17-001522 v. Travelers, 2018 CanLII 112133

Licence Appeal Tribunal

Date: 2018-09-24

Tribunal File Number: 17-001522/AABS

Case Name: 17-001522 v Travelers

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

Travelers

Respondent

DECISION

ADJUDICATOR:

Christopher A. Ferguson

APPEARANCES

Counsel for the Applicant:

Arthur R. Camporese

Counsel for the Respondent:

Christopher McCormack

HEARD In Writing on:

February 5, 2018

OVERVIEW

1The applicant was involved in an automobile accident on June 4, 2015, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). She applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) when the respondent Travelers denied her claim for benefits.

2Travelers contends that all of the applicant’s injuries fit the definition of “minor injury” prescribed by s. 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² (“the MIG”). The applicant’s position is the opposite.

3If DS’s position is correct, then I must address the issue of whether the medical treatment claimed is reasonable and necessary.

4If Travelers’ position is correct, then the applicant is subject to a $3,500.00 limit on medical and rehabilitation benefits prescribed by s.18(1) of the Schedule, and in turn, a determination of whether claimed medical benefits are reasonable and necessary will be unnecessary as the $3,500.00 maximum benefit for minor injuries has been exhausted.

DISPUTED BENEFITS

5Did [the applicant] sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to benefits limited by the MIG?

6If DS’s injuries are not within the MIG, then I must determine the following issues:

1. Is [the applicant] entitled to be paid $161.43, the remaining portion of an approved treatment plan for physiotherapy, recommended by Limeridge Physiotherapy and Rehabilitation in a treatment plan submitted November 17, 2015 and denied on November 27, 2015?

2. Is [the applicant] entitled to a medical benefit in the amount of $1,618.38 for physiotherapy, recommended in a treatment plan from Limeridge Physiotherapy and Rehabilitation in a treatment plan submitted April 21, 2016 and denied on April 28, 2016?

3. Is [the applicant] entitled to a medical benefit in the amount of $1,812.99 for other services, namely Botox injections, recommended in a treatment plan from Dr. Suneel Uphadye in a treatment plan submitted May 8, 2017 and denied on May 31, 2017?

4. Is [the applicant] entitled to interest on overdue benefits payments from Travelers?

FINDINGS

7I find that [the applicant] has not proven that she is entitled to benefits above the cap set by the MIG.

8As the result of my finding, I did not assess the disputed treatment plans, as they are not payable.

9There are no benefit payments overdue and therefore no interest owing to DS.

REASONS

Background

10At the time of the accident, [the applicant] was an experienced registered nurse. She worked in a psychiatric ward in a hospital. The accident occurred on June 4, 2015.

11[The applicant] was the belted driver of a mid-sized automobile that was rear-ended in slow traffic. She was not sent to hospital. She drove herself home in the vehicle. The first mention of the accident in her medical records involves a consult with her family physician, Dr. Perera, on June 26, 2015.

12Over two months later, on August 15, 2015, [the applicant] was assaulted by a patient and suffered punches to the head, chest and shoulder. Her right arm was fractured and her diagnoses included PTSD.³ [The applicant] was assessed by WSIB⁴ physicians, and their findings form some of the evidence in this case. [The applicant] received WSIB benefits.

Adequate Notice

13Under s. 38(8) of the Schedule, the insurer must provide the insured person a notice of what goods, services, assessments and examinations set out in the treatment plan it will approve or refuse to pay. The notice must include an explanation of the medical and all other reasons why the insurer considers any proposed goods, services, assessments and examinations—or the cost of them—not to be reasonable or necessary. This notice must be provided within ten days after it receives a treatment plan. The notice is commonly referred to as an Explanation of Benefits (EOB).

14Under s. 38 (11) of the Schedule, if the insurer fails to provide the insured person with notice in accordance with s. 38(8), the following rules apply:

i. The insurer is prohibited from taking the position that the MIG applies to the insured person – the insured person is, in effect, removed from the MIG.

ii. The insurer must pay for everything set out in the OCF-18 starting on the 11th day after the insurer received the application for benefits until the day the insurer issues a notice that complies with s. 38.

