N.P. v. Wawanesa Mutual Insurance Company, 2020 CanLII 19563

Citation: N.P. vs. Wawanesa Mutual Insurance Company, 2020 ONLAT 18-010628/AABS

Tribunal File Number: 18-010628/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.P.

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Brian Norris, Member

APPEARANCES:

For the Applicant: Mohamed Elbassiouni, Counsel Carlos Ortiz, Paralegal

For the Respondent: Jason H. Goodman, Counsel

HEARD in writing on: August 19, 2019

OVERVIEW

1The applicant was injured in an automobile accident on September 4, 2015 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 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:

1. Did the applicant sustain predominantly minor injuries as defined under the Schedule?

2. Is the applicant entitled to medical benefits recommended in treatment and assessment plans as follows; a. $1,046.10 for chiropractic services recommended in a plan dated May 30, 2016; b. $4,988.00 for physiotherapy recommended in a plan dated October 17, 2016; and c. $1,296.75 for physiotherapy recommended in a plan dated November 9, 2016?

3. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed payment of benefits?

4. Is the applicant entitled to interest on the overdue payment of benefits?

RESULT

3After receiving the applicant's initial submission, the respondent agreed the applicant's injuries as a result of the accident are not subject to the MIG and the $3,500.00 funding limit on treatment.

4The applicant is entitled to the physiotherapy treatment plan dated November 9, 2016.

5The applicant is not entitled to the physiotherapy treatment plan dated October 17, 2016 or the chiropractic treatment plan dated May 30, 2016. No interest is payable.

6The applicant is not entitled to an award.

BACKGROUND

7The applicant was a front-seat passenger of a vehicle which was struck from behind as the last of a three-vehicle chain reaction collision. The applicant accompanied the driver of his vehicle to the hospital immediately following the accident. Although the applicant reports feeling pain at that time, only the driver was personally examined at the hospital. A few days later, the applicant visited Dr. G. De Machat, family physician, was examined, and diagnosed with cervicalgia and advised to rest and use warm packs as required.

8The applicant's medical status is remarkable. Of note, he has been diagnosed with dermographism, autism spectrum disorder, and social anxiety. Notably, dermographism is a skin condition which, when touched, causes the applicant to have itchy, raised lesions.

9As a result of the applicant's medical condition, his healthcare providers proposed treatment not considered in the Minor Injury Guideline ("MIG"). The respondent denied funding for the treatment and, until receipt of the applicant's submissions for this hearing, maintained the position the applicant was subject to the MIG and the $3,500.00 funding limit on treatment it provides.

10On July 26, 2019, after receipt of the applicant's submissions, the respondent sent notice that it no longer considered the applicant's injuries to be predominantly minor injuries and subject to the MIG, thus resolving the first issue in dispute. The other issues remain the subject of this hearing.

ENTILEMENT TO THE CHIROPRACTIC TREATMENT PLAN AND AN AWARD

11The Order dated April 4, 2019 and the applicant's list of issues in his submissions include entitlement to the chiropractic treatment plan as well as an award pursuant to Ontario Regulation 664. However, the applicant did not address these issues in his submissions and omitted them from the relief sought, listed at the conclusion of his submissions.

12As a result, I find the applicant has abandoned his claim for these issues. In the alternative, I find the applicant has failed to satisfy his requisite burden to prove entitlement to these claims. I find the applicant is not entitled to the benefit and award as a result.

ENTITLEMENT TO THE DISPUTED PHYSIOTHERAPY TREATMENT PLANS

13The applicant claims entitlement to the disputed physiotherapy treatment plans in two ways. First, because the respondent failed to adhere to the statutory requirements in section 38. Second, because the treatment proposed in the plans is reasonable and necessary as a result of accident-related injuries.

The statutory requirements outlined in section 38

14Section 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.

15The applicant takes a different position for each treatment and assessment plan.

16With respect to the treatment plan dated October 17, 2016, it was submitted on October 24, 2016. The applicant submits the respondent failed to properly identify the goods and services for which it does not agree to pay in the denial letter dated November 2, 2016. I agree.

17The letter dated November 2, 2016 notes the respondent does not agree with the treatment and assessment plan and advised an insurer's examination is required. It goes on to say the respondent finds the treatment claimed is not reasonable and necessary. This is not a clear and unequivocal denial because it does not deny any goods or services. Not agreeing with the treatment and assessment plan, or stating it is not reasonable and necessary, is not the equivalent of refusing to pay for it.

18In addition, I find the respondent's subsequent letter, dated November 7, 2016, does not clearly and unequivocally deny funding for the October 17, 2016 treatment plan. While the Explanation of Benefits may clearly deny funding, the cover letter refers only to the treatment plan dated May 30, 2016. The cover letter detracts from the message in the Explanation of Benefits because it fails to refer to the treatment plan it denies. As a result, the respondent has not yet provided a clear and unequivocal denial of the treatment plan.

19With respect to the treatment plan dated November 9, 2016, the applicant submits the respondent failed to include reference to the MIG when it denied funding on November 17, 2016, pursuant to section 38(9). I agree. The letter dated November 17, 2016 refers to the insurer's examination report dated November 9, 2016 and notes no further facility-based treatment or exercise is required. The letter makes no mention of the MIG.

