Tribunal File Number: 18-004905/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
[D.G.]
Applicant
and
Certas Home and Auto Insurance Company
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES
Counsel for the Applicant: Arvin Gupta
Counsel for the Respondent: Alanna F. Narain
Written Hearing on: April 1, 2019
OVERVIEW
1The applicant, D.G., was injured in a motor vehicle accident on October 27, 2016. As a result of the accident, she is experiencing pain in her right shoulder, neck, lower back, right arm and fingers, as well as headaches, anxiety and trouble sleeping. D.G. sought benefits from the respondent, Certas Home and Auto Insurance Company (“Certas”), pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 201011 (the “Schedule”).
2Certas approved some treatment but denied treatment beyond the limits of the Minor Injury Guideline (the “MIG”) on the basis that D.G.’s injuries were predominately minor, as defined by the Schedule. D.G. disagreed and submitted an application to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for dispute resolution.
3A case conference was held, but the parties could not resolve the issues in dispute, prompting this written hearing on the following issues. Certas raised the preliminary issue that D.G. is statute-barred from proceeding with her application due to her non-attendance at properly scheduled s. 44 Insurer’s Examinations.
PRELIMINARY ISSUE
4The following preliminary issue was raised by the respondent:
i. Is the applicant statute-barred from applying to the Tribunal due to her non-attendance at s. 44 Insurer’s Examinations?
SUBSTANTIVE ISSUES
5The issues in dispute as listed in the Case Conference Order of September 27, 2018 are as follows:
i. Are the applicant’s injuries predominantly minor as defined in s. 3(1) of the Schedule and, thus, subject to a $3,500.00 treatment limit pursuant to s. 18?
ii. Is the applicant entitled to medical benefits for treatment recommended by Professional Rehabilitation Inc. for the following:
a. $2,200.00 for chiropractic/physiotherapy and massage services submitted in a treatment plan dated April 3, 2017, and denied on April 10, 2017?
b. $1,299.98 for chiropractic/physiotherapy and massage services submitted in a treatment plan dated February 10, 2017, and denied on February 18, 2017?
c. $1,691.40 for chiropractic/physiotherapy and massage services submitted in a treatment plan dated March 21, 2017, and denied on March 30, 2017?
d. $1,683.11 for chiropractic/physiotherapy and massage services submitted in a treatment plan dated May 4, 2017, and denied on May 4, 2017?
iii. Is the applicant entitled to the cost of examination in the amount of
$2,200.00 for a psychological assessment recommended by Dr. Gloria Fiati and submitted in a treatment plan dated April 3, 2017, denied on April 10, 2017?
iv. iv. Is the applicant entitled to the cost of examination in the amount of
$2,170.00 recommended by Professional Rehabilitation Inc. and submitted in a treatment plan dated August 2, 2017, denied on August 10, 2017?
v. v. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find that D.G. may not proceed with her application before the Tribunal until such time that she attends the s. 44 Insurer’s Examinations properly scheduled by Certas.
ANALYSIS
The preliminary issue
7I find on the evidence that all of Certas’ denials were proper and in accordance with the Schedule’s requirements. Further, I find that the notices of refusal to pay benefits contained straightforward and clear language, were directed towards an unsophisticated person, outlined the dispute resolution process and the relevant time limits that govern the process and—most importantly here— provided valid reasons for the denial. On this basis, Certas may take the position that the MIG applies and is within its rights to have D.G. attend for Insurer’s Examinations.
8From the outset, I find that Certas consistently took the position that D.G.’s injuries were predominately minor injuries, as defined by the Schedule, and therefore were treatable within the $3,500.00 limits of the MIG. I find that Certas took its position based on the medical documentation available at the time of each denial and, critically, advised D.G. that the lack of compelling medical evidence establishing that D.G.’s injuries were not predominately minor injuries formed the basis for its denials. It is clear under s. 38(9) that taking the position that the MIG applies is a valid reason for a denial.
