17-000117 v. Royal Sun Alliance Insurance Company, 2017 CanLII 81608

17-000117 v Royal Sun Alliance Insurance Company

Date: 2017-11-16 Tribunal File Number: 17-000117/AABS Case Name: 17-000117 v Royal Sun Alliance 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:

Applicant

and

Royal Sun Alliance Insurance Company

Respondent

DECISION

ADJUDICATOR: Christopher A. Ferguson

For the Applicant: Adrian Lomaga, Counsel For the Respondent: James Schmidt, Counsel

HEARD in writing: August 29, 2017

REASONS FOR DECISION

1This is an application to the Licence Appeal Tribunal (the “Tribunal”) in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled.

Background

2[The applicant] (the “applicant”) was involved in an automobile accident on April 30, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule'').

3The applicant applied for dispute resolution services to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

4A case settlement conference held on May 3, 2017 failed to resolve the issues disputed by the parties. Accordingly, a written hearing was ordered to be conducted in this matter, commencing August 29, 2017.

Issues

5The following are the issues in dispute:

1. Is the applicant entitled to payment for the cost of a physiatry assessment, recommended by Dr. Khumbare, as detailed in a treatment plan dated January 3, 2017, denied by the respondent on March 15, 2017?

2. Is the applicant entitled to payments for the cost of examinations in the amount of $763.25 for an occupational therapy (“OT”) assessment, recommended by the University Health Network, as detailed in a treatment plan dated January 3, 2017, denied by the respondent on March 15, 2017?

3. Is the applicant entitled to receive a medical benefit in the amount of $3,100.21 for acupuncture services, recommended by Dr. Rapson, as detailed in a treatment plan dated April 3, 2017, denied May 2, 2017?

4. Is the applicant entitled to receive a medical benefit in the amount of $315.00 for pharmacotherapy services, recommended by Dr. Rapson, as detailed in a treatment plan dated April 3, 2017, denied by the respondent on May 3, 2017?

5. Is the applicant entitled to interest for the overdue payment of benefits?

6. Is the respondent liable to pay an award under Regulation 664² (“the Regulation”) because it unreasonably withheld or delayed payments to the Applicant?

Findings

7The applicant is entitled to payments for the cost of examinations set out above in paragraph 5 as issues 1 and 2 respectively.

8The applicant is entitled to receive medical benefits set out above in paragraph 5 as issues 3 and 4 respectively.

9The applicant’s claim for a special award is dismissed.

10Interest on overdue payments is owed on all overdue accrued amounts.

Reasons

Issues 1-4 – Medical Benefits and Costs of Examinations

11Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident. The applicant bears the onus of proving on a balance of probabilities the treatment plan is reasonable and necessary.³

12To meet her burden of proof, the applicant relies on a number of reports and recommendations from an array of physicians including medical specialists. Her case for ongoing pain issues, concussion and post-concussive syndrome is based on reports from:

i. Dr. Yanofsky, the applicant’s family physician, dated May 5, 2015

ii. Dr. Cameron Marshall, chiropractor, dated July 28, 2015, reporting concussion, whiplash and such problems as blurry vision, headaches, and balance problems

iii. Dr. Irina Valentin, psychologist, dated June 15, 2016, in a psycho-vocational assessment noting somatic symptom disorder with predominant pain and recommending inter alia a course of cognitive remediation with an occupational therapist

iv. Dr. Natalie Erdmann, psychiatrist, dated October 16, 2016 recommending referral to a traumatic brain injury clinic or concussion clinic after noting symptoms of post-concussive disorder

v. Dr. Erdmann, psychiatrist, dated February 17, 2017, opining that the applicant suffers from post-concussive syndrome and/or major depression and supporting a referral to Dr. Kumbhare, a physiatrist.

vi. Dr. Rick Thompson, optometrist, dated February 2, 2017 diagnosing post-trauma vision syndrome and recommending “cranial-sacral chiropractic and physiotherapy treatments.

