Released Date: 04/20/2021
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:
Legend Eskrick
Applicant
and
PAFCO
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
Frank Calcagni, Counsel
For the Respondent:
Peter Yoo, Counsel
HEARD:
By way of written submissions
OVERVIEW
1L.E. was injured in an accident on September 16, 2016 and sought benefits from the respondent, PAFCO, pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”).1 L.E. applied for medical benefits that were denied by PAFCO because it determined that his injuries were predominantly minor and subject to the Minor Injury Guideline (“MIG”). L.E. disagreed and applied to the Tribunal for resolution of the dispute.
ISSUES
2I have been asked to decide the following issues:
a. Are L.E.’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?
3If L.E.’s injuries are not predominantly minor, then I must determine the following:
a. Is the medical benefit in the amount of $1,650.00 for physiotherapy services, recommended by East Hamilton Physiotherapy in a treatment plan (OCF-18) dated February 2, 2018, reasonable and necessary?
b. Is the medical benefit in the amount of $4,022.78 for physiotherapy services, recommended by Health Plus Rehabilitation in an OCF-18 dated January 15, 2019, reasonable and necessary?
c. Is the medical benefit in the amount of $967.30 for physiotherapy services, recommended by East Hamilton Physiotherapy in an OCF-18 dated February 2, 2018, reasonable and necessary?
d. Is the medical benefit in the amount of $3,260.03 for physiotherapy services, recommended by Health Plus Rehabilitation in an OCF-18 dated November 14, 2019 reasonable and necessary?
e. Is PAFCO liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to L.E.?
4Is L.E. entitled to interest on any overdue payment of benefits?
FINDING
5L.E. has not demonstrated that her injuries warrant treatment beyond the MIG. Accordingly, the OCF-18s in dispute are not reasonable and necessary and no interest is payable.
BACKGROUND
Pre-accident health
6Based on the records of family physician, Dr. Frank, L.E. sustained a right-hand fracture in January 2014. In a note dated February 18, 2014, she had excellent range of motion in her hand and she did not complain of pain with the exception of occasional aches at night. In addition, in a February 18, 2014 note, her treating orthopaedic surgeon, Dr. Dickson, indicated that she may return to unrestricted activity. L.E. reinjured her right hand in a fall on May 31, 2014. Although Dr. Frank’s records note right hand pain complaints up to January 2015, there are no further records of hand-related pain complaints after this time.
Post-accident health
7L.E. was involved in an accident on September 16, 2016. The medical evidence shows that she did not seek treatment on the day of the accident, however, she did undergo an x-ray of her cervical spine. The September 17, 2016 diagnostic imaging report noted that cervical spine alignment was maintained, her vertebral body heights and intervertebral disc spaces were well preserved, and her prevertebral soft tissues were unremarkable.
8L.E. sought treatment with Dr. Frank on October 6, 2016, approximately three weeks post-accident and complained of right shoulder and left knee pain. Dr. Frank diagnosed her with whiplash injuries and post-trauma pain.
9L.E. underwent ultrasound examinations of her left shoulder and bilateral knees on November 16, 2016. The left shoulder ultrasound results did not show any evidence of soft tissue abnormality, rotator cuff tendon tear or bursitis. The bilateral knee reports similarly did not show any abnormalities, with the exception of fluid buildup in the left knee.
10L.E. followed up with Dr. Frank on November 18, 2016 to discuss the diagnostic test results. Dr. Frank’s notes indicate that her shoulders were fine with no problems and that her knee ultrasounds demonstrated some fluid buildup with no major structural changes. Dr. Frank diagnosed L.E. with knee pain and recommended she get some rest to heal. There was no medication prescribed, no referral to therapy, and no suggestion to modify her work activities or activities of daily living. I note that L.E. has not provided any further medical records beyond those in 2016.
ANALYSIS
Applicability of the MIG
11Section 18(1) of the Schedule provides that medical and rehabilitation benefits are limited to $3,500.00 if the insured sustains impairments that are predominantly a minor injury in accordance with the MIG. Section 3(1) defines a “minor injury” 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.”
12An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG. Alternatively, removal from the MIG can occur under s. 18(2), if an insured has a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment may warrant removal from the MIG. In all cases, the onus is on the insured to demonstrate on a balance of probabilities that the injuries fall outside the MIG.
13On the evidence, I find that L.E. suffered predominantly minor physical injuries as a result of the accident.
