A.R. v. TD General Insurance Company, 2018 CanLII 2310

Date: 2018-01-12

Tribunal File Number: 16-003487/AABS

Case Name: 16-003487/AABS v TD General 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:

A.R.

Applicant

and

TD General Insurance Company

Respondent

HEARING DECISION

Adjudicator: Ian Maedel

Appearances: Ellie Nekiar, Counsel for the Applicant Itse Ezomo, Counsel for the Respondent

Heard in writing on: August 28, 2017

OVERVIEW

1The applicant was injured in a motor vehicle accident on March 6, 2015. As a result of the accident, the applicant suffered lower back pain, thoracic strain/sprain, whiplash (WAD2), right shoulder strain and a right knee contusion. On December 22, 2015, the respondent, TD General Insurance Company, determined that the applicant’s injuries were not predominantly minor in nature and fell outside of the Minor Injury Guideline (“MIG”).¹

2The applicant submitted an application to the Licence Appeal Tribunal (“LAT”) on November 3, 2016 following the denial of an income replacement benefit (“IRB”) and a rehabilitation benefit for an orthopedic mattress. The respondent paid an IRB from June 26, 2015 to January 14, 2016 and stopped the benefit following the receipt of physiatry and psychological insurer examinations. The IRB was not paid from January 15, 2016 to August 1, 2017 until a s. 44 Psychology Report was provided to the respondent and IRB payments were reinstated and paid to date.

3Although not specifically laid out as an issue in dispute, the applicant now claims interest on the IRB benefit that was not paid between January 15, 2016 and August 1, 2017. The respondent disputes any payment of interest, citing that it was the applicant who failed to provide clinical notes and records that prevented the continued determination of the IRB entitlement. The applicant submits that s. 51 of the Statutory Accident Benefits Schedule – Effective September 1, 2010² (“Schedule”) is clear, that once it is determined that an applicant is entitled to a benefit, the benefits become overdue from the date that it should have initially been paid and interest is payable at the rate of 1 per cent per month, compounded monthly.

4The applicant also claims the cost of an orthopedic mattress as a rehabilitation benefit, stating that it would reduce back pain and assist in a better sleep. The respondent submits that in light of the s.44 physiatry report, a new mattress would not assist in the applicant’s pain management. I must make the determination on whether this benefit is reasonable and necessary as per s. 16 of the Schedule.

ISSUES TO BE DECIDED

5The following are the issues to be decided:

i. Is the applicant entitled to receive interest on the income replacement benefit not paid in the period between January 15, 2016 and August 1, 2017?

ii. Is the applicant entitled to receive a rehabilitation benefit in the amount of $2,910.15 for an orthopedic mattress?

iii. Is the applicant entitled to costs or an award pursuant to s.10 of Regulation 664 of the Insurance Act?

ANALYSIS

Interest

6The Respondent has conceded that the applicant is entitled to an IRB from January 15, 2016 and payments continue and are ongoing. Section 51 of the Schedule clearly states that interest is payable on overdue benefits. Unlike the issue of potential entitlement to an award, there is no necessity for particulars on this issue. Once the respondent conceded that the IRB was payable, the test was met; if benefits are overdue, interest is payable.

7Although interest was not raised as an issue in dispute, it is payable pursuant to the Schedule. Both parties have provided fulsome submissions on the issue and it would be unfair to simply dismiss it outright because it was not raised at an earlier stage of the proceeding.

8The respondent submitted that interest should not be awarded, as the applicant did not provide compelling evidence to determine the ongoing IRB entitlement during the adjustment period. This lack of evidence led to the delay in the payment of the benefit. On March 29, 2016, the respondent terminated the IRB.

9Once the respondent conceded that the IRB was payable, interest became payable on overdue benefits. The respondent shall pay interest for the overdue IRB as per the schedule.

