Date: 2017-08-11

Tribunal File Number: 16-003024/AABS

Case Name: 16-003024 v Security National Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c 1.8., in relation to statutory accident benefits.

Between:

Applicant

Applicant

and

Security National Insurance Company

Respondent

DECISION

ADJUDICATOR: Louise Bélanger-Hardy

APPEARANCES:

For the Applicant: Lucy Lee and William R. Brendan, counsel

For the Respondent: Eric Levin, counsel

HEARD: Written Hearing: April 10, 2017

Background

1. This matter involves a claim arising from a single vehicle accident that took place in Ontario on August 7, 2013. [ ] (the applicant) was driving the car along a street where there was construction. He hit an obstacle and the vehicle’s airbags deployed hitting him in the face, hands and arms.

2. The applicant, who is a high school teacher who specializes in technological studies, returned to work full time as scheduled in September 2013. The applicant also does restoration work of churches and other buildings.

3. The day after the accident, the applicant consulted his family physician. In the months that followed, he received physiotherapy treatments from Body Mechanics. He was also followed by his family dentist, Dr. Davenport. He was referred to another dentist, Dr. Awde, who examined the applicant in January 2016.

4. The applicant’s treatments were covered by his extended health coverage with Green Shield.

5. In August 2015, the applicant made his first application for accident benefits with Security National Insurance Company (the respondent) under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the Schedule).¹

6. At some time in November or early December 2015, he submitted a Treatment and Assessment Plan for an occupational therapy assessment (the “November 27 Plan”). The respondent denied the plan in a letter dated December 15, 2015, but the assessment nevertheless took place and Ms. Lynda McCauley, occupational therapist at Brainworks, completed her report in March 2016.

7. On or about December 12, 2015, the applicant submitted a Disability Certificate signed by his family physician Dr. B. McKeough who listed the injuries resulting from the accident as neck strain, jaw strain, bilateral wrist strain and bilateral shoulder strain.

8. The applicant submitted a second Treatment and Assessment Plan in February 2016 (the “February 9 Plan”), which the respondent denied in a letter dated March 16, 2016. The denial letter specified that insurer’s examinations were required. The applicant was therefore assessed by Dr. S. Taylor (a general practitioner) and by Dr. P. Cobrin (a psychologist).

9. In his report, dated July 25, 2016, Dr. Taylor, diagnosed the applicant with neck- strain resolved, face contusion; temporal mandibular dysfunction and bilateral arm strain. He concluded that the injuries met the criteria of minor injuries as defined in the Minor Injury Guideline (MIG).² Dr. Taylor provided an Addendum report in March 2017 following a request by the respondent asking him to comment on Dr. Awde’s clinical notes and records. Dr. Taylor’s opinion remained unchanged.

10. For his part, psychologist Dr. Cobrin noted that the applicant had reported experiencing “subclinical symptoms related to an adjustment disorder, that is, some feelings of frustration, as a result of the index accident”. Dr. Corbin wrote that the symptoms did not “appear to be sufficiently severe to warrant making a psychological diagnosis”. He concluded that “from a psychological perspective” the accident related symptoms, such as frustration, met the criteria of minor injury.

11. On August 18, 2016, the respondent sent a final denial letter to the applicant confirming the insurer’s position that the injuries sustained fell under the Minor Injury Guideline, based on the conclusions of the two insurer’s examiners.

12. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for a determination of his entitlement to benefits. The matter proceeded to a case conference, but the parties were unable to resolve the issues in dispute and the matter was set down for a written hearing.

Issues in Dispute

13. The following issues are in dispute before the Tribunal:³

a) Did the applicant suffer predominantly minor injuries as a result of the August 7, 2013 motor vehicle accident?

b) If the applicant’s injuries fall outside of the MIG, is he entitled to the following treatment plans for medical benefits:

• $2,486.00 for Occupational Therapy Services pursuant to a Treatment and Assessment Plan dated November 27, 2015, recommended by occupational therapist Lynda McCauley? These services were incurred and a report issued on March 9, 2016; and

• $1,356.00 pursuant to a Treatment and Assessment Plan dated February 9, 2016, recommended by Lynda McCauley?

c) Is interest payable for the overdue payment of benefits?