13In denying the applicant’s claims, the respondent relies on two insurer’s examinations conducted by Dr. Todd Walters, a general practitioner (“GP”), and his reports of April 18, 2017 and June 1, 2017. Both reports included a review of the applicant’s medical documentation. Both reports indicate no diagnosis of concussion or post-concussive disorder, or chronic pain. Both reports conclude that the treatment and assessment plans proposed by the applicant are not reasonable and necessary for the applicant’s Whiplash Associated Disorders (“WAD II”) and lumbosacral strain injuries – the only physical injuries endorsed by Dr. Walters.

14The applicant contends that her evidence outweighs that of Dr. Walters, because

i. Dr. Walters is a GP whose opinion should be given less weight than the opinions of specialists.

ii. Dr. Walters’ reports contained factual errors that call into question the basis of the conclusions he reached.

iii. Dr. Walters failed to note and account for the diagnoses of concussion, post-concussive disorder and chronic pain made by Drs. Yanofsky, Marshall, Erdmann, Valentin and Thompson.

iv. The IE reports failed to explain why physiatry and OT should be denied, offering instead a “bald assertion of no need.”

15The respondent argues that Dr. Walters’ reports are reliable and credible. It denies, correctly, that Dr. Walters simply ignored the findings of previous medical assessments. I read in Dr. Walters’ second report a clear reference to the documentation by other reviewers of concussive-related symptoms.

16I agree with the applicant that Dr. Walter’s statements that the applicant had returned to work with no lost time right after the accident – which ignores a very difficult back-to-work process documented by the applicant – might have led to an under-estimation of her symptoms.

17The respondent notes that the applicant’s reports include a range of diagnoses that include psychological injuries, and contends that this generates doubt as to whether the proposed assessment and treatments, which are largely “physical modalities”, are necessary. It supports this contention further with reports from Dr. Louise Koepfler, psychologist (report dated May 10, 2016), and Dr. Gary Moddel, neurologist (report dated March 28, 2016) that support a psychological diagnosis with elements of pain disorders, rather than the concussion and post-concussive injuries emphasized by the applicant in these claims.

18The respondent argues that Dr. Walters is a highly qualified physician and that he was entitled to come to the conclusions he did about previous medical reviewers’ diagnoses in this case. I accept the respondent’s view. However, the respondent offers no persuasive argument as to why I should give Dr. Walter’s report more weight than the reports submitted by the applicant.

19I find that on balance the applicant’s evidence outweighs the respondent’s IE evidence with respect to a diagnosis of concussion, post-concussive disorder and chronic pain.

20The respondent bases its denial on its belief that the applicant’s physical injuries are limited to neck and back strains and WAD II. It does not address issues of reasonable cost or reasonable goals or outcomes, because it does not accept the necessity of the proposed assessments and plans. Accordingly, having found that the applicant’s claimed diagnoses of concussion, post-concussive disorder and chronic pain to be valid. In the absence of countervailing evidence from the respondent, I accept the applicant’s evidence that the proposed treatment and assessment plans are reasonable and necessary.

21The respondent notes that it has funded two OT treatment plans, and asserts simply that no further OT assessment is needed. However, it does not develop this argument and I can therefore not accept it as a basis for me to deny the applicant’s claim.

22I conclude that, on a balance of probabilities, the applicant’s proposed treatment and assessment plans are reasonable and necessary, and ought to be paid.

Special Award

24Section 10 of the Regulation permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. the applicant) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. the respondent) has “unreasonably” withheld or delayed payments.

