16-002633 v Wawanesa Mutual Insurance Company, 2018 CanLII 13182

Date: 2018-02-14

Tribunal File Number: 16-002633/AABS

Case Name: 16-002633 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:

Applicant

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

HEARING DECISION

Adjudicator: Ian Maedel

Appearances:

For the Applicant: James Davidson, Counsel

For the Respondent: Kathleen F. O’Hara, Counsel

Heard in writing on: August 10, 2017

OVERVIEW

1The applicant was injured in a motor vehicle collision on April 27, 2012. As a result of the accident, the applicant suffered lower back pain, superficial injury of the shoulder and upper arm, whiplash associated disorder (“WAD2”) with neck pain and musculoskeletal signs. The respondent, Wawanesa Mutual Insurance Company, determined that she had suffered predominantly “minor injury” and is subject to the $3,500 limit for medical benefits under the Minor Injury Guideline (“MIG”).

2The applicant submitted an application to the Licence Appeal Tribunal (“LAT”) on September 14, 2016 following the denial of a treatment plan for physiotherapy. The respondent denied this treatment plan based on the application of MIG. The applicant submits that her injuries fall outside of the MIG and she is entitled to payment for the treatment plan in question, repayment of expenses incurred and to an award under section 10 of Regulation 664. The respondent claims that her application is statute-barred, as the application was filed outside of the two year limitation period or in the alternative that the treatment plan falls within the MIG.

ISSUES TO BE DECIDED

3The following are the issues to be decided:

a) Is the applicant statute-barred from bringing this application, as it was filed outside of the two year limitation period specified in section 56 of the Statutory Accident Benefits Schedule – effective September 1, 2010 (“Schedule”)?

b) Has the applicant sustained a minor injury as defined under the Schedule as a result of the accident?

c) Is the applicant entitled to receive a medical benefit in the amount of $1,226.81 for physiotherapy services recommended by Newcastle Village Physiotherapy in a treatment plan submitted to the respondent on February 10, 2014?

d) Is the applicant entitled to repayment of expenses in the amount of $150.36 as set out in the partially approved OCF-6 dated June 6, 2014?

e) Is the applicant entitled to an award as a result of the respondent unreasonably withholding or delaying the payment of benefits pursuant to section 10 of R.R.O. 1990, Regulation 664?

f) Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4The applicant is not statute-barred from bringing this application. It was filed within ninety days of the Report of the Meditator, as specified in the 2012 version of the Schedule applicable at the time of the accident.

5Based on the totality of the evidence before me, I find that the applicant has sustained a minor injury pursuant to section 3 of the Schedule, and that the injuries sustained fall within the MIG.

6The applicant is not entitled to the medical benefit claimed. The applicant’s injuries are minor in nature and the applicant has not demonstrated that the treatment in question is reasonable and necessary.

7The applicant is not entitled to repayment of any monies in excess of the $3,500 cap specified at section 18 of the Schedule. Any calculation of mileage accrued must take into consideration the “authorized transportation expense” and transportation expenses only after the first fifty kilometres travelled.

8The applicant is not entitled to an award pursuant to section 10 of R.R.O. 1990, Regulation 664. The applicant has failed to establish that the respondent unreasonably withheld, delayed payment or otherwise acted in an unreasonable manner with regard to the adjustment of this matter.

9The applicant is not entitled to payment of interest, as there are no overdue benefits outstanding.

FACTS

10The applicant was involved in motor vehicle collision on April 27, 2012. As a result of the collision, she suffered lower back pain, superficial injury of the right shoulder and upper arm, and WAD2 with complaint of neck pain with musculoskeletal signs. Her family physician noted on the Treatment Confirmation Form (OCF-23) that her injuries fell within the MIG.¹

11The applicant submitted treatment plans for massage therapy which were approved by the insurer. These treatment plans confirmed that the MIG applied to the applicant’s injuries.

