Released Date: 02/05/2021
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:
Bruce Thomas
Applicant
and
Aviva General Insurance
Respondent
DECISION
ADJUDICATOR:
Rebecca Hines
APPEARANCES:
For the Applicant:
Rajwant Singh Bamel, Counsel
For the Respondent:
Paul Irish, Counsel
HEARD:
By way of written submissions and by teleconference hearing on November 17, 2020.
OVERVIEW
1Bruce Thomas (the “applicant”) was involved in an automobile accident on November 13, 2016, and sought benefits from Aviva Insurance Company (the “respondent”) pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule'').1 The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The parties participated in a case conference but were unable to resolve the issues in dispute. The matter proceeded to a combination hearing consisting of written submissions followed by a one-day teleconference hearing on November 17, 2020 where I heard the testimony of the applicant and his wife.
ISSUES IN DISPUTE
3I have been asked to decide the following issues:
i. Are the applicant’s injuries predominantly minor as defined in s. 3 of the Schedule, subject to treatment within the $3,500.00 limit in the Minor Injury Guideline?
ii. If the answer to the first question is no, is the applicant entitled to the following benefits:
a) Is the applicant entitled to $1,428.00 for physiotherapy, recommended by Bloor Jane Physio in a treatment plan (OCF-18) dated July 31, 2017 and denied on October 27, 2017?
b) Is the applicant entitled to $12,293.00 for a chronic pain program, recommended by Downsview Healthcare Clinic in a treatment plan dated June 7, 2019 and denied on June 27, 2019?
c) Is the applicant entitled to $2,000.00 for a chronic pain assessment, recommended by Downsview Healthcare Clinic in a treatment plan dated February 15, 2019, submitted February 22, 2019 and denied on March 5, 2019?
d) Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
4After reviewing the parties’ submissions and document briefs, and for the reasons that follow I find:
i. The applicant sustained a minor injury and is subject to treatment within the MIG limits.
ii. The applicant is entitled to the treatment plan for physiotherapy recommended by Bloor Jane up to the MIG limit.
iii. The applicant is entitled to payment of the chronic pain program if incurred starting on the 11th business day after the respondent received the application and prior to the respondent providing sufficient notice in compliance with s.38(8) of the Schedule.
iv. The applicant is not entitled to the treatment plan for the chronic pain assessment.
v. The applicant is not entitled to interest pursuant to s.51 of the Schedule.
vi. The applicant is not entitled to an award under Regulation 664.
PROCEDURAL ISSUE
5In its submissions the respondent requested permission to submit more than the maximum 15 pages provided for in the Tribunal’s case conference report and order dated April 22, 2020 (the “Tribunal’s order”). The respondent submits the additional pages are required because the applicant’s submissions addressed issues that were not raised at the case conference or listed in the Tribunal’s order. In particular, the applicant requested costs in his written submissions pursuant to Rule 19 of the Tribunal’s Common Rules of Practice and Procedure. The respondent argues it would be unfair for the Tribunal to determine this issue as it would not be procedurally fair. In addition, the respondent maintains that the applicant raised a procedural issue alleging that its notices denying the treatment plans in dispute were non-compliant with s. 38(8) of the Schedule. The respondent submits that this should have been raised at the case conference and the applicant’s submissions pertaining to the sufficiency of its notice should not be considered. In the alternative, the Tribunal should allow the additional pages filed by the respondent to ensure procedural fairness.
6The applicant submits that the four and one-half pages of the respondent’s submissions which exceeded the 15-page limit should be excluded. Further, he argues that the respondent’s objection to him raising the issue regarding the respondent’s non-compliance with s.38(8) is not a separate procedural issue as the notices were issued in response to the disputed treatment plans. Therefore, the notices are subject to review. In addition, the applicant submits that his request for costs should be allowed due to the respondent’s ongoing vexatious and bad faith conduct. As a result, the applicant has had to incur costs toward establishing that he sustained an impairment as a result of the accident.
