Released Date: 02/25/2020
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:
[S.S.]
Applicant
and
Unifund Assurance Company
Respondent
DECISION AND ORDER
VICE CHAIR: Chloe Lester
APPEARANCES:
For the Applicant: Lisa Bishop, Counsel
For the Respondent: Monika Korona, Counsel
HEARD: In Writing
June 24, 2019
OVERVIEW
1The applicant, SS, was involved in a car accident on February 11, 2017 and as a result she alleges she sustained physical and psychological injuries. Because of those injuries, she claims she required treatment and she stopped working.
2The applicant applied for income replacement and medical benefits to the respondent, Unifund Assurance Company (“Unifund”), in accordance with the Schedule.1
3Unifund denied the treatment plans on the basis that they were not reasonable and necessary because SS was in the Minor Injury Guideline (“MIG”) and she had exhausted all funding available to her. The income replacement benefits (“IRB”) were stopped as of November 17, 2017 for a failure to comply with the s. 44 insurer examination (“IE”) requests.
4SS disagreed and filed an application for dispute resolution with the Tribunal.2
BACKGROUND
5After the accident, SS saw her family doctor and was diagnosed with various strains and sprains to her neck and back. She was prescribed pain medications as a course of treatment.
6Unifund, as a result of the injuries sustained in the accident, placed SS in the MIG which allowed her up to $3,500 worth of treatment.
7Ten days after the accident, SS attended Health Pro Wellness Clinic for treatment. She was again diagnosed with strains and sprains to her neck and back. She continued to seek treatment from the clinic and submitted treatment plans to Unifund.
8SS submitted a treatment plan in the amount of $1,544.36 on June 19, 2017 which was partially approved for the remainder of the MIG limits which left a deficit of $252.74. Another treatment plan was submitted on October 11, 2017 in the amount of $2,681.40. Originally this treatment plan was denied but after the parties sent in their submissions, the treatment plan was partially approved for $2,321.40 and left a deficit of $360.00 for transportation expenses.
9At the time of the accident, SS was self-employed as a day care provider at [at day care] and also as an autism therapist with [a pediatric therapy clinic]. After the accident, SS alleges she attempted to return to work at both locations but could not continue working at [a day care] because of her accident related injuries and the physical nature of the position. SS continued to only work as an Autism Therapist until she found a less physical job in an office on January 6, 2018.
10Unifund paid IRBs until November 17, 2017 at which time it suspended the benefit for non-attendance of the IEs.
ISSUES IN DISPUTE
11The questions to be determined are:
(a) Is SS subject to the MIG as defined by the Schedule?
(b) Is SS entitled to the remainder of a treatment plan for physiotherapy in the amount of $252.74?
(c) Is SS entitled to the remainder of the of the second physiotherapy treatment plan in the amount of $360.00 (transportation expenses)?
(d) Is SS entitled to receive a weekly income replacement benefit in the amount of $236.43 from November 17, 2017 until January 6, 2018?
(e) Is SS entitled to an award pursuant to s. 10 of Regulation 664 for unreasonably withholding or delaying payments of benefits? and
(f) Is SS entitled to interest?
RESULTS
12I find the applicant:
(a) is subject to the MIG.
(b) is not entitled to the treatment plans for physiotherapy.
(c) is not entitled to IRBs.
(d) is not entitled to an award or interest.
ANALYSIS
Is the applicant in the Minor Injury Guideline?
13The MIG establishes a treatment framework available to an injured person who sustains a minor injury as a result of an accident. A “minor injury” is defined in the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.” Under s. 18(1) of the Schedule, a person who sustains an impairment that is predominantly a minor injury for any one accident is subject to a $3,500.00 funding limit on their treatment.
14To request treatment above the $3,500.00 funding limit, the applicant must prove on the balance of probabilities that their injuries do not fall within the definition of “minor injury” in section 3 of the Schedule. The applicant can establish that by:
a. Producing compelling evidence, provided by a health practitioner, that documents before the accident a pre-existing condition that will prevent the applicant from achieving maximal recovery from the minor injury if subjected to the funding limit; or
b. Establishing an impairment sustained in the accident that is not a predominantly minor injury.
