16-003316 v Peel Mutual Insurance Company
Case Name: 16-003316 v Peel 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:
T.F.
Applicant
and
Peel Mutual Insurance Company
Respondent
DECISION
Adjudicator: Nicole Treksler
Appearances:
Applicant: T.F., Applicant
For the Applicant: David Donnelly, counsel
For the Respondent: James W. Wilson, counsel
Written Preliminary Issue Hearing: May 10, 2017
I. Overview:
1The applicant, T.F. was injured in an automobile accident on June 24, 2013, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').
2The applicant made claims for occupational and physiotherapy services and both benefits were denied in separate letters dated March 21, 2016. In these letters, the respondent notified the applicant that it required her to attend insurer’s examinations (“IEs”) to address eligibility for these benefits.
3The applicant submits that the respondent’s denial letters dated March 21, 2016 do not comply with the notice requirement set out in sections 38(8) and 44(5) of the Schedule, both of which require that the respondent to provide the medical and all other reasons for the need for IEs.
4The applicant submits that, given the respondent’s failure to comply with the notice requirements, she is not required to attend the IEs and that the respondent should pay for the treatment plans in dispute, including interest, and a section 10 of Reg. 664
5The respondent disagrees with the applicant’s position. This decision deals with a motion brought by the respondent for a determination that the applicant is barred by s. 55 of the Schedule from disputing its denials because she failed to attend several IEs required under s. 44.
6I find that the respondent’s denial letters comply with the notice requirements in the Schedule and the applicant is barred from the Tribunal’s process, under section 55 of the Schedule, until such time she attends the IEs.
II. Preliminary Issues:
7Given that the applicant failed to attend the respondent’s IEs, the issue is whether the applicant can commence a proceeding before the Tribunal under section 55 of the Schedule. I have therefore reframed the issues identified in the Tribunal’s February 17, 2017 Case Conference Order1 to reflect this as follows:
i. Is the applicant barred from proceeding with her claims at the Tribunal for medical benefits under s. 55 of the Schedule for failing to attend IEs?
8There are two possible outcomes in this matter.
9If the respondent is successful, the applicant is barred from proceeding with her claims at the Tribunal until such time she attends the IEs.
10If applicant is successful, she is not required to attend the IEs and the matter will proceed to a hearing before the Tribunal to determine whether the treatment plans in dispute are reasonable and necessary.
11In order for the applicant to be successful, she must show that the respondent’s denial letters do not meet the notice requirements as set out in sections 38(8) and 44(5) of the Schedule.
III. Result:
12The respondent’s denial letters meet the notice requirements as set out in sections 38(8) and 44(5) of the Schedule. As such, the applicant does not have a defence for her failure to attend the IEs.
13Therefore, under section 55 of the Schedule, the applicant is barred from the Tribunal’s process until such time as she attends the required insurer’s examinations.
IV. Analysis:
Do the denial letters dated March 21, 2016 comply with the notice requirements in the Schedule?
14Section 38(8) of the Schedule states that the respondent, within 10 days of receiving the treatment and assessment plan, must provide the medical and all other reasons why it considers the treatment plans not to be reasonable and necessary.
15Section 44(5) of the Schedule states that if the respondent requires an examination, it must provide the “medical and any other reasons for the examination.”
16The Schedule does not define what a medical reason is. The respondent relies on Augustin v. Unifund Assurance Co.2 as case law which provides some context to what is a medical reason and the intersection between sections 38 and 44 of the Schedule. I am not bound by this decision, but I do find it relevant and helpful in this matter.
17In Augustin, Arbitrator Sapin outlines that sections 38 and 44 of the Schedule must be read together, and in order to comply with the notice requirements of each section, “medical reasons”, when the MIG is in issue, must at least include the following statements:
i. that the claims adjuster has reviewed the MIG;
ii. that the claims adjuster has reviewed the treating health practitioner’s medical opinion; and
iii. that the adjuster has concluded that the health practitioner has not provided compelling evidence that the person’s injuries are outside of the MIG, or that the treatment claimed is not reasonable or necessary.
18In this matter, I am of the view that a sufficient medical reason should entail at least the following:
i. a statement that the claims adjuster has reviewed the health practitioner’s opinion; and
ii. a statement that the adjuster concluded that the health practitioner has not provided compelling evidence to support that the treatment plan is reasonable and necessary.
19The applicant submits that the claims adjuster had sufficient information before her to come to a positive finding in her favour regarding the treatment plans in dispute.
20In my view, as long as the above elements are indicated in the letter, the requirement to provide medical reasons has been satisfied, even if the adjuster’s conclusions are ultimately proven to be wrong.