Orthopedic Mattress

10The applicant has not demonstrated that an orthopedic mattress is reasonable and necessary as per the test laid out in the Schedule. Under s. 14 of the Schedule, an insurer is liable to pay the medical and rehabilitation benefits under ss. 15 to 17, to or on behalf of an insured person who sustains an impairment as a result of an accident. Section 15(1) includes, among other expenses, those for medical, chiropractic, psychological, occupational therapy and physiotherapy services, and also other goods and services of a medical nature that the insurer agrees are essential for the treatment of an insured person. The same section specifies that the medical benefits must be reasonable and necessary expenses incurred as a result of the accident.

11The applicant failed to identify the quantum of the benefit sought in her Application and agreed to submit a Treatment and Assessment Plan (OCF-18) following the case conference on January 24, 2017.

12The applicant provided an OCF-18 to the respondent claiming a rehabilitation benefit in the amount of $2,910.15. Unfortunately, a copy of the OCF-18 was not submitted by the applicant in her materials. The only excerpt of the OCF-18 included was an excerpt in the report of the respondent’s physiatrist, Dr. Berbrayer. What is excerpted is simply a sentence that states the patient requires a mattress to assist with pain from the accident to increase mood and provide a better sleep.³ Without a copy of the original document, I cannot infer that other diagnoses were made by Dr. Smallwood, who authored the treatment plan on the applicant’s behalf.

13The applicant relies on three letters from two family physicians, Dr. Tuck and Dr. Smallwood. Both physicians state that she is unable to sleep due to discomfort partially attributed to her mattress. There is little additional information provided; neither state whether she currently has an orthopedic mattress or the condition of that mattress.

14The applicant’s own physiatrist, Dr. Finestone, stated that in his practice he had not found that a new mattress provided significant relief, but if a previous mattress was particularly poor and did not provide any comfort or cushioning, a new mattress could be advised.⁴ This was echoed by the respondent’s physiatrist, Dr. Berbrayer, who stated that a mattress would not assist the overall management of the applicant’s subjective reports of pain.⁵

15What I have before me are several statements that the applicant requires a mattress. However, none of the statements are accompanied by any explanation of the basis connecting an orthopedic mattress to the applicant’s specific impairment or details on how it will assist.

16Given that the OCF-18 was not submitted, the minimal evidence provided by the family practitioners and the physiatrists’ views that a mattress would not assist the applicant in pain management, I find that the applicant has not met her burden on a balance of probabilities. An orthopedic mattress is not reasonable and necessary and the application for this benefit is dismissed.

Costs and Award

17In the final sentence of her written submissions, the applicant makes a claim for “costs, interest and a special award for delay in, and withholding of, IRB’s”.⁶ The applicant provides no argument or evidence for either costs or an award pursuant to s.10 of Regulation 664 of the Insurance Act.

18Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure provides the test in which costs may be awarded, specifically: when a party has acted unreasonably, frivolously, vexatiously or in bad faith. This is a particularly high bar to meet and the applicant has provided no evidence of the respondent’s behaviour that meets any of the criterion. The Application for costs is dismissed.

19Similarly, there 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 s.10 of Regulation 664 is dismissed.

ORDER

20The Tribunal orders that:

i. The applicant is entitled to receive interest on the income replacement benefit for the period between January 15, 2016 and August 1, 2017. The respondent has already paid the benefit for this period and has a duty pursuant to s. 51 of the Schedule to pay interest on overdue payments at 1 per cent per month,

ii. The applicant has not established on a balance of probabilities that she is entitled to a rehabilitation benefit in the amount of $2,910.15 for the purchase of an orthopedic mattress,

iii. Application for costs and an award pursuant to s. 10 of Regulation 664 are dismissed.

Footnotes

1. 1“Minor Injury” is defined at s. 3 of the Schedule to mean 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. Minor Injury Guideline establishes the treatment framework in respect of one or more minor injuries, within the $3,500.00 monetary limit for medical and rehabilitation benefits, as laid out at s.18 of the Schedule and as per the Superintendent’s Guideline No. 01/14 published by the Financial Services Commission of Ontario.
2. 2O. Reg. 34/10.
3. 3Respondent’s Written Submissions, Tab 19, page 3.
4. 4Applicant’s Written Submissions, Tab 3, page 10.
5. 5Respondent’s Written Submissions, Tab 19, page 12.
6. 6Applicant’s Written Submissions, para. 49.