14. In his submissions, the applicant raises an additional issue. He submits that the respondent’s letters of denial dated December 15, 2015, March 16, 2016 and August 18, 2016 did not comply with the notice provisions outlined in section 38(8) of the Schedule. Consequently, based on section 38(11) of the Schedule, the applicant submits that the respondent is prohibited from taking the position that the applicant had an impairment to which the MIG applies.

Decision

15. The evidence provided by both parties at the hearing was documentary. I have considered all of the documents submitted by each party and, for the reasons that follow, I have determined that:

d) the respondent’s denial letters meet the requirements of sections 38(8) of the Schedule;

e) the applicant’s impairment is predominantly a minor injury to which the MIG applies and is subject to the $3,500 limit set out in the Schedule;

f) the medical benefit in the amount of $2,486.00 for Occupational Therapy Services is not payable;

g) The information before me is not entirely clear as to whether the $3,500 limit is exhausted. However, based on the evidence before me, I cannot conclude that the claim for $1,356 is reasonable and necessary and it is therefore denied.

h) There is no interest payable as the claims have been dismissed.

Analysis and Reasons

Issue 1: Did the respondent comply with the notice requirement in sections 38(8) of the Schedule?

The Law

16. Three sections of the Schedule are relevant to my analysis: Section 38(8) of the

Schedule which provides as follows:

“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.”

17. Section 38(9) provides that:

“If the insurer believes that the (MIG) applies to the insured persons’ impairment, the notice under subsection (8) must so advise the insured person.”

18. Section 38(11)1 of the Schedule provides:

“If the insurer fails to give a notice in accordance with subsection (8) in connection with a treatment and assessment plan, the following rules apply:

1. The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.”

Time Requirements

19. Regarding both the December 15, 2015 and the March 16, 2016 denial letters, the applicant submits that the respondent did not respect the 10 business day time requirement to respond to the claim, as set out in section 38(8). The Respondent denies this and relies on Health Claims for Auto Insurance (HCAI)⁴ numbers and dates to support its position. The Respondent claims the first OCF-18 was dated November 27, 2015 but only submitted via HCAI on December 11, 2015. It was denied on December 15, 2015. The second OCF-18, dated February 9, 2016 was submitted on March 9, 2015 via HCAI and denied March 16, 2016.

20. I note that the Respondent did not provide me with a copy of the relevant HCAIs. However, the Respondent relies on the affidavit of Ms. Peggy Moore, a complex accidents benefits claims specialist with Security National Insurance Company. In her affidavit, Ms. Moore writes that “on December 11, 2015 an OCF-18 was submitted through HCAI by Lynda McCauley of Brainworks Corporation. This OCF- 18 was in the amount of $2,486”. Ms. Moore also states, in the same affidavit, that on March 9, 2016 an OCF-18 was submitted through HCAI by Lynda McCauley of Brainworks Corporation. This OCF-18 was in the amount of $1,356. Based on the evidence before me, I find that the Respondent’s December 15, 2015 and March 16, 2016 denial letters both followed the 10 business days’ time limit set out in section 38(8).

Compliance with the content requirements of sections 38(8)

21. The applicant submits the respondent’s denial letters of December 15, 2015, March 16, 2016 and August 18, 2016 failed to comply with the content requirements of sections 38(8) and “failed to satisfy the Augustin⁵ requirements”. The applicant refers to an earlier Tribunal’s decision in S.L. v. Certas Home and Auto Insurance Company⁶ in support of its position. Regarding the March 16, 2016 and August 18, 2016 denial letters, the applicant submits the letters made “no reference to reasonable and necessary” and denied the applicant’s assessment plan “purely on the basis that his injuries fall within the (MIG) from both a physical and psychological perspective.”

22. For its part, the respondent submits that both letters “are in line with the notice requirements as set out in Smith v. Co-operators General Insurance Co.”⁷ and “denies any procedural failures in replying to either OCF-18s”.

