Tribunal File Number: 18-001153/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:
J.M.
Applicant
and
Certas Home & Auto Insurance Company
Respondent
DECISION
ADJUDICATORS: Nidhi Punyarthi
APPEARANCES:
Counsel for the Applicant: Tara Lemke
Counsel for the Respondent: Rosalind Eastmond
BACKGROUND
1The applicant, J.M., was involved in an accident on January 28, 2013. She sought certain benefits from the respondent, Certas Home & Auto Insurance Company, under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (“Schedule”). The respondent denied her claims for benefits, and she applied to the Licence Appeal Tribunal (“Tribunal”).
2The parties were unable to resolve this matter at the case conference, and proceeded to a hearing in writing.
3At the written hearing, the applicant sought to add an issue that was not previously canvassed at the case conference. The respondent disagreed with adding this issue at the written hearing stage. I have therefore made a decision on:
a. Whether the proposed new issue could be added; and
b. Whether the applicant is entitled to the claims it is seeking as part of this application.
ISSUES FOR THE HEARING
4The issues for this hearing are as follows:
a. Is the applicant permitted to add a new issue in respect of a medical benefit for chiropractic services for the first time at the written hearing?
b. Is the applicant entitled to receive a medical benefit in the amount of $8,470.00 for chiropractic treatment, recommended by Dr. David King in a treatment plan submitted on December 14, 2015 and denied on February 19, 2016?
c. Is the applicant entitled to receive a medical benefit in the amount of $7,381.50 for physiotherapy treatment, recommended by Jaimee Fleming in a treatment plan submitted on July 14, 2016, and denied on November 21, 2016?
d. Is the applicant entitled to interest on any overdue payment of benefits?
e. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits?
RESULT
5For reasons set out further below, I have made the following decision on the issues for this hearing:
a. The applicant is permitted to add the new issue; however, the applicant is not entitled to the payment claimed as part of that new issue.
b. The applicant is not entitled to payment of the benefits or interest claimed.
c. The applicant is not entitled to an award under Section 10 of Ontario Regulation 664.
ANALYSIS
A. The “New Issue”
I. Permission to add the new issue
6I will refer to the issue that the applicant raised for the first time in her submissions as the “new issue”. Specifically, the applicant seeks “other incurred treatment” from Dr. King for a further amount of $10,075.00.
7The respondent submits that it is procedurally unfair to require the respondent to defend an issue that is being raised for the first time at the hearing stage. The respondent submits that it is prejudiced as it was deprived of the opportunity to consider and prepare for the issue in advance of the hearing.
8The respondent is correct in this regard; however, it has also provided a substantive defence for this new issue in its submissions. On that basis, I am prepared to allow the new issue to proceed with this application. The respondent is not prejudiced by this new issue as it has been able to put forward a defence to the claim contained therein.
II. The applicant is not entitled to the claim in the new issue
9In its substantive defence, the respondent submits that there is no treatment and assessment plan under Section 38(3) of the Schedule associated with this claim.
10The applicant submits that she was not obliged to continue submitting treatment plans to the respondent given that the respondent had already denied two treatment plans.
11The respondent submits that it is not obligated to pay an expense that was incurred before the applicant submits a treatment and assessment plan as set out in Section 38(2) of the Schedule.
12The respondent is correct in its submission on this point. The treatment and assessment plan containing the requirements of Section 38(3) is a precondition for payment from the respondent, unless the applicant satisfies any of the listed exceptions in Section 38(2). The applicant has not made any submissions as to how her situation fits into one of the exceptions in Section 38(2). I find that none of the exceptions listed in that section apply to the expenses claimed.
13Given that there is no treatment and assessment plan that complies with Section 38(2) of the Schedule for this new issue, I find that the respondent is not liable to pay the expenses claimed.
