D.S. v. Travelers Insurance, 2019 CanLII 94018

Tribunals Ontario Safety, Licensing Appeals and Standards Division 77 Wellesley Street West, Box 250 Toronto ON M7A 1N3 Tel: 1-844-242-0608 Fax: 416-327-6379 Website: www.slasto-tsapno.gov.on.ca

Tribunaux décisionnels Ontario Division de la sécurité des appels en matière de permis et des normes 77 rue Wellesley Ouest, Boîte no 250 Toronto ON M7A 1N3 Tél. : 1-844-242-0608 Téléc. : 416-327-6379 Site Web : www.slasto-tsapno.gov.on.ca

RECONSIDERATION DECISION

Before: Cezary Paluch, Adjudicator

Date: July 16, 2019

File: 17-001522/AABS

Case Name: D.S. v. Travelers Insurance

Written Submissions by:

For the Applicant: Arthur R. Camporese, Counsel

For the Respondent: Chris McCormack, Counsel

OVERVIEW

1This Request for Reconsideration was filed by the applicant in this matter. It arises out of a decision issued on September 24, 2018 in which the Tribunal found that the applicant did not prove entitlement to be treated beyond the Minor Injury Guideline (“MIG”) as her accident-related injuries are predominantly minor.

2The applicant submits that the Tribunal made an error of law when it determined that the respondent’s denial notices were sufficient and, had this error not occurred, it likely would have reached a different decision.

3Pursuant to s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act,¹ I have been delegated responsibility to decide this matter in accordance with the applicable rules of the Tribunal.

RESULT

4The applicant’s Request for Reconsideration is allowed in part.

FACTS

5The basic facts are uncontroversial.

6The applicant was involved in a motor vehicle accident on June 4, 2015, when she was 31 years of age. Shortly after, on June 17, 2015, she submitted an Application for Accident Benefits (OCF-1) to Travelers. Based on the details included in the Application, Travelers took the position that D.S. was subject to the MIG and its $3,500 monetary limit for medical and rehabilitation benefits.

7The applicant submitted that her injuries have become chronic in nature, which has made her treatment more complex than a typical muscle strain or sprain. Further, she submitted that her injuries are complicated by the development of depressive and anxiety symptoms following the accident and worsened by ongoing pain.

8A written hearing took place on February 5, 2018. In its decision, the Tribunal found that D.S. did not prove entitlement to be treated beyond the MIG as her accident-related injuries are pre-dominantly minor.

9D.S. now asks me to reconsider the Tribunal’s decision.

ANALYSIS

10The grounds for a Request for Reconsideration are contained in Rule 18 of the Tribunal’s Common Rules of Practice and Procedure.

11The applicant is essentially relying on one ground:² that the Tribunal made a significant error of fact or law such that the Tribunal would have reached a different decision pursuant to Rule 18(b).

12As explain below, I allow this reconsideration but only as to Travelers’ non-compliance with s. 38(8) related to two treatment plans.

Sections 38(8) and 38(9) of the Schedule

13Sections 38(8) and (9) and of the Schedule set out notice requirements for insurers responding to treatment plans, with specific consequences if they fail to comply. First, under section 38(8), the insurer must notify the insured person within 10 business days whether it will pay for the goods and services requested. If it refuses to pay for them, it must state the medical and other reasons why it considers the goods and services not to be reasonable and necessary. Second, section 38(9) adds another procedural obligation, and requires that, if the insurer takes the position that the MIG applies, it must include this information in the actual notice as well. These are matters that are exclusively within the control of the insurer.

14The applicant submits that the Tribunal made an error of law when it determined that the denial notices were sufficient. Specifically, the information that was missing in the April 28, 2016, notice (i.e., that the insurer must advise the insured that it “believes the MIG applies”) in accordance with s. 38(9). Additionally, she argues that the Tribunal erred by determining that the respondent provided sufficient medical reasons in its denial notices of April 28, 2016 and May 31, 2017 in accordance with s. 38(8).

