K.K. v. Coseco Insurance Company, 2020 CanLII 12713

Licence Appeal Tribunal

Citation: K.K. vs. Coseco Insurance Company, 2020 ONLAT 18-002839/AABS

Tribunal File Number: 18-002839/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:

K. K.

Applicant

and

Coseco Insurance Company

Respondent

DECISION

ADJUDICATOR:

Brian Norris

APPEARANCES:

For the Applicant:

Marni Miller, Counsel

For the Respondent:

Matthew J. Sutton, Counsel

HEARD In writing on:

January 7, 2019

OVERVIEW

1The applicant was injured in an automobile accident on May 1, 2014 and sought benefits from the respondent pursuant to Statutory Accident Benefits Schedule - Effective September 1, 2010, O. Reg. 34/10 (the “Schedule”). The respondent refused to pay for certain benefits and, as a result, the applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of this dispute.

ISSUES

2The disputed claims in this hearing are:

(i) Do the applicant’s injuries fall within the Minor Injury Guideline (the “MIG”)?

(ii) Is the applicant entitled to receive a medical benefit in the amount of $2,444.00 for physiotherapy, recommended by Physical Therapy Institute in a treatment plan dated November 18, 2015?

(iii) Is the applicant entitled to receive a medical benefit in the amount of $1,892.12 for physiotherapy, recommended by Physical Therapy Institute in a treatment plan dated February 9, 2016?

(iv) Is the applicant entitled to receive a medical benefit in the amount of $2,456.20 for physiotherapy, recommended by Physical Therapy Institute in a treatment plan dated June 30, 2016?

(v) Is the respondent liable to pay an award under O. Reg. 664 because it unreasonably withheld or delayed payments to the Applicant?

(vi) Is the Applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is statute-barred from disputing entitlement to the first two treatment plans, namely those dated November 18, 2015 and February 9, 2016.

4The applicant has not met the evidentiary burden to establish, on a balance of probabilities, that the injuries as a result of the accident are not predominantly minor injuries as defined in s. 3(1) of the Schedule. As a result, the applicant is bound by the funding limit of $3,500.00 provided for minor injuries prescribed by section 18(1).

5The applicant is not entitled to the physiotherapy treatment plan dated June 30, 2016.

6The applicant is not entitled an award pursuant to section 10 of O. Reg. 664.

7The applicant is not entitled to interest as no payments are overdue.

BACKGROUND

8The applicant was the driver of a car which was struck from behind while stopped at a traffic light. She was taken to the hospital from the scene of the collision via ambulance but was released after back x-rays showed no signs of fracture. The applicant followed up with Dr. V. Malhotra, family physician, who prescribed pain medication but made no other recommendations. A few days later, the applicant commenced treatment at Physical Therapy Institute.

9The respondent characterized the applicant’s injuries as being predominantly minor injuries as defined by the Schedule and subject to the MIG and the $3,500.00 funding limit. The applicant completed treatment within the MIG and was discharged on September 2, 2014 with a request for further treatment. As a result, she disagrees with the characterization of the injuries and seeks funding for treatment beyond the MIG and the $3,500.00 funding limit.

10The respondent raised two preliminary defenses with respect to the disputed treatment plans: the applicant has failed to comply with the two-year limitation period and the disputed treatment and assessment plans are not payable pursuant to section 38(2) because they were not signed by the applicant pursuant to section 38(3). I will address the limitation issue first.

LIMITATION PERIOD

11The respondent submits the applicant has failed to dispute two of the treatment plans within the two-year limitation period outlined in section 56, namely the plans dated November 18, 2015 and February 9, 2016. For the following reasons, I agree and find that the applicant is statute-barred from disputing entitlement to those plans since it has been more than two years since the respondent refused to pay for them.

12The applicant submits the treatment plan dated November 18, 2015 is not subject to the limitation period because the notice dated December 14, 2015 was a not a denial of benefits but a notice of the treatment plan being referred to an insurer’s examination (“IE”) and, further, that this notice failed to comply with section 38(8) by not providing adequate medical and other reasons. Additionally, the applicant submits the respondent’s letter dated March 29, 2016, which enclosed a copy of the physiatry assessment report by Dr. C. Boulias dated March 4, 2016 and denied the subject treatment plan, also did not comply with section 38(8) for failure to provide adequate medical and other reasons.

13The applicant submits the limitation period should not apply to the treatment plan dated February 9, 2016 because the respondent replied to it on 12th business day following receipt, and because it failed to include medical or other reasons for the denial.

14Section 38(8) provides an insurer must, within 10 business days of receipt of a treatment and assessment plan, give an insured notice that identifies the goods and services it agrees or does not agree to pay for. It also provides that an insurer must provide an insured with the medical and all other reasons why it will not pay for any goods and services.