21For this preliminary issue hearing, I will not determine whether the treatment plans are reasonable and necessary. My function is to determine whether the applicant’s claim should proceed before the Tribunal given that the applicant failed to attend IEs.
i. Denial letter dated March 21, 2016 for occupational therapy services and assistive devices by Leanne Farrel
22The respondent indicated the following in the denial letter:
“The reason for this [denial] is that the medical documentation does not support the need for OT sessions as described in the OT report of February 28, 2016. The OT also appears not be pursuing the plan that had been laid out by Mr. Bachman, Vocational Rehabilitation Specialist. Given the lack of evidence, an Insurer’s Examination is required to address the eligibility for medical/rehabilitation benefits.”
23This letter indicates to me that the adjuster reviewed the medical documentation and came to a conclusion that the evidence does not support entitlement to occupational therapy services.
24The applicant submits that the respondent refused to identify what medical documentation it relied on to deny the benefit.
25I am of the view that an exhaustive list of the medical documentation that the respondent reviewed is not required to be listed in the denial letter. However, the respondent should be prepared to clarify such information if requested by the applicant.
26The applicant also argued that the respondent had sufficient medical evidence to find that the treatment and assessment plan was reasonable and necessary.
27It is beyond the scope of this preliminary issue hearing to determine whether the treatment plan was reasonable and necessary. I find that the denial letter met the notice requirements as set out in section 38(8) and 44(5), including the need to provide medical and any other reasons for the IEs.
ii. Denial letter dated March 21, 2016 for physiotherapy services by Dianne Lueck
28The respondent indicated the following in the denial letter:
“The reason for this [denial] is that the clinical notes and records do not support the need for physiotherapy treatment. The diagnosis of epicondylitis does not appear to be MVA related. You also failed to complete the work hardening program as recommended by the IE assessor. Given the lack of evidence an Insurer’s Examination is required to address eligibility for medical/rehabilitation benefits.”
29Once again, the claims adjuster indicated that it reviewed the clinical notes and records (“CNRs”) and concluded that the evidence does not support entitlement to the treatment plan.
30I agree with the respondent that the diagnosis of epicondylitis is a medical reason that the claims adjuster determined required further investigation to assess eligibility.
31The applicant submits that the respondent did not specify which CNRs it relied on to make its determination. I am of the view that in a denial letter, such a list is not required, but further clarification should be given if the applicant requests it.
32I find that the denial letter complied with section 38 and 44 of the Schedule.
Is the applicant barred from the Tribunal’s process until such time as she attends the insurer’s examinations?
33The applicant’s defence for not attending the IEs was because the respondent’s denial letter did not meet the notice requirements in the Schedule.
34I found that the respondent’s denial letters did comply with the notice requirements. As such, the applicant no longer has a defence to support her refusal to attend the IEs.
35Given that the applicant did not attend the IEs and no longer has a defence to support her non-attendance, I find that under section 55 of the Schedule, the applicant shall not commence a proceeding before the Tribunal until such time as she attends the IEs.
V. Order
36For the above-noted reasons, this application is dismissed.
Released: October 18, 2017
Nicole Treksler, Adjudicator
Does the respondent’s letter to the applicant dated March 21, 2016 in response to the Treatment and Assessment plan of Dianna Lueck of Saugeen for physiotherapy services dated March 8, 2016 comply with the notice requirement in accordance with sections 38(8) and 44(5) of the Schedule?
If the respondent ‘s letters dated march 21, 2016 do not comply with the notice requirements in accordance with section 38(8) and 44(5) of the Schedule, the applicant hereby requests an order finding the following:
a) that she is not obligated to attend the insurer’s medical examinations as requested by the insurer
b) that she is entitled to the cost of the Treatment and Assessment Plan of Leanne Farrell dated march 2, 2016 in the sum of $4, 216.46
c) that she is entitled to the cost of the Treatment and Assessment Plan of Saugeen Physiotherapy & allied Health Centre dated March 8, 2016 in the sum of $2,383.65
d) that she is entitled to interest on any sums found due and payable
e) that she is entitled to a special award for the insurer’s unreasonably withholding of benefits.
Footnotes
- Does the respondent’s letter to the applicant dated March 21, 2016 in response to the Treatment and Assessment plan of Leanne Farrell for occupational therapy services, dated March 2, 2016, comply with the notice requirements in accordance with sections 38(8) and 44(5) of the Schedule;
- 2013 CarswellONT 15809 (FSCO Arb) at para 36 (Augustin)