15Travelers submits that the Tribunal correctly determined that the denial notices comply with s. 38(8) of the Schedule. Moreover, it submits that compliance with s. 38(9) of the Schedule was not an issue raised at the hearing and the applicant should be precluded from advancing this specific argument at this stage of the proceedings.

16I will address first whether the applicant can advance her argument with respect to non-compliance with s. 38(9) of the Schedule before speaking to s. 38(8).

1) s. 38(9) - Can the applicant advance alleged non-compliance with s. 38(9) of the Schedule in the Reconsideration?

17In this case, the Tribunal’s case conference order of September 21, 2017, D.S.’s written submissions, and indeed the Tribunal’s Decision at para. 5 all framed the issue as whether the applicant’s injuries are predominantly minor injuries as defined in the Schedule.

18Notably, there was no issue identified in any of the case conference orders setting up the written hearing for the Tribunal to consider whether there was compliance with s. 38(9) of the Schedule (i.e., whether the insurer advised the applicant that it “believes the MIG applies”). Among other things, the purpose of a case conference is to identify, clarify, simplify and narrow the issues in dispute: Rule 14.2. It also informs the parties on how matters should proceed at the hearing. Here, it appears that the issue concerning s. 38(9) was never identified at any of the case conferences held in this matter on June 7, 2017 and August 25, 2017. If this was an issue for the applicant that she wanted the Tribunal to adjudicate, it was up to her to bring it to the Tribunal’s attention by requesting that it be added as an issue in dispute.

19Looked at another way, the Tribunal could not have made a significant error of fact or law with regards to an issue that was not properly raised by the applicant. Here, the applicant’s written submissions dated January 12, 2018, and reply submissions dated February 2, 2018, did not raise non-compliance with s. 38(9) or identify this section as being applicable to the facts of this case, let alone mention what remedy the applicant was seeking for the alleged non-compliance. Therefore, this is not a situation in which it could be said that the Tribunal erred by not adjudicating a point in dispute that was referenced in the parties’ submissions, something that could amount to a denial of natural justice and procedural fairness.³ Given the applicant’s failure to raise this as an issue, I see no error.

20It is trite to say that the Tribunal should have the benefit of all of the parties’ evidence and submissions before rendering its decision, particularly given its primary duties of weighing evidence, finding facts, and interpreting legislation. This approach promotes finality and both the Tribunal’s and parties’ efficient use of resources. It also prevents the reconsideration process from being turned into a separate adjudicative or fact-finding forum.⁴

21In this case, the Tribunal’s decision refers only to s. 38(8) and 38(11) of the Schedule regarding the adequacy of the notice and does not mention s. 38(9) or discuss compliance with this section in any detail. Not surprisingly, therefore, and as the applicant pointed out, the Tribunal’s decision is silent on whether it reviewed the April 28, 2016 denial notice to confirm the presence of the required statement of belief that the MIG applies.

22In this case, perhaps, even more telling is that compliance with s. 38(9) appeared to have been conceded, as the applicant stated in their submissions, at para. 42 that “the insurer’s denials relate to the applicability of the Minor Injury Guideline” and at para. 13, that “by way of correspondence dated April 28, 2016, the insurer denied the aforementioned treatment plan, stating that it believed D.S.’s injuries fell within the MIG.” The applicant now appears to want to argue a position that is contrary to both statements which she made in her original submissions.

23As has been stated in several other Tribunal reconsideration decisions,⁵ the Tribunal’s reconsideration process is not an avenue for advancing new arguments that a party could, but did not, make before the Tribunal. Here, the applicant’s main submissions, under the heading ‘Relevant Law’ only listed s. 38(8) and 38(11) as applicable sections to be considered by the hearing adjudicator but noticeably did not list s. 38(9) which could have been easily raised as all of these subsections under s. 38 relate to same claims related to medical benefits (if D.S.’s injuries were found not to be within the MIG).

