N.G. v. Certas Home and Auto Insurance Company, 2018 CanLII 142933

Licence Appeal Tribunal

Tribunal File Number: 18-001347/AABS

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:

N.G. Applicant

and

Certas Home and Auto Insurance Company Respondent

DECISION

PANEL: Jesse A. Boyce, Adjudicator

APPEARANCES:

For the Applicant: Sahereh Baghbani For the Respondent: Michael W. Chadwick

HEARD In Writing on: May 3, 2019

OVERVIEW

1The applicant, N.G., was in a car accident and suffered physical injuries and psychological impairments. N.G. sought benefits from the respondent, Certas, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ ("Schedule").

2Certas denied the medical claims in this application on the basis that they are not reasonable and necessary. N.G. submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service for dispute resolution. A case conference was held but the parties were unable to resolve the issues in dispute and proceeded to this written hearing on the following.

ISSUE IN DISPUTE

3The following are the issues to be decided, according to the Case Conference Order dated July 19, 2018 and the Motion Order dated August 27, 2018:

i. Is the applicant entitled to a medical benefit in the amount of $2,495.48 for chiropractic and physiotherapy treatment recommended by [Physiotherapy] in a treatment plan (OCF-18) submitted on July 27, 2016 and denied on August 9, 2016?

ii. Is the applicant entitled to a medical benefit in the amount of $3,260.64 for chiropractic and physiotherapy treatment recommended by [Physiotherapy] in a treatment plan (OCF-18) submitted on July 14, 2017, and denied on July 25, 2017?

iii. Is the applicant entitled to payment of $200.00, for the costs of completion of an OCF-18 related to a chronic pain assessment submitted on August 9, 2016 and denied on August 23, 2016?

iv. Is the applicant entitled to an award pursuant to s. 10 of Ontario Regulation 664 of the Insurance Act to the issues in dispute?

v. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

4I find that N.G. is entitled to the medical benefit for chiropractic and physiotherapy treatment in the amount of $2,495.48, as it is reasonable and necessary. Interest is payable on this overdue benefit, pursuant to s. 51 of the Schedule.

5I find that N.G. is not entitled to the medical benefit for chiropractic and physiotherapy treatment in the amount of $3,260.64 or the cost of completion of the chronic pain OCF-18 in the amount of $200.00.

6On the evidence before the Tribunal, I find that an award is not warranted.

ANALYSIS

Physiotherapy

7In order to receive medical benefits under ss. 14-17 of the Schedule, the onus is on the applicant to prove that the benefits are reasonable and necessary. I find that N.G. is entitled to one but not both of his claims for physiotherapy and chiropractic treatment. He is entitled to the benefit in the amount of $2,495.48 as it is reasonable and necessary. I find he is not entitled to payment for the medical benefit in the amount of $3,260.64 under s. 55 because he failed to attend a s. 44 examination.

$2,495.48 for chiropractic and physiotherapy

8I find that N.G. has provided compelling evidence that his ongoing pain and physical impairments, still present three years post-accident, are limiting his maximal recovery and impeding his daily function. I find the goals of the treatment plan—being pain reduction, increasing strength and range of motion, returning to activities of daily living, etc.—are proportional to the injuries sustained. The evidence indicates that N.G. was benefitting from previous treatment and that continuing treatment would be beneficial in achieving his maximal recovery. I prefer the report of Dr. Curcio over Dr. Czok's because I find it more in line with N.G.'s consistent complains of pain throughout the life of the file. Finally, I find the cost of this benefit appropriate to assist in N.G.'s continuing rehabilitation from his accident-related injuries. On this basis, I find it is reasonable and necessary.

$3,260.64 for chiropractic and physiotherapy

9In submissions, Certas raised the issue that N.G. is statute-barred under s. 55 from appealing his denial as he failed to attend a s. 44 insurer examination after Certas denied the treatment plan on July 25, 2017. N.G. failed to address his non-attendance in his initial submissions and only argues on reply that the notice was vague and confusing. While this position is permitted, on review, the reasons for denial provided by Certas are proper, as they indicate that there was no evidence of a musculoskeletal impairment and that N.G. failed to attend the examination because he argued the notice was not compliant. The notes indicate that a request for the reason for non-attendance was made of both N.G. and counsel. According to the notes, Certas received no response. On these facts, I find N.G. is statute-barred from disputing this benefit under s. 55(1)2 until such time that he attends the s. 44 examination.

10Accordingly, I find N.G. is entitled to the medical benefit in the amount of $2,495.48 but is not entitled to payment for the medical benefit in the amount of $3,260.64.

Cost to Complete OCF-18

11I find that N.G. is not entitled to $200.00 for the cost of completion of an OCF-18 for a chronic pain assessment because this claim for entitlement does not satisfy any of the criteria under s. 25(1)3 of the Schedule.

12Section 25(1)3 governs payment for the cost of completing an OCF-18. There are three criteria to make a claim eligible: the assessments or evaluations outlined in the treatment plan must be i) approved by the insurer; ii) deemed by the Regulation to be payable by the insurer; and, iii) determined to be payable by the insurer on the resolution of a dispute described in section 280.1 of the Insurance Act.

13The applicant asserts that N.G.'s consistent mention of chronic pain throughout the file makes the completion of a treatment plan for a chronic pain assessment objectively reasonable and necessary. I disagree. Instead, I follow Certas' submission and find that none of the three criteria under s. 25(1)3 are met in this case. First, the chronic pain assessment itself was not actually approved by Certas. Second, there is no indication in the Regulation that it be deemed payable. Third, the chronic pain assessment is not even in dispute in this matter.

14For these reasons, I find N.G. is not entitled to the cost of completion of the OCF-18.

Award

15Under s. 10 of O. Reg. 664, the Tribunal may issue an award of up to 50 per cent of the amount to which N.G. is entitled if the Tribunal finds Certas has unreasonably withheld or delayed payments as a result of its conduct. N.G. argues that Certas unreasonably withheld payments and acted in bad faith. On the evidence before me, I find an award is not appropriate.

16First, disagreement over entitlement to a benefit does not automatically rise to the level of bad faith contemplated by s. 10. It was appropriate for Certas to issue and maintain its denials of the treatment plans in dispute based on the medical evidence and reports available. Similarly, Certas was within its statutory rights to defend its position that the benefits are not reasonable and necessary.

17Second, other than the applicant's assertion that Certas unreasonably withheld benefits from N.G., there was no evidence provided by the applicant to prove that Certas acted in any way that was unreasonable or neglected its duty to adjust the file in good faith. It is unclear what the applicant is basing his submission for an award on. Accordingly, I decline to order an award.

Interest

18Interest is payable on the benefits overdue pursuant to s. 51 of the Schedule.

CONCLUSION

19For these reasons, I find N.G. is entitled to the medical benefit in the amount of $2,495.48. I find N.G. is not entitled to payment for the medical benefit in the amount of $3,260.64 or the cost of completing the OCF-18 in the amount of $200.00

20I find an award is not appropriate. Interest is payable on any overdue benefits.

Footnotes

1. 1O. Reg. 34/10.```