Citation: B.N. vs. The Co-Operators Insurance Company, 2020 ONLAT 19-006455/AABS

Released Date: 06/11/2020

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:

B. N.

Applicant

and

The Co-Operators Insurance Company

Respondent

DECISION AND ORDER

VICE CHAIR:

Susan Mather

APPEARANCES:

For the Applicant:

Francesco Blasi, Paralegal

For the Respondent:

Melanie C. Malach, Counsel

HEARD BY WAY OF WRITTEN SUBMISSIONS

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant was involved in an automobile accident on June 7, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied benefits for a psychological assessment, psychological treatment and chiropractic treatment by the respondent (“the Co-operators”) and submitted an application to the Licence Application Tribunal - Automobile Accident Benefits Service (the “Tribunal”).

2The Co-operators denied the benefits on the basis that the applicant sustained injuries that fell within the Minor Injury Guideline (the “Guideline”). The Guideline imposes a cap on medical and rehabilitation benefits of $3,500.00 for predominantly minor injuries. The applicant has exhausted the Guideline benefits.

3The applicant submits that the Guideline does not apply because the benefits became payable as a result of the Co-operators failing to provide a medical reason for denying the benefits.

4The Co-operations submits that its denial letters provide a medical reason for denying the benefits and that there is no requirement in the Schedule for an insurer to arrange an Insurer’s Examination (“IE”) before denying a benefit.

5This case raises the issue of whether an insurer can properly deny medical benefits for a psychological assessment and psychological treatment without requiring the applicant to attend an IE for a psychological assessment.

RESULT

6For the reasons provided below I am satisfied that the Co-operators provided a medical reason for denying the benefits for the psychological assessment and psychological treatment. I am not satisfied on the balance of probabilities that the applicants sustained more than predominantly minor injuries in the accident. Having exhausted the benefits under the Guideline there is no need to determine if the treatment plans in dispute are reasonable and necessary.

ISSUES

7The issues in dispute are:

i. Are the applicant’s injuries predominantly minor injuries as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in s. 18 of the Schedule?

ii. Is the applicant entitled to a medical benefit in the amount of $2,200.00 for psychological services recommended by Pilowsky Psychology Professional Corporation in a treatment plan submitted on November 28, 2018, and denied on December 10, 2018?

iii. Is the applicant entitled to a medical benefit in the amount of $2,399.49 for chiropractic treatment recommended by Complete Rehabilitation in a treatment plan submitted on November 1, 2018 and denied on January 3, 2019?

iv. Is the applicant entitled to a medical benefit in the amount of $3, 456.28 for psychological services recommended by Pilowsky Psychology Professional Corporation in a treatment plan submitted on December 19, 2018 and denied on February 4, 2019?

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

vi. Is the applicant entitled to an award under Ontario Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits? ¹

MINOR INJURY GUIDELINE

8The Guideline establishes a framework for the treatment of an insured person who sustains an impairment in an accident that is predominantly a minor injury. The term “minor injury” is defined in section 3 of the Schedule as “one or more of a strain, sprain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury”. The terms “strain”, “sprain”, “subfluxation” and “whiplash associated disorder” are also defined in section 3.

9Section 18(1) of the Schedule limits recovery for medical and rehabilitation benefits for minor injuries to $3500.00 minus any amount paid in respect of an insured person under the Guideline. According to the submission of the Co-operators the applicant has received the full amount of benefits available under the Guideline.²

10Section 18(2) of the Schedule makes provision for some injured persons who have a pre-existing medical condition to receive treatment in excess of the $3500.00 limit. To access these increased benefits, the injured person’s health care provider must provide compelling evidence that the person has a pre-existing condition, documented prior to the accident, which will prevent the injured person from achieving maximum recovery if benefits are limited to the Guideline limit.

