Citation and Parties

Citation: B.M. vs. Unica Insurance Inc., 2020 ONLAT 19-009381/AABS

Released Date: 09/28/2020

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.M. Applicant

and

Unica Insurance Inc. Respondent

DECISION AND ORDER

PANEL: Theresa McGee, Vice-Chair

APPEARANCES:

For the Applicant: Arthur R. Camporese, Counsel

For the Respondent: Angela Comella; Counsel

HEARD: By way of written submissions

REASONS FOR DECISION AND ORDER

OVERVIEW

1The applicant ("B.M.") is a 41-year-old man who was involved in an automobile accident on May 30, 2014. As he was driving through an intersection, he was t-boned on the passenger side by an unlicensed driver who failed to stop at a stop sign. Air bags deployed. Emergency services attended the scene and B.M. was ambulanced to hospital. He was assessed and discharged shortly thereafter.

2B.M. sought benefits pursuant to the Statutory Accident Benefits Schedule -Effective September 1, 2010 (the ''Schedule''). The respondent ("Unica") denied some of those benefits. B.M. disagreed with the denials and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service ("Tribunal") for a resolution of the dispute.

ISSUES TO BE DECIDED

3I am to decide the following issues:

i. Is the applicant entitled to a medical benefit in the amount of $2,294.79 recommended by Ross Rehabilitation for physiotherapy services in a treatment plan (OCF-18) submitted on November 17, 2016 and denied on August 17, 2017?

ii. Is the applicant entitled to a medical benefit in the amount of $2,470.84 recommended by Ross Rehabilitation for occupational therapy services in a treatment plan (OCF-18) submitted on December 1, 2016 and denied on August 28, 2017?

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

RESULT

4B.M. is entitled to payment in the amount of $2,294.79 for physiotherapy services and $2,470.84 for occupational therapy services proposed in the two disputed Treatment and Assessment Plans (OCF-18s). Both plans propose reasonable and necessary expenses incurred by B.M. as a result of the accident. B.M. is also entitled to interest on the outstanding payments calculated in accordance with s. 51 of the Schedule.

5Unica issued Notices of Examination (OCF-25s) that were deficient for failing to clearly state the "medical or other reasons" for the relevant s. 44 Insurer's Examinations. In these circumstances, the appropriate remedy is the exclusion of the examiners' reports.

ANALYSIS

B.M.'s pre-existing and accident-related injuries

6B.M. has a significant pre-accident medical history. In 2001, he was injured in a workplace accident that resulted in compression fractures to his lumbar spine and left him unable to work for two years.¹ He continued to claim WSIB compensation in relation to that accident until at least 2019.²

7In 2013, B.M. was involved in two separate motor vehicle accidents, each of which aggravated his pre-existing lumbar pain. His pre-accident diagnoses include lumbar disc desiccation, protrusion and tearing.³

8As a result of the May 30, 2014 accident, B.M. sustained a lumbar sprain and cervical sprain.⁴

9On July 6, 2016, B.M.'s family physician, Dr. Joel Yellin, diagnosed him with chronic lumbar radiculopathy.⁵

10As a result of his pre-existing and accident-related injuries, B.M. developed chronic lower back pain severe enough to require prolonged treatment with analgesic narcotics including Oxycocet and Fentanyl.⁶

11On November 8, 2016, B.M. was involved in yet another motor vehicle accident. No evidence has been tendered as to the injuries he sustained in that accident, but the disputed OCF-18s establish that the accident compounded his pain and radicular symptoms.⁷

The disputed treatment plans

12Over the course of B.M.'s accident benefits claim, Unica approved several treatment plans for occupational therapy and physiotherapy interventions. In August 2017, Unica denied two treatment plans, giving give rise to this dispute.

13On November 17, 2016, B.M. submitted the first of the two disputed Treatment and Assessment Plans (OCF-18s) in the amount of $2,294.79 for 16 sessions of "physical rehabilitation". The plan identified the goals of the proposed treatment as pain reduction, increased range of motion, increase in strength and a return to activities of normal living.⁸

14On December 1, 2016, B.M. submitted the second of the two disputed plans. This plan totalled $2,470.84 and included two sessions of "therapy, motor and living skills" with an occupational therapist. The plan identified the goals of the sessions as pain reduction, improvement of functional independence, reduction in risk of further disability, a return to activities of normal living and increased participation in daily activities.⁹

15Padma Arathi, Occupational Therapist, who prepared the second plan, noted that additional occupational therapy was needed "due to [B.M.'s] functional impairments in the home and community."¹⁰ Ms. Arathi also noted B.M.'s continued difficulties with independent personal care, housekeeping and home maintenance activities, and vocational activities.

