N.S. v. Coseco Insurance Company, 2019 CanLII 76845

Citation: N.S. vs. Coseco Insurance Company, 2019 ONLAT 18-002659/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:

N.S.

Appellant

and

Coseco Insurance Company

Respondent

DECISION

PANEL:

Derek Grant, Adjudicator

APPEARANCES:

For the Applicant:

Anastasia Sukalsky, Counsel

For the Respondent:

Bruce Keay, Counsel

HEARD:

In Writing on: December 3, 2018

OVERVIEW

1The applicant ("N.S.") was injured in an automobile accident ("the accident") on May 15, 2015 and sought insurance benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the ''Schedule''). When certain of her claims for benefits were denied by the respondent ("Coseco"), N.S. applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the "Tribunal").

2Coseco denied N.S.’s claims for additional medical treatment because it determined that all of her physical injuries fit the definition of "minor injury" prescribed by section 3(1) of the Schedule, and therefore, fall within the Minor Injury Guideline² ("the MIG"). N.S.’s position is the opposite.

3N.S. argues that her injuries fall outside the MIG because of her physical and psychological injuries. Prior to the hearing, Coseco conceded that N.S.’s psychological injuries fall outside the limitations of the MIG. The onus is on N.S. to now establish that the treatments plans for physical treatment are reasonable and necessary.

4If N.S.’s position is correct, then I must address if the medical treatment plans claimed are reasonable and necessary.

ISSUES

5Did N.S. sustain predominantly minor injuries as defined by the Schedule? Is her entitlement to medical benefits limited by the MIG?

6If N.S.’s injuries are not within the MIG, then I must determine the following issues:

a. Is the medical benefit in the amount of $1,965.50 for physiotherapy services, recommended by Physiomed Leaside in a treatment plan dated June 16, 2016 reasonable and necessary?

b. Is the cost of examination expense in the amount of $2,200.00 for an attendant care/in-home assessment, recommended by NCCO Rehabilitation Services in a treatment plan dated May 8, 2017 reasonable and necessary?

c. Is Coseco liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to N.S.?

d. Is N.S. entitled to interest on any overdue payment of benefits?

RESULT

7Based on a review of the evidence before me, I find that the disputed treatment plans are not reasonable and necessary.

8I find that N.S. is not entitled to interest, and neither party is entitled to an award.

ANALYSIS

Reasonable and Necessary

9Sections 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. The applicant bears the onus of proving on a balance of probabilities that any proposed treatment or assessment plan is reasonable and necessary.³

10For the reasons that follow, I find that the evidence establishes that the treatment plans are not reasonable and necessary.

N.S.’s significant physical injuries are not accident-related

11In the May 25, 2015 Application for Accident Benefits (‘OCF-1’), in response to the question, "Were you able to return to your normal activities following the accident", N.S. responded "yes". N.S. also confirmed she did not go to the hospital or see a medical professional immediately after the accident.

12In the Treatment Plan (‘OCF-18’) from Physiomed dated June 16, 2016, Chiropractor Godrej Engineer notes under Part 7 of the OCF-18, N.S. had two prior car accidents in the last six months as well as surgery to remove fibroids. The fibroids are not related to the accident. Of note under Part 7, the fibroid surgery did not go as planned and N.S. suffered worse back pain after the surgery.

13Under Part 8 of the OCF-18, N.S. states "she has not been able to work or function normally since the accident". This is contradicted by N.S.’s own evidence which states she returned to work after the accident, and in August 2015 started working from home, and by October 2015 was working at home full time, at which time N.S. underwent fibroid surgery and has not returned to work since the surgery.

14N.S. also relied on the clinical notes and records of her Family Physician Dr. Amanda Li. A review of the clinical notes and records shows no visits by N.S. between November 2014 and July 24, 2015. Again, the accident occurred on May 15, 2015. During a visit to Dr. Li on July 24, 2015, N.S. complained of sharp pain in her lower abdomen and flank as well as nausea, headaches and cold in her feet. Dr. Li recommended N.S. go to the hospital for an assessment.

15N.S. attended the emergency room on July 25, 2015. She presented with a complaint of acute abdominal pain. The Hospital records from July 25, 2015, indicated a discharge diagnosis of uterine fibroids (fibroids). N.S. was subsequently scheduled for surgery for removal of the fibroids.

16In his operative note dated October 2, 2015, Dr. Mills, Obstetrician, noted N.S. has had ongoing pain since July 2015 as a result of her degenerating fibroids. There is no mention of the May 2015 accident.

17N.S. was assessed by Physiatrist Dr. Lo., who prepared a report for Family Physician Dr. Li.⁴ Dr. Lo mentions four previous accidents, one being the subject accident. Dr. Lo comments that N.S. received physiotherapy in May 2015 due to neck pain, and that her symptoms improved. N.S. reports her complaints of hip, low back and leg symptoms "began in September 2015 without any immediate or precipitating trauma".

18N.S. further described that the October 2015 surgery increased pain in her buttock region. Further, N.S. reports an MRI of her lumbar spine did not reveal any significant injury or impairment. N.S. reported that chiropractic treatment provided initial benefit but are not beneficial presently. Of note, N.S. reported that physiotherapy, exercise and massage therapy seem to increase the pain. N.S. had received injection therapy, which she reported to be of no benefit.