23. I note that the FSCO decision in Augustin proposes a number of criteria to assist in the interpretation of section 38(8), in particular, the minimum requirements to satisfy an insurer’s obligation to give notice of the “medical reasons and all of the other reasons why [it] considers goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary”:

… the insurer, in explaining why the benefits are not payable, must indicate that it has reviewed the Treatment and Assessment Plan and any medical documentation provided, compared it to the criteria in the MIG, and determined either that there is insufficient compelling evidence (of pre-existing injuries or conditions, for example) or insufficient medical documentation to persuade it that the accident injuries fall outside of the MIG, and therefore, the insurer believes the MIG applies and the treatment claimed is not reasonable or necessary⁸.

24. While I am not bound by FSCO’s decisions, I find the reasoning in the Augustin decision persuasive and the criteria just described helpful in assessing the denial letters in the present case.

The December 15, 2015 denial letter

25. I find the December 15, 2015 denial letter contained the following:

i) stated the respondent was unable to approve the claim based on its belief that the MIG applied;

ii) referred to the November 27, 2015 Treatment and Assessment Plan prepared by occupational therapist Lynda McCauley; and

iii) noted there was no medical evidence from a health practitioner suggesting the applicant’s injuries fell outside the definition of a minor injury.

The respondent invited the applicant to provide further medical information if he so wished and informed him that he would not be subjected to an insurer examination. The respondent further noted its willingness “to approve treatment for you based on the assumption that your impairment is a minor injury”. The respondent added: “[w]e agree to waive the completion of a Treatment Confirmation Form (OCF-23) and will make payments in accordance with the Minor Injury Guideline”.

26. With this content and the Augustin criteria in mind, I find the December 15, 2015 denial letter made it clear to the applicant that the claim was denied based on the MIG. The respondent provided a reason for the denial including the fact there was no medical evidence as such to support the applicant’s claim. In my opinion, in the circumstances of this case, the denial notice meets the notice requirements of section 38(8).

The March 16, 2016 denial letter

27. Turning to the March 16, 2016 denial letter, I note that this letter was provided in response to the February 9 Plan, a document essentially identical to the November 27 Plan except for two brief references to a “work site assessment”. In his submissions, the applicant submitted that the insurer “makes no reference to reasonable and necessary, it denies [the applicant’s] entitlement purely on the basis that his injuries fall within the Minor Injury Guidelines from both a physical and psychological perspective”.

28. In its March 16, 2016 denial letter, the respondent identified the claim as being for “a Work Site Assessment” and refused the claim. The respondent noted that the applicant returned to work full time in September 2013 without missing any work or seeing his wages affected as a result of the accident and concluded that the applicant did “not meet the eligibility requirement for an income replacement benefit. The respondent wrote: “[f]rom a medical perspective, there has been no objective or compelling evidence that would indicate this request to be reasonable due to the injuries you sustained in the accident”. Note was then made that there would be an insurer examination on dates to follow.

29. I note that in the March 16, 2016 denial letter, the insurer focused on income replacement benefits (IRB), while, in its submissions, the applicant focusses on medical benefits. There appears to be confusion about what the February 9 Plan was all about. The claim for a “work site assessment” was linked by the insurer to a possible claim for IRBs (for which no information has been provided to me). I note that section 38(8) does not apply to IRBs, but only to medical or rehabilitation benefits. I am unable to determine from the evidence before me why there was confusion about the nature of the claim. A clerical error or oversight appears to be the cause. In such circumstances, I am not prepared to conclude the respondent failed to comply with the notice requirements found in section 38(8).

The August 18, 2016 denial letter

30. In the August 18, 2016 letter, the respondent referred to the two insurers examinations completed by Drs. Taylor and Cobrin and determined that the applicant’s injuries fell under the MIG. The respondent advised the applicant that his claim “remains subject to the Medical and Rehabilitation limit of $3,500.00” and offered to reconsider its position if additional compelling medical evidence was provided regarding a pre-existing medical condition.

31. Keeping the wording of section 38(8) and the Augustin criteria in mind, I find the August 18, 2016 denial letter made it clear to the applicant that the claim was denied based on the MIG and provided reasons for the denial by referring to the medical opinion of Drs. Taylor and Cobrin. In my opinion, in the circumstances of this case, the denial letter meets the notice requirements of section 38(8).