7I agree with the respondent and will not be determining the issue of the applicant’s request for costs as it was not raised in advance of the written hearing or listed as in issue in dispute in the Tribunal’s order. I agree with the respondent that it would not be procedurally fair to determine an issue that was not properly raised in advance of a hearing as a party has a right to know the case it must meet.
8I reject the respondent’s request that the applicant’s argument regarding the insufficiency of its notices be dismissed because it was not previously raised at a case conference. Section 38(8) of the Schedule specifically sets out an insurer’s procedural obligations in responding to a treatment plan and s. 38(11) addresses the consequences for non-compliance. Therefore, I find the sufficiency of an insurer’s notice is automatically open for review when it denies a benefit.
9The applicant’s request that the four- and one-half additional pages of submissions filed by the respondent be excluded is denied. In my view, if I were to exclude the respondent’s submissions it would be prejudiced as it would prevent it from defending the case against it. While I agree that the respondent should have sought the Tribunal’s permission to submit additional pages in advance of the hearing, it is within my discretion as the hearing adjudicator to consider it. Further, if I were to exclude the additional submissions, I would not be fairly able to determine the issues I have been asked to decide. In addition, the applicant did not express how he would be prejudiced by the additional pages submitted.
BACKGROUND
10On November 13, 2016, the applicant was involved in an accident when his vehicle was rear-ended while stopped at a traffic light. The applicant did not seek immediate medical attention and continued to drive to his destination.
11The applicant commenced treatment pursuant to the MIG at Bloor Jane Physiotherapy and Active Rehabilitation Centre (“Bloor Jane”) and he attended this clinic until June 2017. In 2019 he started attending Downsview Healthcare Clinic (“Downsview”). The applicant seeks a finding that his injuries are not predominantly minor and the disputed treatment plans are reasonable and necessary.
12The applicant argues that his impairments do not fit within the definition of the MIG because he suffers from chronic pain as a result of the accident. In addition, he maintains that he sustained a psychological impairment as he suffers from passenger and driving anxiety as well as a mood disorder. Further, he submits that his accident related impairments remain unresolved and he requires further treatment. He relies on the clinical notes and records (“CNRs”) of Dr. Naidoo, family doctor, and records from Bloor Jane. He also relies on the chronic pain report of Dr. Karmy, chronic pain physician dated April 29, 2019. Finally, he submits that the treatment plans for the chronic pain assessment and chronic pain program are payable as the respondent did not comply with its obligation to provide proper notice pursuant to s.38(8) of the Schedule.
13The respondent submits that the applicant’s impairments fit within the MIG. It asserts that the CNRs relied upon by the applicant do not support his position that he suffers from chronic pain or any ongoing impairment as a result of the accident. The respondent relies on the insurer examination (“IE”) reports of general practitioners’ Dr. Oryema dated October 12, 2017 and Dr. Dharamshi dated April 22 and May 15, 2019 who determined that the applicant sustained a minor injury which could be treated within the MIG. Further, it contends that it provided clear and unequivocal notice of its denials.
Do the applicant’s impairments fit within the MIG?
14I find the evidence supports that the applicant’s impairments fall within the MIG.
15Section 3 of the Schedule provides the following definition of a minor injury:
“a “minor injury” means one or more of a sprain, strain, whiplash associated disorder, contusion, abrasion, laceration or subluxation and includes any clinically associated sequelae.”
16Pursuant to s. 18 of the Schedule, the sum of medical and rehabilitation benefits payable to an insured person who sustains a predominantly minor injury is limited to $3,500.00. The $3,500.00 limit does not apply if the insured person provides compelling evidence that he or she has a pre-existing medical condition that will prevent maximum medical recovery if he or she is subject to the $3,500.00 limit. In addition, certain accident related medical impairments can remove an individual from the MIG. For example, a diagnosis of chronic pain or a psychological impairment. The onus is on the applicant to prove that his impairments are not minor and not subject to the $3,500.00 cap.
