Licence Appeal Tribunal
Tribunal File Number: 17-001363/AABS
Case Name: 17-001363 v Allstate Canada
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:
W.C.C.
Applicant
and
Allstate Canada
Respondent
DECISION
ADJUDICATOR: Meray Daoud
APPEARANCES:
For the Applicant: Xie (Julie) Jin, Paralegal
For the Respondent: Victoria Fraser, Counsel
HEARD: Written Hearing: June 20, 2017
Overview:
1The applicant, W.C.C., was involved in an accident on May 3, 2013, and sought benefits from the respondent, pursuant to the provisions of the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the "Schedule"). The applicant's claim for statutory accident benefits was denied by the respondent and the applicant filed an application with the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal") to resolve the matter.
Issues in Dispute:
2The issues to be decided at this hearing are:
- Is the applicant entitled to a non-earner benefit in the amount of $185.00 per week from May 3, 2013 to May 3, 2015, denied by the respondent on May 22, 2013?
- Is the applicant entitled to payment for physiotherapy services at Maxime Physio Rehab as follows: a. $1,247.34 as set out in a treatment plan dated November 18, 2016, denied by the respondent on December 9, 2016? b. $948.10 as set out in a treatment plan dated February 7, 2017, denied by the respondent on February 22, 2017?
Result:
3The applicant is statute barred from disputing the denial of the non-earner benefit.
4The applicant has not met his onus of establishing, on a balance of probabilities, that the treatment plans in dispute are reasonable and necessary. As such, the applicant is not entitled to the treatment plans in dispute.
5The respondent is not entitled to its costs for this proceeding.
ANALYSIS:
Non-Earner Benefit:
6The applicant is seeking non-earner benefits at $185.00 per week from May 3, 2013 to May 5, 2015.
7The non-earner benefit was denied by the respondent in an OCF-9 dated May 22, 2013. The application to the Tribunal disputing this denial is dated March 7, 2017.
8The respondent brought forth a limitation defence with respect to the non-earner benefit issue. The respondent claimed that, under s. 56(1) of the Schedule, the applicant had two years to dispute this denial, and this had run as of May 22, 2015.
9S. 7 of the Licence Appeal Tribunal Act2 allows the Tribunal to extend a limitation period if there are reasonable grounds to do so.
10The applicant submits that the limitation period for this benefit should be extended for multiple reasons. I will address each of these.
11The first argument which the applicant put forth is that the limitation period should be extended because the delay was caused by the respondent.
12Specifically, the applicant submits that he retained representation on December 16, 2013, and two request letters (dated December 18, 2013 and February 17, 2015) were sent to the respondent, by the applicant's representative, requesting the complete accident benefits ("AB") file. The applicant states that no correspondence was received from the respondent until receipt of the AB file on May 27, 2015, five days after the limitation period on the non-earner benefit denial had run.
13The applicant argues that the respondent knew or should have known that the applicant is a senior and has a limited English comprehension. The applicant submits that the respondent intentionally or negligently ignored the requests and sent the AB file after the limitation period was up, ultimately harming the applicant's right to seek legal advice.
14I disagree with the applicant's argument. A limitation period is not impacted by the lack of receipt of an AB file by an applicant's representative. Once the respondent denies a benefit, the limitation period begins to run from that date.
15The AB file is not the only means by which a representative can receive information regarding a denial, for example, the applicant's representative could have simply telephoned the adjuster to obtain this information. I must also note that a year and nearly two months had passed between the applicant's initial request letter and the subsequent request letter to the respondent. During this prolonged period, the responsibility lies on the applicant's representative to make further inquiries, by means other than requesting the AB file, to obtain information regarding which benefits were applied for and which were denied. There has been no explanation as to the reason for such a delay.
16It is also worth noting that the application to the Tribunal for the denial of the non-earner benefit was made over 21 months after receiving the denial in the AB file. Again, I have no explanation for such a delay by the applicant's representative and I need not delve into this further.
17The second argument presented by the applicant is that the respondent prematurely and improperly denied the non-earner benefit before the applicant was legally entitled to the benefit. The applicant states if there was no legal entitlement, there could be no denial.
18Once again, I disagree with this argument. Section 12(4)(a) of the Schedule states that an insurer is not required to pay a non-earner benefit for the first 26 weeks after the onset of the complete inability to carry on a normal life.
19The 26 week waiting period to receive a non-earner benefit is not in reference to entitlement, rather, it is in reference to when the non-earner benefit is payable.
20An insured party may be entitled to a non-earner benefit well before the 26 week waiting period, however, the benefit is not payable until the 26 week mark. This can be considered a "deductible" period.