9Similarly, it is well established that the onus is on the applicant to prove that her injuries fall outside of the MIG. I find that the initial medical evidence offered by D.G. to prove that her impairments were not predominately minor was underwhelming. As support for the first three OCF-18s she submitted (dated February 18, 2017 and March 31, 2017 for physiotherapy and April 3, 2017 for psychological, respectively), D.G. provided the clinical notes and records (“CNRs”) of her family doctor, Dr. Rajasingham, and an assessment letter from Dr. Fiati, psychologist, dated after the third OCF-18, on April 25, 2017. Certas argues that the basis for its MIG position was that the CNRs make no mention of the accident or D.G.’s post-accident pain during this period. Further, Certas argues that Dr. Fiati’s recommendations were based solely on D.G.’s subjective reporting and no other records.
10I agree. The initial CNRs of Dr. Rajasingham do not mention a motor vehicle accident nor do they mention any post-accident impairments. While subjective reporting forms a significant part of conducting a psychological assessment, I understand why Certas saw no reason to remove D.G. from the MIG on the basis of Dr. Fiati’s evaluation and the lack of corroboration between her findings and the CNRs or any other documentation. For clarity, this is not to say that
D.G. does not suffer from her alleged impairments or any impairments or that her injuries may eventually remove her from the confines of the MIG. Rather, I find on the evidence that it was reasonable for Certas to maintain its denials based on its position that D.G.’s impairments fall within the MIG due to the medical documentation—or lack of medical documentation—available to it.
11Contrary to D.G.’s position, s. 38 of the Schedule indicates that the insurer may provide notice of a s. 44 Insurer’s Examination after a denial, not that it must. There is no authority to support D.G.’s argument that scheduling s. 44 examinations following a denial is a requirement under the Schedule or that not doing so somehow renders the notices not compliant with s. 44.
12Following the denials, D.G. submitted two more OCF-18s dated August 10 and August 18, 2017. After the submission of these OCF-18s, the updated CNRs make first mention of the accident and D.G.’s pain. D.G. then procured further medical evidence to support her claims in November 2017 via a clinical note from Dr. Kachooie, which diagnosed D.G. with whiplash with complication of right C6 cervical radiculopathy. By November 2017, D.G. had recommendations for psychological counselling and physiotherapy and five denied OCF-18s. After receipt of D.G.’s unredacted OHIP summary and her further claims for income replacement and medical benefits in December 2017, Certas determined that further examination was needed and notified D.G. that it required her to be assessed to determine if her injuries continued to fall within the MIG. Certas then scheduled valid s. 44 Insurer’s Examinations for February 12, 21 and 28, 2018 with a psychiatrist, occupational therapist and a general practitioner.
13D.G. did not attend any of the examinations and did not provide a reason for her non-attendance. Section 44(5) of the Schedule sets out the notice requirements for Insurer’s Examinations, including the date and time, the names of the assessors and the medical and other reasons for the examination. I find, overwhelmingly, that the s. 44 notices sent to D.G. by Certas in January 2018 met all of these requirements.
14For these reasons, I find that Certas can rely on D.G.’s non-attendance at the properly scheduled s. 44 examinations to bar her from proceeding with her application to the Tribunal. Further, Certas is not prohibited from taking the position that the MIG applies, as the notices and explanation of benefits were all timely and provided valid medical reasons, chiefly, that D.G.’s impairments fall within the MIG. Without an opportunity to conduct Insurer’s Examinations, I find Certas would be denied a procedural right because it cannot make a determination on D.G.’s entitlement to the disputed benefits, her physical injuries and functional abilities. Finally, in the absence of responding medical reports, the Tribunal cannot make a fair determination on D.G.’s entitlement to the benefits in dispute.
CONCLUSION
15Accordingly, pursuant to s. 55(1)2 of the Schedule, D.G. is statute-barred from proceeding with her application before the Tribunal until such time that she attends the properly scheduled s. 44 Insurer’s Examinations.
Released: April 15, 2019
Jesse A. Boyce
Adjudicator