[The Applicant] v. Wawanesa Mutual Insurance Company, 2019 CanLII 101486

[The Applicant] vs. Wawanesa Mutual Insurance Company

Citation: [The Applicant] vs. Wawanesa Mutual Insurance Company, 2019 ONLAT 18-004984/AABS

Date: September 17, 2019

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:

[The Applicant]

Appellant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Monica Chakravarti

Appearances:

For the Appellant: Savannah Chorney, Counsel

For the Respondent: Darrell March, Counsel

Heard: In Writing

Hearing: May 22, 2019

OVERVIEW

1The applicant was injured in a motor vehicle accident on May 21, 2015 (the “Accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 O. Reg. 34/10 (the ''Schedule'').

2Prior to the within application, the applicant and respondent participated in a hearing before the Financial Services Commission of Ontario (FSCO). This resulted in a decision by Arbitrator Gueller, dated October 19, 2017 (the “Arbitration Decision”).¹

3The Arbitration Decision found, amongst other things, that the applicant had not sustained minor injuries as defined in s. 3 of the Schedule because he had developed chronic pain as a result of the Accident. Following the Arbitration Decision, the applicant applied for medical benefits that were denied by the respondent. The applicant disagreed with the respondent and submitted the within application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”).

ISSUES TO BE DECIDED

4The following are the issues to be decided:

i. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $3,107.00 for physiotherapy recommended in a treatment plan (OCF-18) submitted on January 27, 2018 and denied on February 5, 2018?

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

iii. Is the applicant entitled to an award under section 10 of the Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?

RESULT

5Based on the totality of the evidence before me I find as follows:

i. The applicant is entitled to a medical and rehabilitation benefit for physiotherapy service as the treatment plan is reasonable and necessary

ii. The applicant is entitled to interest on the overdue payments of benefits in accordance with section 51 of the Schedule.

iii. The applicant is entitled to an award equal to 50% of the medical and rehabilitation benefit found owing plus interest as set out in O. Reg 664.

ANALYSIS:

6The applicant has the onus of proving on a balance of probabilities that, pursuant to section 15 of the Schedule, the medical benefits sought are reasonable and necessary.

7The applicant submits that the medical evidence demonstrates that he is in need of physical rehabilitation as proposed in the treatment plan submitted on January 27, 2018 (“Treatment Plan”). He relies on the diagnosis of chronic pain syndrome made by Dr. Tavazzani, the recommendation by Dr. Tavazzani for ongoing multidisciplinary facility-based rehabilitation, as well as the clinical notes and records of both his family doctor, Dr. Makinde, and his pain specialist, Dr. Pathak, who both recommend ongoing rehabilitation including physiotherapy.

8The applicant submits that his treating psychiatrist (Dr. Dhaliwal) and treating psychologist (Dr. Sharma) opined that the pain that he experiences is having an injurious effect on his mental health and the Treatment Plan proposed will, amongst other things, provide some pain relief.

9The respondent submits that the applicant has not shown that the proposed treatment would be beneficial or would assist in the applicant’s recovery. The respondent relies on the findings in the report of Dr. Paitich, who opined that the applicant has not demonstrated any objective symptoms, the applicant’s injuries are minor injuries as defined by the Schedule, and that further facility-based treatment would be of no assistance to the applicant.

10The applicant counters that Dr. Paitich failed to take into account his chronic pain syndrome and, therefore, failed to address facility-based treatment in the context of chronic pain syndrome. He also relies on the Arbitration Decision, which confirmed that his injuries are not minor.

11Based on the totality of the evidence and, for the reasons below, I find that the applicant is entitled to the medical and rehabilitation treatment proposed in the Treatment Plan.

12The Treatment Plan contemplates chiropractic treatment, physiotherapy treatment and massage therapy. I find that the applicant’s evidence supports the need for this ongoing treatment. Specifically, I am persuaded by the following:

i. The Treatment plan outlines injuries and impairments that are consistent with the injuries and impairments noted by the applicant’s treating physicians following the accident to date.

ii. Dr. Tavazzani, the orthopaedic surgeon, diagnosed the applicant with chronic pain syndrome and recommended that the applicant continue indefinitely with multidisciplinary rehabilitation to prevent deconditioning and deterioration².

iii. The goals listed in the treatment plan are in line with the recommendations made by Dr. Tavazzani,³ and the proposed treatment’s specific aims are pain reduction, chronic pain prevention, and functional restoration.

iv. The applicant’s pain specialist, Dr. Pathak, also notes that the applicant has chronic pain, and recommends that the applicant continue with massage, acupuncture, and physiotherapy.⁴

13I am not persuaded by Dr. Paitich’s report dated March 20, 2018, which is relied upon by the respondent. The premise of Dr. Paitich’s report is that the applicant’s injuries are minor. However, Arbitrator Gueller on October 19, 2017, two months prior to the completion of the Treatment Plan, found that the applicant’s injuries are not minor, and it is trite to say that this finding is binding on the parties.