14My finding that L.E. suffered predominantly minor injuries is based on the following:
a. The Disability Certificate completed by physiotherapist Ms. Lambos notes that L.E. has returned to her pre-accident vocational activities. Further, Ms. Lambos makes no indication of any difficulties that L.E. was having with work on a continuous basis;
b. Despite L.E.’s claim of suffering from chronic pain, there is no evidence of functional disability and no discussions of the six criteria set out in the AMA Guides for assessing a chronic pain condition; and
c. There is no evidence of a psychological impairment as a result of the accident. There were no complaints noted in the medical records of Dr. Frank. Although the November 14, 2019 OCF-18 from Ms. Lambos notes that L.E. suffers “severe anxiety while driving”, she does not diagnose L.E. with any psychological condition. Further, as a physiotherapist, Ms. Lambos is not qualified to diagnose a psychological impairment; and
d. Aside from the OCF-18s, there is no further corroborative medical evidence after 2016 to support L.E.’s claims of entitlement to treatment.
15For these reasons, I find that L.E. has failed to establish on a balance of probabilities that her injuries are not predominantly minor. Consequently, L.E. has failed to establish that her accident-related injuries justify removal from and treatment beyond the MIG limit.
Are the OCF-18s reasonable and necessary?
16Having determined that L.E. has not demonstrated that removal from the MIG is warranted, an analysis of whether the OCF-18s are reasonable and necessary is not required, as the MIG limits have been exhausted. As no benefits are overdue, no interest is payable under s. 51.
DISCUSSION
Collateral Benefits
17Section 47(2) of the Schedule provides that insurers are not required to pay for any medical or rehabilitation expenses for which payment is reasonably available to an insured under any insurance plan or law.
18PAFCO submits that L.E. failed to confirm that any expenses were first submitted to and denied by her collateral benefits provider, Manulife.
19The Tribunal Order set out a production deadline of September 9, 2020 on consent of the parties. L.E. failed to produce the records of her collateral benefits provider until her written submissions were entered in October 2020. PAFCO submits that the Manulife records should not be admissible for this reason. While I would allow the Manulife records, I do not find that those records assist L.E. in her claim for the disputed OCF-18s.
20On the evidence, the Manulife records do not clearly outline which expenses were submitted and denied. In a letter dated September 2, 2020, Manulife confirmed payment for all physiotherapy treatment with the exception of services provided on six dates. Unfortunately, Manulife did not confirm how many treatment claims were submitted or how much treatment they have funded to date. PAFCO’s position is that as a result, it is unable to determine if the expense in the disputed Auto Insurance Standard Invoices have already been submitted and/or paid by Manulife.
21To avoid a situation of “double dipping”, where L.E. would be compensated twice, through Manulife and PAFCO, the onus is on her to provide sufficient evidence of any claims for treatment already paid by Manulife. PAFCO cannot be reasonably expected to provide funding in the circumstance where there is evidence of a collateral benefits provider. As a result, I agree with PAFCO that L.E. has failed to establish that payment for the expenses was not reasonably available through or already paid by Manulife.
Applicability of s. 38(8) and 38(11)
22Section 38(8) sets out that within 10 business days of receipt of a treatment plan, insurers are required to provide an insured with a notice, identifying the goods and services described in the treatment plan that it agrees to pay for and the medical and any other reasons why it considers the goods and services to be not reasonable and necessary. Section 38(11) provides the consequences of an insurer’s failure to comply with s. 38(8).
23L.E. submits that PAFCO failed to comply with s. 38(8) for the disputed OCF-18s. PAFCO’s position is that it complied with s. 38(8) and is not liable to pay for the disputed OCF-18s as a result of non-compliance.
24On the evidence, I agree with PAFCO. The January 15, 2019 OCF-18 was submitted on January 22, 2019. The Explanation of Benefits (“EOB”) denying the OCF-18 was sent to L.E. on February 5, 2019. This is 10 business days after the submission of the OCF-18.
25Similarly, the OCF-18 dated November 14, 2019 was submitted on November 28, 2019. An EOB was provided to L.E. on December 10, 2019, eight days after the OCF-18 was submitted.
26I find that PAFCO’s actions complied with the requirements under s. 38(8). As such, PAFCO is not liable to pay any benefits pursuant to s. 38(11).
INTEREST
27As there are no outstanding payments of benefits, it follows that interest is not payable.
AWARD
28L.E. seeks an award under s. 10 of O. Reg. 664, submitting that “the Insurer unreasonably withheld the payment of the benefits in dispute by failing to reconsider the benefits in dispute upon receipt of further evidence.” Pursuant to s. 10, the Tribunal may award up to 50% of the total benefits payable if it determines that the insurer unreasonably withheld or delayed the payment of benefits.
29I decline to grant an award. L.E. failed to meet her burden of proof and has exhausted the MIG limits. I agree with PAFCO that she has failed to demonstrate entitlement to the disputed OCF-18s. Further, L.E. has failed to provide relevant evidence that hindered the insurer from adequately adjusting her file. There is no evidence of unreasonable withholding or delaying of payment. It follows that as no benefits are payable, an award is not appropriate.
ORDER
30L.E. has not satisfied her burden to establish that her injuries are not predominantly minor and required treatment beyond the MIG. She is not entitled to interest or an award. The application is dismissed.
Released: April 20, 2021
Derek Grant
Adjudicator