11While the applicant claims that he has pre-existing conditions³ he does not claim that these conditions entitle him to access benefits beyond the Guideline limit. In any event, he has not, provided the required evidence from his health care provider that these conditions were pre-existing and documented prior to the accident and will prevent him from achieving maximum recovery if his benefits are limited to the Guideline.⁴

12The onus of establishing entitlement to medical and rehabilitation benefits beyond the Guideline limit rests with the applicant. In order to be entitled to benefits beyond the limit, the applicant must prove on that balance of probabilities that he suffered from more than predominantly minor injuries in the accident.

13If an applicant establishes that they are entitled to benefits beyond the Guideline limit they must then establish on the balance of probabilities that the medical and rehabilitation benefits they are seeking are reasonable and necessary.⁵

14In this case, however, the applicant’s main argument is that the Guideline does not apply because the Co-operator’s did not properly deny the treatment plans for a psychological assessment and psychological treatment. It was not until his reply submissions that the applicant submitted that he suffered more than predominantly minor injuries in the accident.

Notice Requirement and the Guideline

15Section 38 of the Schedule sets out the requirements for applications for medical and rehabilitation benefits. Section 38(8) prescribes the information that the insurer must include in the notice that it is required to send to the applicant once it receives a treatment and assessment plan. The notice must identify the goods, services, assessment and examinations prescribed in the treatment plan that it agrees to pay for, any the insurer does not agree to pay for and the medical reasons and all other reasons why the insurer considers any goods and services, assessments and examinations or the proposed costs of them, not to be reasonable and necessary.⁶

16If the insurer believes that the Guideline applies to the insured’s impairment, the notice under s. 38(8) must so advise the insured person.

17If an insurer does not give notice in accordance with s. 38(8), the Guideline prohibits the insurer from taking the position that the insured person has an impairment to which the Guideline applies. It also provides that the insurer must “pay for all goods, services, assessment and examination described in the treatment plan that relate to the period starting on the 11th business day after the day the insurer received applications and ending on the day that the insurer gave a notice described in subsection 38(8).”⁷

18The applicant submits that the Guideline does not apply to his injuries because the Co-operators did not provide a medical reason for denying the treatment plans for a psychological assessment and psychological treatments.⁸ The applicant submits that the Co-operators was required to send the applicant for an IE for a psychological assessment in order to have a medical reason for denying the treatment plans for the psychological assessment and psychological treatment.

19The Co-operators submit that the denial letters for the treatment plans provide a medical reason for denying the treatment plans and that the applicant did not suffer more than minor injuries in the accident.

20For the reasons provided below I find that the Co-operators is not prohibited from taking the position that the Guideline applies for any of the treatment plans in dispute. In reaching this conclusion I have considered the denial letters for each of the treatment plans.

21This treatment plan submitted by Pilowsky Psychology Professional Corporation proposes a psychological assessment based upon an “INITIAL BRIEF PSYCHOLOGICAL INTERVIEW/INTAKE SCREENING” by Dr. Pilowksy.

22The Co-operators submits that the denial letter for this plan provided adequate medical reasons for denying the plan.¹⁰ The letter states:

• The intake letter from Dr. Pilowsky does not suggest a referral from the applicant’s family physician to address any psychological complaints.
• The medical evidence on file does not indicate any psychological complaints to date.
• The Clinical Notes and Records (“CNRs”) of the applicant’s family physician and William Osler Heather System give no indication that the accident exacerbated his pre-existing diabetes, high cholesterol and high blood pressure and there is no medical evidence that these pre-existing conditions could prevent him from achieving maximal recovery under the Guideline.
• Some insured person may experience psychosocial issues such as coping issues or anxiety disorders which do not necessarily require treatment outside of the Guideline. It is appropriate and permitted by the Schedule and the Guideline for psychosocial issues arising in connection with minor injuries to be addressed within the Guideline under the supplementary goods and services category.

23The psychological assessment proposed by this treatment plan was subsequently undertaken by Dr. Sandra Sagrati on behalf of Pilowsky Psychology Professional Corporation. Following the assessment, Dr. Sagrati proposed a treatment plan for psychological treatment.