12The applicant submitted a Treatment and Assessment Plan (OCF-18) prepared by physiotherapist Christina Roy, dated February 10, 2014, for physiotherapy treatment in the amount of $1,226.81. This treatment plan also specified that the injuries sustained were predominantly minor.²

13The insurer provided correspondence and an Explanation of Benefits (“EOB”) both dated February 20, 2014. The insurer refused to provide payment for the physiotherapy treatment plan given the time elapsed since the accident and questioned if ongoing facility-based treatment was reasonable and necessary. The insurer required the applicant to be examined at an Insurer’s Examination (“IE”) pursuant to section 44 of the Schedule.³

14The IE was conducted by Dr. Safir, general practitioner, and her report dated March 27, 2014 concluded that the applicant had sustained soft tissue injuries. She indicated that the treatment plan was not reasonable and necessary, as the applicant did not demonstrate any ongoing objective musculoskeletal impairment and the applicant had reached maximum therapeutic benefit from formal, facility-based care.⁴

15In correspondence and an EOB dated April 3, 2014, the insurer informed the applicant that payment for the Treatment and Assessment Plan (OCF-18) in question was denied based on the section 44 IE conducted by Dr. Safir. The applicant was advised of her ability to dispute the insurer’s decision and of the dispute resolution process.⁵

16The applicant submitted an Expenses Claim Form (OCF-6) dated June 6, 2014 in the amount of $164.03. In response, the insurer provided the applicant with an EOB dated June 23, 2014 indicating that the medical expenses claimed were partially approved in the amount of $13.67. This constituted the remainder of the $3,500 MIG limit pursuant to section 18(1) of the Schedule.⁶ The remaining sum of $150.36 remained in dispute.

17The applicant was subsequently involved in another motor vehicle accident on September 5, 2015.

18The applicant applied to the Financial Services Commission of Ontario (“FSCO”) for mediation on March 23, 2016. A Report of Mediator was issued June 17, 2016 and indicated that medical benefits remained in dispute. The report also included a notice that applications for arbitration after April 1, 2016 would no longer be accepted and the LAT had assumed all new applications for dispute resolution services.⁷ The applicant filed an application with the LAT on September 14, 2016.

19The applicant submits that her injuries fall outside of the MIG, given her pre-existing lower back and left shoulder pain which left her vulnerable to exacerbation or re-injury, her diagnosis of chronic pain and psychological issues. She claims an award pursuant to section 10 of R.R.O. 1990, Regulation 664 as the insurer acted in bad faith by failing to adjust the file in a timely manner and remove her from the MIG. The applicant states she is not statute barred by the limitation period, as the application to the LAT was filed within ninety days of the Report of Mediator, as per the Schedule at the time of the accident.

20The respondent submits that the applicant has suffered primarily a minor injury as defined in the Schedule and is bound by the $3,500 limit for treatment. The applicant has failed to provide any diagnostic records or credible medical opinions to support that anything other than soft-tissue injuries were sustained in the accident. The respondent submits that the matter is statute-barred, as the application to the LAT was filed more than two years after the denial of the treatment plans at issue. In the alternative, they submit that the applicant has exhausted the $3,500 limit and the treatment proposed is not reasonable and necessary.

ANALYSIS

The Limitation Period

21The limitation period to dispute an insurer’s refusal to pay a benefit is set out in the 2012 versions of the Insurance Act and the Schedule as applicable at the time of the accident.