21In addition to this, a benefit that is prematurely denied by the insurer may still be considered proper and trigger the two year limitation. This is made clear in the Court of Appeal decisions in Sietzema v. Economical3 ("Sietzema") and Bonaccorso v. Optimum Insurance Company Inc.4 ("Bonaccorso"), where it was found that benefits which the applicant has not yet applied for, or have not yet crystalized, may be denied by the insurer preemptively.
22Finally, the applicant argues that the respondent did not clearly deny the specified benefit, claiming it was a "blanket denial". Further, the applicant argues that the respondent provided inadequate notice to the applicant about the denial and his right to dispute. The applicant submits he does not recall receiving the form or any cover letter.
23The applicant notes that there was no cover letter enclosing the May 22, 2013 OCF-9 denying the benefits, which, he submits, suggests that the OCF-9 was never mailed to him.
24The respondent had an opportunity to reply to this argument presented by the applicant. The respondent submits that the non-earner benefit was denied in an explanation of benefits dated May 22, 2013, and was in the form required by the Regulation as approved by the superintendent. The respondent also submits that the denial was specific and set out the applicant's right to dispute the denial, clearly stating the two year limitation.
25The respondent further submits that it was mailed to the applicant at the address listed on his Application for Accident Benefits as well as the Disability certificate, both dated May 8, 2013. It relies on s. 64(18) of the Schedule, which states that a person is deemed to have received anything mailed by ordinary delivery on the fifth business day after the day the document is mailed, unless there is evidence of the contrary.
26The respondent clearly raised the limitation defence to the non-earner benefit dispute within its initial response submissions. The applicant had ample time to enter reply submissions to the Tribunal, presenting their response to this defence, but did not take this opportunity. Rather, it was only when prompted, by way of letter from the Tribunal specifically requesting reply submissions addressing the limitation defence, that the Tribunal received same from the applicant.
27I am troubled by the fact that the applicant did not raise the issue of possibly not receiving such an important document in this case until they were urged to put in a reply addressing the issue. This is the first time this argument was raised. I would expect that such a vital piece of information would be raised immediately by the applicant in response to the limitation defence—if not years earlier—when first receiving a copy of it in the AB file, not as an afterthought.
28The applicant states that he does not "recall" receiving the OCF-9 denying the non-earner benefit. This is the only statement I have to go on regarding this issue. Stating that the applicant does not "recall" receiving it is not definitive. This puts to question whether the issue is the applicant never receiving the document or whether the applicant merely does not remember receiving it.
29In any event, I have no reason to doubt the credibility of the respondent. The OCF-9 was provided in evidence for this hearing. A cover letter is not required when sending out a denial to an insured person, and the absence of a cover letter does not suggest the letter was never mailed to the applicant. On a balance of probabilities, I find that the OCF-9 dated May 22, 2013 was mailed to the applicant at his last known address.
30With respect to the properness of the denial itself, the Court of Appeal decision in Sietzema, held that an insurer's denial of a benefit, even if it is legally incorrect, will trigger the two-year time limitation. If the applicant believes that the denial was improper, they had a right to dispute whether it was proper or not within the two year period.
31Notwithstanding this, I find that the denial of the non-earner benefit in this case was proper as it was clear and unequivocal. The OCF-9 dated May 22, 2013 clearly stated the specified benefit being denied, the reason for denial, as well as set out the applicant's right to dispute and the limitation period.
32As a result of the above, the two year limitation period on the denial of the non-earner benefit began to run on May 22, 2013 and was up on May 22, 2015. As such, the applicant is statute barred from disputing the non-earner benefit denial.
Medical Benefits:
33Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of the accident.
34The applicant bears the onus of proving on a balance of probabilities that the proposed treatment plans are reasonable and necessary.
35The treatment plans in dispute, dated November 18, 2016 and February 7, 2017, both list the applicant's injuries as fracture of rib, injury of muscle and tendon at neck level, muscle strain (shoulder), sprain and strain of ribs and sternum, sprain and strain of thoracic spine, sprain and strain of lumbar spine.
36Both treatment plans propose funding for physical therapy for multiple body sites, as well as a total body assessment (examination). Both treatment plans also note that the goals of treatment are pain reduction, to increase strength and range of motion as well as to increase endurance and minimize risks of chronicity so that the applicant can return to his activities of normal living.
37The applicant submits that he continues to suffer from significant loss of range of motion and difficulty with his right upper extremity. He also submits that he suffers from chronic pain in his chest wall and chronic myofascial pain in his cervical and lumbosacral spine.
38The applicant included a brief of medical records with his submissions, which were reviewed and considered in coming to this decision. I will be referring to specific medical records below.