24However, there may be exceptional circumstances in which a new argument should be permitted on a reconsideration, such as where the interests of justice require as much and where the argument can be fully and fairly determined on the basis of the Tribunal’s record. Here, I have the entire written record before me including the April 28, 2016 notice and reconsideration submissions from both parties on this issue and find that the argument can be fully and fairly determined.

25My review of the notice letter dated April 28, 2016, is that Travelers referred to the proposed treatment, indicated that the MIG applied based on a review of the file and the definition of ‘minor injury’ in the Schedule and explained that benefits would be limited to the allowances under the MIG unless she provided medical documentation supporting treatment outside the MIG. Therefore, I find that Travelers complied with s. 38(9) and this ground of reconsideration fails.

26I will now address the applicant’s other argument that the Tribunal made a significant error in law by failing to consider an element of the s. 38(8) notice requirements.

2) s. 38(8) Notice Requirements – Proper Medical Reasons

27Section 38(8) of the Schedule is mandatory and regulates the manner in which insurers must respond after receiving an OCF-18:

Within 10 business days after it receives the treatment and assessment plan, the insurer shall give the insured person a notice that identifies the goods, services, assessments and examinations described in the treatment and assessment plan that the insurer agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all of the other reasons why the insurer considers any goods, services, assessments and examinations, or the proposed costs of them, not to be reasonable and necessary [emphasis mine].

28Words in legislation or regulation are important. The use of the word “shall” in s. 38(8) means that compliance with this section is mandatory and the insurer has no discretion in this regard. This ensures timeliness that an insurer responds to a treatment plan quickly and reasonably, in a manner that respects an insured’s ability to access timely treatment. The failure to do so has serious consequences. If the insurer fails to give a notice in accordance with subsection (8), the insurer must pay for all goods, services, assessments and examinations described in the treatment plan.

29At the same time the use of the words “medical reasons and all other reasons” imposes additional obligations and prevent insurers from denying treatment arbitrarily and ensures that the insured person has enough details and particulars about the denial to make an informed decision whether to either accept or dispute the decision at issue.

30The parties’ dispute concerns three OCF-18s. However, the first treatment plan⁶ was partially approved (with $161.42 remaining) and the applicant only requests reconsideration with respect to the sufficiency of the medical reasons provided in the second and third treatment plans being the denial notices of April 28, 2016 and May 31, 2017. Therefore, I will now examine compliance regarding these two denial notices to determine if there was a significant error of law.

31On April 21, 2016, [E.S.] prepared a treatment plan in the amount of $1,616.38 for physiotherapy services. By letter dated April 28, 2016, Travelers denied this treatment plan and explained as follows:

Upon review of your file, there is an approved OCF 23 Treatment Confirmation Form which indicates that your injuries meet the definition of minor injury as defined in the Statutory Accident Benefit Schedule (SABS) Part 1, 3(1),

"minor injury - means a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae."

Based on this information, we will not fund the proposed Treatment and Assessment Plan OCF 18 noted above. However, if you can provide medical documentation to support that your injuries do not fall with the Minor Injury Guideline, please forward this to my attention otherwise your

32Traveler’s third denial with respect to the treatment plan in the amount of $1,812.99 for botox injections, submitted on May 8, 2017 was even more brief. In denying the OCF-18 Travellers provided the following Explanation of Benefits form on May 31, 2017:

Reasons why expenses are not payable or being stopped

Diagnosis indicates that that Minor Injury Guideline is appropriate

33The applicant argues that the Tribunal failed to consider the sufficiency of the medical reasons provided by the respondent to justify its decision in holding that the denial notices of April 28, 2016 and May 31, 2017 met the requirements pursuant to s. 38(8) (the second and third treatment plan). The applicant relies on the Tribunal decision in 16-03316/AABS v. Peel Mutual Insurance Company,⁷ a reconsideration decision (not previously available to the parties as it was not released until April 5, 2018 and was not before the hearing adjudicator). The respondent submits that Peel Mutual is distinguishable, that the Tribunal’s decision is consistent with the principles in Peel Mutual and the denial notices satisfy the criteria for s. 38 denial notices as described in Peel Mutual.