15DS’s position is that Travelers’ “denials of the disputed Treatment Plans do not comply with section 38(8) of the SABS and thus, the disputed Treatment Plans must be funded”. [The applicant] states that “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 of the MIG, and determined either that there is insufficient compelling evidence 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 in not reasonable or necessary.”⁵

16According to DS, Travelers’ denials are based solely on its view that her injuries were governed by the MIG and therefore fail to provide a valid medical reason as required by s. 38(8). Further, [the applicant] contends that s.38(11) “prohibits the insurer from relying on the MIG as a reason for denying benefits and the insurer should be prohibited from relying on the MIG.”⁶

17Travelers rebuts DS’s position and argues that:

i. Compliance with s.38(8) is met with a denial that indicates that the MIG applies and which notes a lack of medical evidence for more than “minor injuries”.⁷

ii. A lack of compelling evidence from a health practitioner is a sufficient “medical reason” for denial.⁸

iii. All of its EOBs – Travelers describes each of them specifically -- meet the above-noted criteria.

18I find that Travelers’ denial notices comply with s.38(8) of the Schedule because:

i. I agree that a denial is sufficient and compliant if it gives as reasons the insurer’s position that the MIG applies and notes a lack of evidence to support claims for more than “minor injuries”. I also agree that a lack of compelling evidence from a health practitioner is a sufficient “medical reason” for denial.

ii. I do not share DS’s apparent position that an insurer must outline its review process in its denial notice to meet the requirements of s. 38(8).

19I find that Travelers is not liable to pay DS’s claims on the basis of inadequate or insufficient notice. Its denials of the disputed OCF 18s comply with section 38(8) of the SABS. Accordingly, I will proceed to determine the disputed claims on their merits.

The Minor Injury Guideline

20Section 3(1) of the Schedule defines a “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 and includes any clinically associated sequelae to such an injury.” The MIG defines in detail what these terms for injuries mean.

21The onus is on [the applicant] to show that her injuries fall outside of the MIG⁹

Did the applicant sustain predominantly minor physical injuries?

22I find that DS’s physical injuries are predominantly “minor injuries” as defined by the Schedule because all of her medical reports and treatment plans confirm as much. She sustained WAD I/II injuries, thoracic spine pain/strain and associated brachial plexus disorder and cervicogenic headaches. [The applicant] does not claim that these injuries fall beyond the s.3 definition.

23However, [the applicant] argues that she should be removed from the MIG because:

i. She had a pre-existing condition that prevents maximal medical recovery from being achieved within the MIG.

ii. She sustained psychological injuries as a result of the accident.

iii. She suffers a chronic pain condition as a result of the accident.

Does the applicant have any pre-existing conditions that would impair recovery within the MIG?

24Section 18(2) of the Schedule provides that insured persons with minor injuries who have a pre-existing medical condition may be exempted from the $3,500 cap on benefits. In order to be removed from the MIG, the applicant must provide compelling evidence meeting the following requirements:

i. There was a pre-existing medical condition that was documented by a health practitioner before the accident; and

ii. The pre-existing condition will prevent maximal recovery from the minor injury if the person is subject to the $3,500 on treatment costs under the MIG.¹⁰

25The standard for excluding an impairment on the basis of pre-existing condition(s) is well-defined and strict. A pre-existing condition will not automatically exclude a person’s impairment from the MIG: it must be shown to prevent maximal recovery within the cap imposed by the MIG.

26I find that [the applicant] did not have any pre-existing conditions that would warrant removing her from the coverage of the MIG.

27My findings are based on the following evidence:

i. DS’s OCF-23¹¹ dated August 14, 2015 and OCF-18 dated May 8, 2017 indicate “no pre-existing condition”.

ii. [The applicant] reported to WSIB assessors that she had no significant psychological or physical impairments prior to the workplace assault¹² which occurred two months after the accident – this constitutes a denial of pre-existing conditions in relation to the accident.

iii. No mention of any pre-existing conditions to Dr. Cook, psychologist, in his report dated September 15, 2017, which is part of DS’s evidence.