14For the above reasons, I find that, on a balance of probabilities, that the Treatment Plan is reasonable and necessary.

15As such I also find that the applicant is entitled to interest on any overdue payments arising out of the Treatment Plan.

AWARD

16Section 10 of O. Reg. 664 allows the Tribunal to make a lump sum award of up to 50% of the benefit owed, if the Tribunal finds that the insurer has unreasonably withheld or delayed payments of the benefits owing or found to be owing to the applicant.⁵

17The applicant submits that the respondent’s continued position that he sustained minor injuries only to deny funding, despite the Arbitration Decision, is clear evidence of bad faith leading to the unreasonable withholding and denial of the benefit claimed.

18The respondent submits that, in denying the funding of the Treatment Plan, they simply relied on the findings and opinions of Dr. Paitich.

19I agree with the applicant that the respondent has acted unreasonably in the withholding or delaying of payment of the Treatment Plan. The respondent stubbornly and unreasonably maintained its position that the applicant had minor injuries, and regardless of the Arbitration Decision, the respondent was not going to move from this position.

20I reject the respondent’s position that it was simply relying upon the report of Dr. Paitich. This is not a case in which the insurer takes a position that is later found to be erroneous; this is a case in which the respondent knew that its position was incorrect -as its position had already been adjudicated and determined to be incorrect- yet the respondent continued to maintain its position and used it to withhold and delay benefits.

21The Arbitration Decision was rendered on October 19, 2017 and, based on the log notes submitted, the adjuster was aware of the decision as of November 28, 2017. Some two months later, the applicant submitted the Treatment Plan, in response to which the respondent took the position that the applicant’s injuries were minor.

22The unreasonableness of the respondent’s behavior in adjusting and handling the Treatment Plan is based on the following:

i. The Arbitration Decision clearly found the applicant did not suffer from minor injuries.

ii. The respondent, despite receiving the Arbitration Decision in November 2017, sent two letters to the applicant, February 5, 2018 and March 29, 2018, denying the Treatment Plan and stated that the applicant’s injuries were minor, when, in fact, they had just been proven and adjudicated otherwise.

iii. Following the Arbitration Decision, the respondent requested an insurer examination and again asked for an opinion from the assessor, if the injuries sustained by the applicant were minor.⁶ This question was posed despite the Arbitration Decision that the applicant’s injuries were not minor.

iv. The respondent did not provide the assessing orthopaedic surgeon, Dr. Paitich, with the Arbitration Decision (even though they provided other non-medical documents in file such as T4s, applicant’s bank records from RBC, OCF-10).

v. The assessment by Dr. Paitich dated March 20, 2018 was now the sixth report obtained by the respondent to answer the question about the nature of the applicant’s injuries (i.e., if the applicant’s injuries were minor), even though the respondent had a binding decision that denounced the opinions of the previous insurer assessors - Dr. Marchie (four reports finding the applicant’s injuries were minor), Dr. Dumitrascu, and Dr. Silver.

vi. On March 29, 2018 when providing the report of Dr. Paitich to the applicant, the respondent maintained that the reason for the denial of the Treatment Plan is that the applicant’s injuries were minor.

23I find that the respondent was unreasonable, stubborn and inflexible in maintaining that the applicant sustained minor injuries and using that position as a basis to deny funding for the Treatment Plan. Based on the totality of the evidence, it seems that, regardless of the medical information furnished by the applicant, and regardless of the Arbitration Decision and the findings therein, that the respondent was going to continue to maintain its position.

24Based on the conduct of the respondent I find that the applicant is entitled to an award equal to 50% of the medical and rehabilitation benefits claimed as per the Treatment Plan (and found owing) plus interest as set out in O. Reg 664.

CONCLUSION

25Based on the reasons above I find that the applicant is entitled to the medical and rehabilitation benefits claimed, along with interest.

26The applicant is entitled to an award equal to 50% of the medical and rehabilitation benefit claimed, and found owing plus interest, as set out in O. Reg 664.

27The applicant’s appeal is granted.

Footnotes

1. 1Yakubu v Wawanesa Mutual Insurance Company, FSCO A16-001336, (October 19, 2017)
2. 2Report of Dr. Tavazzani dated July 18, 2016
3. 3Addendum report of Dr. Tavazzani dated May 15, 2017
4. 4Report of Dr. Pathak dated May 17, 2018
5. 5R.R.O 1990, Regulation 664, section 10
6. 6Directions to Assessor for the assessment with Dr. Paitich, Applicant’s Book of Documents tab 24.