22Section 281.1(1) of the Insurance Act states that a proceeding shall be commenced within two years after the insurer’s refusal to pay the benefit claimed. Under section 281.1(2)(b), if there is a mediation, the limitation period is extended for a period of ninety days following the report of the mediator.⁸

23Similarly, section 56 of the Schedule states that a court proceeding or arbitration under section 281(1)(a) or (b) of the Insurance Act regarding a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed. Section 56 also allows a ninety day extension of the limitation period following the Report of Mediator.⁹

24The two year limitation period begins when the insurer notifies the applicant of its stoppage or refusal to pay a benefit. The refusal must be in writing, clear, and unequivocal. The notice of a refusal to pay benefits must also contain, in straightforward and clear language a description of the dispute resolution process, such as the right to seek mediation, arbitration or litigate, and the relevant time limits governing the entire process. The Supreme Court of Canada provided guidance on the minimum scope of a written refusal in Smith v. Cooperators General Insurance Company.¹⁰

25The two year limitation periods for the treatment plans at issue expired April 3, 2016 and June 23, 2016. However, given that a Report of Mediator was issued by FSCO on June 17, 2016, this extended the limitation period by a further ninety days as per section 56 of the Schedule effective in 2012. The application was filed with the LAT on September 14, 2016, just a few days prior to the expiration of the extended limitation period.

26I am not persuaded by the submissions of the respondent regarding the limitation period. The applicant clearly had a bona fide intention to dispute the denied treatment plans, and proceeded to bring an application to FSCO, as per the Insurance Act and the Schedule. The applicant filed her application to FSCO prior to the expiration of the two year limitation period and was still in the midst of the mediation process when the LAT assumed responsibility for the dispute resolution process on April 1, 2016.

27The respondent relies on the case of G.A. and Co-operators General Insurance, but it is distinguishable on the facts. In that case, Adjudicator Sewrattan noted that the ninety day extension of the limitation period was not a factor, as the application had been filed outside of this period. The parties had also agreed that the ninety day extension was not applicable.¹¹

28In this matter, the ninety day extension is operative and the applicant’s rights to proceed with dispute resolution were preserved. The applicant is not statute-barred by the limitation period specified in section 56 of the Schedule.

Minor Injury Guideline

29The issue of whether the applicant sustained a minor injury as defined by section 3 of the Schedule must first be addressed in order to determine the reasonableness and necessity of the Treatment and Assessment Plans at issue.

30In accordance with section 3 of the Schedule, “minor injury” is defined as one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.

31Section 18(1) of the Schedule states that the sum of benefits payable under medical and rehabilitation benefits are limited to $3,500 if the person sustains impairments that are predominantly a minor injury. Section 18(2) states that the $3,500 limit does not apply if the insured person “provides compelling evidence… the insured person has a pre-existing medical condition that will prevent the insured person from achieving maximum medical recovery from the minor injury if [he or she] is subject to the $3,500 limit…” The burden of proof remains on the insured to provide evidence that prove the injuries sustained fall outside of the MIG.

Pre-existing Condition

32The applicant asserts that she should be removed from the MIG on the basis of a pre-existing injury to her lower back and left shoulder. The applicant has provided clinical notes and records which indicate she was experiencing clicking sounds in her left shoulder in 2009. She underwent an ultrasound which was normal. She was also involved in a slip and fall in a grocery store in 2011, reportedly sustaining lower back pain.¹²

33In the IE performed by Dr. Safir in March of 2014, it is noted that there are “degenerative changes in the cervical spine, shoulders and right elbow”, but when examined by Dr. Rabinovitch in January 2017, the applicant states that she has had a full resolution of her lower back and shoulder pain prior to the subject accident.¹³ The applicant did not address this potential conflict in the evidence. Neither her treating physiatrist, Dr. Banghu, nor Dr. Wong, the expert physiatrist relied upon by the applicant, provided any diagnosis with regard to pre-existing conditions. As a result, I am left with doubt as to the nature of her pre-existing condition prior to the subject accident.

34The applicant submits that her pre-existing medical conditions regarding her lower back and left shoulder have prevented maximal recovery under the MIG. However, the presence of a pre-existing condition alone is not sufficient to remove the applicant from the MIG. The applicant must adduce compelling evidence to demonstrate that these pre-existing conditions prevent her from achieving maximal recovery within the MIG. The applicant’s own physiatrists failed to note any pre-existing conditions, instead she relies on the reports filed by the respondent’s experts, which appear to contradict each other on the issue of pre-existing conditions. Given these inherent weaknesses, the applicant has failed to adduce any compelling evidence of a pre-existing condition which prevented her maximal recovery under the MIG.