Did Unica satisfy the notice requirements in s. 44(5) of the Schedule?

16Section 44(5) of the Schedule provides:

If the insurer requires an examination under this section, the insurer shall arrange for the examination at its expense and shall give the insured person a notice setting out,

(a) the medical and any other reasons for the examination [...]

17Under a covering letter dated July 4, 2017, Unica sent Notices of Examination (OCF-25s) to B.M. dated July 4, 2017 and June 29, 2017 advising it was seeking s. 44 Insurer's Examinations with Ms. Angela Bertolo, Occupational Therapist, and Dr. Hossein Hosseini, Physiatrist, respectively. The letter stated:

This examination is being conducted to determine if the requested treatment plans dated November 17, 2016 in the amount of $2294.49 recommending physiotherapy and December 1, 2016 $2470.98 recommending occupational therapy both submitted by Ross Rehab [sic]¹¹

18The sentence fragment, an apparent typographical error, omitted crucial information as to the reasons for the sought examination. Under "Reasons and Description of the Examination", the enclosed OCF-25s simply stated "RESCHEDULED" and "Rescheduled assessment".

19On July 20, 2017, Unica followed up with a letter to B.M. regarding a rescheduled s. 44 Insurer's Examination with Ms. Angela Bertolo. The letter reproduced the same sentence fragment as the July 4, 2017 letter described above and enclosed an OCF-25 dated July 20, 2017 which stated the reasons for the examination as, simply, "Rescheduled assessment".¹²

20B.M. submits that the reasons an insurer gives for a s. 44 Insurer's Examination must be of sufficient detail and clarity to justify the investigation being sought. Insurer's Examinations can be intrusive, and an insured person is entitled to make an informed decision about whether they wish to pursue their claims and attend an Insurer's Examination or not.

21While this Tribunal has held that the sufficiency of the "medical and other reasons" issued in a notice pursuant to s.44(5) will turn on the unique facts of a given scenario, in principle, a strict requirement for detailed, clear and meaningful reasons under s. 44(5) is consistent with the remedial consumer protection purpose of the Schedule.¹³

22Unica submits that it did provide a clear medical reason for the assessments it was seeking. It states that the reason was conveyed in a December 22, 2016 denial letter addressing both treatment plans in dispute. That letter contained an enclosure: an OCF-25 dated March 3, 2017 pertaining to an Insurer's Examination with Ms. Angela Bertolo scheduled for March 31, 2017. The letter and enclosed OCF-25 list the reasons for the examination as follows:

Based on review of file it appears you have had an extensive amount of treatment to date at this time we require a second opinion to determine if this treatment and assessment plan is reasonable necessary and essential to assist with your return to pre-accident level of function.¹⁴

23B.M. submits that the March 31, 2017 Insurer's Examination never took place. The March 3, 2017 OCF-25 is not the relevant and operative notice.

24Unica has presented no evidence it sent an OCF-25 at any time providing adequate reasons for an Insurer's Examination with Dr. Hosseini.

25In respect of both the July 4, 2017 and June 29, 2017 OCF-25s, I find that Unica's notice was patently deficient. Neither the OCF-25s or the July 4, 2017 covering letter provided comprehensible "medical or other reasons" for the requested examinations.

26It is not reasonable to expect that B.M. would be capable of inferring the reasons for the requested Insurer's Examinations from the information Unica provided, nor that it was his responsibility to. The fact that Unica supplied reasons for another examination with, in the case of the occupational therapy examination, the same assessor, did not relieve Unica of its obligations under s. 44(5).

27An insured person should not be expected to piece together "medical or other reasons" for an examination from disparate notices and correspondence, or, as Unica submits, to advise an insurer of deficiencies in those notices so they may be corrected. The duty to give reasoned notice rests with the insurer.

28There can be serious consequences to an insured person for failing to attend an Insurer's Examination. The fact that B.M. attended the examinations in question "without any protest", as Unica submits, does not render the notices sufficient. It simply means that B.M. attended and participated in the examinations without being properly informed as to their purposes, and without being able to determine whether Unica was requesting Insurer's Examinations "more often than is reasonably necessary" which s. 44(1) of the Schedule prohibits.

If the notice requirement was not met, what is the appropriate remedy?

29As B.M. submits, the Schedule is silent on the remedy for non-compliance with s. 44(5).