B. Payment for chiropractic and physiotherapy treatment plans
14To be entitled to a medical benefit under the Schedule, the applicant has to satisfy me on a balance of probabilities that:
a. she has suffered an impairment as a result of the accident (Section 14); and
b. the expenses are reasonable and necessary and incurred as a result of the accident (Section 15).
15Based on the evidence before me, the applicant has not met either of these criteria. The most significant problem is the lack of relevant medical evidence. Medical evidence in the required timeframes is necessary to evaluate whether the impairments being complained of are a result of the accident under Section 14 and whether the expenses for treatment are reasonable and necessary and incurred as a result of the accident under Section 15.
16The accident in this case took place on January 28, 2013. The medical records provided to me by the parties and related to the benefits being claimed consist of the following:
a. An orthopedic assessment (commissioned by the respondent under Section 44) by Dr. S. Sharma dated February 5, 2014;
b. An MRI dated November 4, 2014;
c. Clinical notes and records (CNRs) of chiropractor Dr. David King from November 20, 2014 to June, 2016;
d. Clinical notes and records (CNRs) of physiotherapist Jaimee Fleming from June 2016 to December 2016; and
e. A report by Jaimee Fleming dated January 27, 2017.
17As can be seen from the list above, the dates of the medical records provided to me only begin from a point much later than the date of the accident. There is a gap of just under two years between the accident date and the chiropractic records provided; and there is a gap of just over three years between the accident date and the physiotherapy records provided.
18Because I do not have records closer to the date of the accident, I am unable to determine whether the accident has caused the impairments identified in the clinical records. I am also unable to determine whether the expenses for the chiropractic and physiotherapy treatment plans (dated December 14, 2015, and July 14, 2016, respectively) are reasonable and necessary as a result of the accident.
19The MRI in the record is from November, 2014, and shows degenerative changes not caused to the accident. It does not assist the applicant in meeting her burden.
20The medical reports in the evidence do not provide much assistance either, because there is a gap in the medical records. In February, 2014, Dr. Sharma diagnosed WAD II and a frozen left shoulder as a result of the accident; pre-existing left hip arthritis; and residual effects of a concussion such as photophobia, poor concentration, eye pain and headaches. I have no other records of what treatment if any the applicant was seeking and what the effects of any treatment were from around the date of Dr. Sharma’s report and for many months after that date. Therefore, I am unable to conclude that treatment plans from 2015 and 2016 for chiropractic and physiotherapy treatments are reasonable and necessary.
21Ms. Fleming’s report is dated about four years after the accident. I am therefore unable to determine whether the impairments and treatments described in her report are reasonable and necessary and as a result of the accident.
22Due to the gap in medical records between the accident and the medical records filed in evidence, I am unable to assess whether the applicant’s impairments described in the treatment plans are a result of the accident, and whether the treatments sought are reasonable and necessary as a result of the accident. A causal link to the accident cannot be established given the significant time gaps in the medical documentation.
23Accordingly, the applicant has not met her burden of satisfying the criteria under Sections 14 and 15 of the Schedule. She is, therefore, not entitled to the chiropractic and physiotherapy benefits claimed in this application.
24Given that no benefits payable to the applicant, no interest is payable under Section 51 of the Schedule.
C. Award Under Section 10 of Regulation 664
25According to Section 10 of Regulation 664 of the Insurance Act, if the Tribunal finds that the respondent has unreasonably withheld or delayed payments, then the Tribunal, in addition to awarding the benefits and interest payable under the Schedule, may award a lump sum of up to 50% of the amount to which the applicant is entitled to at the time of the award, together with interest on all amounts then owing (including unpaid interest), at 2% per month, compounded monthly, from the time the benefits first became payable under the Schedule.
26Since I have found that no benefits are payable to the applicant as claimed, it follows that the respondent was not unreasonably withholding or delaying payments to the applicant.
27The applicant is therefore not entitled to an award under Section 10 of Regulation 664.
CONCLUSION
28The application is dismissed.
Released: February 7, 2019
Nidhi Punyarthi
Adjudicator