A. P. v. Dominion Insurance, 2018 CanLII 2306

Date: 2018-01-03

Tribunal File Number: 17-001651/AABS

Case Name: 17-001651/AABS v Dominion Insurance

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:

A. P.

Applicant

and

Dominion Insurance

Respondent

DECISION

ADJUDICATOR: Brian Norris

APPEARANCES:

For the Applicant: Kiro Soliman, Counsel

For the Respondent: Leanne Kenning, Counsel

HEARD: In Writing on August 23, 2017

OVERVIEW

1The applicant was injured in an automobile accident on April 13, 2016 and sought benefits from the respondent pursuant to O. Reg. 34/10, known as the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the “Schedule”). The respondent refused to pay for certain medical benefits and the applicant has applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

1. Has the applicant sustained a minor injury as defined under the Schedule as a result of the accident, and is therefore subject to the $3,500.00 funding limit on treatment?

2. Is the applicant entitled to a medical benefit in the amount of $1,158.00 for chiropractic services recommended by Scarborough Active Health Centre in a treatment plan (OCF-18) dated September 7, 2016, submitted to the respondent on September 12, 2016 and denied initially on September 26, 2016 and subsequently on February 9, 2017?

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

RESULT

3I find that the applicant’s impairments as a result of the accident on April 13, 2016 are minor injuries as defined by the Schedule and are subject to the $3,500.00 funding limit on treatment. I also find that the applicant is not entitled to the medical benefits claimed because the applicant is subject to the funding limit prescribed in the Minor Injury Guideline (MIG) and also because the applicant has not established that the treatment proposed is reasonable and necessary.

BACKGROUND

4The applicant was a driver in a vehicle which struck a curb while avoiding another vehicle. On the date of the accident, the applicant visited Scarborough Active Health Centre and reported neck, back, shoulder and upper arm pain, rib and sternum strains, and headaches. The same complaints were relayed to the applicant’s family doctor two days later, on April 15, 2016.

5On May 2, 2016, the applicant submitted a treatment plan dated April 13, 2016 for treatment within the MIG. The treatment plan was approved by the respondent. A second treatment plan was submitted and also approved up to and exhausting the $3,500.00 MIG funding limit.

6The applicant submitted a third and a fourth treatment plan dated September 7, and November 30, 2016, respectively. The respondent denied the treatment plans on the basis that the applicant had sustained injuries which fell within the MIG and that the applicant has exhausted the $3,500.00 funding limit in the MIG.

7The applicant now disputes the respondent’s denial of the September 7, 2016 treatment plan and the respondent’s determination that the applicant’s injuries are within the MIG. Entitlement to the November 30, 2016 treatment plan is not before me.

ISSUE 1: IS THE APPLICANT BOUND BY THE MIG’S $3,500.00 FUNDING LIMIT?

8Under section 18 of the Schedule, unless exceptions apply, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment and subject to treatment within the MIG. The MIG establishes a treatment framework available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae.

9Thus, before addressing the treatment plan, I must first determine if the applicant’s injuries are considered within the MIG and subject to the $3,500.00 funding limit. The applicant raises three grounds why they are not. I address them in order, and conclude that the applicant’s injuries are minor in nature.

a. Is the respondent barred from asserting that the MIG applies because the respondent failed to respond to the treatment plan in a timely manner?

10The applicant submits that the respondent is barred from taking the position that the MIG and the $3,500.00 funding limit applies because the respondent failed to reply to a treatment plan within 10 days of receipt as required by section 38 of Schedule¹ (the “delayed response”). Sections 38(8) and (11) provide that if an insurer fails to respond within 10 days, then the insurer can’t take the position that the MIG applies. The applicant submits R.H. and TD Insurance Meloche Monnex as the prevailing case in support of this argument.

11The applicant states that the treatment plan was submitted on November 30, 2016 but was not responded to until December 19, 2016. In support of its position, the applicant submitted reply correspondence from the respondent dated December 19, 2016.

i. Issues In Submissions Not Previously Raised

12In its response submission, the respondent submits that I should disregard the applicant’s position regarding the impact of a delayed response. The respondent reasons that this argument was only first advanced in the applicant’s initial written submissions of this hearing – not at any point before. The respondent relies on decisions of 16-000272 v. Aviva and S.C.W.H. v. Dominion as precedent to support its position that I should disregard the submission².

13The applicant did not provide any reply submissions in response to the respondent’s position regarding an argument not previously raised.

14I will allow the applicant’s submission on this argument as the respondent was provided an opportunity to respond to the argument and has provided a fulsome reply to it. The positions and findings are addressed below.

ii. The respondent timely responded to the treatment plan.

15The respondent submits that even if I consider the applicant’s argument, the respondent in fact complied with the Schedule’s timeframes. The respondent submits that while the treatment plan was dated November 30, 2016, it was not submitted to the insurer for review until December 13, 2016. In support, the respondent included a copy of the treatment plan which has the computer generated timestamp of the HCAI system which notes it was received on December 13, 2016. The applicant did not dispute the authenticity of the respondent’s evidence.

16Having reviewed the evidence and reviewed the submissions of the parties, I find that the treatment and assessment plan dated November 30, 2016 was not submitted to the respondent until December 13, 2016. Considering this, I find that the respondent did reply in accordance with the Schedule and is not barred from relying on the policy limits prescribed in the MIG.

b. Do the benefit statements establish that the applicant is relieved from the funding limit?

