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:
M.K.
Applicant
And
Aviva Insurance Company
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Chloe Lester, Vice-Chair
APPEARANCES:
Counsel for the Applicant: Piera Segreto, Little Morello Vettese Segreto LLP
Counsel for the Respondent: Louise Kanary, Aviva Trial Lawyers
Court Reporter: V.S.
Interpreter: A.S., Croatian Language
Hearing Dates: June 10, 2019
Overview
1The applicant, MK, was injured as a passenger in a car accident on November 8, 2016. The applicant sustained injuries from the car accident and stopped working. The respondent, Aviva, determined based on the injuries sustained in the car accident that her injuries were subject to a $3500 funding limit under the Minor Injury Guideline (the “MIG”). The applicant applied for and received income replacement and medical benefits from the respondent in accordance with the Schedule1.
2The applicant submitted a treatment plan for 20 therapy sessions on February 9, 2017. This treatment plan was recommended by her physiotherapist.2 The treatment plan was partially approved because there was no more funding left, out of the $3,500, to cover the outstanding amount.3
3About a year after the accident the respondent sent the applicant for an assessment. Based on the assessment the respondent advised the applicant that her injuries were minor and still subject to a maximum of $3,500 of treatment, she no longer met the test for income replacement benefits (“IRB”) and would no longer receive a weekly IRB after December 25, 2017.4
4After the denial of benefits, the applicant filed an application with the Tribunal5 for dispute resolution. She also claims the respondent unreasonably withheld these benefits and therefore she is entitled to an award under Regulation 664.
5At the case conference, the respondent agreed to remove the applicant from the Minor Injury Guideline which allowed the applicant to apply for more medical and rehabilitation benefits.6 I have no evidence to explain on what basis the respondent removed the applicant from the MIG. Nevertheless, she was removed and had the ability to apply for more benefits.
6The questions that remain are:
(i) Whether the applicant is entitled to the partially denied treatment plan,
(ii) whether the applicant is entitled to receive a weekly IRB from December 26, 2017 onward, and
(iii) whether the applicant is entitled to an award7 and interest.
Results:
7I find the applicant is entitled to the partially denied treatment plan and interest. She is not entitled to a weekly IRB or an award.
Is the applicant entitled to the partially denied treatment plan?
8The applicant submitted a treatment plan to the respondent on February 9, 2017 recommending 20 therapy sessions. The treatment plan described the injuries sustained from the car accident as strains and sprains. The physiotherapist, under part 7, acknowledged that the applicant did not have any prior or concurrent injuries, diseases or conditions that would affect her response to treatment. The treatment goals were to reduce the applicant’s pain, increase her range of motion and strength and return her to her activities of normal living and pre-accident work activities.8
9At the time the treatment plan was submitted to the insurance company the applicant was subject to the $3500 policy limits. The respondent only partially approved the treatment plan because the applicant had exhausted the policy limits.9 What remains in dispute is $598.50 worth of treatment.
10The applicant argues the treatment plan is reasonable and necessary because:
(i) Her pre-existing conditions as outlined in the disability certificate make it unlikely for her to recover within the $3,500 policy limits and therefore should not be subject to the MIG limits,
(ii) She was making progress and more treatment would result in more progress being made,10 and
(iii) The family GP and treating chiropractor support the need for treatment.11
11The applicant also argues that the insurer’s examination (“IE”) report is unreliable because:
(i) The respondent removed the applicant from the MIG and therefore the assessor’s opinion that the applicant should be subject to the MIG policy limits is irrelevant,
(ii) The IE assessor did not take much time in preparing the initial and addendum reports because they are almost identical, and the assessment took less than 1 hour and 20 minutes, and
(iii) The IE assessor claims there are no notes from the assessment despite an indication in the IE, confirmed by the applicant’s testimony, that a woman was in the room taking notes.