15SS submits that she should not be subject to the MIG because not only does she have pre-existing conditions that prevent maximal recovery within the MIG funding limits, but also because she has been diagnosed with conditions that do not fit within the definition of a minor injury.
16SS submits that she was injured in a car accident in 2013 and she re-injured those same areas and therefore has exacerbated a previous condition and should not be subject the MIG limits. She also claims that the injuries sustained in the 2017 car accident should not be considered minor as she tested positive on orthopaedic tests that indicated a decreased range of motion and pain.
17Unifund submits that the injuries from the previous car accident were resolved and that SS was diagnosed with impairments from the 2017 car accident that fall within the definition of the MIG.3
18I find that SS’ injuries from the previous car accident had resolved prior to the 2017 accident as the clinical notes and records from 2013 shows the applicant felt better from those injuries and there are no major complaints about those injuries after that time. Also, in order to be out of the MIG due to pre-existing injuries, SS must prove through compelling medical evidence that being subject to the $3,500.00 limit would prevent her from achieving maximal recovery within those limits. I have no such evidence from the applicant. I also find that even though SS injured many of the same areas in the previous car accident, those injuries were not exacerbated or worsened by the second accident. The injuries only resulted in strains and sprains.
19Based on the clinical notes from the family doctor, the injuries listed in the treatment plans and the Disability Certificate (“OCF-3”) SS suffered from predominantly minor injuries. Despite SS having limited range of motion, the injuries, at this point, are nothing more than strains and sprains. All the injuries listed were within the definition of the MIG and therefore limited to $3,500 worth of treatment.
Is the applicant entitled to the physiotherapy treatment plan?
20As the applicant is subject to $3,500 worth of treatment and Unifund has approved treatment plans up to that amount, I have no jurisdiction to decide the reasonableness or necessity of the physiotherapy treatment plans that are in dispute.
21That being said, there is one exclusion to that. The Schedule dictates that the denial letter of a treatment plan must contain, at a minimum, the information required under s. 38(8). Failure to do so may result in the insured person’s entitlement to the treatment plan outside of the MIG funding limits as the insurer would be prohibited from taking the position that the insured person has an impairment to which the MIG applies, pursuant to s. 38(11) of the Schedule. Specifically, SS is arguing that the Explanation of Benefits (“EOB”) dated October 12, 2017 asking for an insurer’s examination of the treatment plan in the amount of $2,681.40 does not contain “medical and other reasons” for denying the treatment plan and therefore Unifund should be liable to pay for it.
22I find the letter provides for the medical and other reasons required under s. 38(8). The EOB states that Unifund believed that the injuries sustained in the accident were minor injuries (i.e. “medical reason” for the denial) and, in order to determine whether the treatment plan was reasonably required, Unifund required SS to undergo an assessment (i.e. “other reasons” for the denial). Therefore, as Unifund has complied with the obligations under the Schedule—particularly s. 38(9)— they are not obligated to pay for the treatment plan outside of the MIG limits.
Is the applicant entitled to a weekly income replacement benefit?
23SS stopped working as a daycare provider at [a day care] because of the injuries she sustained in the car accident and as a result was paid IRBs.
24Unifund, after paying IRBs for a period of time, requested that SS attend a series of s. 44 IEs to determine ongoing entitlement to the benefit.
25The first notice dated October 16, 2017 advised SS that she was required to attend 4 in-person examinations and not required to attend the 2 paper review examinations. The examinations were to take place on October 30, 2017, November 6, 2017, November 17, 2017 and November 29, 2017.4
26The second notice dated October 18, 2017 indicated that the examinations would be by way of paper review for her medical and rehabilitation benefits. The letter only had one assessment listed and that her attendance was not required.5
27SS advised Unifund that she could not attend the examination on October 30, 2017.6 That being said, she failed to attend the in-person examinations scheduled for November 6, 2017.
28SS was then sent a notice on November 9, 2017 indicating she was required to attend two in-person IEs on November 25, 2017 and on December 2, 2017.7
29Then SS received a letter on November 14, 2017 indicating that the rescheduled examination from November 25, 2017 would now be conducted by paper review and her attendance would not be required.
30SS failed to attend the assessment on December 2, 2017.
