J. A. v. Intact Insurance Company, 2020 CanLII 69924

J. A. vs. Intact Insurance Company, 2020 ONLAT 19-007729/AABS

Citation: J. A. vs. Intact Insurance Company, 2020 ONLAT 19-007729/AABS

Released date: August 31, 2020

Tribunal File Number: 19-007729/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:

J. A.

Applicant

and

Intact Insurance Company

Respondent

DECISION

ADJUDICATOR:

Jessica Cavdar

APPEARANCES:

For the Applicant:

Jeton Memeti, Paralegal

For the Respondent:

Michael Courneyea, Counsel

Heard by way of written submissions

OVERVIEW

1The applicant, J.A., was injured in an accident on February 17, 2017 and sought benefits from the respondent, Intact, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”).

2The applicant applied for physiotherapy services that were denied by the respondent on the basis that the applicant’s injuries were predominantly minor and because the treatment plan was neither reasonable or necessary. The applicant disagreed and applied to the Tribunal for resolution of the dispute.

ISSUES TO BE DECIDED

3The following issues must be determined by the Tribunal:

i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule and therefore subject to treatment within the $3,500.00 limit and in the Minor Injury Guideline (“MIG”)?

ii. Is the applicant entitled to a medical benefit in the amount of $1,988.96 for physiotherapy services recommended by Physiomed Roytec in a treatment plan submitted on May 8, 2019, and denied on May 17, 2019?

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

iv. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

RESULT

4The applicant has not demonstrated that his impairments warrant treatment beyond the MIG. The applicant has similarly not demonstrated that the treatment plan in dispute is reasonable and necessary. Since no benefits are overdue, no interest is payable.

5The respondent is not liable to pay an award under Regulation 664 because it did not unreasonably withhold or deny payments to the applicant.

Applicability of the Minor Injury Guideline

6The Minor Injury Guideline (“MIG”) establishes a framework for the treatment of minor injuries. The term “minor injury” is defined in section 3 of the Schedule as “one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae to such an injury.” The terms “strain,” “sprain,” “subluxation,” and “whiplash associated disorder” are also defined in section 3. Section 18(1) limits recovery for medical and rehabilitation benefits for such injuries to $3,500.00.

7The onus of establishing entitlement beyond the MIG limits rests with the applicant. The applicant must accordingly establish his entitlement to coverage beyond the $3,500.00 cap for minor injuries on a balance of probabilities.

Did the applicant sustain a predominately minor injury?

8I find that the medical evidence before me indicates the applicant sustained an impairment that is predominantly a minor injury.

9The applicant relies on two Disability Certificates (OCF-3s) completed by Dr. Terry Tran and Dr. Sabaa Aziz, respectively, and on the clinical notes and records of his family doctor, Dr. Stachula, to support his claim that his injury is not predominantly minor.

10The May 8, 2019 Disability Certificate (OCF-3) completed by Dr. Terry Tran mentions the following injuries and sequelae: cervical spine, shoulder strain, lumbar spine, lower leg strain, non-organic sleep disorder, and chronic post-traumatic headache.

11The March 21, 2017 Disability Certificate (OCF-3) completed by Dr. Sabaa Aziz, mentions the following injuries and sequelae: whiplash associated disorder WAD2 with complaint of neck pain with musculoskeletal signs, sprain/strain of thoracic spine, sprain/strain of lumbar spine, sprain/strain of sacroiliac joint, headache, sprain and strain of wrist.

12I find that the descriptions of the applicant’s injuries and sequelae in both OCF-3s fall within the statutory definition of minor injuries as defined in s. 3 of the Schedule and set out in para. 6, above.

13The other documentary evidence provided by the applicant to support entitlement to treatment beyond the MIG are the clinical notes and records of Dr. Stachula, his family doctor. The first reference to the applicant’s accident, or to his accident-related injuries, in Dr. Stachula’s notes appears on May 10, 2019, over two years after the accident itself. Dr. Stachula wrote: “Also talked about accident MVA back in 2017.”

14Seemingly in explanation of the almost-total absence of discussion of the applicant’s accident-related injuries in Dr. Stachula’s notes, the applicant’s submissions stated that, “given the Applicant’s diagnosis of stomach cancer it should be understood that his family doctors’ [sic] visits were to discuss his cancer; GP just recommended treatment for his MVA injuries.” If the applicant had indeed been suffering from accident-related injuries that were more than minor, the fact that the applicant only discussed the accident-related injuries on one occasion with his family doctor – whom the applicant was seeing frequently for an unrelated medical issue – is notable.

15I accordingly find that the applicant has not led sufficient evidence to prove, on a balance of probabilities, that his injuries fall outside of the MIG.

DID THE RESPONDENT FAIL TO PROVIDE PROPER NOTICE?

16The applicant further submits that the Tribunal should find that his injuries do not fall within the MIG because the respondent “has failed to provide proper notice under the Schedule.”

17The applicant submitted the $1,988.96 physiotherapy treatment plan in dispute from Physiomed Roytec to the respondent on May 8, 2019. The respondent replied to the applicant via letter on May 17, 2019 – nine days later – denying the treatment plan.