Did the applicant suffer from a pre-existing condition which would prevent him from achieving maximum medical recovery within the MIG?
17The applicant did not argue or submit any evidence to support that he should be removed from the MIG as a result of a pre-existing medical condition. Therefore, I do not find that he is removed from the MIG as a result of a pre-existing medical condition.
Does the applicant suffer from chronic pain as a result of the accident that would remove him from the MIG?
18I do not find the applicant suffers from chronic pain as a result of the accident that would remove him from the MIG for the following reasons.
19I do not find that the CNRs of Dr. Naidoo, support that the applicant suffers from chronic pain as a result of the accident. The CNRs support that he attended his family doctor’s office three times in the first two-months post-accident about his accident related complaints. He first attended on November 18, 2016 in which the note states “rear ended on Sunday @ stoplight – sore neck later that night. Pain worse with exertion – now lower back.” Dr. Naidoo prescribed Celebrex and Robaxisal. The applicant attended again on December 5, 2016 in which he reported that he was attending massage therapy and feeling 80% better. The last CNR is dated January 10, 2017 and states “back pain with no meds – back and neck exercises/continue physio.”
20I do not find Dr. Naidoo’s CNRs persuasive evidence that the applicant suffers from chronic pain as a result of the accident. Further, the CNR dated December 5, 2016 supports that he had made a significant recovery within one-month post-accident. The applicant and his wife testified that he did not continue to visit his family doctor about any accident-related complaints because he was prescribed medication and was receiving physiotherapy treatment for his injuries. Therefore, there was no need for him to see his family doctor.
21While I can understand the applicant’s position, this does not explain why he did not attend his family doctor’s office about any accident related impairments once the respondent denied his treatment. In my view the large gap in the records challenge the applicant’s position that he suffers from chronic pain as a result of the accident. Moreover, I do not find the records of the Bloor Jane clinic helpful.
22The attendance records of Bloor Jane prove that the applicant attended for physiotherapy treatment infrequently (one to three times per month) between November 2016 and July 2017. The applicant and his wife testified that he has been paying out of pocket for massage therapy. However, no invoices or receipts were submitted to confirm this. For this reason, I have given this evidence little weight. There were two very brief progress notes authored by Jason Melnikel, physiotherapist in the file. The first one dated January 10, 2017 reports the applicant’s accident related impairment as being “strain/sprain in low back” and notes “no barriers to recovery”. The second note dated July 31, 2017 reports his accident related impairment as being “thoracic sprain/strain; shoulder sprain/strain; hip sprain/strain and lumbar sprain/strain.” Under barrier to recovery it states that “the client was teary eyed during assessment.” I do not find these records support that the applicant suffers from chronic pain as a result of the accident. In fact, I find these records support that the applicant sustained a minor injury.
23The applicant relied on the chronic pain assessment of Dr. Karmy dated April 29, 2019. The applicant reported that he had chronic neck and back pain, chronic headaches along with sleep and mood disturbances. Dr. Karmy’s report states that the applicant works in a physically demanding occupation as an electrical apprentice. His occupation requires heavy lifting, carrying, bending forward and sustaining a stooped position with frequent reaching forward and overhead and the ability to focus in order to install electrical devices. The applicant reported to Dr. Karmy that following the accident he has had difficulty performing his job responsibilities due to severe pain which has resulted in functional limitations. However, he had little choice but to continue his employment and has modified his employment tasks to get by. The applicant also reported that he was unable to engage in his pre-accident housekeeping and home maintenance tasks, caregiving responsibilities and had not returned to his pre-accident social and leisure activities. The applicant’s testimony at the hearing was consistent with what he reported to Dr. Karmy.