31Notices sent to SS on December 4, 2017 and December 8, 2017 informed her of her required attendance at in-person examinations on January 6, 2018 and January 27, 2018 for determination of her IRBs. SS failed to attend those as well.
22Section 44 of the Schedule obliges an insured to attend IEs organized by the insurer to determine entitlement or continued entitlement to a benefit. The assessments must be reasonably required, not be scheduled more often than what is necessary, and the notice of the assessment must contain a minimum amount of information.
23If the insured fails to attend the examinations, the insurer may deny or suspend the benefit pursuant to s. 37(7) of the Schedule.
24If the insured subsequently complies with the examinations, s. 37(8) states that the only way the insured may be paid for the benefit during the period of non-compliance is if the insurer determines that the insured is entitled to the benefit and that they have provided a reasonable explanation for not complying with the original request.
25SS makes two main submissions. First, she submits that Unifund provided insufficient medical and other reasons for requesting the examinations. Secondly, SS submits that she was confused by the different notices sent by Unifund and that is why she failed to attend some of them. SS also submits when she realized that morning that she couldn’t attend the December 2, 2017 assessment, she tried contacting her lawyers, but no one was available because it was a Saturday.
26In accordance with the Schedule, SS is obliged to attend the IEs if the notice is compliant with the requirements under s. 44(5). It states that Unifund must provide medical and other reasons for the examinations, whether attendance is required, the name of the person conducting the examination and their speciality and, if required to attend in-person, information regarding the date and time of the examination.
27Unifund submits they were compliant with the Schedule when they indicated on the notices that it required the examinations for the following reasons:
a. SS exhausted the MIG funding limit and, therefore, the IEs were required to determine whether the injuries sustained in the accident were still minor injuries and to determine whether the goods and services proposed were reasonably required as a result of the accident. (for the medical benefits)
b. Based on the injuries sustained in the accident, the length of time since the accident, treatment received to date, Unifund required assessments to determine if SS would be medically fit to resume the essential tasks of her employment. (for the IRBs)
28I find the notices provided by Unifund were compliant with the Schedule. The medical and other reasons for the medical and rehabilitation benefits were in order to determine what type of injuries SS sustained as a result of the accident. The type of injuries sustained in a car accident are important to determine the level of funding available to an insured. If those injuries were not considered minor, more funding would be available to SS and on that basis, Unifund may also require the examination to determine if the treatment plan proposed was reasonably required. For the IRBs, the medical and other reasons were to determine whether SS could be capable of resuming employment considering the injuries she received in the accident. The request for an assessment was reasonable considering the Disability Certificate (OCF-3) dated February 21, 2017 certified that SS met the test for IRBs for a period of 9-12 weeks. That period had expired and therefore Unifund did not have any other medical documentation to support a continued entitlement to IRBs.
29Although I agree the amount of notices were confusing as to which examinations SS was required to attend, the Tribunal’s jurisdiction under s. 37(8) of the Schedule to decide whether SS provided a reasonable explanation for not attending the IEs, only begins after she attends all IEs and it is determined she is entitled to the benefit. When SS realized she missed one of the required IEs, she should have rescheduled and attend it. Since she did not attend all the required IEs for a determination of the benefit, I cannot consider whether her explanation is reasonable. Accordingly, I have no authority to order Unifund to retroactively pay the benefit.
30On that basis alone, I find that SS is not entitled to IRBs from November 17, 2017 until January 6, 2018.
CONCLUSION AND ORDER
31I find SS is in the MIG and since all funding under the MIG has been exhausted, SS is not entitled to the treatment plans.
32SS is not entitled to IRBs.
33In the case conference report and order SS also claimed for an award. I have no submissions regarding this issue. SS is not entitled to an award.
34As no benefits are owing, SS is not entitled to interest.
Released: February 25, 2020
Chloe Lester
Adjudicator
Footnotes
- Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10. (the “Schedule”)
- Tribunals Ontario, Safety, Licensing Appeals and Standards Division, Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”)
- 16-000642 v. Wawanesa Mutual Insurance Company, 2016 CanLII 93132 (ON LAT)
- Letter dated October 16, 2017
- Respondent’s Brief Tab 12
- Letter from SS counsel dated October 25, 2017
- Respondent’s Brief Tab 14