Conclusion on compliance with section 38(8) of the Schedule

32. Given my findings on the denial letters, the limitation noted in section 38(11) does not apply, and the respondent is free to submit that the applicant’s impairment falls within the MIG.

Issue 2: Do the applicant’s injuries fall within the MIG?

33. I must now consider if the applicant has sustained a minor injury to which the MIG applies, limiting his total claims to the legislated limit of $3,500. The burden of proof of establishing entitlement to medical benefits beyond the $3,500 cap rests with the applicant.⁹

34. According to sub-section 18(1) of the Schedule, the sum of medical and rehabilitation benefits to which a person is entitled is limited to $3,500 when the impairment sustained is predominantly a minor injury (defined in section 3(1) of the Schedule as meaning “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”).

35. Section 18(2) creates an exception to this rule when the insured person “has a pre- existing medical condition that was documented by a health 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.” In this case, no submissions were made and no evidence provided regarding a possible pre- existing medical condition. Therefore, the only issue to be considered is whether the nature or severity of the applicant’s injuries is such that it causes them to fall outside the definition of minor injuries in the Schedule.

The applicant’s submissions

36. First, the applicant submits he suffers from dental injuries which fall outside of the MIG. He relies on Dr. Awde’s clinical notes and correspondence including a letter from to the applicant’s regular dentist listing the diagnosis arrived at and suggesting that a neurological examination and EMG “might be of use”. The applicant submits Dr. Awde diagnosed hypersensitivity to cold bilaterally, constant jaw pain and capsulitis, and snapping of the fibrocartilage discs of the TM joints.

37. Second, the applicant submits he suffers from physical injuries following the accident, namely, headaches, pain and TMJ issues. He claims this has “impacted his ability to perform certain aspects of his jobs”, especially his renovation and restoration work. He submits he was forced to “dramatically reduce his avocational activities”. The applicant relies on the in-home occupational therapy assessment by occupational therapist Lynda McCauley, dated March 9, 2016.

38. Third, regarding Dr. Taylor’s report, the applicant submits that the doctor made “no assessment of the reasonableness or necessity of the treatment plan (referring to the February 9 Plan). As for the insurer’s examination report by Dr. Cobrin, a psychologist, the applicant submits that “it is not clear what criteria Dr. Cobrin is referring to” given that the MIG “does not list any type of psychological injury as a minor injury”. The applicant specifies that “there is no requirement in the Schedule that an individual’s psychological injury rises to the level sufficient to warrant a formal DSM-V diagnosis in order for some level of treatment to be warranted”. The applicant adds that there is nothing in the MIG that differentiates between types of psychological injuries”.

The respondent’s submissions

39. The respondent relies on the December 12, 2015 Disability Certificate by Dr. McKeough and the reports by Drs. Cobrin and Taylor (including the March 2017 Addendum by Dr. Taylor) to submit that the applicant’s injuries are predominantly minor in nature. The respondent further submits that, after close to four years post- accident, the applicant “has yet to submit any OCF-18s for treatment for any accident related injuries” and submits that “this is because the applicant’s condition has improved”.

Analysis and reasons on the MIG issue

40. Section 3(1) defines 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”.

41. I note that, in the December 2015 Disability Certificate (OCF-3), the applicant’s own physician, Dr. McKeough, described the injuries as neck strain, jaw strain, bilateral wrist strain and bilateral shoulder strain. In my opinion, this description is in line with the definition of minor injury in section 3(1) of the Schedule. I find this information convincing. I was also provided with Dr. Awde’s clinical notes and records. These records contain a letter to the Applicant’s dentist where Dr. Awde lists the applicant’s self-reported symptoms and provides a diagnosis of macrotrauma secondary to the deployment of the airbag and notes that the applicant has developed ADR/ADNR of the TMJ. I was not provided with further information on this condition. I note further that Dr. Taylor diagnosed the applicant with neck-strain resolved, face contusion; temporal mandibular dysfunction and bilateral arm strain and concluded the applicant’s injuries were minor as defined in the MIG. I find these conclusions persuasive. On the other hand, the report prepared by Lynda McCauley presents the applicant’s subjective symptoms and makes a number of suggestions for future treatment, but fails to provide a diagnosis and opinion on the character of injuries. While Ms. McCauley ticked the box denying the applicant’s impairment was predominantly a minor injury, this is not sufficient evidence to convince me that the applicant falls out of the MIG.