12The respondent argues the denied portion of the treatment plan is not reasonable and necessary because:
(i) the applicant suffered from soft tissue injuries,
(ii) the applicant has not established what the treatment goals are and how she will achieve the goals, and
(iii) the applicant only incurred 2 out of the 6 sessions.12
13Under section 15 of the Schedule, the respondent is obligated to pay for all “reasonable and necessary” incurred medical benefits because of injuries sustained in the accident. The term “reasonable and necessary” is not defined in the Schedule but case law has outlined some guiding principles to consider when determining if the benefit is reasonable and necessary. Some of those principles include, but are not limited to, necessity of the treatment in relation to the injuries sustained in the accident, the reasonableness of the goal, the ability to achieve that goal and the cost.13
14I find the denied portion of the treatment plan reasonable and necessary for the following reasons:
(i) Firstly, the physiotherapist recommended the therapy sessions to improve upon the injuries sustained from the car accident.14 The recommendation for physiotherapy is also supported by the applicant’s family GP15.
(ii) Secondly, the goals identified in the treatment plan directly relate to the injuries sustained in the car accident and are intended to increase functionality. It is important to note at the time the treatment plan was submitted the applicant was not working due to her injuries. One of the treatment goals was to return the applicant to her pre-accident work activities.
(iii) Thirdly, the therapies were improving the applicant’s injuries. The treatment plan had a method to evaluate the progress and based on the initial treatment plan the applicant had already seen improvement from the therapies.16
(iv) Lastly, the cost is reasonable. This was only the second proposed treatment plan. It was in fact partially approved by the respondent. What remained outstanding was $598.50.
15The respondent denied the benefit on the basis that the policy coverage limits were exhausted.17 There were no other explanations given why the treatment plans were not reasonable or necessary. Once the applicant was removed from the MIG, it was incumbent on the respondent to re-evaluate its position on the treatment plan and determine whether it is reasonable and necessary.
16The applicant suggests that she had pre-existing injuries that prevented her from recovering within the MIG limits. I disagree, as that statement is not supported by what is written in the treatment plan.18
17I do not give much weight to the IE assessment in determining the reasonableness or necessity of the treatment plan because the assessor did not comment on the specific treatment and why it wouldn’t be beneficial.
18A treatment plan is submitted to an insurance company to determine the entitlement to a benefit in advance of incurring it. The respondent argues that the applicant only incurred 2 out of the 6 sessions and therefore it’s not reasonable and necessary. I am not persuaded by this argument because entitlement to a benefit is separate from payment. The reasonableness and necessity of a treatment should be determined before a benefit is incurred and therefore cannot be a factor in considering entitlement. Once approved and services rendered, then the issue of incurred becomes important concerning payment and potentially when interest becomes owed.
19I find interest is payable on the incurred treatment in accordance with the Schedule sec 51. The respondent argues that interest becomes payable from the date of the decision, in accordance with the case of Dowell v Millington.19 I disagree. The case is distinguishable because it is not an accident benefits case. The statute is clear when interest becomes payable and should be paid in accordance with that section.
Is the applicant entitled to a weekly Income Replacement Benefit?
20The applicant claims she stopped working after the car accident because of the injuries she sustained. She applied for and received a weekly IRB. Approximately a year after the accident the applicant was sent for an IE to determine whether she met the test for an IRB. The assessment determined she did not. The respondent ceased payments, effective December 25, 2017.
21The applicant claims entitlement to an IRB from December 26, 2017 to date and ongoing, including a period that is up to the 104-week mark and ongoing when the entitlement test changes and is more difficult to meet. The quantum of the weekly benefit at the rate of $384.81 per week is not in dispute.
22In brief, the applicant asserts she meets the entitlement for an IRB for both the pre- and post-104 week test because:
(i) her disability certificate filled out by her family doctor supports her entitlement,
(ii) she suffers from pre-existing injuries that were exacerbated by the accident and she could no longer work.