18The respondent explained in its May 17, 2019 letter that the treatment plan was denied because the applicant’s accident-related injuries were minor in nature. The respondent’s letter further stated that, due to the lack of evidence supporting a more serious impairment, the respondent felt it was appropriate to arrange an Insurer's Examination to determine if the proposed treatment was reasonable and necessary, and whether treatment outside the MIG was required.

19In response, the applicant subsequently attended an Insurer’s Examination (“I.E.”) with Dr. Allan Kopyto on June 5, 2019. Dr. Kopyto’s report was released on June 19, 2019.

20The applicant alleges in his submissions that Dr. Kopyto’s June 19, 2019 report was never provided to the applicant nor to the applicant’s legal representative. Specifically, the applicant’s submissions state that “the applicant attended [the I.E.] but at this point [the date of the applicant’s filing of its submissions, namely March 2, 2020] a copy of the report has not been provided to the applicant nor the legal representative.”

21The respondent mailed a letter to the applicant on June 26, 2019 at the applicant’s last known address, enclosing a copy of Dr. Kopyto’s June 19, 2019 report. The respondent’s June 26, 2019 letter to the applicant explained that the respondent was maintaining its denial of the treatment plan in dispute based on Dr. Kopyto’s findings in the enclosed report.

22The applicant stated in his reply submissions that “the applicant has not received anything at his home to date.”

23The respondent also faxed its June 26, 2019 letter to the applicant and Dr. Kopyto’s report to Physiomed Roytec. The respondent’s fax to Physiomed Roytec was sent at 3:08 p.m. on June 26, 2019 and was a successful transmission.

24The applicant stated in his reply submissions that “the fact remains that the I.E. report has never been received by the applicant and/or the legal representative;” that “the [I.E.] report has not been provided to the applicant until it was received with the respondent submissions;” and that “[Physiomed] Roytec has never provided a copy of the I.E. report to the applicant and/or the legal representative.”

25S. 38 of the Schedule governs the requirements and timelines for providing an I.E. assessment to an insured person:

(13) Within 10 business days after receiving the report of an examination conducted under section 44 for the purpose of the treatment and assessment plan, the insurer shall give a copy of the report to the insured person and to the regulated health professional who prepared the treatment and assessment plan. O. Reg. 34/10, s. 38 (13).

(14) Within 10 business days after receiving the report, the insurer shall,

(a) provide the insured person with a notice indicating the goods and services described in the treatment and assessment plan that the insurer agrees to pay for, the goods and services the insurer refuses to pay for and the medical and any other reasons for the insurer’s decision; or

(b) if the insurer determines that the Minor Injury Guideline applies, advise the insured person that the Minor Injury Guideline applies to the insured person’s impairment and provide medical and any other reasons for the insurer’s determination. O. Reg. 34/10, s. 38 (14).

26Section 64 of the Schedule governs delivery and what constitutes notice:

(2) Any document, including a notice in writing, required or permitted under this Regulation to be given to a person may be delivered…

(d) by ordinary or registered mail,

(ii) in the case of a person other than an insurer, addressed to the person at his or her last known address. O. Reg. 34/10, s. 64 (2); O. Reg. 123/19, s. 9.

27The applicant stated in his reply submissions that “the applicant does not disagree with section 64 but will state again that this I.E. report was never provided to the applicant.”

28As noted above, the applicant stated in his reply submissions that “the [I.E.] report has not been provided to the applicant until it was received with the respondent submissions [dated March 10, 2020].”

29The case conference for this matter was held via teleconference on December 4, 2019. During this case conference, the respondent’s accident benefits claims representative, Jeremy MacDonald, emailed the applicant’s paralegal at 1:16 p.m. on December 4, 2019. Mr. MacDonald’s email contained an attachment of Dr. Kopyto’s I.E. report. It is unclear why the applicant asserts in his reply submissions that “the [I.E.] report has not been provided to the applicant until it was received with the respondent submissions [dated March 10, 2020]” when the record demonstrates that the respondent did indeed send said report to the applicant’s representative via email on December 4, 2019.

30Based on the evidence before me, I find that the respondent complied with all notice requirements set out in the Schedule. The respondent did indeed provide proper notice to the applicant based on the evidentiary record, including but not limited to:

i. The respondent’s initial denial letter dated May 17, 2019 and sent to the applicant via mail, in accordance with s. 64(2)(d)(ii) of the Schedule;

ii. The respondent’s letter dated June 26, 2019 and mailed to the applicant’s last known address, enclosing a copy of Dr. Kopyto’s June 19, 2019 I.E. report, in accordance with s. 64(2)(d)(ii) of the Schedule; and

iii. The respondent’s faxing of its June 26, 2019 letter to the applicant and Dr. Kopyto’s report to Physiomed Roytec on 3:08 p.m. on June 26, 2019, in accordance with ss. 38(13) and 64(2)(a) of the Schedule.

IS THE TREATMENT PLAN IN DISPUTE REASONABLE AND NECESSARY?