15In Smith v Co-operators,¹ the Supreme Court of Canada held that in order to start the two-year limitation period, an insurer must provide an insured with a clear and unequivocal denial of a benefit, along with notice of the two-year limitation period. For the following reasons, I find the respondent’s refusals to pay satisfies this obligation.

16I find the letter dated December 14, 2015, which included information on the applicant’s right to dispute, notice of the two-year limitation period, and refers to the November 18, 2015 treatment plan and states the “treatment and assessment plan has been denied”, is a clear and unequivocal denial of benefits. The letter also provided medical reasons by referring to the findings in the June 16, 2014 insurer’s examination which determined the applicant’s “injuries fall under the Minor Injury Guideline” and concluded the applicant’s “current management can be treated under the Minor Injury Guideline”.

17I find the treatment plan dated February 9, 2016 was properly denied on February 25, 2016. This is when the respondent clearly and unequivocally denied funding for it, which included information on the applicant’s right to dispute and notifies of the two-year limitation period. The letter lists the “Treatment and Assessment Plan (OCF-18) in the amount of $1892.12 for a chiropractic treatment” (sic) under the heading “Denied Expenses:”. The letter also reiterated the respondent’s position that the applicant’s impairments are considered a minor injury and notified it is scheduling an IE due to a lack of updated medical documentation and to “further understand your medical diagnosis/prognosis for recovery and resumption of function”.

18Although the response was provided on the 12th business day following receipt, it does not automatically entitle the applicant to it. Likewise, though this response also advises the applicant that an insurer examination is required, it is permitted by section 38(10) of the Schedule and does not detract from the clear and unequivocal refusal to pay.

19I find the respondent’s failure to comply within the time limit prescribed in section 38(8) does not override the applicant’s requirement to dispute a denial within the two-year limitation period. The language in section 56, which refers to the two-year limitation period, refers only to the insurer’s refusal to pay the amount claimed. Moreover, I see nothing in this section, or the remainder of the Schedule, which provides or implies that the limitation period commences only if the insurer has provided a refusal of benefits within 10 business days.

20Instead, the consequence for the respondent breaching the 10-business day deadline provided by section 38(8) is outlined in section 38(11)2. It entitles the applicant to the goods and services consumed starting on the 11th business day and ending on the day in which notice is provided. I see no evidence the applicant incurred any goods and services on February 24 or 25, 2016.

21In addition to the arguments above, the applicant submits that subsequent denials of payment for goods and services described in the above treatment plans resets the limitation clock. I disagree. There is no provision in the Insurance Act and the Schedule which states or implies the limitation period begins anew with a subsequent denial of benefits. This position was addressed and rejected in Haldenby v Dominion of Canada General Insurance Company ².

22Considering the above, the applicant is statute-barred from disputing entitlement to the treatment plans dated November 18, 2015 and February 9, 2016.

23The treatment plan dated June 30, 2016 is not statute-barred.

FAILURE TO COMPLY WITH SECTION 38(8) AND 38(9)

24For the following reasons, I find the respondent is compliant with section 38(8) and 38(9) and is not precluded from taking the position the applicant is subject to the MIG and the $3,500.00 funding limit.

25As mentioned above, section 38(8) requires the respondent to, within 10 business days after receipt of a treatment plan, provide the applicant with notice of the goods and services it agrees to pay for and those which it will not. It also requires the respondent to give medical and other reasons for the decision. In the event the respondent believes the applicant is subject to the MIG, section 38(9) requires the respondent to advise the applicant of this in the notice provided pursuant to section 38(8).

26The applicant claims the respondent failed to comply with section 38(8) by not providing its medical and other reasons for denying the treatment plan dated June 30, 2016, and section 38(9) by not notifying the applicant it believed the MIG applies. She submits this precludes the respondent from taking the position she has minor injuries and is subject to the MIG funding limit. As a result, the applicant claims entitlement to the June 30, 2016 treatment plan pursuant to section 38(11). The respondent submits the notices provided are compliant with sections 38(8) and 38(9).

27I find the letter dated July 11, 2016, denying entitlement to the June 30, 2016 treatment plan, is compliant with sections 38(8) and 38(9). The letter specifically refers to the disputed treatment plan and notes it is denied. The letter refers to and quotes the IE reports by Dr. Boulias and Dr. Somerville noting the applicant was found to suffer minor injuries, and these injuries can be treated under the MIG. The letter also refers to the letter dated March 29, 2016, which advised the applicant of its findings that the applicant’s pre-existing health conditions did not delay recovery from the accident.

DOES SECTION 38(8) AND 38(9) APPLY TO SPECIFIED BENEFITS?