30B.M. submits that he is entitled to payment for the disputed treatment plans given the absence of proper notice for the Insurer's Examinations. Alternatively, he submits that reports from the examinations should be excluded. In requesting this remedy, he relies on N.M. v. Aviva Insurance Canada,¹⁵ where, in the face of a complete absence of reasons as required by s. 44(5), Adjudicator C. Paluch held:

In my view, failure to provide the required notice renders the scheduling of the IEs improper. The only practical remedy is to exclude the product of those assessments, the reports themselves, from being relied on by the respondent at the hearing.

31Unica submits that N.M. is distinguishable because the insurer in N.M. failed to provide any notice that it was assessing the applicant for a non-earner benefit. Contrary to Unica's submission, the pertinent facts in N.M. are substantially similar to these: in both cases, the insurer failed, apparently due to a clerical error, to provide reasons for the requested Insurer's Examinations. I have found as a fact that the 'reasons' given in the notices in this case omitted crucial information; they are equivalent to no reasons at all.

32N.M. is persuasive. Exclusion of the impugned Insurer's Examiners' reports is the appropriate remedy in these circumstances. The requirements in s. 44(5) are in place for a reason. Dispensing with them, whether intentionally or by clerical error, leads to an unfair result. To leave an insured person without a remedy for an insurer's non-compliance with s. 44(5) would run contrary to the remedial purpose of the Schedule.

33For these reasons, I will not consider the Insurer's Examiners' reports.

Are the treatment plans reasonable and necessary as a result of the accident?

34B.M. bears the onus of establishing, on a balance of probabilities, that the disputed treatment plans contain reasonable and necessary expenses incurred as a result of the accident.

35Unica submits that the disputed treatment plans fail the test for causation. They are not reasonable and necessary for injuries stemming from the May 30, 2014 accident.

36B.M. submitted the disputed treatment plans shortly after the November 8, 2016 accident. Unica highlights the references in both OCF-18s to the November 8, 2016 accident and the symptom aggravation it caused. That accident is not the subject of this application. If B.M. sustained injuries in that accident, he ought to have commenced an accident benefits claim in relation to that loss.

37Mr. Oderkirk, Physiotherapist, who prepared the November 17, 2016 plan, noted that B.M. had been involved in an accident just over a week prior, on November 8, 2016, which had exacerbated his radicular symptoms, pain, and function. Prior to that accident, B.M. had made some improvement, in terms of his radicular symptoms, strength, and range of motion.¹⁶

38In the "Additional Comments" appended to the December 1, 2016 OCF-18, Ms. Arathi, Occupational Therapist, notes:

[B.M.] was recently involved in another MVA on November 8, 2016, in which he was reportedly rear-ended while stopped at a red light on Burlington Street at Wentworth Avenue. He reports that this significantly aggravated his low back symptoms including increasing pain and paresthesia down his left leg.

[B.M.] continues to face several barriers to function at the present time, which includes chronic pain and sensory symptoms that have reportedly worsened following his most recent MVA on November 8, 2016, reduced postural tolerances, cognitive difficulties and reduced emotional tolerances since the indexed MVA.¹⁷

39B.M. argues that despite the references to a subsequent accident in the disputed treatment plans, the May 30, 2014 accident was a necessary cause of the injuries and exacerbations which the disputed physical and occupational therapy interventions sought to treat. He argues that the accident need not be the cause of the injuries in order to meet the "but for" test for causation established in Sabadash v. State Farm.¹⁸

40The Divisional Court held in Sabadash that in satisfying the "but for" test, an insured person need not prove that the accident alone could have caused the impairment.¹⁹ I find that the May 30, 2014 accident meets this threshold.

41The causes of B.M.'s injuries and impairments are complex. The May 30, 2014 accident exacerbated B.M.'s pre-existing injuries. The November 8, 2016 accident further frustrated the course of his recovery. B.M. is not precluded from claiming accident benefits because of injuries acquired prior to the accident; on the contrary, the Schedule contemplates claims for medical and rehabilitation benefits in excess of the $3,500.00 limit for the treatment of minor injuries where there is compelling evidence of a pre-existing medical condition that would prevent maximal recovery within the Minor Injury Guideline. Nor is he barred from claiming benefits because of injuries sustained after the subject accident.

42I find no basis upon which to conclude that the November 8, 2016 accident displaced the May 30, 2014 accident as a necessary cause of the injuries and impairments the disputed plans sought to treat. The medical evidence establishes that B.M. continued to struggle with pain and functional impairment as a result of the May 30, 2014 accident.