Chronic Pain and Psychological Issues

35The applicant relies on two reports provided by physiatrist, Dr. S.W. Joseph Wong, dated June 20, 2016 and May 29, 2017, to remove the applicant from the MIG on the basis of chronic pain syndrome. In his June 2016 report, he notes that in addition to the physical injuries, the applicant is suffering from post-traumatic insomnia, psychological problems including anxiety, and chronic pain syndrome.¹⁴ Dr. Wong did not examine how the intervening accident on September 5, 2015 may have impacted the applicant’s diagnoses.

36None of the other five doctors who examined the applicant provided any similar diagnosis of chronic pain. Dr. Wong is the expert physiatrist consulted by the applicant. He is not a mental health professional. There is no report from a psychologist or other mental health professional that reinforces this diagnosis of chronic pain. There has otherwise been no diagnosis of a psychological impairment. Both Dr. Banghu and Dr. Rabinovitch speak to pain and tenderness following the passage of time since the accident, but neither concludes with a diagnosis of chronic pain.

37The respondent relied on the opinions of two additional medical professionals, Dr. Rabinovitch, a physiatrist, and Dr. Dodig, a neurologist. Dr. Rabinovitch noted in her report of January 30, 2017 that the applicant suffered primarily soft-tissue injuries and there was no objective evidence to support her need for therapy beyond the MIG.¹⁵ Dr. Dodig found no evidence of neurological sequelae related to the motor vehicle collision.¹⁶ Neither expert found any compelling evidence of pre-existing medical condition that would prevent the applicant from achieving maximal recovery within the MIG.

38Dr. Wong failed to comment on the applicability of the MIG and whether the alleged chronic pain syndrome is a sequelae of the soft tissue injuries from the subject accident. The respondent has provided the case of B.U. and Aviva Canada Inc. which states that if chronic pain is a sequelae of soft tissue injuries, it would not remove the applicant from the MIG.¹⁷ This decision is persuasive, as it involved a similar medical report regarding this very issue, also provided by Dr. Wong.

39I am not persuaded by the applicant’s submission that Dr. Rabinovitch provides a tacit diagnosis of chronic pain, when she noted that the applicant may benefit from an OHIP funded pain clinic. This is not an overt diagnosis of chronic pain that the applicant can rely on to satisfy her persuasive burden, but merely a comment made to assist the applicant in her ongoing pain management.

40In examining the clinical notes and records submitted by the applicant’s family physician, Dr. Weinberg, there is no mention of psychological complaints until after the motor vehicle accident in September 2015, which is not the subject of this application. Similarly, there are no entries regarding psychological complaints in the applicant’s OHIP summary. The only psychological diagnosis relied upon are those of Dr. Wong, a physiatrist, who is not a mental health practitioner.

41There are no diagnostic records or credible medical opinions to support that anything aside from soft-tissue strains and sprains were sustained as a result of the subject motor vehicle accident. The applicant has failed to present any evidence that the chronic pain alleged is anything but sequelae of these soft-tissue injuries.

42The applicant has the onus of establishing that the injuries sustained fall outside of the MIG on a balance of probabilities. The evidence adduced regarding a pre-existing condition, chronic pain and psychological issues does not meet this burden. After reviewing all of the evidence presented, the applicant has demonstrated she suffers from soft-tissue injuries following the subject accident. The applicant has not proven a pre-existing documented medical condition which would prevent the applicant from achieving maximal recovery if subject to the MIG. These injuries fall squarely within the definition of “minor injury” in section 3 of the Schedule, thus the $3,500 treatment limit of the MIG shall apply.