(iii) she also continues to suffer from the accident-related injuries,
(iv) she was denied treatment her injuries could not heal to render her capable of working again,
(v) of the stress in her life from the accident caused her to suffer from high cholesterol and blood pressure. This ultimately led to two strokes and as a result, she could not return to work,
(vi) the respondent had already paid her an IRB for a year and nothing had changed in the applicant’s medical condition and abilities to function that would suggest she could return to work, and
(vii) the respondent’s assessment report is unreliable for the same reasons listed above in paragraph 11.
23The respondent denies entitlement to an IRB because:
(i) The applicant suffered soft tissue injuries, the disability certificate supports a modified return to work, and there is no reasonable explanation why she could not return to her sedentary employment that she performed prior to the accident,
(ii) The IE assessor opined she did not meet the test for the IRB, and
(iii) The applicant has not seen her family doctor or filled any prescription medication for her injuries.
24In order to prove entitlement to an IRB up to the 104-week mark, the applicant must prove that she suffered a substantial inability to perform the essential tasks of her pre-accident employment. To meet the pre-104 test an assessment needs to be made to determine the following:
(i) what were the injuries because of the accident,
(ii) what are the essential tasks of the applicant’s employment, and
(iii) does the applicant suffer a substantial inability to complete them?
25To prove her entitlement after 104 weeks, the applicant must prove that she suffers a complete inability to engage in any employment for which she is reasonably suited by education, experience or training”.
What were the applicant’s accident-related injuries?
26Firstly, for the reasons listed above, I find the applicant suffers from soft tissue injuries. Her family doctor and physiotherapist diagnosed her with soft tissue injuries. Upon continued pain complaints the family doctor conducted numerous investigations, including x-rays and ultrasounds, and all resulted in normal findings. The applicant claims she also suffers from pre-accident injuries which were exacerbated by the accident and affected her ability to return to work. I see no evidence to support that. Neither the disability certificate in part 8 nor the treatment plan in part 7 support that the applicant had any pre-accident medical issues that affected her response to treatment or her ability to return to modified duties.
27The applicant also claims she suffered from high cholesterol and blood pressure because of the accident and resulted in two strokes. It is true that the applicant did experience high blood pressure, cholesterol and strokes after the accident, but I have no medical evidence to support that these were directly caused by the accident. Also, the clinical notes from her family doctor relate the stress the applicant was experiencing due to familial issues, not to the accident.
What were the applicant’s essential tasks of her employment?
28The applicant worked as an office administrative assistant/receptionist for [a cleaning company]. The essential tasks of the applicant’s employment included answering phones, general office duties, filing, and light office cleaning (sweeping and mopping the floors of the office). This was a family run business and the applicant’s office was in her home.20 I find the applicant’s employment to be mostly sedentary in nature. The parties do not disagree on what were the applicant’s essential tasks or job duties.
Does the applicant suffer a substantial inability to complete the essential tasks of her employment?
29The applicant claims she cannot complete the essential tasks of her employment because she is still in pain, finds it hard to concentrate and has difficulty sitting, bending, lifting and turning her torso. Her medications also make her drowsy.
30As stated above, I found that the applicant suffered soft tissue injuries. I find that the applicant does not have a substantial inability to complete the essential tasks of her job for the following reasons. Her job was sedentary, and the office was operated out of her home, and as she testified, allowed her to create her own schedule.21 Her family doctor in the disability certificate did indicate she met the test for an IRB but could return to work on modified duties of light cleaning and no heavy lifting. In my opinion, nothing in the disability certificate precluded her from returning to her regular office duties while working from home, because based on the medical evidence and the applicant’s testimony, her essential tasks of employment did not include heavy lifting. At most, she was required to do some light cleaning, which her family doctor said she could return to doing without restrictions.
31After the respondent ceased paying the applicant an IRB as of December 26, 2017, there is no other medical evidence to substantiate that the applicant could not return to work. The applicant testified she could not return to work because of pain and modified work was not available for her. Based on her job duties and the disability certificate, the applicant did not need any modified duties. She could return to all job tasks.