43As the Supreme Court of Canada held in Clements v. Clements,²⁰ causation is a factual determination made on a balance of probabilities. Scientific proof is not required. It is not necessary for me to quantify to a scientific degree of certainty the degree to which each of the 2001, 2013, 2014 and 2016 accidents contributed to B.M.'s impairments. In the accident benefit context, there is no discount for apportionment of causation.²¹

44The proposed physiotherapy sessions are reasonable and necessary to assist B.M. in achieving the treatment and functional goals identified. As early as 2015, B.M. expressed to Dr. Yellin his desire to wean off analgesic narcotics. Dr. Yellin advised he would not lower B.M.'s dosages while his physiotherapy was suspended.²² Without the necessary physiotherapy, B.M.'s condition deteriorated.²³

45Unica submits B.M. had returned to full-time work. However, it was with difficulty. His work roles were not conducive to modification, and he continued to encounter difficulty with vocational tasks that required prolonged sitting.²⁴

46The proposed occupational therapy sessions are reasonable and necessary to properly integrate into B.M.'s routines his prior education with respect to chronic pain management, relaxation strategies, and cognitive exercises to facilitate an increase in focus, concentration and processing speed. As recently as December 5, 2018, when B.M. reported nerve pain due to increased physical work at his job, Dr. Yellin's clinical notes and records provide objective medical evidence to support the need for ongoing vocation-related interventions.²⁵

47Unica submits it has funded $2,907.03 in occupational treatment in relation to B.M.'s accident. This is not a reason to deny further reasonable and necessary treatment.

48For these reasons, I conclude that the disputed treatment plans are payable with interest.

ORDER

49B.M. is entitled to payment in the following amounts:

i. $2,294.79 recommended for physiotherapy services;

ii. $2,470.84 for occupational therapy services; and

iii. interest on the outstanding payments of benefits calculated in accordance with s. 56 of the Schedule.

Footnotes

1. 1Respondent's Written Submissions, Tab H: OCF-18 dated December 1, 2016.
2. 2Respondent's Written Submissions, Tab B: Letter from Dr. Yellin, dated March 6, 2019.
3. 3Applicant's Brief, Tab 3: MRI report dated May 5, 2013.
4. 4Applicant's Brief, Tab 5: Disability Certificate of Dr. Yellin dated March 26, 2015.
5. 5Applicant's Brief, Tab 2: Select clinical notes of Dr. Joel Yellin, dated July 6, 2016.
6. 6Applicant's Brief, Tab 2: Select Clinical Notes and Records of Dr. Joel Yellin, dated July 6, 2016.
7. 7Applicant's Brief, Tabs 14 and 15: OCF-18 of Ross Rehab for Physio Services dated November 17, 2016 and OCF-18 for OT Services dated December 1, 2016.
8. 8Applicant's Brief, Tab 14: OCF-18 of Ross Rehab for Physio Services dated November 17, 2016.
9. 9Applicant's Brief, Tab 15: OCF-18 of Ross Rehab for OT Services dated December 1, 2016.
10. 10Applicant's Brief, Tab 15: OCF-18 of Ross Rehab for OT Services dated December 1, 2016.
11. 11Applicant's Brief, Tab 18: Correspondence by Unica to Applicant dated July 4, 2017 and Correspondence by Unica to Applicant dated July 20, 2017.
12. 12Applicant's Brief, Tab 18: Correspondence by Unica to Applicant dated July 4, 2017 and Correspondence by Unica to Applicant dated July 20, 2017.
13. 13M.B. v. Aviva Insurance Canada, 2017 CanLii 87160 (ON LAT) at para. 23.
14. 14Respondent's Written Submissions, Tab C: IE Request – Letters and OCF-25 Documents.
15. 152019 CanLii 94126 (ON LAT) at para. 36.
16. 16Applicant's Brief, Tab 14: OCF-18 of Ross Rehab for Physiotherapy Services dated November 17, 2016.
17. 17Applicant's Brief, Tab 15: OCF-18 of Ross Rehab for OT Services dated December 1, 2016 at p. 9.
18. 182019 ONSC 1121 at para. 39.
19. 19Sabadash v. State Farm, 2019 ONSC 1121 at para. 39.
20. 202012 SCC 32, [2012] 2 SCR 181 at para.
21. 21Sabadash v. State Farm, 2019 ONSC 1121 at para. 31.
22. 22Applicant's Brief, Tab 2: Select clinical notes of Dr. Joel Yellin dated January 16, 2015 and January 4, 2017.
23. 23Applicant's Brief, Tab 16: Ross Rehabilitation Physiotherapy Progress Report dated February 7, 2017.
24. 24Applicant's Brief, Tab 15: OCF-18 of Ross Rehab for OT Services dated December 1, 2016 at p. 6.
25. 25Applicant's Brief, Tab 2: Select Clinical Notes and Records of Dr. Joel Yellin, dated December 5, 2018.