The Treatment Plan and Expenses at Issue

43There is a treatment plan and medical expenses at issue. Given that the applicant’s injuries fall within the definition of a “minor injury” and she has already utilized funds for treatment up to the $3,500 cap, there is little more to discuss. However, I do have a few brief comments with regard to each treatment plan.

44First, I would like to examine the Treatment and Assessment plan (OCF-18) dated February 10, 2014 for physiotherapy treatment. The respondent relies on three medical reports over a period of three years. The first, authored by Dr. Safir in March of 2014 states that the applicant had reached maximum benefit from formal, facility based care.¹⁸ This was echoed by the applicant’s own treating physiatrist, Dr. Banghu in January 2015 when he recommended activity modification, self-massage, daily stretching, posture training, stretching, and aqua fit. He did not recommend further facility based care.¹⁹

45The other reports relied upon by the respondent were authored by Dr. Rabinovitch and Dr. Dodig in January and February 2017, respectively. Dr. Rabinovitch suggests that the applicant continue a self-directed active rehabilitation program.²⁰ Dr. Dodig does not suggest any recommendations for treatment from a neurological perspective.²¹ Neither of these professionals indicated that further facility-based care, like physiotherapy, would assist the applicant.

46In contrast, the two reports provided by Dr. Wong centre primarily upon the alleged chronic pain and he recommends a referral to a chronic pain program and intermittent physiotherapy. Given the lack of a supporting opinion or other medical opinion from a mental health professional, I place less weight upon the diagnoses provided in these reports on the applicant’s behalf.

47When I weigh the evidence provided by the parties, I place the most weight upon the three medical reports provided by the respondent. These reports provide a comprehensive picture of the applicant’s prognosis between March 2014 and February 2017 and all state that further facility-based treatment is not required. This includes an opinion from the applicant’s treating physiatrist, Dr. Banghu. Thus, I am satisfied that the applicant has not established that this plan is reasonable and necessary pursuant to section 15 of the Schedule.

48Secondly, in regard to the expenses claimed in the OCF-6 dated June 6, 2014, I agree with the submissions of the respondent. Any calculation of mileage must incorporate the definition of “authorized transportation expense” in section 3 of the Schedule. Transportation expenses may only be claimed after fifty kilometres of travel, unless the injured party has sustained a catastrophic impairment. Parties are also urged to review the FSCO bulletins with regard to calculation of travel expenses.

49Given the determination that the applicant’s injuries are minor in nature and the $3,500 cap has been exhausted, I do not find that the applicant is entitled to any repayment of expenses with regard to this matter.

Award Pursuant to Section 10, Regulation 664 of the Insurance Act and Interest

50The applicant has sought to amend the application to include an award pursuant to section 10 of Regulation 664.

51The applicant had advanced this claim due to the respondent’s alleged failure to adjust the file in a timely manner and failure to remove the applicant from the MIG. In her view, this amounted to bad faith and unreasonable behaviour. Respectfully, I disagree. Given that I have already found that the applicant falls within the MIG, I find no merit in this submission.

52The test for this award is a particularly onerous one: has an insurer unreasonably withheld or delayed payment? I do not find that the respondent’s actions in adjusting this file rose to the threshold of “unreasonable” behaviour as per the FSCO decision in Brazier and RBC General Insurance Company, as cited by the respondent.²²

53There has been no evidence submitted that would lead me to conclude that the respondent acted in bad faith, nor do I find that the respondent unreasonably withheld or delayed payment necessary for treatment. Thus, the claim for an award pursuant to section 10 of Regulation 664 is dismissed.

54Given that there has been no finding that the applicant is entitled to any further payment of benefits, interest is also not an issue. Any claims of interest on overdue benefits owed are hereby dismissed.