24Dr. Karmy’s physical examination revealed that the applicant experienced pain in the lumbosacral spine which was exacerbated with forward flexion. Dr. Karmy diagnosed the applicant with a mild traumatic brain Injury; chronic post-traumatic headache; chronic mechanical neck pain; chronic mechanical lower back pain; myofascial pain syndrome; chronic pain syndrome; sleep disorder and mood disorder with symptoms of passenger and driving anxiety. I do not give Dr. Karmy’s report much weight as the diagnosis and impairments was based on the applicant’s self-reports and is not supported by any objective medical evidence. Further, Dr. Karmy’s report does not discuss the large gaps in the CNRs or how any of the CNRs reviewed support his diagnosis.
25By contrast, the respondent relied on the IE reports of Dr. Oryema dated October 12, 2017 and Dr. Dharamshi dated April 22 and May 15, 2019. The applicant maintains that I should accord more weight to Dr. Karmy’s opinion because as a chronic pain physician the doctor is more qualified than the respondent’s assessors to render a diagnosis of chronic pain syndrome. However, as highlighted above, I do not find Dr. Karmy’s report persuasive because it was based on the applicant’s self-reports. I prefer the IE reports Drs. Oryema and Dharamshi as their opinions were more consistent with the medical evidence or lack thereof.
26Dr. Oryema’s IE diagnosed the applicant with residual soft tissue injury pain to the low back which could be treated within the MIG. Dr. Dharamshi’s IE report dated April 22, 2019 states that the applicant reported diffuse low back pain. The applicant also reported that he was independent with self-care and house keeping and home maintenance activities. Dr. Dharamshi’s report highlights that the applicant sat for the assessment and displayed no discomfort while walking, sitting and standing. Nor did the applicant present with any emotional complaints during the assessment. The doctor’s physical examination of the applicant was normal with the exception that he noted tenderness over the spinous processes from the L1 to L5 vertebrae. Dr. Dharamshi diagnosed the applicant with lumbosacral musculoligamentous strain with persistent mechanical back pain. The doctor opined that the applicant sustained a minor injury that could be treated within the MIG. Further, the report states that the chronic pain assessment was not reasonable and necessary as there was no indication that the applicant had a chronic pain condition which had any impact on psychosocial function.
27Following Dr. Dharamshi’s initial IE, the report of Dr. Karmy was sent to the doctor for comment. Dr. Dharamshi issued an addendum report dated May 15, 2019 noting the differences in the reported symptoms between the dates of the assessments (which were 3 weeks apart). Dr. Dharamshi disagreed with the multiple diagnosis proposed by Dr. Karmy and maintained his initial opinion. Much was made by both parties at the hearing about the difference in which the applicant reported his symptoms to the doctors. The applicant testified that Dr. Karmy asked him more detailed questions, whereas Dr. Dharamshi asked him questions eliciting yes or no answers. I find this point irrelevant as already highlighted, I do not find Dr. Karmy’s diagnosis was supported by any objective medical evidence.
28The respondent submitted the updated CNRs of Dr. Naidoo which it maintains supports that the applicant’s current complaints were not caused by the November 2016 accident as the applicant was involved in a second accident in October 2019. I do not find it necessary to address these records as the reports submitted for this hearing pre-date the second accident. Further, the onus is on the applicant to prove that his impairments are outside of the MIG. Based upon the medical evidence, I am not convinced beyond a balance of probabilities that he suffers from chronic pain or chronic pain syndrome as a result of the accident that would remove him from the MIG.