34I disagree with the respondent essentially because Peel Mutual is on point and addresses in some detail the notice requirements under s. 38(8) including the history of this section and its purpose. I find the following principles in Peel Mutual applicable, persuasive and worth highlighting below:

i. an insurer satisfies its obligation to provide its “medical and any other reasons,” by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand;

ii. an insurer’s “medical and any other reasons” should, at the very least, include specific details about the insured’s condition forming the basis for the insurer’s decision or, alternatively, identify information about the insured’s condition that the insurer does not have but requires;

iii. an insurer should also refer to the specific benefit or determination at issue, along with any section of the Schedule upon which it relies; and

iv. an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.

35Against this backdrop, I now turn to applying these principles to determine if the Tribunal considered and applied the law as it related to sufficient medical reasons under s. 38(8) of the Schedule.

Why the Tribunal erred

36Traveler’s denial letters of April 28, 2016 and May 31, 2017 both fall short of the mark required by s. 38(8) as supported by the principles enunciated in Peel Mutual.

37In this case, in evaluating the sufficiency of such notice, the Tribunal’s conclusion is summarized in the following two brief paragraphs of its decision:

18. I find that Travelers’ denial notices comply with s.38(8) of the Schedule because:

i. I agree that a denial is sufficient and compliant if it gives as reasons the insurer’s position that the MIG applies and notes a lack of evidence to support claims for more than “minor injuries”. I also agree that a lack of compelling evidence from a health practitioner is a sufficient “medical reason” for denial.

ii. I do not share DS’s apparent position that an insurer must outline its review process in its denial notice to meet the requirements of s. 38(8).

19. I find that Travelers is not liable to pay DS’s claims on the basis of inadequate or insufficient notice. Its denials of the disputed OCF 18s comply with section 38(8) of the SABS. Accordingly, I will proceed to determine the disputed claims on their merits.

38For those reasons, the Tribunal held that Travelers satisfied its notice obligation under s. 33(8).

39I disagree.

40To begin, with respect to the April 21, 2016 notice, Travelers simply explained to the applicant that “[u]pon review of your file, there is an approved OCF 23 Treatment Confirmation Form which indicates that your injuries meet the definition of minor injury as defined in the Statutory Accident Benefit Schedule (SABS) Part 1, 3(1).” This form is used initially for injuries that fall within the MIG and provides quick access to the $3,500 in funds without the need for prior approval from the insurer.

41However, Travelers offered not a single “medical reason” for its denial other than saying there is an approved OCF-23, which is not a proper “medical reason” since it did not reference D.S.’s condition or refer to any of her diagnoses. Even more concerning was that a Minor Injury Treatment Discharge Report (OCF-24) dated November 3, 2015,⁸ was submitted to the respondent for review, concluding that “additional intervention outside the Minor Injury Guideline [was] required.” The purpose of this form was to discharge the insured person from the MIG, so I fail to see how Travelers was able to rely on the OCF-23 alone in its notice as an adequate reason for its determination when the OCF-24 requested intervention outside the MIG and Travelers did not explain or mention it in any way.

42I note that the MIG Discharge Report was included at Tab 5 of the applicant’s Exhibit Book. However, the Tribunal did not refer to it in its reasons. In my view, the OCF-23 should not have been relied upon alone to support the denial of April 21, 2016 in the face of a filed OCF-24, or, if it was relied upon, it was incumbent for the Tribunal to reference it in some way and explain this discrepancy. Instead, the Tribunal summarily concluded that “its denials of the disputed OCF 18s comply with section 38(8)” without explaining in any detail why. Further, the Tribunal made an unsupportable finding that there was a “lack of compelling evidence from a health practitioner [and this] is a sufficient ‘medical reason’ for denial” in the face of a Discharge Report from a health practitioner clearly stating that additional intervention outside the MIG was required. In my view, in addition to the Discharge Report, there was additional sufficient evidence before the Tribunal to make the determination that Travelers failed to comply with the procedural requirements in s. 38 by not referencing DS’s medical condition. However, the Tribunal did not refer to the plethora of medical evidence provided to in any meaningful way in assessing the notice compliance. As just one example, in Part 9 of the November 17, 2015 treatment plan [E.S.], identifies DS’s chronic pain as a barrier to recovery and concludes that her injuries are not predominantly minor. Although the decision maker is not required to reference every piece of evidence, I find that this one and vast array of medical evidence so relevant that it should have been noted.