28[The applicant] cites a history of monthly headaches and migraines for which she has been prescribed pain relief medications, an episode of lower back pain and medication for anxiety, but she provides no explanation at all of how these issues interact with her accident-related injuries to prevent recovery within the MIG. I reviewed the documents submitted as evidence by [the applicant] and found no explanation of how or why any pre-existing condition would generate a barrier to maximal recovery with treatment confined to the MIG limits. Without such an explanation is required to meet the Guidelines criteria for removal from the MIG.

Does the applicant have psychological impairments as a result of the accident?

29The applicant claims that she sustained a psychological injury (injuries) as a result of the accident that place her claims outside of the MIG.

30Psychological injuries, if established, may fall outside the MIG, because the MIG only governs “minor injuries” and the prescribed definition does not include psychological impairments.

31I find that [the applicant] does not have a psychological injury as a result of the accident that would take her out of the MIG.

32[The applicant] relies on the psychological report of Dr. Bruce Cook, psychologist, dated September 15, 2017 in which Dr. Cook:

i. diagnoses her with mild depressive disorder with somatic symptoms, and residual trauma symptoms;

ii. links DS’s psychological symptoms and condition to the accident;

iii. notes DS’s self-reported driving-related anxiety as resolving since the accident; and

iv. opines that her psychological conditions exclude her from the MIG.

33Travelers rebuts DS’s evidence with the following information:

i. [The applicant] reported to WSIB assessors that she had no significant psychological impairments prior to the workplace assault¹³ which occurred two months after the accident – this constitutes a denial of psychological conditions arising from the accident.

ii. The WSIB Psychological Trauma Program Discharge Summary dated October 4, 2016 notes no pre-existing contributors to DS’s assault-related PTSD, while mentioning financial and work-related worries as contributors to her psychological challenges.

iii. The WSIB denied DS’s entitlement to benefits from the Second Injury and Enhancement Fund (SIEF)¹⁴ in a letter dated March 1, 2017. Its decision was based on the lack of evidence of any pre-existing condition prior to the assault.

iv. The foregoing facts are persuasive evidence that [the applicant] suffered no psychological injuries as a result of the accident: any such injuries would have been identified as “pre-existing” conditions for the purposes of assessing DS’s assault-related prognosis and entitlements.

34My finding that [the applicant] does not suffer psychological injuries caused by the accident is based on the following reasons:

i. DS’s own self-reporting contradicts her claim and carries great weight. As an RN, she would be well aware of the importance of full and frank disclosure to WSIB assessors from both ethical and medical standpoints. I take her at her word on this point, and the obvious inference is that there was no psychological injury from the accident.

ii. DS’s critique of the WSIB reports makes no sense to me. In my view, the WSIB assessors “failure” to ask accident-related questions and their focus on the assault in no way lessen the weight and impact of DS’s effective denial of accident-related psychological injury.

iii. Dr. Cook’s report did, as [the applicant] states, take into account both the assault and the accident. My reading of it was that specific, accident-related issues, such as driver anxiety and accident flashbacks, had largely abated according to [the applicant] herself. Dr. Cook did not offer any analysis of how he reached the conclusion that the accident was a cause of DS’s psychological condition. I gave the report much less weight than Traveler’s evidence.

Does the applicant suffer from chronic pain that would warrant removal from the MIG?

35[The applicant] submits that she suffers from chronic pain, which removes her from the MIG, because the prescribed definition of “minor injury” does not include chronic pain conditions.

36Neither party provided me with any criteria against which to assess DS’s claim of chronic pain for the purposes of a MIG determination.

37[The applicant] relies on the OCF-18 dated November 17, 2015 in support of her position that she suffers from chronic pain. In that OCF-18, Beth Shannon, physiotherapist indicates “chronic pain” as a barrier to recovery in Part 9(c) of the form. I note that the form also includes descriptions of ongoing pain including headaches and pain in the arms.