28In addition to the deficient notice arguments above, the applicant also claims entitlement to treatment beyond the $3,500.00 funding limit because the respondent failed to comply with section 38(9) when it denied income replacement, non-earner, and caregiver benefits without acknowledging the MIG. The respondent did not specifically address this argument.

29Upon review of the evidence and Schedule, I find section 38(9) does not apply to responses to specified benefits. This is because the requirements outlined in section 38 pertain only to treatment and assessment plans for medical and rehabilitation benefits as well as applications for assessments or examinations. The letters referred to by the applicant, dated May 21 & 30, 2014, do not address any treatment and assessment plans but instead, address the applicant’s entitlement to specified benefits (which are not at issue for this hearing).

WERE THE TREATMENT PLANS SIGNED BY THE APPLICANT?

30The respondent also submits the disputed treatment plans were not signed by the applicant pursuant to section 38(3) and, as a result, it is not liable to pay for them. The applicant did not address this in reply submissions.

31My response to this argument is not required for the treatment plans dated November 18, 2015 and February 9, 2016 as they are statute-barred from being adjudicated.

32Moreover, I acknowledge that, with respect to the June 30, 2016 plan, the evidence shows it was submitted directly to the respondent through the electronic Health Claims for Auto Insurance (“HCAI”) system. While I agree there is no evidence the plan was signed by the applicant, I am unsure if it is possible for insured persons, like the applicant, to sign the electronic documents in HCAI.

33At any rate, I find an analysis and determination on this issue unnecessary. If the applicant’s injuries are determined to be predominantly minor injuries and subject to the MIG and the $3,500.00 funding limit, that not only concludes the matter, but, it seems to me, offers the parties more guidance going forward. As outlined below, I find the applicant’s injuries are predominately minor and, as a result, the June 30, 2016 treatment plan is not reasonable and necessary because it proposes treatment outside the MIG and the $3,500.00 funding limit.

THE MINOR INJURY GUIDELINE (MIG)

34There is a monetary limit to medical benefits available to injured persons who sustain a minor injury as a result of an accident. A “minor injury” is defined in s. 3 of the Schedule and includes sprains, strains, whiplash associated disorder, contusion, abrasion, laceration or subluxation and any clinically associated sequelae. The MIG provides that a strain is an injury to one or more muscles and includes a partial tear. Under section 18 of the Schedule, injuries that are defined as minor are subject to a $3,500.00 funding limit on treatment.

35If the applicant’s injuries are deemed to be minor in nature, the responsibility is on the applicant to establish that the MIG, and the related funding limit, should not apply.

36The applicant claims entitlement to medical benefits outside the MIG for three reasons: the respondent failed to comply with section 38; the applicant has pre-existing injuries which preclude recovery within the MIG; and the applicant suffers from chronic pain and that this is an injury not included in the MIG. I have addressed the first argument and will now analyse the other submissions.

Pre-existing medical condition

37I find the applicant does not have a documented pre-existing medical condition precluding maximal recovery within the MIG and the $3,500.00 funding limit. In short, I see no compelling evidence indicating the applicant’s medical history involving a surgically-treated sarcoma in the left thigh in 2013, hypothyroidism, high cholesterol, multi-compartmental osteoarthritis, sleep apnea, or depression will preclude recovery within the MIG. While the applicant made submissions outlining these injuries, she did not specify how these pre-existing conditions would preclude her maximal recovery within the MIG and the funding limit. Nor did the applicant lead any compelling evidence addressing this.

38I have reviewed Dr. Malhotra’s clinical notes and records (“CNRs”) and find they do not indicate the applicant has an inability to recover within the MIG funding limit. Where they are legible, the records do not show any concern the applicant’s pre-existing health condition would impact recovery. The CNRs include a post-surgical oncology consultation record dated April 7, 2015 which notes the applicant complained of low back and neck pain as a result of the accident. However, evidence of ongoing back pain does not remove the applicant from the MIG and the funding limit. Further, there are no remarks to indicate the surgically-removed sarcoma would impact the applicant’s recovery and there is no evidence to indicate the applicant’s treating practitioners modified the applicant’s treatment and/or care on account of this, or any other, pre-existing medical condition.

39Likewise, there is insufficient evidence to indicate a previous right shoulder injury will preclude the applicant’s recovery if subject to the funding limit provided by the MIG. I agree with the applicant that in the insurer’s examination report dated June 16, 2014, Dr. J. Somerville, physiatrist found a minor range of motion (“ROM”) decrease in the applicant’s right shoulder. However, Dr. Somerville considered this and still found the applicant’s injuries were subject to the MIG and the $3,500.00 funding limit.

Psychological injuries

40There is no evidence the applicant suffered psychological injuries as a result of the accident, nor is there evidence her depression was exacerbated as a result of the subject accident.

