Tribunal File Number: 18-012358/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:
R.A.
Applicant
And
Wawanesa Mutual Insurance Company
Respondent
DECISION
ADJUDICATOR: Jesse A. Boyce
APPEARANCES:
Counsel for the Applicant: Darcie Sherman
Counsel for the Respondent: Seth Kornblum
Written Hearing: February 28, 2020
OVERVIEW
1R.A. was injured in an automobile accident on October 26, 2013 and sought benefits from the respondent, Wawanesa, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 20101 (the "Schedule"). R.A. applied for various medical and rehabilitation benefits that were denied by Wawanesa because it determined her injuries were predominately minor and therefore subject to the Minor Injury Guideline ("MIG"). R.A. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES TO BE DECIDED
2The following issues are in dispute, according to the Case Conference Order:
i. Did the applicant sustain predominantly minor injuries as defined by s.3(1) the Schedule?
ii. Is the applicant entitled to a medical and rehabilitation benefit in the amount of $2,195.00 for physiotherapy treatment recommended by Nikunj Patel of the Physiotherapy Wellness Clinic in a treatment plan (OCF-18) dated December 14, 2016, submitted on December 15, 2016 and denied on December 30, 2016?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3R.A. has demonstrated that she sustained impairments that warrant treatment beyond the MIG limits. I find she is entitled to payment for the physiotherapy benefit in dispute as it is reasonable and necessary. As benefits are overdue, interest is payable under s. 51.
ANALYSIS
Applicability of the Minor Injury Guideline
4The MIG establishes a framework for the treatment of minor injuries, as defined in s. 3(1) of the Schedule. Section 18(1) limits recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500.00. R.A. must establish entitlement to coverage beyond the limit on a balance of probabilities by demonstrating that she has pre-existing conditions that prevent maximal medical recovery, that she sustained psychological impairments as a result of the accident or that she suffers from chronic pain that cannot be treated within the MIG. I find the medical evidence indicates that R.A. sustained impairments, primarily her chronic pain, that justifies removal from and treatment beyond the MIG.
3To be frank, I find the medical evidence indicating that R.A. has sustained impairments—the development of chronic pain and psychological impairments—that warrant removal from the MIG to be considerable.
4As a result of the accident, R.A. sustained injuries to her right knee, foot, shoulder, back and head. Within weeks, her physical impairments resulted in an inability to work and complete the housekeeping activities she used to. A year following the accident, her physical symptoms deteriorated: increasing low back pain with radicular symptoms, sciatica, and a disc bulge. Two years post-accident, she had her first of many diagnoses of chronic pain. Shortly after, she had a diagnosis of chronic pain depression syndrome, the first indication of a psychological component to her injuries. Three years post-accident, her impairments continue: the chronic pain is still there, the sciatica lingers, an MRI of the left shoulder revealed a tear, and she continues to suffer from depression. Five years post-accident, the chronic pain remains, and R.A. has been diagnosed with recurrent severe clinical depression and post-traumatic stress disorder. R.A. has not returned to work and is severely restricted in walking, standing, sitting and going up and down stairs. The list of activities R.A. cannot do or requires assistance to do is lengthy.
5And yet, Wawanesa maintains that R.A.’s accident-related impairments fall within the MIG. Wawanesa maintains this position despite the fact that R.A. continues to suffer from neck, back and knee pain nearly six years post-accident. Wawanesa maintains this position despite multiple diagnoses of chronic pain from R.A.’s family physician and other assessors. Wawanesa maintains this position despite the presence of psychological impairments diagnosed by R.A.’s family physician and several other assessors, including Dr. Syed, Wawanesa’s s. 44 psychological assessor, who diagnosed R.A. with an adjustment disorder with mixed anxiety and depressed mood and found that she was at risk for major depressive disorder if her condition did not improve. Wawanesa maintains this position despite the fact that R.A. has been unable to work since 2015, that assessors have opined that she meets both the income replacement benefit test and the stringent non-earner benefit test. Wawanesa maintains this position despite the most alarming fact that, to-date, it has approved $5,182.21 in medical and rehabilitation benefits, $1,600.00 in income replacement benefits and $22,499.81 in examination costs. Against these facts, Wawanesa maintains its position that $3,500.00 in MIG funding is sufficient to treat R.A.’s accident-related impairments.
6I disagree. Contrary to Wawanesa’s position, I find that R.A. has met her onus to prove on a balance of probabilities that her impairments warrant treatment beyond the MIG, as the medical evidence provides support for her contention that she suffers from chronic pain. Further, I find her reporting of pain to be continuous, consistent and severe over time and accept that she now has some functional impairment as a result. In addition, I find the psychological component of her pain to be difficult to overlook, as I find it clear that it has hindered her daily activities for quite some time post-accident. The development and diagnosis of chronic pain or the diagnosis of psychological impairment are, individually, sufficient to remove an insured from the MIG. Where these impairments are presented cumulatively and in the face of significant funding outside of the MIG limits, as R.A. demonstrates here, I find any position to the contrary to be unjustifiable.
7Accordingly, R.A. has sustained impairments—primarily her chronic pain and psychological impairments—that warrant removal from and treatment beyond the MIG limits.