17The applicant argues that the benefit statements provided to the applicant by the respondent suggest that the applicant was eligible for treatment beyond the Minor Injury Guideline. The applicant submitted five benefit statements with their written submissions. All five documents do appear to show a medical & rehabilitation policy limit of $50,000.00, which is clearly above the MIG limit of $3,500.00.

18The benefit statements are not relevant to this matter because the statements do not reference the subject accident. Three of the benefit statements are for an accident which occurred July 8, 2015 and two of the statements are for an accident which occurred October 3, 2015.

19The applicant’s submission regarding the benefit statements are not compelling as they are not related to the April 13, 2016 accident. The benefit statements submitted by the applicant do not factor in my decision making as they are not relevant to this hearing.

c. Is the applicant relieved from the MIG funding limit because of pre-existing conditions?

20In addition to the argument that the respondent is barred from taking the position that the MIG applies for the procedural reasons discussed above, the applicant submits that the documented pre-existing injuries preclude recovery within the MIG. The exception that the applicant relies on is contained in section 18(2) of the Schedule. Section 18(2) says that the $3,500.00 monetary limit does not apply to insured persons who provide compelling evidence which shows the person has a pre-existing injury which would preclude the person from achieving maximal medical recovery within the MIG. The applicant submits that the medical evidence provided confirms a partial thickness tear of the left supraspinatus (shoulder) muscle or tendon, spurring of the upper cervical vertebrae, calcification of anterior to lower cervical discs (thickening or hardening of the ligaments in the neck), diffuse idiopathic skeletal hyperostosis in lumbar spine (thickening or hardening of the ligaments in the low back), and narrowing of discs and degeneration.

21The applicant submits an ultra sound report of the left shoulder dated April 11, 2016 as evidence of the partial thickness tear in the left shoulder. In support of the remaining pre-existing impairments, the applicant submits a document titled Imaging of Cervical Spine (July 16, 2015).

22In response, the respondent submits that a partial thickness tear is expressly included within the MIG and is not a pre-existing impairment which would preclude the applicant’s recovery within the MIG. Additionally, the respondent submits that the applicant has not provided any argument or evidence that the pre-existing impairment(s) would preclude recovery within the MIG.

23The respondent presented a medical opinion from Dr. J. Auguste, orthopaedic surgeon. Dr. Auguste concluded that the applicant had reached their pre-accident baseline and that additional facility based treatment is not warranted.

24After reviewing the submissions and evidence, I am not persuaded that the applicant’s documented pre-existing impairments would preclude recovery in the MIG. The applicant’s evidence refers to the supraspinatus tear as small with mild to moderate background tendinosis which in itself can be included in the MIG. Additionally, the applicant has not provided any evidence or submissions on how these impairments could impede the applicant’s recovery within the MIG.

ISSUE 2: IS THE APPLICANT ENTITLED TO THE SEPTEMBER 7, 2016 TREATMENT PLAN?

25The applicant did not provide submissions addressing the merits of the September 7, 2016 treatment plan. The applicant didn’t include any discussion about the benefit the proposed treatment would provide to the applicant or the plan’s reasonableness in terms of the type, duration, and cost of the treatment. The applicant did submit that their impairments are not within the MIG and infer that the treatment plan is reasonable and necessary because of this finding.

26The respondent’s position is twofold. First, it submits that the applicant has suffered a minor injury and is bound by the funding limits in the MIG. As I addressed above, I agree with respondent. Second, as I will now consider, the respondent submits, in the alternative, (1) the September 7, 2016 treatment plan is neither reasonable nor necessary and that the cost is excessive, and (2) the proposed treatment has not been incurred by the applicant and is therefore not payable pursuant to s. 15 of the Schedule.

27First, I address the respondent’s position that the treatment plan is not payable because it has not been incurred. I find this is a misinterpretation of s.15. The “incurred” provision in s. 15 provides that an insurer is only liable to pay for a reasonable and necessary medical or rehabilitation benefit after it has been incurred – not at the time the treatment plan is approved. The respondent neglects to appreciate that an applicant may seek a ruling that the proposed treatment is reasonable and necessary, and that they may then receive the treatment or that treatment may be deemed incurred in accordance with the Schedule.

28Notwithstanding, I find that the applicant is not entitled to the September 7, 2016 treatment plan for the following reasons.

29The applicant has not established that the treatment plan is reasonable and necessary. The applicant did not include the treatment plan with their evidence. The applicant’s submissions did not address the stated goals of the treatment plan and did not speak to how the treatment plan will help achieve those goals.

30I have determined that the applicant’s injuries as a result of the April 13, 2016 accident fall within the MIG. The respondent has submitted that the applicant has exhausted the policy limits prescribed by the MIG. The applicant has not refuted this argument by way of reply submissions or evidence. I am left with no other option than to deny the treatment plan due to the policy limits being exhausted.

CONCLUSION

31The applicant’s injuries as a result of the accident are minor in nature and fall within the Minor Injury Guideline. The September 7, 2016 treatment plan is not reasonable and necessary. The applicant is not entitled to interest as no benefits went overdue.

32The applicant’s appeal on all issues in dispute is dismissed.

Footnotes

1. 116-000634 v TD Insurance Meloche Monnex, 2017 CanLII 1555 (ON LAT)
2. 216-000677 v Dominion of Canada General Insurance Company, 2017 CanLII 9807 (ON LAT) & 16-000272 v Aviva Insurance Canada, 2016 CanLII 96093 (ON LAT)