43Moreover, in furtherance of the principle in Peel Mutual, that the “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue, the reference to an OCF-23 without explaining what this form is defeats that purpose. This interpretation also aligns with the consumer protection focus of the legislation.⁹ In this case, this denial was vague, unclear and confusing. I would be surprised if any unsophisticated person knows what is an OCF-23. Therefore, at that point, D.S. could no have understood why Travelers was refusing to pay and why. She was in no position to agree or disagree with the insurer and could make an informed decision whether they should dispute the refusal.

44With respect to the denial of May 31, 2017, the Tribunal also erred in holding that the notice in the form of an Explanation of Benefits (EOB) complied with s. 38(8). That EOB simply stated in a one-line brief sentence: “Diagnosis indicates that that Minor Injury Guideline is appropriate.” This denial did provide any specific details about the insured’s condition or what diagnosis they were referring or what particular medical documentation they were relying on that formed the basis for its decision to support its determination that the MIG was appropriate.

45The respondent totally failed to explain why the MIG was appropriate or identify information about the insured’s condition that the insurer does not have but requires. The explanation offered by Travellers in its Response to the Reconsideration that there was less documentation available for them to refer to in the April 2016 and May 2017 than was available at the hearing misses one of the main points in Peel Mutual that if there is information about the insured’s condition that the insurer does not have but requires it should clearly communicate that to the person in the notice. This puts a positive obligation on the insurer to specify and ask for the missing information as opposed to putting the onus on the insured to guess what is it that the insurer is looking for. Simply stating on the last page, in the Additional Comments section, in very small font that: “We have not been presented with any compelling medical evidence that would indicate that the injuries are not predominantly minor” does not meet the minimal standard.

46D.S. was entitled to know which medical information formed the basis of Traveler’s opinion and, in some meaningful communication, what that medical information indicated about her condition. Alternatively, if there was missing information required by Travelers this also should have been communicated to D.S. in a clear way up front and not hidden at the very end of a standard form multi page document such as the EOB. I also point out that the use of the word “compelling” is very subjective and subject to misinterpretation. A better approach is to list what information is required or missing, from whom and what must it include with reference as to why the medical information that was submitted, as in this case, was not compelling enough for Travelers.

47For these reasons, I find that Travelers failed to satisfy is obligation under s. 38(8) of the Schedule. The Tribunal’s interpretation of that obligation would essentially allow an insurer to justify any denial of a plan by merely stating that it had reviewed the plan in light of the medical documentation on file, or in light of no “compelling” medical information, and, without providing any meaningful details, assert that the plan was not appropriate given that the Minor Injury Guideline was appropriate. This was a significant error of law within the meaning of rule 18.2 of the Tribunal’s Rules.

48As a result of the lack of proper notice, and for the reasons set out in the Reconsideration decision in M.F.Z. v Aviva Insurance Canada,¹⁰ the mandatory consequence outlined in s. 38(11) of the Schedule applies. Specifically:

If the insurer fails to give a notice that complies with these requirements in connection with a Treatment Plan, s. 38(11) imposes the following consequences on the insurer:

(1) The insurer is prohibited from taking the position that the insured person has an impairment to which the Minor Injury Guideline applies.

(2) The insurer shall pay for all goods, services, assessments and examinations described in the treatment and assessment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives a notice described in subsection (8).