41Dr. Malholtra’s CNRs do not indicate the applicant suffered any psychological injuries or a worsening of pre-existing depression as a result of the accident. The CNRs are difficult to read and where legible, do not show an increase in depression or anxiety symptoms. Likewise, the treatment and assessment plans and other claims forms do not list any psychological symptoms or injuries. The CNRs of the applicant’s other family physician, Dr. G. Dhillon are similar as there are no reports of accident-related psychological symptoms in the records.

42The only evidence of any symptoms of a psychological injury is in the physiatry assessment report dated March 18, 2016 by Dr. C. Boulias. Dr. Boulias notes the applicant reports a fear of driving. However, I see no other record of a fear of driving and a record in the adjustor’s log notes dated June 6, 2014 contradicts this. The log notes record states the applicant was driving and unable to speak on the telephone at the time of the call. In addition, Dr. Somerville’s report dated June 16, 2014, noted the applicant drives to therapy. One self-reported note, contradicted by other evidence and absent any other record to support it, is not indicative of psychological injuries which would preclude recovery within the MIG and the $3,500.00 funding limit on treatment.

Chronic Pain

43The applicant’s ongoing pain complaints are not evidence of a chronic pain condition and does not entitle the applicant to treatment beyond the MIG and the $3,500.00 funding limit it provides.

44The disability certificates submitted by the applicant are not sufficient evidence to establish a chronic pain condition requiring treatment beyond the MIG. The disability certificate by Dr. G. Gayah, chiropractor, dated May 7, 2014 is within a week of the accident and notes the applicant’s anticipated recovery is 9-12 weeks. While the disability certificate by Dr. D. Huang, chiropractor, dated March 23, 2015 states “chronic” before each listing of the various sprain and strain injuries suffered by the applicant, it anticipates an impairment duration of only 9-12 weeks. This is not an indication of a chronic pain condition requiring treatment beyond the MIG.

45Moreover, unlike other situations where it was accepted the insured’s functional impairment from chronic pain was found to be an impairment which falls outside the MIG and the $3,500.00 funding limit³, the applicant offers no such evidence. While there are some indications of a minor range of motion impairment in the applicant’s right shoulder, it is considered functional. The applicant was able to return to work within a week of the accident and engaged in overseas travel. The applicant reported independence with personal care and light housekeeping chores in Dr. Boulias’s IE report dated March 18, 2016, about 11 months following the accident.

46There is no evidence the applicant has an overdependence on health care providers or prescription medication. The CNRs of Dr. Malholtra and Dr. Dhillion do not show a pattern of overdependence. While there are numerous family physician visits, they are for a variety of issues which are not accident-related. The applicant provided a prescription summary however, there is no indication there was an increase in dependence on prescription medication.

47Dr. Dhillon’s referral to a pain clinic is not evidence of a chronic pain condition which would upset the predominance of minor injuries. Dr. Dhillon’s CNRs note the applicant requested a referral to a pain clinic during visit due to cough and cold symptoms on November 24, 2017 and Dr. Dhillon obliged. The consultation at the pain clinic was scheduled for February 2018, yet the applicant provided no reports or records from there. Further, she had no pain-related complaints in the following visit with Dr. Dhillon on December 6, 2017 and was found to be well during a visit fewer than 6 months prior, in June 2017, and also during a visit on February 25, 2017.

AWARD

48An award may be payable in the event the respondent is found to have unreasonably withheld or delayed payment of a benefit.

49Having found the applicant suffered predominantly minor injuries and is not entitled to the disputed treatment plans, I can conclude no benefits were unreasonably withheld or delayed by the respondent.

INTEREST

50Interest is payable on overdue payments pursuant to section 51 of the Schedule. I find no payments went overdue and no interest is payable as a result.

CONCLUSION

51The applicant is statute-barred from disputed entitlement to the treatment plans dated November 18, 2015 and February 9, 2016.

52The applicant’s injuries are predominantly minor injuries as defined in the Schedule. As a result, the applicant is bound by the funding limit of $3,500.00 provided by the MIG.

53The applicant is not entitled to the treatment plan dated June 30, 2016 because it proposes treatment outside the MIG.

54The applicant is not entitled an award pursuant to section 10 of Regulation 664.

55The applicant is not entitled to interest as no payments went overdue.

Footnotes

1. 1Smith v Co-operators General Insurance Company 2002 SCC 30, [2002] 2 SCR 129 [Smith v Co-Operators]
2. 2Haldenby v Dominion of Canada General Insurance Co. (2001) 2001 CanLII 16603 (ON CA), O.J. No. 3317 (Ont. C.A.(W.L.)
3. 3For example: Ali and Ferozuddin and Certas Direct Insurance Company (FSCO A13-002459 and A13-002460, March 23, 2016) and 16-000438 v The Personal Insurance Company, 2017 CanLII 59515 (ON LAT)