29Both parties submitted case law which sets out different criteria the Tribunal should consider in determining whether an insured suffers from chronic pain or chronic pain syndrome which would warrant removal from the MIG. The applicant relies on T.S. v. Aviva Insurance2 which sets out that any pain that lasts beyond 6 months which affects an individual’s well being meets the test. By contrast, the respondent relies on the Tribunal’s decisions in M.N.M. v. Aviva3, and Y.F.T.L. and The Co-Operators4 which set out a stricter test. These decisions set out that an individual must satisfy 3 out of 6 criteria listed in the AMA Guides5 (the “Guides”) in order for a diagnosis of chronic pain to remove an individual from the MIG. While I do not agree that one needs to meet the criteria set out in the Guides to be removed from the MIG, I find T.S. v. Aviva distinguishable from the present case. In T.S. v. Aviva, the adjudicator accepted that the insured had been diagnosed with chronic pain syndrome yet still found the insured’s impairment to be within the MIG. In this case, I do not accept Dr. Karmy’s diagnosis of chronic pain syndrome as the medical evidence does not support it.
30The applicant has not met his onus in proving on a balance of probabilities that he suffers from chronic pain as a result of the accident that would remove him from the MIG. Nor do I find that the medical evidence supports that the treatment plans for the chronic pain assessment or chronic pain program are reasonable and necessary as a result of the applicant’s accident related impairments.
Does the applicant suffer from a psychological impairment as a result of the accident that would remove him from the MIG?
31I do not find that the applicant suffers from a psychological impairment as a result of the accident that would remove him from the MIG.
32The applicant maintains that he suffers from driving and passenger anxiety and has developed problems with his mood post-accident. He also relies on the report of Dr. Karmy in support of his position that he suffers from a psychological impairment. For the reasons already highlighted I have given Dr. Karmy’s report little weight.
33The applicant and his wife testified that his mood has been affected post-accident. While I can accept that the applicant’s mood may have been affected post-accident, there is a lack of medical evidence to support that he sustained a psychological impairment as a result of the accident. Other than Dr. Karmy’s report, the applicant did not report any psychological symptoms to either his family doctor or the IE assessors. I also do not find the one reference to the applicant being “teary eyed during the assessment” in the progress note of Jason Melnikel persuasive evidence that the applicant sustained a psychological impairment that would remove him from the MIG.
34The applicant has not met his onus on a balance of probabilities in proving that he suffers from a psychological impairment as a result of the accident that would remove him from the MIG.
Is the applicant entitled to $1,428.00 for physiotherapy, recommended by Bloor Jane Physio in a treatment plan (OCF-18) dated July 31, 2017 and denied on October 27, 2017?
35I find the applicant is entitled to the treatment plan for physiotherapy recommended by Bloor Jane up to the MIG limit.
36Sections 14 and 15 of the Schedule provide that an insurer is only liable to pay for medical expenses that are reasonable and necessary as a result of an accident. To date, the respondent has approved $2,100 in treatment leaving a balance of $1,400 left within the MIG limit.
37The treatment plan authored by Jason Melnickle dated July 31, 2017 recommended 9 sessions of physiotherapy and 7 sessions of massage therapy for a total cost of $1,428.00. Part 4 of the treatment plan indicated that the applicant was seeking treatment within the MIG despite the plan being over the MIG limit by $28.00. The goals of the treatment plan were for pain reduction and to return the applicant to his pre-accident daily activities. As a starting point, I find the goals of the treatment plan to be a reasonable objective.
38The respondent argued that the treatment plan is not reasonable and necessary because the treatment plan sought funding beyond the MIG limit.
39The applicant submits that the treatment plan is reasonable and necessary as past physiotherapy treatment temporarily relieved his pain which enabled him to function.
40Although I do not find that the applicant suffers from chronic pain as a result of the accident, the evidence supports that the applicant reported to both Dr. Naidoo and Dr. Oryema that past treatment had resulted in improvements. Further, the applicant also testified that past physiotherapy and massage had resulted in the temporary relief from pain and as of July 2017 he still required treatment. The applicant’s wife also testified that she noticed a positive difference in her husband following his treatment sessions. I believe the applicant and his wife that he received temporary relief from pain as a result of past physiotherapy treatment.