CONCLUSION

55For the reasons outlined above, I find that:

i. The applicant is not statute-barred from bringing this application. It was filed within ninety days of the Report of the Meditator, as specified in the 2012 version of the Schedule applicable at the time of the accident.

ii. Based on the totality of the evidence before me, I find that the applicant has sustained a minor injury pursuant to section 3 of the Schedule and the injuries sustained fall within the Minor Injury Guideline.

iii. The applicant is not entitled to the medical benefit claimed. The applicant’s injuries are minor in nature and the applicant has not demonstrated that the treatment in question is reasonable and necessary.

iv. The applicant is not entitled to repayment of any monies in excess of the $3,500 cap specified at section 18 of the Schedule. Any calculation of mileage accrued must take into consideration the “authorized transportation expense” and transportation expenses only after the first fifty kilometres travelled.

v. The applicant is not entitled to an award pursuant to section 10 of R.R.O. 1990, Regulation 664. The applicant has failed to establish that the respondent unreasonably withheld, delayed payment or otherwise acted in an unreasonable manner with regard to the adjustment of this matter.

vi. The applicant is not entitled to payment of interest, as there are no overdue benefits outstanding.

Released: February 14, 2018

________________________

Ian Maedel, Adjudicator

Footnotes

1. 1Respondent’s Written Submissions. Tab 3.
2. 2Applicant’s Document Brief. Tab 11.
3. 3Respondent’s Book of Authorities Tab 16.
4. 4Respondent’s Book of Authorities. Tab 9.
5. 5Respondent’s Book of Authorities. Tab 17.
6. 6Respondent’s Book of Authorities. Tab 18.
7. 7Applicant’s Book of Authorities. Tab 24.
8. 8Insurance Act, R.S.O. 1990, c. I.8. at sections 281.1(1) and 281.1(2)(b).
9. 9O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010, at sections 56(1) and 56(2).
10. 10Smith v. Co-operators General Insurance Co., [2002] 2 S.C.R. 129, 2002 SCC 30 at para. 14.
11. 11Respondent’s Written Submissions, para. 53. G.A. and Co-operators General Insurance Company 2017 CanLii 19196 (ON LAT) at paras. 11-12.
12. 12Insurer’s Examination, Report of Dr. Deborah Rabinovitch, January 30, 2017 at pages 7-8. Respondent’s Book of Authorities. Tab 9.
13. 13Insurer’s Examination, Report of Dr. Irina Safir, March 27, 2014 at page 10. Respondents Book of Authorities. Tab 8. Insurer’s Examination, Report of Dr. Deborah Rabinovitch at page 7. Respondent’s Book of Authorities. Tab 9.
14. 14Report of Dr. S.W. Joseph Wong, June 20, 2016, pages 10-11. Respondent’s Book of Authorities. Tab 12.
15. 15Insurer’s Examination, Report of Dr. Deborah Rabinovitch, January 30, 2017 at pages 15-17. Respondent’s Book of Authorities. Tab 9.
16. 16Insurer’s Examination, Report of Dr. Dubravka Dodig, March 16, 2017 at pages 4-5. Respondent’s Book of Authorities. Tab 10.
17. 17B.U. and Aviva Canada Inc. Licence Appeal Tribunal LAT 16-000143/AABS. November 1, 2016 at page 6.
18. 18Insurer’s Examination, Report of Dr. Irina Safir, March 27, 2014 at pages 10-11. Respondent’s Book of Authorities. Tab 8.
19. 19Correspondence of Dr. Sukhinder Bhangu, January 6, 2015 at page 2. Respondent’s Book of Authorities. Tab 15.
20. 20Insurer’s Examination, Report of Dr. Deborah Rabinovitch, January 30, 2017 at pages 15-17. Respondent’s Book of Authorities. Tab 9.
21. 21Insurer’s Examination, Report of Dr. Dubravka Dodig, March 16, 2017 at pages 4-5. Respondent’s Book of Authorities. Tab 10.
22. 22Brazier and RBC General Insurance Company, Financial Services Commission of Ontario FSCO AO7-001290. May 29, 2009 at page 32.```