39The applicant referred to an x-ray report of the chest dated September 17, 2013, which indicated a recent fracture of the right 8th rib as well as deformed right 6th and 7th ribs due to previous fractures. A further x-ray report of the chest dated December 18, 2013 was referred to by the applicant, which indicated healed 5th, 6th, 7th, 8th and 9th ribs. The applicant also pointed to an ultrasound of the left shoulder dated April 1, 2014 indicating bilateral biceps tenosynovitis and mild AC joint osteoarthritis on the right shoulder.
40These reports, although objective evidence of injuries, do not aid me in assessing the reasonability and necessity of treatment plans proposed years later.
41The applicant submitted the clinical notes and records of Dr. Ng, family physician. These records cover the timeframe from May 2013 to August 2016. The applicant did not point to any specific entries within Dr. Ng's records that would support the need for ongoing facility-based physical rehabilitation for the time period of the proposed treatment plans.
42The most recent of Dr. Ng's notes that has any indication of the applicant's accident-related complaints is dated March 21, 2016. In that record, Dr. Ng notes right shoulder pain for two years and decreased range of motion, especially on forward abduction. Dr. Ng also notes "ultrasound of the right shoulder". I have no evidence before me that this ultrasound was performed.
43I do not have any records from Dr. Ng which provide me with an understanding of the applicant's condition around the time of the proposed treatment plans.
44The records from Maxime Physio Rehab were also submitted by the applicant, with the most recent entry being October 12, 2016. In that record, right chest chronic injury is noted, as well as a slightly increased range of motion in shoulder and neck and improved AC joint. It was also noted to continue treatment as planned. This note does not aid me in assessing the need for further treatment. Not only is this record not comprehensive, it is provided by the clinic which submitted the proposed treatment plans and does not provide me with objective evidence to support the need for treatment.
45The only medical evidence submitted from 2017 is a MRI requisition form from the Scarborough Hospital dated May 19, 2017, as well as two notes from Dr. Ng, also dated May 19, 2017. I do not have the results of this MRI before me.
46The first note from Dr. Ng states, "MVA 2013 with fracture L rib 6, 7, 8 & 9" as well as, what appears to me, as an incomplete notation which reads "physiotherapy is". The second note states that the applicant is noted to have "R chest wall pain, past hx". These two notes from Dr. Ng are neither comprehensive nor helpful to me. They offer me no details of treatment recommended and how much treatment the applicant requires.
47In the respondent's Orthopedic Assessment Report dated January 27, 2017, Dr. Marchie notes that the applicant sustained right 8th and 9th rib fracture as well as a right rotator cuff injury which developed into frozen shoulder. He goes on to say that the applicant's frozen shoulder is resolving at this stage. Dr. Marchie concluded that while the applicant has not yet reached maximal recovery, he opined that he has achieved maximum therapeutic benefit from facility-based treatment and that he should continue with his self-directed home exercise program.
48Dr. Marchie found that the treatment plan dated November 18, 2016 was not reasonable and necessary. The respondent denied the treatment plan dated February 7, 2017 based on the findings of this report, that is, the treatment plan was not reasonable and necessary.
49There is simply not enough contemporaneous medical evidence submitted by the applicant to support her entitlement to the treatment plans in dispute. The applicant has not adduced sufficient medical evidence to show what her condition was at the time these treatment plans were proposed, other than the treatment plans themselves and the briefs notes referred to above, from Dr. Ng and Maxime Physio Rehab.
50Although a proposed treatment plan in it of itself provides some support for further treatment, alone, it is simply not sufficient. Objective medical evidence substantiating the reasonableness and necessity of a proposed treatment plan must also be present. I do not find that the applicant has submitted such evidence.
51Based on the totality of the evidence before me, I find the applicant has not proven on a balance of probabilities the treatment plans in dispute are reasonable and necessary. Therefore, the treatment plans dated November 18, 2016 and February 7, 2017, are not payable.
Costs:
52In its submissions, the respondent sought costs for this proceeding.
53Although the Tribunal has the authority to award costs to a party, under rule 19.1 of the Tribunal's Rules of Practice and Procedure, the respondent did not provide any evidence that the applicant acted unreasonably, frivolously, vexatiously or in bad faith, within this proceeding. Accordingly, I find that the respondent is not entitled to costs.
Order:
54The application is dismissed. The respondent is not entitled to costs.
Released: March 12, 2018
___________________________
Meray Daoud, Adjudicator
Footnotes
- O. Reg. 34/10.
- S.O. 1999, c. 12, Sched. G
- Sietzema v Economical Mutual Insurance Company, 2014 ONCA 111, 118 OR (3d) 713.
- Bonaccorso v. Optimum Insurance Company Inc., 2016 ONCA 34.