41It is well accepted law that ongoing treatment is considered reasonable and necessary if it alleviates a person’s pain and assists with their ability to function. In addition, both Drs. Oryema and Dharamshi opined that the applicant’s impairments could be treated within the MIG and to date, the MIG limit has not been exhausted. Consequently, I find the treatment plan for physiotherapy and massage reasonable and necessary up to the MIG limit.
Did the respondent’s denials of the disputed treatment plans comply with s.38(8) of the Schedule?
42I find the respondent complied with its obligation under s.38(8) of the Schedule in providing sufficient notice of its denial of the chronic pain assessment prior to the applicant incurring the treatment plan.
43Section 38(8) of the Schedule provides that an insurer shall respond to a treatment plan within 10 days of receiving it identifying the goods, services, assessments and examinations described in the plan that the insurer does and does not agree to pay for. The insurer must also provide medical and all other reasons why it has determined that the treatment plan is not reasonable and necessary.
44If an insurer fails to comply with s. 38(8) the Schedule sets out two consequences under s. 38(11). First, an insurer who fails to provide the insured with adequate notice of the reasons for its denial is prohibited by s. 38(11)1 from taking the position that the insured person has an impairment to which the MIG applies. Second, s. 38(11) 2 provides that if an insurer fails to provide proper notice of the reasons for its denial it must pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the insurer received the treatment plan and ending on the day the insurer gives notice as described in s. 38(8).
Notice in response to OCF-18 for Chronic Pain Assessment
45The applicant submitted a treatment plan on February 22, 2019 authored by Dr. Pivtoran, chiropractor, recommending a chronic pain assessment in the amount of $2,000.00. Under activity limitations the plan states that the applicant continues to have difficulties in completing his tasks of employment and normal activities of daily living. In particular, he had difficulty with activities involving deep bending, heavy lifting, carrying, stooping, overhead activities and prolonged sitting, standing and walking. The goal of the treatment plan was to assess chronic injuries and psychological complaints and provide a prognosis and recommendations for recovery.
46In response to the treatment plan, the respondent sent the applicant an Explanation of Benefits (“EOB”) dated March 5, 2019 indicating that it was unable to consider the treatment plan “based on the medical documentation indicating your impairment is predominantly a minor injury.” The EOB then indicated that the applicant was required to attend an IE and provided the following medical reason for denying the treatment plan:
Upon review of the minor injury guideline and the treating practitioner's medical opinion, we have concluded the health practitioner has not provided compelling evidence the impairment sustained is not predominantly a minor injury.
47The applicant submits that the respondent’s notice denying the treatment plan was deficient as it was boilerplate and did not specifically refer to his injuries or medical condition.
48The applicant relied on the Executive Chair’s decision in M.B. v. Aviva6 which provided the following guidance for insurers on how to satisfy their procedural obligations under s.38(8) of the Schedule.
an insurer satisfies its obligation to provide its “medical and any other reasons,” whether under s. 44(5)(a) or elsewhere, by explaining its decision with reference to the insured’s medical condition and any other applicable rationale. That explanation will turn on the unique facts at hand. […] Ultimately, an insurer’s “medical and any other reasons” should be clear and sufficient enough to allow an unsophisticated person to make an informed decision to either accept or dispute the decision at issue.”
49I agree with the principles highlighted by the Executive Chair in M.B. v. Aviva in that an unsophisticated person should be able to understand why a benefit is being denied in order to make an informed decision to dispute a denial. I also agree with the applicant that the respondent’s notice dated March 5, 2019 was deficient as it did not refer to the applicant’s impairment or explain how his impairments fall within the MIG. However, while I agree that the March 5, 2019 notice was deficient, I find the respondent cured its deficient notice prior to the applicant incurring the cost of the assessment on April 26, 2019.