42. Regarding the applicant’s psychological status, I note that the he did not submit any evidence of a diagnosis regarding his psychological health. The only opinion available to me is that of Dr. Cobrin who noted the applicant’s sense of frustration and concluded that the symptoms did not “appear to be sufficiently severe to warrant making a psychological diagnosis”. Keeping in mind that the burden of proof is on the applicant, there is insufficient evidence before me to convince me that he sustained psychological injuries in the accident or in its aftermath.

Conclusion regarding the MIG

43. Based on the evidence before me, and after consideration of the submissions by both parties I conclude that the applicant’s impairment is predominantly a minor injury to which the MIG applies. I will now consider the impact of this conclusion on the applicant’s two claims.

Issue 3: Is the Applicant entitled to the medical benefits claimed?

$2,486.00 claim for Occupational Therapy Services pursuant to a Treatment and Assessment Plan dated November 27, 2015

44. The respondent submits that the applicant was not entitled to a medical benefit of $2,486.00 for Occupational Therapy Services based on section 25(2) of the Schedule. Section 25(2) provides:

“... an insurer is not required to pay for an assessment or examination conducted in the insured person’s home unless the insured person has sustained an impairment that Is not a minor injury”.

45. I agree with the respondent’s submission and conclude that the applicant is not entitled to the $2,486.00 benefit. The first page of Ms. McCauley’s March 2016 report states that the applicant was referred to Brainworks for “an in-home occupational therapy assessment”. In addition, I note the report states that “the home assessment was completed at [the applicant’s] residence”. I conclude that the assessment was conducted in the applicant’s home, section 25(2) of the Schedule applies and the benefit is not payable.

$1,356.00 claim for Occupational Therapy Services/Work Site Assessment pursuant to a Treatment and Assessment Plan dated February 9, 2016

46. I determine that there is insufficient evidence to allow me to conclude that the February 9 Plan for $1,356 is reasonable or necessary. I note the February 9 Plan, while almost identical in wording to the November 27 Plan, specifies that it is for a “work site assessment”. Of course, if the assessment is done in the home, the claim will not be payable as section 25(2) of the Schedule provides that the respondent is not required to pay for an assessment or examination conducted in the applicant’s home as he is within the MIG. But even if the intent (which is not clear) is to make an assessment outside the home, I have not been provided with convincing evidence to allow me to conclude that the benefit is reasonable and necessary and the benefit is therefore denied.

Issue 4: Interest

47. As I have not found any benefits payable to the applicant, there is no interest payable in this case.

Released: August 11, 2017

Louise Bélanger-Hardy, Adjudicator

Footnotes

1. 1Insurance Act, Regulation 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline No. 01/14.
3. 3The case conference report noted another issue: Is [the Applicant] entitled to payments for the cost of examinations in the amount of $2,825.00 for an Income Replacement Benefits Accounting report dated December 21, 2015, prepared by MDD Forensic Accounting? However, it appears this issue was withdrawn by the applicant on January 13, 2017 and will therefore not be considered here.
4. 4Health Claims for Auto Insurance (HCAI) is an electronic system for transmitting auto insurance Ontario Claim Forms (OCFs) between health care businesses and insurers in Ontario.
5. 5The applicant is referring to Kadian Augustin v. Unifund Assurance Company, FSCO A12-000452, an Arbitration Order by arbitrator Susan Sapin dated November 13, 2013.
6. 62016 CanLII 60726 (ON LAT).
7. 72002 SCC 30, [2002] 2 S.C.R. 129.
8. 8See FSCO A12-000452, released on November 5 13, 2013 at page 9.
9. 9This burden of proof was confirmed by the Ontario Superior Court of Justice (Divisional Court) in the 2015 case of Lenworth Scarlett v. Belair Insurance Company Inc. 2015 ONSC 3635.