depressed reaction and possible post-traumatic stress disorder.
27I find that the respondent’s medical evidence and arguments are more convincing than the applicant’s, because:
(i) The applicant herself described her problems as purely physical to Dr. Peterkin in mid-February 2010, almost four months after her examination by Dr. Perlmutter on October 30, 2009.
(ii) The disputed treatment plan relies on the applicant’s responses in an interview, which appear to contradict statements she made years earlier to Dr. Peterkin. These unexplained contradictions weaken the evidentiary basis – which depends on self-reporting by the patient/applicant -- of the treatment plan.
(iii) As noted by the respondent, the disputed treatment plan was signed by Nancy Amirkanian, a registered psychotherapist who is not legally qualified to diagnose psychological disorders under the Regulated Health Professionals Act. In my view, this diminishes the persuasive value of the treatment plan.
(iv) The applicant provides no answer to the reasonable doubts raised by her failure to seek treatment between 2010 and 2016; the suggestion that she didn’t get treatment because she was “unfunded” is not backed with any evidence of any claims for treatment or assessment having been filed by the applicant with the respondent over that time.
28I find that the applicant has not met her onus of proof. On the balance of probabilities the preponderance of evidence is that the treatment plan for psychological treatment is not reasonable and necessary.
Costs
29The respondent has asked for costs in this matter, citing Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, Version 1 (April 1, 2016), which states:
“Where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.”
30I deny the respondent’s requests for costs in this matter.
31Having found that the information requested by the respondent was not necessary for it to determine its claim, I find the respondent’s contention that the applicant’s conduct of her appeal constitutes “unreasonable” conduct within the meaning of Rule 19.1. To be unsupportable. Accordingly, the request for costs is denied.
Summary of Findings
29The respondent’s submission that it is not currently liable to pay the disputed benefits because the applicant failed to provide it with information requested under s.33 of the Schedule is denied.
30The applicant is entitled to have the disputed benefits determined on the basis of whether they are reasonable and necessary.
31The treatment plan submitted by the applicant for chiropractic treatments is not reasonable and necessary.
32The treatment plan submitted by the applicant for psychological assessment is not reasonable and necessary.
33The respondent’s request for costs under Rule 19.1 is unsupported.
Released: August 1, 2017
Christopher A. Ferguson, Adjudicator