50On April 25, 2019 the respondent sent the applicant another EOB attaching the IE addendum report of Dr. Dharamshi dated April 22, 2019. It notes that Dr. Dharamshi reviewed the treatment plan for the chronic pain assessment and that the doctor came to the following conclusions:
There was no impairment identified on April 9, 2019 assessment as a result of the subject motor vehicle collision
As a result of the motor vehicle accident, you suffered a predominantly minor injury as defined by the Statutory Accident Benefits Schedule (SABS)
There was no compelling evidence of any pre-existing condition that would prevent you from achieving maximum recovery under the Minor Injury Guideline
There was no indication of any chronic pain condition defined as diffuse musculoskeletal pain (upper and lower part of the body and bilaterally) impacting psychosocial function that would require or benefit from such an assessment. Your condition further does not satisfy the AMA definition of a chronic pain syndrome or condition.
51The EOB concludes by stating that the treatment plan is not reasonable and necessary from the injuries sustained in the accident and that the respondent would not fund the treatment plan. I find that this EOB was a clear and unequivocal denial of the treatment plan as it indicated it believed the applicant sustained a minor injury and explained why it did not find the chronic pain assessment to be reasonable and necessary. I find that an unsophisticated person would understand why the benefit was being denied. Therefore, I do not find this treatment plan payable as a result of non-compliance with s. 38(8) of the Schedule as the applicant incurred the treatment plan after the respondent cured its defective notice.
Notice in response to OCF-18 for Chronic Pain Program
52The applicant submits that on June 7, 2019 he submitted the treatment plan in the amount of $12,293.00 for the chronic pain program recommended by Dr. Karmy. The applicant maintains that the respondent did not provide notice of its denial until June 27, 2019, which was not within the 10-day time period required pursuant to s.38(8). As a result, the respondent must pay for the treatment plan and is prohibited from maintaining its MIG position. The applicant also argues that the respondent did not provide adequate medical reasons for its denial as it simply stated that his injuries are not enough to require a chronic pain program.
53The respondent argues that the applicant’s submission that the treatment plan was submitted on June 7, 2019 is incorrect. It asserts that the applicant did not submit the treatment plan until June 18, 2019 and relies on the Health Claims for Auto Insurance (“HCAI”)7 confirmation form as proof of same. Therefore, it responded within the 10-day time period pursuant to s.38(8). Moreover, the respondent asserts that it provided sufficient medical and other reasons for denying the plan. In its EOB dated June 27, 2019 the respondent states:
We are unable to consider this Treatment Plan(s) based on the medical documentation we have indicating your impairment is predominantly a minor injury. Upon review of all documents on your file and Dr. Dharamshi's opinion in the Insurer's Examination (IE) reports dated April 22, 2019 and May 15, 2019, where he indicated your injuries do not support the AMA Guides Fourth Edition and the more recent Sixth Edition definition of chronic pain syndrome. Dr. Dharamshi also opinion (sic) you suffered a predominantly minor injury as defined by the Statutory Accident Benefits scheduled (sic) and there was no compelling medical evidence of any pre-existing condition that would prevent you from achieving maximum medical recovery under the Minor Injury Guideline.
Please review section 38(9) of the Statutory Accident Benefits Schedule. Therefore, the maximum payable for a predominantly minor injury is $3500 which has already been reached. Please review section 18(1) of the Statutory Accident Benefits Schedule. Please refer to the last Healthcare Spending Account letter previously sent for a breakdown of benefits paid.
54I agree with the respondent that it replied to the treatment plan within 10 days as no evidence was submitted by the applicant to support that the plan was submitted on June 7, 2019. By contrast, the respondent submitted the HCAI confirmation sheet confirming it was submitted on June 18, 2019. Therefore, I do not find that the respondent was in non-compliance with s. 38(8) as it responded to the treatment plan within 10-days. However, I do find the notice is deficient as it contains grammatical errors and overly complex legal language. For example, it asks the applicant to review sections of the Schedule for further information and refers to him not meeting a diagnosis for chronic pain outlined in the Guides. In my view, even a sophisticated person would struggle to understand this notice. I also find the notice contains factual errors about the applicant’s claim. In particular, the notice states that the MIG limit has been reached which is incorrect as there was $1,400 remaining in the MIG limit.