3) Psychological Condition and Removal from MIG

49The applicant also argues that the Tribunal committed an error of law or fact when it determined that D.S. did not suffer from a psychological conditional as a result of the accident and this should have removed her from the MIG. The applicant relies on the report of Dr. B. Cook, psychologist, dated September 15, 2017 to support her claim that she sustained a psychological impairment as a result of the accident. The Tribunal considered this report, identified the diagnosis of mild depressive disorder with somatic symptoms and residual trauma symptoms, and found that D.S. does not suffer psychological injuries caused by the accident. It explained why it gave less weight to the report and why it preferred Traveller’s evidence and that D.S.’s self-reporting contradicts her claim and carries less weight.

50It is trite law that, as the trier of fact, the Tribunal is entitled to weigh the parties’ evidence as it sees fit. As well, that the weighing of the evidence is entirely within the adjudicator’s function and discretion. Absent a significant error of the kind detailed in Rule 18, a request for reconsideration cannot be granted simply on the basis that one party would have preferred that the evidence be weighed in their favour. The adjudicator at the hearing is best able to determine what the relevant evidence is, to assess its weight and to make findings with respect to credibility. The Request for Reconsideration process is not an opportunity to reweigh evidence and revisit questions of credibility.

51I refuse to interfere with the Tribunal’s decision based on this argument.

CONCLUSION AND ORDER

52For the reasons noted above, I therefore cancel the Tribunal’s order, and order Travelers to pay for the benefits included in the two treatment plans in dispute dated March 22, 2016 in the amount of $1,618.38 and May 8, 2017 in the amount of $1,812.00 (excluding the first treatment plan in dispute) along with interest thereon.

53As well, for the reasons set out in M.F.Z. v Aviva Insurance Canada,¹¹ and Zheng, Cai v. Aviva Insurance Company of Canada¹², I need not determine whether the benefits in dispute are reasonable and necessary. Travelers must pay for them. The wording of s. 38(11) of the Schedule states that an insurer that delivers a non-compliant notice is precluded from taking the position that the insured person has an impairment to which the MIG applies and is required to pay for the goods and services set out in the treatment plan until a proper notice is given.

______________________ Cezary Paluch

Adjudicator Tribunals Ontario – Safety, Licensing Appeals and Standards Division

Footnotes

1. 12009, S.O. 2009, c. 33, Sched. 5.
2. 2The applicant listed a second ground on page 1 of her Request for Reconsideration - that there is new evidence that could not have reasonably been obtained earlier and would have affected the result. However, the applicant did not file any new evidence and the reconsideration submissions do not explain or detail this ground. This ground fails as there is no proof to support this ground.
3. 3See I.P. v. Aviva Canada Insurance, 2018 CanLII 8088 (ON LAT) and 17-005698 v. Unifund Claims Inc., 2019 CanLII 40292 (ON LAT).
4. 4I.K. v. Primmhum Insurance Company, 2018 CanLII 13162 (ON LAT) para. 27.
5. 5See 17-000608 v. TD Home and Auto Insurance Company, 2018 CanLII 141004 (ON LAT) at para. 15 and I.K. v. Primmum Insurance Company, 2018 CanLII 13162 at para. 27.
6. 6[E.S.], physiotherapist of Limeridge Physiotherapy & Rehabilitation completed the first OCF-18, in the amount of $1,254.21 submitted on November 17, 2015, recommending physiotherapy and massage therapy sessions with the goals of pain reduction, increasing strength and range of motion.
7. 716-03316/AABS v. Peel Mutual Insurance Company, 2018 CanLii 39373 (ON LAT) (“Peel Mutual”).
8. 8This Discharge Report was included at item # 5 of the Applicant’s Exhibit Book.
9. 9See Smith v. Co-operators General Insurance Co., [2002] SCC 39.
10. 10M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT) at para. 34 et seq.
11. 11M.F.Z. v Aviva Insurance Canada, 2017 CanLII 63632 (ON LAT) at para. 34 and following.
12. 12Zheng, Cai v. Aviva Insurance Company of Canada, 2018 ONSC 5707 at para. 17 and following.