24This treatment plan was also submitted by Pilowsky Psychology Professional Corporation. It proposes 12 psychological therapy sessions to be provided by Dr. Pilowksy and Valerie Smith. The treatment plan relies on the January 25, 2019 psychological assessment of Dr. Sagrati to show that the applicant sustained psychological injuries which take him out of the Guideline and that psychological treatment was reasonable and necessary.

25The Co-operators provided the same reasons as set out above for denying the treatment plan plus the additional reason that the psychological symptoms reported by Dr. Sagrati are not identified in any of the applicant’s medical records and have not been reported to the applicant’s family physician.¹²

Did the Co-operators Provide Medical Reasons for Denying the Treatment Plans?

26For the reasons provided below I am satisfied the Co-operators provided medical reasons to the applicant for denying the treatment plans.

27If I understand the submissions of the applicant, he submits that the Co-operators was required to have the applicant attend at IEs for these two treatment plans in order to provide medical reasons for denying the plans. The applicant also submits that the Co-operators fully ignored the professional opinion of Dr. Sagrati and relied on the definitions of the Guideline to deny the treatment plans.

28The Co-operators takes the position that the fact that there is no medical evidence, other that the treatment plans themselves (both proposed by Pilowksy Psychological Professional Corporation) and the report of Dr. Sagrati of Pilowsky Psychology Professional Corporation, is a medical reason for denying the plans.

29The purpose of s. 38(11) is to require an insurer to fully consider a proposed treatment plan before denying it. The penalty for an insurer who does not provide a denial notice that meets the requirements of the Schedule is that the Guideline does not apply and benefits may become payable if the insurer does not provide a proper denial notice before the benefits are incurred.

30In my view the denial letters provided by the Co-operators provide a medical reason to the applicant as to why the benefits were denied. There is no doubt from the denial letters that the Co-operators required medical evidence from a source other the Pilowsky Psychology Professional Corporation to confirm the applicant had psychological symptoms arising from the accident that warranted an assessment. Without medical evidence of that kind, the Co-operators was not satisfied that the applicant suffered more than a predominantly minor psychological injury as a result of the accident. If the legislature had intended that the only medical evidence that could satisfy the requirement for medical reasons in s. 38(8) of the Schedule was an IE it would have said so in the Regulation.

31Both parties provided Tribunal case law to support their respective positions. While I am not bound by the decisions of other Tribunal adjudicators, I find that they are helpful in my deliberations.

32The applicant relies on two cases to support his position that the Co-operators did not properly deny the treatment plans. In both cases, the Tribunal found the insurers’ notices to be non-compliant with the Schedule based on their failure to provide adequate reasons for denial. First, the applicant relies on the case of K.S. and Aviva General Insurance¹³ which is easily distinguished from this case. Aviva’s reason for reason for denying the benefit was “Quite a bit of time has passed since the motor vehicle accident and you have received quite a bit of treatment for your injuries.” I would agree that this reason is not adequate because that fact that the applicant had received “quite a bit of treatment” is not a criterion to be considered in denying a treatment plan.

33Second, the applicant cites B.H. and Certas Home Insurance¹⁴ (“B.H. and Certas”) in which the adjudicator found the following notice for refusing to pay the applicant’s claim did not provide medical reasons for the denial of a psychological assessment:

“There is no compelling evidence that you have sustained non-minor psychological impairments as a result of the accident, therefore we find that the OCF-18 dated 09/19/2016 proposing a psychological assessment is not reasonable or necessary.”

34I also agree that this denial does not provide enough detail for the applicant to understand why his claim was denied. The denial by Certas gave no indication of what it would consider to be compelling evidence. In the case before me, the Co-operator’s denial letters make it clear to the applicant what medical evidence it was looking for to substantiate the claim.

35The facts in the case before me are similar to the facts in the case S.M. and Certas Home and Auto Insurance Company (“S.M. and Certas”)¹⁵ submitted by the Co-operators.