What is the applicant's entitlement due to the deficient notices?

20From a statutory perspective, I find the applicant is not entitled to payment for any goods and services because the applicant incurred them prior to the 11th business day.

21When an insurer fails to fulfill its obligations pursuant to section 38(8) and (9), section 38(11)1 prohibits the it from taking the position the insured has suffered an impairment to which the MIG applies. Section 38(11)2 entitles the insured to the goods and services related to the period starting on the 11th business day after receipt of the treatment and assessment plan and ending on the day the insurer provides a compliant notice.

22While the notices dated November 2 and 7, 2016 failed to unequivocally deny funding for the October 17, 2016 treatment plan, I find the applicant has not incurred any goods and services after the 11th business day to be compensated for. The applicant incurred the services prior to the 11th business day and, consequently, is not entitled to payment for them. The treatment plan was submitted on October 24, 2016, making a response due before November 8, 2016. The records form HealthMax Physio Clinic show the applicant incurred services on October 13, 20, 22, 27, 29 and November 5, 2016.

23Section 38(11)2 does not entitle the applicant to the entire October 17, 2016 treatment plan. The applicant's position is the respondent, as a result of the deficient notice, is responsible to pay for all the goods and services described in the treatment plan. This position fails to appreciate that section 38(11)2 limits entitlement to the goods and services described in the treatment plan for the period starting on the 11th business day and ending on the day when proper notice is provided.

24Further, despite using the term "described" in it, section 38(11)2 requires the goods and services to be incurred. Section 15(1) stipulates the respondent must pay for all reasonable and necessary expenses incurred by or on behalf of the insured. It would be unreasonable to expect the respondent to pay for goods and services which were not incurred pursuant to section 3(7)e and not unreasonable withheld or delayed pursuant to section 3(8). This principle has been upheld by the Tribunal on several occasions and I see no reason to interpret it differently¹.

25As noted above, the respondent's failure to refer to the MIG in the November 17, 2016 letter does not entitle the applicant to the goods and services listed in the treatment and assessment plan. Rather, it disentitles the respondent from using compliance with the MIG as a statutory reason to deny entitlement to the goods and services listed in the plan.

26The November 17, 2016 denial does not rely on compliance with the MIG as a reason to deny payment. Instead, the treatment and assessment plan was denied because the respondent considered it to not be reasonable and necessary. I must consider whether this and the other treatment and assessment plan are reasonable and necessary.

Are the disputed treatment plans reasonable and necessary?

27The applicant's family physician, Dr. De Machat, documented the applicant's consistent pain complaints and, on September 19, 2016, prescribed pool therapy for him due to mechanical back pain. The applicant implies the October 17 and November 9, 2016 treatment plans were created and submitted on this recommendation. With consideration for this recommendation and the applicant's skin condition, I find it reasonable for him to seek pool therapy to relieve back pain. However, I find only the November 9, 2016 plan reasonable and necessary. This is because it proposes a shorter treatment period than the October 17, 2016 plan. I am mindful that the applicant has a history of inconsistent participation in treatment and has previously reported insignificant improvement from it. I find it practical for the applicant to engage in a preliminary course of treatment to determine whether the treatment goals will be reasonably met. As a result, I find a longer course of treatment, as proposed in the October 17, 2016 plan, is not reasonable and necessary.

28I prefer the recommendation of Dr. De Machat, the applicant's family doctor, over the opinion of Dr. J. Castiglione, physician. Dr. Castiglione assessed the applicant and produced a report dated July 11, 2016, which found the applicant to be self-limiting on examination, demonstrated some non-organic pain findings, and considered his soft tissue strains to his neck and back uncomplicated and resolved by the time of the assessment, despite the applicant's ongoing complaints of back pain. The applicant has unique circumstances and Dr. De Machat has the benefit of an ongoing doctor and patient relationship with the him, unlike Dr. Castiglione. From my perspective, Dr. De Machat is in the best position to understands the applicant's unique medical condition at the time of the accident and thereafter. Dr. De Machat met with the applicant at least six times during the year following the accident. The applicant complained of back pain in at least four of those visits and anxiety symptoms during the other two visits. Dr. De Machat is aware of the applicant's medical history, the applicant's accident and prescribed pool therapy for him to address his ongoing mechanical back pain.

29As noted above, to-date the applicant has not incurred the goods and services listed in the November 9, 2016 treatment and assessment plan. He may do so following this decision and the respondent is liable to pay for the costs once properly invoiced.

INTEREST

30Pursuant to section 51, interest is only payable on overdue payments. No amounts are payable as the applicant has not incurred any services listed in the November 14, 2016 treatment and assessment plan. As a result, I conclude no payments went overdue and no interest is payable as a result.

CONCLUSION

31I find the applicant is entitled to the November 9, 2016 treatment plan because it is reasonable and necessary.

32The applicant is not entitled to the remaining benefits claimed, nor interest or an award.

Footnotes

1. 1See 18-001808 v. Aviva Insurance Company of Canada, 2019 CanLII 22220 (ON LAT), 18-003194 v Aviva Insurance Company, 2019 CanLII 34611 (ON LAT), and 17-005046 v Aviva General Insurance, 2019 CanLII 34624 (ON LAT) for example.