55To date, there is no evidence before me that the respondent has ever given the applicant proper notice denying this treatment plan. Therefore, the applicant is entitled to payment for any incurred treatment in relation to this treatment plan starting on the 11th business day after the respondent received the application and until the respondent gives proper notice in compliance with s.38(8).
Is the applicant entitled to payment of interest on overdue payment of benefits?
56The applicant is not entitled to interest as I do not find that any payment is overdue.
57Section 51(1) of the Schedule provides that that interest is payable if the insurer fails to pay a benefit within the time required under this regulation. The applicant has not submitted any proof that the treatment plans have been incurred. Therefore, I do not find that interest is payable.
Is the applicant entitled to an award because the respondent unreasonably withheld or delayed payment of benefits?
58I do not find that the applicant is entitled to an award as I do not find that the respondent unreasonably withheld or delayed payment of the benefit.
59Regulation 664, R.R.O. 1990 (Reg. 664) states that if the Tribunal finds that an insurer had unreasonably withheld or delayed payments, the Tribunal, in addition to awarding the benefits and interest to which an insured person is entitled, may award a lump sum of up to 50 percent of the amount to which the person was entitled at the time of the award with interest.
60The applicant submits that the respondent is liable to pay an award because it was non-compliant with s.38(8) of the Schedule. Further, the respondent failed to give any weight to the family doctor’s CNRs or the report of Dr. Karmy. Finally, the respondent maintained its denials despite receiving objective medical evidence supporting the applicant’s entitlement to treatment plans.
61The respondent submits that it considered the medical evidence submitted by the applicant. Further, the applicant has failed to submit any evidence to support how the respondent failed to consider the medical evidence when reaching its determination with respect to the MIG and the treatment plans in dispute. In addition, the applicant has not provided any evidence explaining, specifically, how the respondent unreasonably withheld or delayed payment of benefits to the applicant.
62In light of my decision, I do not find that the applicant is entitled to an award as I have determined that he sustained a minor injury. Further, I find that the respondent considered the medical evidence submitted by the applicant in adjusting its file. Further, I do not find that the respondent unreasonably withheld or delayed payment of any benefits. Finally, I do not find that an award is warranted based on the sole fact that I found one of the respondent’s notices deficient. In my view, this conduct does not meet the threshold for an award.
CONCLUSION
63For all of the above reasons, I find:
i. The applicant sustained a minor injury and is subject to treatment within the MIG limits.
ii. The applicant is entitled to the treatment plan for physiotherapy recommended by Bloor Jane up to the MIG limit.
iii. The applicant is entitled to payment of the chronic pain program (if incurred) starting on the 11th business day after the respondent received the application and prior to the respondent providing sufficient notice in compliance with s.38(8) of the Schedule.
iv. The applicant is not entitled to the treatment plan for the chronic pain assessment.
v. The applicant is not entitled to interest pursuant to s.51 of the Schedule.
vi. The applicant is not entitled to an award under Regulation 664
Released: February 5, 2021
Rebecca Hines
Adjudicator
Footnotes
- O. Reg. 34/10.
- T.S. v. Aviva Insurance Company, 2018 CanLII 83520 (ON LAT) (reconsideration)
- 17-007825 v. Aviva Insurance Canada, 2018 CanLII 9828 (ON LAT) (“M.N.M. v. Aviva”)
- Y.F.T.L. v. The Co-Operators General Insurance Company, 2020 CanLII 27398 (ON LAT)
- American Medical Association’s Guides to the Evaluation of Permanent Impairment, 4th Edition
- M.B. v. Aviva Insurance Canada, 2017 CanLII 87160 (ON LAT)(reconsideration) at para 26.
- HCAI is the electronic system for transmitting auto insurance claim forms between insurers and health care facilities in Ontario.