25The applicant argues that she is entitled to a special award. She argues that the respondent acted unreasonably in denying the disputed benefits because:

i. It relied on s.44 insurer’s examinations by a general practitioner that were, in the applicant’s view, “flawed paper review reports” instead of the “overwhelming medical evidence presented to them".

ii. It failed to take account the weaknesses in the s.44 insurer’s examinations that in the applicant’s view undermined their reliability, despite a letter from applicant’s counsel dated April 25, 2017 highlighting the applicant’s desire for specialist assessment.

iii. It was unreasonable to deny the applicant’s claims and effectively prevent her from getting assessments and treatments while being fully aware that the applicant remained too injured to work; the respondent’s payment of income replacement benefits (“IRBs”) proves that it knew how badly the applicant needs assessment and treatment.

26The respondent rejects the applicant’s arguments. It contends that:

i. Its reliance on the s.44 insurer’s examinations by Dr. Walters was reasonable: the physician is well-qualified and entitled to reach the conclusions he did.

ii. Dr. Walters did not make the “error” attributed to him by the applicant, of overlooking – in fact he noted -- the applicant’s expert reports in reaching his conclusions.

iii. Additional reports from specialists such as Dr. Louise Koepfler, psychologist (report dated May 10, 2016), and Dr. Gary Moddel, neurologist (report dated March 28, 2016) gave it reasonable grounds to maintain its position on the disputed claims because they support a psychological diagnosis with elements of pain disorders, rather than the concussion and post-concussive injuries emphasized by the applicant in these claims.

iv. Its payment of IRBs and for other treatment plans demonstrate that it has taken the applicant’s issues seriously and acted reasonably.

27I find that the respondent is not liable to pay a Special Award to the applicant because:

i. While the applicant’s evidence outweighs the respondent’s evidence on the question of entitlement, I am not persuaded that the respondent’s reliance on Dr. Walters’ reports was unreasonable.

ii. The respondent’s submissions, including additional specialist reports, persuade me that it had grounds for bona fide doubts regarding the applicant’s claimed diagnoses and hence the treatment and assessment plans relating thereto.

iii. I find that the respondent’s management of the applicant’s other claims strongly suggest that it has taken the applicant’s injuries seriously and acted reasonably, and make it appear improbable to me that it intended to act unreasonably on the disputed claims.

Costs

28Rule 19.1 permits a party to request that the Tribunal order the other party to pay costs, where the requesting party “believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith”. Section 51 of the Schedule sets out the criteria for assessing and awarding interest on overdue payments.

29The respondent has asked me to order costs. Its basis for the request is that the applicant added the issues in dispute to its initial appeal at the case conference of May 3, 2017 after resolving or withdrawing all of the issues in its initial appeal.

30I deny the respondent’s request because:

(i) I have found for the applicant. Her evidence is too detailed and strong to characterize her appeal as “frivolous”, “vexatious” or “unreasonable”.

(ii) The “late addition” of the issues in dispute to this appeal was approved by the Tribunal’s adjudicator at the case conference over the respondent’s objections. This approval negates the premise that the issues were “frivolous” or “vexatious” or that the applicant’s actions in adding them were “unreasonable” or somehow done in “bad faith”.

31The applicant has also asked me to order costs. Its request is unsupported by argument. I find no grounds on which to order costs against the respondent.

Interest

32Section 51(2) of the Schedule requires an insurer to pay interest on an overdue amount for each day the amount is overdue.

33Because I have found that payments are due to the applicant from the respondent, interest on overdue payments is owed, and ought to be paid in compliance with s.51(3)(4) of the Schedule.

Summary of Findings

38The applicant is entitled to payment for the disputed assessments and medical benefits set out as issues 1-4 above.

39The applicant’s claim for a special award is dismissed.

40Interest on overdue payments is owed.

41The parties’ requests for costs are denied.

Released: November 16, 2017

Christopher A. Ferguson, Adjudicator

Footnotes

1. 1O.Reg. 34/10
2. 2O.Reg 664, RRO 1990, pursuant to s.280 of the Insurance Act, RSO 1990 c.I.8, Part VI.
3. 3Scarlett v. Belair, 2015 ONSC 3635