31Under s.14 of the Schedule, an insurer must pay the medical and rehabilitation benefits under ss. 15 to 17 to an insured person who sustains an impairment as a result of an accident. Section 15(1) includes expenses for physiotherapy treatment that is reasonable and necessary for the treatment of the insured person.

32Has the applicant established, on a balance of probabilities, that this physiotherapy treatment plan is reasonable and necessary?

THE PARTIES’ POSITIONS

33The applicant argues that he is entitled to the physiotherapy services recommended by Physiomed Roytec in the treatment plan, stating in his submissions that they are reasonable and necessary for his circumstances because he is “working less hours at his business and this has affected his sales, adding more stress and he continues to have difficulty with housekeeping and sleep is still affected.”

34The respondent argues that the applicant is not entitled to the treatment plan because the applicant has failed to adduce evidence to prove that the physiotherapy services in question are reasonable and necessary to provide relief for the injuries that the applicant sustained in the accident.

ANALYSIS: REASONABLE AND NECESSARY

35I find that the applicant has not led sufficient evidence to show that the specific physiotherapy treatments outlined in the treatment plan are reasonable and necessary to treat the injuries he sustained as a result of the accident.

36Accordingly, the applicant has failed to establish, on a balance of probabilities, that the requested treatment plan for physiotherapy services is reasonable and necessary.

37To support his submission that the treatment plan in question is reasonable and necessary, the applicant relies on the same sources of evidence referred to in the MIG discussion above. They are:

i. The May 8, 2019 Disability Certificate (OCF-3) completed by Dr. Terry Tran. It lists the following injuries and sequelae: cervical spine, shoulder strain, lumbar spine, lower leg strain, non-organic sleep disorder, and chronic post-traumatic headache;

ii. The March 21, 2017 Disability Certificate (OCF-3) completed by Dr. Sabaa Aziz dated March 21, 2017. It lists the following injuries and sequelae: whiplash associated disorder WAD2 with complaint of neck pain with musculoskeletal signs, sprain/strain of thoracic spine, sprain/strain of lumbar spine, sprain/strain of sacroiliac joint, headache, sprain and strain of wrist; and,

iii. The clinical notes and records of Dr. Stachula, the applicant’s family doctor. The first reference to the applicant’s accident, or to his accident-related injuries, in Dr. Stachula’s notes appears on May 10, 2019, over two years after the accident itself. Dr. Stachula wrote: “Also talked about accident MVA back in 2017.”

38The applicant has failed to adduce any further expert evidence or assessments to comment on whether the proposed treatment plan is reasonable and necessary. The applicant has not provided any post-accident diagnostic imaging to support his claim.

39The respondent requested that the applicant attend an I.E. with Dr. Kopyto to assess whether the treatment plan in dispute was reasonable and necessary. This I.E. took place on June 5, 2019.

40Dr. Kopyto noted that the applicant reported that his predominant complaint was right leg pain. The applicant reported that the pain had, in fact, resolved at some point before recurring about six months prior to the I.E. However, the applicant then confirmed that, at the time of the I.E., his right leg pain was asymptomatic, his right wrist pain has resolved, and that his only ongoing complaint was “a little bit of nagging pain in the low back.”

41The applicant further told Dr. Kopyto that he had not been referred to any specialists for his injuries, nor had he been prescribed any medications. The applicant further confirmed that he was assisting his wife with housekeeping and home maintenance tasks, and he denied any impairment with respect to self-care.

42Based upon his examination of the applicant and the applicant’s reporting, Dr. Kopyto concluded that the applicant’s injuries met the definition of “minor injury” and that the goods and services proposed in the disputed treatment plan were not reasonable and necessary.

43In the absence of evidence demonstrating why the proposed treatment plan is reasonable and necessary to treat the applicant’s accident-related injuries, I find that the treatment plan is neither reasonable nor necessary.

INTEREST

44As no benefits are overdue, no interest is payable under s. 51 of the Schedule.

REGULATION 664 AWARD

45The applicant claims entitlement to an award under s. 10 of Ontario Regulation 664 on the basis that the respondent “has acted in bad faith when adjusting this claim. All denials that are subject of this appeal were not done in accordance with s.38 (8) of the SABS and as a result, the applicant was denied access to treatment that was reasonable and necessary.”

46The applicant argues that “the insurer's unreasonable denial of access to physical therapy has also caused [the applicant’s] condition to significantly deteriorate, to the point where the applicant is having difficulty with his vocation, family, and the rest of society. At this point the applicant's injuries are now of a chronic nature and will require further treatment and not home-based exercise.”

47Under s. 10, the Tribunal may issue an award of up to 50 percent of the amount to which the applicant is entitled if the Tribunal finds that the respondent has unreasonably withheld or delayed payments because of its conduct.

48Based on the totality of the evidence before me, I decline to find that the respondent has unreasonably withheld or delayed payments.

49As discussed above, the respondent was in compliance with the Schedule in its communications with the applicant regarding its denial of the treatment plan in dispute and the subsequent I.E. report. I find no evidence of bad faith on the part of the respondent. Therefore, an award is not appropriate.

Footnotes

1. 1O. Reg. 34/10, as amended.