Released Date: 07/03/2020
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:
A.A.J.
Applicant
and
Echelon General Insurance Company
Respondent
DECISION
ADJUDICATOR:
Jesse A. Boyce
APPEARANCES:
For the Applicant:
Paul DeLuca
For the Respondent:
Krista M. Groen
Julianne Brimfield
HEARD:
Via written submissions
OVERVIEW
1A.A.J. was injured in an accident on March 19, 2018, and sought benefits, including an income replacement benefit (“IRB”), from the respondent, Echelon, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (''Schedule''). On receipt of his income documentation, Echelon began paying A.A.J. $400 per week for the IRB in June 2018.
2In August 2018, Echelon determined that it required s. 44 Insurer’s Examinations (“IEs”) in order to evaluate A.A.J.’s continuing entitlement to the IRB. To that end, it scheduled four in-person IEs and a job site analysis in order to determine whether he was substantially unable to perform his essential work tasks as a result of the accident and to assess his current prognosis. The notice was sent to both A.A.J. at his mailing address and to his representative.
3A.A.J. failed to attend any of the assessments, submitting that he did not receive the notices. Due to his failure to attend without a reasonable explanation, Echelon provided notice dated September 21, 2018 that the IRB would be suspended as of September 30, 2018.
4Echelon then rescheduled the IEs for various dates in October 2018, providing updated notices to A.A.J. and his representative. Of the four in-person assessments that were scheduled, A.A.J. only attended the neurology IE on October 22, 2018. A.A.J. submitted that he did not attend the October 17, 2018 IE because he was sick and did not attend the other October IEs because his cell phone was disconnected.
5In good faith, Echelon agreed to reschedule the remaining IEs for November and December 2018, advising again that until A.A.J. attended the missed IEs or provided a reasonable explanation for his non-attendance, his IRB would be suspended, and no payment would be issued for the period in dispute.
6While A.A.J. was removed from the Minor Injury Guideline, Echelon denied the treatment plan in dispute on the basis of two IEs that found that the treatment was not reasonable and necessary. A.A.J. disagreed and submitted his application to the Tribunal for resolution of the dispute.
ISSUES
7The following issues are in dispute:
i. Is the applicant entitled to receive an income replacement benefit in the amount of $400.00 per week from September 24, 2018 to October 23, 2018?
ii. Is the applicant entitled to a medical benefit in the amount of $2,477.62 for chiropractic treatment recommended by Joint & Muscle in a treatment plan (OCF-18) submitted on November 2, 2018, and denied on November 13, 2018?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
iv. Is the applicant entitled to an award under Regulation 664 because the respondent unreasonably withheld or delayed the payment of benefits?
RESULT
8I find that A.A.J. is not entitled to any of the benefits in dispute.
ANALYSIS
Income Replacement Benefits
9I find A.A.J. is not entitled to payment for the IRB for the period in dispute as he did not attend the properly scheduled IEs, has not demonstrated that the notices were improper and has not provided a reasonable explanation for his non-attendance.
10In submissions, A.A.J. offers a number of explanations for his non-attendance that I do not find to be reasonable on the evidence: he submits that he never received Echelon’s initial notice of the IEs; that Echelon failed to follow up with oral confirmation that he received the notices; that, in any event, the notices were improper under s. 36(4) of the Schedule because they did not provide medical or other reasons1; and that his failure to attend the October 17, 2018 IE due to illness and that his failure to attend the other October 2018 IEs due to his inability to communicate because his cell phone was disconnected are reasonable explanations. He submits that Echelon has acted in bad faith and requests the remedy under s. 36.
11I disagree. To begin, on review of Echelon’s initial notice letter (and all subsequent notices), I find it was sent to the same address listed on A.A.J.’s OCF-1 application and his letter enclosing his IRB calculations and was also sent to his representative. I agree with Echelon that this constitutes proper services under s. 64 of the Schedule.
12Contrary to A.A.J.’s submissions that the notices were “boilerplate”, I find all of the notices in evidence also easily comply with the requirements of s. 44(5) of the Schedule. The notice provided several reasons for the IEs (that A.A.J.’s accident was over four months ago, to determine if he meets the IRB test, to determine if he could return to work and to confirm his diagnosis and prognosis), whether his attendance was required (the notice confirms that his attendance was required for the four in-person IEs), the names, designations and locations of the assessors (all clearly laid out in a table) and the date and time of the IEs (all clearly laid out in a table, with amended dates highlighted in bold). To be frank, Echelon’s notices actually provided more information and detail than most that come before the Tribunal.
13In this vein, I also agree with Echelon that while there is “no prescribed formula” for proper “medical and other reasons” under the Schedule or in the Tribunal’s jurisprudence, I find its notices certainly provided A.A.J. with enough information to understand why the IEs were being scheduled, and especially so where he was represented. Further, I agree with Echelon that the Schedule does not require that an insurer verbally confirm with an insured that correspondence has been received, as A.A.J. alleges.
14Having determined that Echelon’s IE notices were proper, the onus falls on A.A.J. to prove that he had a reasonable explanation for his non-attendance under s. 37(7) and (8) of the Schedule. A.A.J. offers three explanations: that he did not receive the notice, that he was ill and that his cell phone was disconnected. As these explanations were not supported by an affidavit or, really, any objective evidence, I find none of these explanations to be reasonable.