32Also, even if I am wrong that the stress and strokes were caused by the accident, I have no submissions or medical evidence to support how they prevented the applicant from completing the essential tasks of her employment.
33In coming to my conclusion, I have given little weight to the respondent’s IE assessments on the IRB. Although I agree with the conclusion in the IE assessment that the applicant does not meet the test for an IRB, the lack of disclosure of clinical notes from the assessment is concerning regarding the reliability of the report which I will discuss below. The report specifically states “… Dr. Andrea Butt, DC [was present] to assist with note taking and to chaperone the physical examination.” The applicant requested the notes from the assessment and the assessor (Dr. Lam) followed up with the respondent indicating that there were no additional notes other than the IE assessment report. The applicant argues the reliability of the report comes into question because the applicant has no way of verifying the testing used during the assessment or the accuracy of the report since there was about 2.5 months in between the assessment and the finalizing of the report. I agree. The purpose of recording notes during an assessment is to recall the information at a later time and to ensure there is record of what happened in the moment. The report indicates there was a note taker and in the absence of the notes and the time gap between the assessment and the report I cannot rely on the accuracy the information contained in the report.
34In any event, regardless of the weight I give the IE assessment report, the applicant has not met the burden of proof to prove that she is entitled to an IRB, for the reasons set out, above.
Is the applicant entitled to an award under Regulation 664?
35The applicant claims entitlement to an award under Regulation 664. The standard for which an award is granted is when the respondent has unreasonably withheld or delayed payments. The applicant asserts she has endured financial and emotional distress as a result of the IE assessment report and the conduct of the IE assessor. The applicant alleges she was forced to live without an income based on a biased assessor’s report that was essentially a duplicate of his other reports. She submits that she is eligible for the payment of an award because of the hardships the respondent has put her through.
36The respondent denies that an award should be given because they correctly denied the applicant benefits and even if their decisions were wrong, the standard expected from the respondent is not perfection. They assert there is no evidence or basis that the respondent unreasonably withheld or denied the benefit.
37The applicant is not entitled to the benefit and therefore the respondent has not unreasonably withheld or delayed payment. Although the report was given lesser weight when assessing all the evidence, does not amount to unreasonable conduct in withholding or delaying payment.
Conclusion:
38Overall, the applicant has proved that her treatment plan is reasonable and necessary. She failed to meet the burden of proof to entitle her to an income replacement benefit or an award.
Order:
39I order that the applicant is entitled to a treatment plan dated February 9, 2017 in the amount of $1995.00 as recommended by Richview Physiotherapy (less amounts paid) and interest on the incurred treatment in accordance with the Schedule.
Released: July 15, 2019
___________________________
Chloe Lester
Adjudicator
Footnotes
- Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. (the “Schedule”)
- Respondent’s hearing brief Tab 10, 12
- Respondent’s Hearing Brief Tab 10, 11
- Respondent’s Hearing Brief Tab 6, 7, 10, 12, 13
- Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
- Respondent’s Hearing Brief Tab 1
- Section 10, R.R.O. 664 made under section 280 of the Insurance Act, R.SO.1990
- Respondent’s Hearing Brief Tab 10
- Respondent’s Hearing Brief Tab 11
- Applicant’s written submissions
- Applicant’s submissions at the hearing
- Respondent’s written submissions, submissions at the hearing and respondent’s brief tab B - L.W. v. The Co-Operators, 2016 CanLII 93133 (ON LAT)
- Respondent’s written submissions Tab B
- Respondent’s hearing brief Tab 10
- Respondent’s hearing brief Tab 15 page 2 and 3
- Respondent’s hearing brief Tab 10, and 15 page 3
- Respondent’s hearing brief Tab 11
- Respondent’s hearing brief Tab 10 part 7
- Respondent’s written submissions Tab E: Dowell v. Millington, 2016 ONSC 6671 (Ont. S.C.J.) at paragraph 42
- Respondent’s hearing brief tab 4 and applicant’s affidavit and testimony
- Applicant’s testimony