36In S.M. and Certas the applicant relied on a treatment and assessment plan proposing a psychological assessment as the evidence to remove the applicant from the Guideline. The adjudicator gave no weight to the treatment plan because the pre-screening interview made no reference to medical records or behaviour reported before the pre-screening interview place to suggest a psychological assessment may be required. The adjudicator found that in the absence of evidence in the medical record to indicate the need for further inquiry the treatment and assessment plan was unnecessary.

37In the case before me the only evidence to initially support the treatment plan for psychological assessment was the treatment plan itself and the pre-screening interview that makes no reference to medical records that support the applicant’s symptoms.

38I have considered that fact that the applicant subsequently provided a psychological assessment finding psychological impairment and recommending psychological treatment. In my view the psychological assessment suffers from the same weakness as the treatment plan proposing the assessment. There is no indication in any of the applicant’s medical records or otherwise that the applicant was suffering from psychological issues. In my view this was a medical reason to deny both of the treatment plans despite the fact that the applicant provided a psychological assessment.

39This is not a case where there was a blanket denial of the treatment plans without any effort by the insurer to investigate the claim. The Co-operators reviewed the CNRs of the applicant’s family physician and the hospital records (where the applicant was assessed following the accident) before denying the treatment plans. The applicant properly informed of the Co-operators reasons for denying the treatment plans. The onus is on an applicant to prove on the balance or probabilities that he/she sustained more than predominantly minor injuries in the accident. While the Schedule requires an insurer to provide a medical reason for denying the plan it does not obligate an insurer to obtain medical evidence unless the insurer chooses to do so.

Did the Applicant Sustain More the Predominantly Minor injuries in the Accident?

40The applicant does not submit that he sustained physical injuries in the accident that take him out the Guideline. While there is a treatment plan is dispute for chiropractic services beyond the Guideline limit the applicant made no submissions with respect to this treatment plan. I am satisfied based on the uncontradicted IE of Dr. Hamarantas that the applicant did not sustain more than predominantly minor physical injuries in the accident.¹⁶

41Being satisfied that the Co-operators’ notices denying the treatment plan for a psychological assessment and the treatment plan for psychological treatment were proper I must decide if the applicant has shown on the balances of probabilities that he sustained psychological injuries in the accident that take him out of the Guideline. For the reasons provided below I am not satisfied on the balance of probabilities that the applicant sustained more than predominantly minor injuries in the accident.

42The applicant relies on the psychological assessment of Dr. Pilowsky to show that he sustained more than predominantly minor injuries in the accident. The applicant submits that the C-operators has provided “no rebuttal whatsoever to the professional opinion of Dr. Pilowsky and is relying on the lack of evidence rather than the evidence in front of them”. The applicant submits that the psychological report of Dr. Pilowksy remains unchallenged.

43The Co-operators submits, and I agree, that the two treatment plans and the psychological report prepared by Dr. Sagrati on behalf of Pilowsky Psychology Professional Corporation lack credibility. My reasons for this finding are as follows:

• There is nothing in the records of the family physician that mentions any psychological complaints or psychological impairments.
• There is no record of the applicant being referred by his family physician to a psychiatrist or a psychologist despite the fact that he was examined by his family physician on several occasions following the accident.
• On October 29, 2018, the claims representative for the Co-operators confirmed in a letter to the applicant that the he had been advised by the applicant’s legal assistant that the applicant had returned to modified hours and duties at work on June 11, 2018.¹⁷ This confirmation is not disputed by the applicant. Both treatment plans and the psychological assessment are premised on the fact that the applicant did not return to work until 2 months after the accident. The assessment report of Dr. Sagratti contains the provision that her opinions are based on the truthfulness of the applicant and that any inconsistencies in the applicant’s self-report might influence her impressions and conclusion. The applicant appears to have misled both Drs. Sagrati and Pilowsky about his employment history.
• The treatment plan for the psychological assessment by Dr. Pliowksy refers to the applicant in places as a “she” and not a “he”. In my view this is troubling because it suggests that the plan was “copied and pasted” from another plan and may not be not specific to the applicant.
• The treatment plan for the psychological assessments makes no reference to the applicant reporting any psychological symptoms before the pre-screening interview by Dr. Pilowksy.
• The treatment plans for the psychological assessments make no reference to who referred the applicant to Pilowsky Psychology Professional Corporation for the assessments.
• The applicant did not report any psychological complaints to the IE assessor who examined him in connection with the treatment plan for chiropractic treatment.¹⁸
• Dr. Sagrati based her assessment on incorrect information. She mistook a form checklist in the family physician’s clinical notes and records (“CNRS”) to be a diagnosis of “anxiety, depression. adjustment, family/financial stressors, agitation, decreased sleep, paranoid behaviour, ADHD and schizophrenia”. While Dr. Pilowsky acknowledged this error in an addendum to the report there is no comment from either Dr. Sagrati or Dr. Pilowsky on whether Dr. Sagrati’s opinion changed due to the fact she incorrectly read the CNRs of the family doctor.¹⁹
• There is no evidence as to why Dr. Pilowsky’s pre-screening interview took place other than to provide evidence that the applicant sustained more than predominantly minor injuries in the accident.

44With the only the evidence being the evidence of Pilowsky Professional Corporation, which I give little weight to because I do not find it to be credible, I am not satisfied on the balance of probabilities that the applicant sustained more than minor injuries in the accident.

45The applicant took the risk of obtaining a psychological assessment without the approval of the Co-operators. Unfortunately, he has not provided any credible evidence to support a finding that he suffered more than predominantly minor injuries in the accident.

46Having determined that the applicant did not sustain more than predominantly minor injuries in the accident I find that he is not entitled to any of the treatment plans in dispute because he has exhausted the benefits available under the Guideline. For that reason, I need not determine if the treatment plans are reasonable and necessary.

INTEREST

47Having found that there are not benefits payable if follows that there is no interest owing on overdue benefits.

SPECIAL AWARD

48The applicant submits that he is entitled to a special award under O. Reg. 664 on the basis that the Co-operators unreasonably withheld payment of benefits. Having found that the are no benefits payable I find that there is no basis for considering an award.

ORDER

49For the reasons provided above I ORDER:

1. The application is dismissed.
2. There is no interest owing on overdue benefits.
3. The applicant is not entitled to an award under O. Reg. 664.

Released: June 11, 2020

__________________________

Susan Mather

Vice Chair

Footnotes

1. 1S. 10, O. Reg. 644 made under S. 280 of the Insurance Act, R.S.O. 1990, c. I.8.
2. 2The applicant does not dispute that he has received that full amount of benefits available under the Guideline in his reply submissions.
3. 3Diabetes, high blood pressure and high cholesterol.
4. 4s. 18(2), O. Reg. 34/10.
5. 5s. 15 and s.16, O. Reg. 34/10.
6. 6s. 38(8), O. Reg. 34/10.
7. 7s. 38(11), O. Reg. 34/10.
8. 8The applicant does not argue that the Treatment Plan for Chiropractic Treatment was not properly denied.
9. 10Tab 4, applicant’s submissions.
10. 12Tab 6 applicant’s submissions
11. 1317-004357 v Aviva General Insurance, 2018 CanLII 13152 (ON LAT).
12. 14B.H. v. Certas Home and Auto Insurance Company, 2019 CanLII 101660 (ON LAT).
13. 15Tribunal File No. 17-008702, CANLII 130864 (ONLAT)/AABS
14. 16Tab 8, the Co-operators submissions
15. 17The details of this conversation were confirmed in a letter from the Co-operators to the applicant’s counsel in a letter dated January 3, 2019, Tab 4, the Co-operator’s documents
16. 18IE report of Dr. Harmantas, dated February 1, 2019, Tab 8, the Co-operator’s documents.
17. 19Tab 10, Co-operators submissions.
18. 9Tab 2, applicant’s submissions.
19. 11Tab 5, applicant’s submissions.