38DS’s evidence also includes a number of medical reports speaking to ongoing pain issues through 2015 and 2016.

39Travelers simply asserts that [the applicant] has not proven, on balance, that she sustained chronic pain as the result of the accident.

40I do not find DS’s OCF-18 to be sufficient to establish her position that she suffers from chronic pain, for the following reasons:

i. It is unclear to me that the term “chronic pain” as used in Part 9(c) of the form can be construed as a diagnosis or opinion on a chronic pain condition – or that it was even intended as such -- and I find it insufficient to persuade me that removal from the MIG has been proven to be warranted.

ii. The OCF-18 acknowledges DS’s workplace assault injuries, but provides no analysis or explanation for the conclusion that DS’s “chronic pain” arises from the accident, as opposed to the assault.

iii. The OCF-18 speaks to pain persisting at 3½ months after the accident; however, in my view, this is inadequate to define her condition as chronic pain without some further explanation. In my view, necessary evidence as to whether DS’s pain is persisting beyond normal healing times or any other analysis is lacking.

41I find that DS’s position is fatally compromised by her self-reporting to WSIB assessors:

i. As noted above, she reported no significant psychological or physical impairments prior to the workplace assault which occurred two months after the accident. I do not find it credible that a person suffering from a chronic pain condition would fail to report it to a medical assessor, and there is no suggestion from [the applicant] that her chronic pain involved any delayed onset of symptoms.

ii. On February 8, 2017, [the applicant] underwent a WSIB Functional Abilities Evaluation where she did not mention the accident or pain associated with it. The report speaks to limitations and pain in DS’s right arm, which was fractured in the workplace assault. The same report noted no pain-related difficulties with the left arm – relevant because [the applicant] indicates that she has suffered continuing left-arm pain as a result of the accident.¹⁵

iii. DS’s accounts of driving, attending yoga and performing household chores after the accident but before the assault do not support her claim of accident-related chronic pain.¹⁶

iv. [The applicant] does not deny making any of these statements to WSIB assessors.

42My analysis leads me to conclude that [the applicant] has not shown that she has a chronic pain condition arising from the accident that would place her outside of the MIG.

CONCLUSIONS

43The applicant has not proven her entitlement to be treated beyond the MIG limits. Her accident-related injuries are predominantly minor.

44My finding makes the issue of interest moot.

Footnotes

1. 1O.Reg. 34/10
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3PTSD stands for Post-Traumatic Stress Disorder
4. 4WSIB stands for Workplace Safety & Insurance Board
5. 5[The applicant] cites Augustin v. Unifund Assurance Co. [2013] O.F.S.C.D. No. 211 in support of this interpretation.
6. 6[The applicant] cites 16-001283 v Unifund Assurance Company, 2017 CanLII 33656 (ON LAT) in support of this contention.
7. 7Travelers cites Applicant and Security National Insurance Company, 2017 CanLII 62185 (ON LAT) at paras 25 – 26.
8. 8Travelers cites Chen and Certas, (2016) FSCO A14-002567 and A14-002568
9. 9Scarlett v. Belair, 2015 ONSC 3635 para.24
10. 10Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act page 5, Part 4, “Impairments that do not come within this Guideline”.
11. 11“OCF-23” refers to treatment confirmation form
12. 12WSIB Psychiatric Report, Dr. Ravindran, psychiatrist, dated September 28, 2016, and WSIB Psychology Report, Dr. Harris, dated September 30, 2016
13. 13WSIB Psychiatric Report, Dr. Ravindran, psychiatrist, dated September 28, 2016, and WSIB Psychology Report, Dr. Harris, dated September 30, 2016
14. 14SIEF provides employers with financial relief when an injured worker's pre-existing condition "enhances or prolongs" a work-related disability.
15. 15WSIB Functional Abilities Evaluation by Lisa Golan (kinesiologist) and Morgan Colby (OT)
16. 16Comprehensive Assessment Report, March 29, 2016, Dr. Lobo and Ms. Sandra Lincoln.