19N.S. saw Pain Specialist Dr. Anwar Morgan as a follow up to the October 2015 fibroid surgery. In his December 22, 2015 note, Dr. Morgan comments "our conclusion was probability of groin and hip pain related to her position during the previous surgical procedure. I was still convinced her upper and lower musculoskeletal back pain is myofascial in nature (related to her surgical procedure)".

Attendant Care/In-home Assessment

20N.S. submitted an OCF-18 for the attendant care/in-home assessment, dated May 8, 2017. This treatment plan comes in almost two years post-accident. Under Part 7 of the OCF-18, author Christina Riteski, Occupational Therapist, indicates that it is unknown whether N.S. had any disease, condition, or injury prior to the accident (July 2016) that could affect her response to treatment.

21Ms. Riteski also indicated that it was unknown whether N.S. had developed any other diseases, conditions, or injury not related to the accident that could affect her response to treatment. I find that this is a clear indication that N.S. did not provide Ms. Riteski a fulsome report of her previous accident history or medical history regarding her fibroid condition or any other significant medical history.

22Coseco relies on the report⁵ of its assessor, comments on the previous accidents as well as the fibroid surgery. Dr. Bhangu notes "it is more than two years post-accident and she would have reached maximum therapeutic benefit from ongoing assessments and facility-based therapy". Dr. Bhangu’s examination revealed normal neurological function. His review of a December 2015 MRI revealed no abnormality, and a January 2016 CT scan also indicated normal results.

23Dr. Bhangu notes N.S. "sustained soft tissue injuries in the May 2015 accident, but her current physical exam reveals complaints of residual soft tissue pain with limitations and active range of motion, but she has been involved in multiple motor vehicle accidents, she has a history of fibroids which appear to be adding to her symptoms and may have resulted in a more protracted course of recovery".

24Based on her (N.S.’s) subjective reports, Dr. Bhangu concluded the May 8, 2017 OCF-18 was not reasonable or necessary as N.S. admits she is "independent with respect to housekeeping and attendant care activities and, therefore, does not need an in-home assessment". I agree.

25Based on the amount of time between the subject accident and the date of this treatment plan, Coseco determined an in-home assessment was not reasonable or necessary. Coseco submits that N.S. would have to have suffered a catastrophic impairment to justify this OCF-18, and there is no medical evidence to support such a claim.

Summary – Treatments plans are not reasonable and necessary

26The June 2016 OCF-18 and the reports from Dr. Lo and Dr. Morgan support the injuries sustained by N.S. are not accident-related. Based on the combined evidence of the diagnostic reports, clinical notes and records from the Doctors and the IE assessor’s report, I find that the treatment plans are not reasonable or necessary.

27Further, I find that N.S.’s own treating physician at no point recommended physiotherapy treatment. In addition, I find no accident-related basis to support the need for an attendant care/in-home assessment. As a result, N.S. failed to satisfy the onus on her to establish that the treatment plans are reasonable and necessary.

Award under regulation 664

AWARD

28Section 10 of Regulation 664 permits the Tribunal to award a lump sum of up to 50% of the amount to which the insured person (i.e. N.S.) was entitled at the time of the award together with interest on all amounts then owing (including unpaid interest) if it finds that that an insurer (i.e. Coseco) has "unreasonably" withheld or delayed payments.

29Since I found that no benefits are payable, Coseco cannot have been found to have unreasonably withheld payment. As a result, an award is not warranted in the circumstances of this case.

COSTS

30In its submissions, Coseco also sought an award, which should have correctly been presented as a request for costs. Under Rule 19.1 of the Licence Appeal Tribunal Rules of Practice and Procedure, an award of costs is an exceptional remedy.

31In order for a party to be successful in receiving a cost award, there must be evidence before the Tribunal that the opposing party has acted unreasonably, frivolously, vexatiously, or in bad faith in the Tribunal’s proceeding. This is a high threshold.

32Coseco is seeking costs on the basis that N.S. did not present enough evidence to "support that the claims she is pursuing are reasonable, necessary, as a direct result of the injuries she sustained in the motor vehicle accident of May 15, 2015". I disagree. N.S. has the onus of establishing her entitlement to a benefit. Failure to meet that onus, after providing all available and requested medical evidence to her insurer and tasking a trier of fact to review that evidence, does not make a cost award automatic if the decision is not in favour of the insured.

33I do not find Coseco’s position that insufficient medical evidence is legitimate or proper grounds to award costs in this proceeding.

34There is no evidence before me that Coseco has established the threshold behavior required to justify costs under Rule 19.1.

35I find that Coseco is not entitled to costs in this matter.

CONCLUSION

36N.S. sustained predominantly minor physical injuries that fall within the MIG. Accordingly, N.S. is not entitled to payment for the treatment plans claimed in this application. N.S. is not entitled to an award. Her application is dismissed.

Released: July 17, 2019

_______________________

Derek Grant

Adjudicator

Footnotes

1. 1O. Reg. 34/10.
2. 2Minor Injury Guideline, Superintendent’s Guideline 01/14, issued pursuant to s. 268.3 (1.1) of the Insurance Act.
3. 3Scarlett v. Belair, 2015 ONSC 3635
4. 4Physiatry assessment report dated February 24, 2016
5. 5Dr. Bhangu, Physiatrist, assessment report dated June 26, 2017