15First, Echelon directs the Tribunal to a medical note from A.A.J.’s family physician dated September 19, 2018. The note states that A.A.J. missed an appointment on September 18, 2018 due “to an acute medical issue.” In Echelon’s view, the medical note supports the fact that A.A.J. knew about the IE scheduled for September 18, 2018, which means he received Echelon’s initial correspondence from August 2018 scheduling the IEs, contrary to his claims. Echelon therefore accepts that A.A.J. was ill on September 18, 2018 and could not attend the IE but offers the medical note as evidence to refute A.A.J.’s claim that he never received the initial notice scheduling the IEs.
16Second, Echelon submits that A.A.J. has offered no medical evidence to support his claim that he was ill on October 17, 2018 and could not attend the IE. Echelon submits that he did not submit a medical note, that his family physician records do not reveal a visit on October 17, 2018 for illness and the closest record in time, being October 11, 2018, does not indicate a visit for illness.
17Third, Echelon submits that A.A.J. has failed to provide any evidence to support his assertion that his cell phone was disconnected prior to the October 2018 IEs. Echelon submits that he did not furnish a letter, bill or statement from his provider to prove his claim, which are all records that are within his power and control. On review of the correspondence between Echelon and A.A.J.’s representative, the only evidence to support this claim is a statement in an email, allegedly from A.A.J. While the statement is in quotations and hearsay is admissible, I find this still falls well short of meeting the burden of proof. Echelon further submits that it is inconsistent that A.A.J. was able to attend the IE on October 22, 2018, but was unable to attend on October 23 and 29, 2018 due to his inability to communicate with the transportation provider, his representative or with Echelon.
18On balance, I find A.A.J. has simply not provided any supporting evidence to prove that his explanations for non-attendance are reasonable. Therefore, as he has failed to meet his burden of proof, I find the IRB is not payable due to his continued non-attendance, which frustrated Echelon’s ability to assess his entitlement. In my view, Echelon has complied with all of the requirements of the Schedule in order to accommodate A.A.J.’s pattern of non-attendance at properly scheduled IEs. Accordingly, I find Echelon’s refusal to pay IRB for the period in dispute is proper under s. 37(7).
Chiropractic Treatment
19A.A.J. also seeks payment for a medical benefit in the amount of $2,477.62 for chiropractic treatment denied by Echelon on November 13, 2018 as it was not reasonable and necessary. It is A.A.J.’s burden to prove that the benefit is reasonable and necessary for his accident-related impairments. A.A.J. states that the denial notice was improper, and that treatment was needed for his chronic pain. He relies on various letters from his family physician, the OCF-18 itself and the s. 44 IE report of Dr. Ko prepared for Echelon for support. On the evidence, I find the treatment plan is not payable as it is not reasonable and necessary.
20On review, I do not give effect to A.A.J.’s argument and I find Echelon’s notice was compliant. Much like the IE notices, Echelon’s notice for this treatment plan stated that IEs were required because he had been approved for $3,500, an opinion was required to determine the applicability of the Minor Injury Guideline, the IE was needed to assess whether the complaints, diagnosis and impairments listed in the OCF-18 were accident-related and to determine if the proposed treatment was reasonable and necessary. Again, while there is no standard for notices, I find Echelon’s notice to A.A.J. provided all of the necessary information in order for him to determine whether to attend the proposed IEs. Based on the fact that A.A.J. attended both IEs, I find his argument is not persuasive.
21In any event, I prefer the two s. 44 IE reports offered by Echelon—a neurological report by Dr. Kucher and a physiatry report by Dr. Ko—over the notes of A.A.J.’s family physician. Despite A.A.J.’s report of dizziness, Dr. Kucher could not identify any accident-related neurological diagnosis and found the treatment was not reasonable and necessary. Dr. Ko found that A.A.J. suffered minor sprain and strain injuries to his lumbar spine, neck and right elbow, had achieved maximal medical recovery and recommended self-directed cardio and low resistance training at home. I find these reports to be reasonable and, considering the dearth of medical evidence provided by A.A.J., supported by the records.
22A.A.J. submits that he has chronic pain and episodes of dizziness that require treatment but relies on records from April and May 2018 which were authored immediately following the accident. While I agree with A.A.J. that pain relief is a legitimate goal for treatment and that pain is subjective, I find the evidence he relies on falls short of meeting his burden to prove that the specific chiropractic treatment is reasonable and necessary to treat his specific impairments. The most recent letter provided to the Tribunal was from September 19, 2018, which is two months prior to the submission of the OCF-18. It does not state that he has chronic pain and it does not recommend chiropractic treatment. The clinical note with the same date as the letter—provided by Echelon—states that A.A.J. “wants letter from me stating that he has ongoing pain.”
23In my view, this is problematic because A.A.J. did not provide any contemporaneous, objective medical evidence to rebut the two s. 44 reports from Echelon finding that further facility-based treatment was not reasonable and necessary. Accordingly, I find no reason to interfere and find that A.A.J. is not entitled to payment for the treatment plan in dispute. As no benefits are overdue, it follows that no interest is payable under s. 51.
Award
24The issues identified that A.A.J. was also seeking a s. 10 award under O. Reg. 664, however no substantive submissions on this issue were provided. Accordingly, in the absence of particulars demonstrating that Echelon unreasonably withheld or delayed the payment of benefits, combined with the fact that no benefits are payable here, I find an award is not appropriate.
CONCLUSION
25A.A.J. is not entitled to payment for any of the benefits in dispute.
Released: July 3, 2020
Jesse A. Boyce
Adjudicator