Section 55
8Wawanesa’s submissions are heavy on technicalities and rather light on substance. Wawanesa argues that R.A. is statute-barred from disputing the sole treatment plan in dispute here—a physiotherapy OCF-18 in the amount of $2,195.00—because she failed to attend the s. 44 insurer’s examination concerning the benefit. In turn, Wawanesa argues, since she did not attend and it delivered proper notice, that R.A. is barred from disputing the benefit under s. 55 and since she is barred on the sole benefit, there are no more benefits in dispute. Accordingly, since the Tribunal has determined previously that a MIG determination cannot be a stand-alone issue, R.A.’s entire application is barred due to the Tribunal not having jurisdiction.
9I disagree. In evidence is a letter from R.A.’s counsel to Wawanesa dated January 4, 2017 objecting to the assessment. It states that R.A. does not consent to the “Insurer’s Examination scheduled for January 19, 2017 with Dr. Robert Fielden as it is unreasonable and not necessary, as Dr. Robert Fielden has completed several paper reviews already. We ask that you schedule a MIG Determination. Please cancel the assessment for January 19, 2017 with Dr. Robert Fielden to avoid any cancellation fees.” Wawanesa did not direct the Tribunal to its response to R.A.’s non-attendance letter. Given the fact that Wawanesa conducted and funded several assessments following this non-attendance, I fail to see how R.A.’s non-attendance at this particular assessment somehow frustrated its ability to adjust the file and respond to her claim.
10In any event, even if R.A. did not attend the assessment and Wawanesa was somehow prejudiced by her non-attendance, s. 55(2) of the Schedule permits the Tribunal to allow an insured person to apply despite non-compliance with a s. 44 assessment under s. 55(1)2. Given my finding that R.A. is entitled to treatment beyond the MIG, I permit R.A. to proceed with her application by operation of ss. 55(1)2 and 55(2) of the Schedule.
Is the physiotherapy treatment reasonable and necessary?
11R.A. bears the burden of proving that the rehabilitation benefit is reasonable and necessary, pursuant to ss. 14-16 of the Schedule. Here, I agree with Wawanesa that the treatment plan in dispute was not in evidence. Indeed, the Tribunal was unable to locate the OCF-18 (only the fax-back portion) in dispute in R.A.’s brief or in Wawanesa’s accident benefits file or any of its document briefs. Accordingly, the Tribunal reached out to the parties in order to have the disputed OCF-18 submitted so that the Tribunal could assess entitlement on the merits.
12Wawanesa objected to the Tribunal’s correspondence, noting that applicants are obliged to make their case and that by asking R.A. to submit the OCF-18, the Tribunal was assisting the applicant in meeting her burden. Wawanesa argues that by asking for the disputed treatment plan, the Tribunal was offending the principles of natural justice and acting beyond its jurisdiction.
13I disagree. While I am alive to Wawanesa’s objection and agree that applicants are obligated to make their own case, it does not follow that the Tribunal is bound in all cases to remain silent pending its decision. In this case, the Tribunal found that a document upon which R.A. clearly intended to rely but never filed was missing from the record. Indeed, the sole treatment plan in dispute was missing and there were no arguments presented that the OCF-18 did not exist. In such circumstances, the Tribunal should ask for such a document.2 Indeed, Rule 9.1 of the Common Rules of Practice and Procedure also contemplates this very possibility, providing that the Tribunal may request additional particulars or documentation from a party “at any stage in a proceeding” as it considers “necessary for a full and satisfactory understanding of the issues in the proceeding.”
$2,195.00 for physiotherapy treatment
14R.A. provided the OCF-18 in dispute in a timely manner. On review of the treatment plan for physiotherapy, I find it is reasonable and necessary. The impairments identified in the OCF-18 mirror those consistently reported elsewhere in the file, namely that R.A. continues to have pain in her lower back and knee that was resulting in difficulty completing her housekeeping and daily activities. The goals of the plan are, in my view, rather humble: pain reduction, increase in strength, increase range of motion and posture training in order to return R.A. to her activities of normal living. Although the treatment plan is from 2016, the injuries listed in the OCF-18 are consistent with the injuries that R.A. reported post-accident and continues to report. Finally, I consider 20 sessions over a 12-week span to be a reasonable timeline to provide physiotherapy treatment and assess whether continued facility-based treatment would be beneficial to R.A. I find the cost of $99.75 per session and the $200 re-assessment fee to be reasonable. Accordingly, I find the treatment plan to be reasonable and necessary.
“Witness” Statements
15Wawanesa also objected to R.A.’s inclusion of “witness” statements in submissions. In submissions, the statements of R.A.’s husband and daughter are cited from longer “synopsis” statement documents contained in the brief. These are not affidavits. It is also unclear who authored the synopsis. Accordingly, the Tribunal assigned the statements no weight.
CONCLUSION
16R.A. has demonstrated that she suffers from chronic pain and psychological impairments as a result of the accident that justify removal from the MIG. R.A. is entitled to payment for the physiotherapy treatment plan as it is reasonable and necessary. As benefits are overdue, it follows that interest is payable pursuant to s. 51 of the Schedule.
Released: March 5, 2020
Jesse A. Boyce, Adjudicator
Footnotes
- O. Reg. 34/10.
- See, for e.g.: J.R. v. Certas Home and Insurance Company, 2018 CanLII 13161 (ON LAT EC Reconsideration).