Licence Appeal Tribunal
Release date: 05/18/2021
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:
Anna Haraburda
Applicant
and
Allstate Insurance
Respondent
DECISION
ADJUDICATOR:
Marisa Victor, Member
APPEARANCES:
For the Applicant:
Anna Haraburda, Applicant
Gordon Harris, Counsel
For the Respondent:
Allstate Insurance, Representative
Nawaz Tahir, Counsel
HEARD:
By way of written submissions
OVERVIEW
1The applicant was involved in an automobile accident on May 4, 2017 (“first accident”) and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).
2The applicant applied for medical benefits following the accident and the respondent, Allstate Insurance (“Allstate”) paid benefits up to the maximum allowed under the Minor Injury Guideline (“MIG”).
3The applicant was then in a second automobile accident on January 2, 2018 (“second accident”). After the second accident, the applicant applied for accident benefits from the Allstate in relation to that accident. Allstate accepted that because of the first accident, the applicant’s injuries in relation to the second accident were no longer within the MIG.
4After the second accident, the applicant requested further benefits outside of the MIG in relation to the first accident. The respondent denied those claims. The applicant then applied for dispute resolution before the Tribunal.
ISSUES
5The issues in dispute were identified and agreed to as follows:
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 MIG?
ii. Is the applicant entitled to receive an income replacement benefit (“IRBs”) in the amount of $400.00 per week for the period May 15, 2017 to date and ongoing?
iii. Is the applicant entitled to a medical benefit in the amount of $2,284.00 for chiropractic treatment recommended by Activa Clinics in a treatment plan (OCF-18) submitted on May 17, 2017, and denied by the respondent on May 25, 2017?
iv. Is the applicant entitled to a medical benefit in the amount of $2,907.44 for chiropractic treatment recommended by Michael Rumeo in a treatment plan (OCF-18) submitted on July 12, 2017 and denied by the respondent on July 19, 2017?
v. Is the applicant entitled to payments for the cost of examinations in the amount of $2,147.00 for an assessment of attendant care needs and Form 1, recommended by Medex Assessments Inc. in a treatment plan dated July 31, 2017 and denied by the respondent on September 12, 2017?
vi. Is the applicant entitled to payments for the cost of examinations in the amount of $2,260.00 for a psychological assessment, recommended by Dr. Z. Chernovsky in a treatment plan dated August 1, 2017 and denied by the respondent on August 11, 2017?
vii. Is the applicant entitled to payments for the cost of examinations in the amount of $1,978.63 for an assessment of attendant care needs and Form 1, recommended by Rehab First in a treatment plan dated May 14, 2018 and denied by the respondent on June 19, 2018?
viii. Is the applicant entitled to a medical benefit in the amount of $3,482.28 for a physiotherapy assessment and treatment recommended by European Physiotherapy Centre in a treatment plan (OCF-18) submitted on May 18, 2018 and denied by the respondent on June 1, 2018?
ix. Is the applicant entitled to payments for the cost of examinations in the amount of $4,200.00 for a physiatry assessment, recommended by Dr. Kumbhare in a treatment plan dated July 18, 2018 and denied by the respondent on July 31, 2018?
x. Is the applicant entitled to a medical benefit in the amount of $3,565.88 for occupational therapy and assistive devices recommended by Rehab First in a treatment plan (OCF-18) submitted on January 17, 2019 and denied by the respondent on January 30, 2019?
xi. Is the respondent liable to pay an award under Regulation 664 of the Revised Regulations of Ontario 1990 (R.R.O. 1990) (‘Regulation 664’) because it unreasonably withheld or delayed payments to the applicant?
xii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
6I find that the applicant’s injuries are predominantly minor as defined in s. 3(1) of the Schedule and subject to treatment within the $3,500.00 limit in the MIG. As the MIG benefits have been exhausted, the benefits in dispute in issues iii to x are not reasonable and necessary. The applicant is also not entitled to IRBs. No award or interest is due.
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 MIG?
Applicant’s Evidence & Submissions
7The applicant relies on the following medical, treatment and reporting evidence to support her claim that her injuries fall outside of the MIG:
a. October 2, 2017 and October 30, 2017 – Dr. Goel, family doctor, clinical notes and records (CNRs) showing ongoing pain in neck and shoulder, buzzing sounds in her ear, headaches, dizziness in the morning and chronic pain;
b. 2018 - Massage therapy notes from European Physiotherapy and Massage Clinic notes and records stating applicant has chronic neck and shoulder pain, headaches and insomnia;
c. 2018 - Physiotherapy notes from European Physiotherapy and Massage Clinic notes and records stating applicant has muscle pain, headaches and ear ringing following two accident;
d. January 24, 2018 – MRI showing degenerative disc disease;
e. September 11, 2018 – Dr. Hafidh, otolaryngologist, hearing loss consultation confirming hearing loss and possible TMJ dysfunction. The report does not mention the second accident.
f. September 20, 2018 – Psychological assessment report from Sean Shahrokhnia, MA prepared following second accident which refers to first accident, finding Major Depressive Disorder and chronic pain;
g. January 11, 2019 – Retroactive Occupational Therapy Report reporting pain, fatigue and needing assistance with some tasks such as dressing, preparing food and bathing. The report does not refer to the second car accident;
h. February 13, 2019 - Dr. Jaber note stating applicant has chronic back and shoulder pain stemming from accident in 2017;
i. June 25, 2020 – Dr. Kumbhare, physiatrist, examined the applicant on January 31, 2019. He reported her complaints of headache, neck and shoulder pain, chest pain, lower back pain, ringing in her ears, mood complaints; and
j. July 27, 2019 to March 6, 2020 – Osteotherapy notes and records showing applicant complained of neck and back pain, chest pain, dizziness, and headaches.
8The applicant submits that she works as a patient service attendant at St. Mary’s Hospital and did so at the time of the accident. She states that her position is part-time, but she works 36-50 hours each week. She states that she initially took one week off and then returned to work but then took 11 weeks off work at which point she returned to regular hours on modified duties which continue today.
9The applicant relies on M.F.Z. v Aviva Insurance Canada, Reconsideration Decision, 2017 CanLII 63632 (“MFZ”) for the proposition that if notice is deficient, the respondent is required to pay for all goods and services without consideration as to whether the disputed benefits are reasonable and necessary. The applicant states that by denying the benefits on the basis that the applicant was within the MIG, the denials were deficient because the respondent failed to provide a medical basis for the denials. The applicant also relies on M.B. v Aviva Insurance Canada, 2017 CanLII 87160 for the proposition that the denials failed to include consideration of the applicant’s conditions.
10The applicant submits that the respondent failed in its duty to reassess the claim as new information became available, a proposition she says is supported by Cowans and Motors Ins Co (FSCO A09-003237) October 15, 2010.
11The applicant argues that the respondent cannot rely on a statement by the applicant to her family doctor that she was not interested in pursuing psychological treatment if there is credible evidence to the contrary.
12Finally, the applicant submits that the respondent has failed to consider the applicant’s risk of developing chronic pain and relies on Smith v Co-operators General Insurance Co., 2002 SCC 30.
Respondent’s Evidence & Submissions
13The respondent submits that the applicant’s evidence does not show medical evidence prior to the second accident that indicates her injuries from the first accident should removed her from the MIG. Secondly, the respondent argues that evidence of collateral psychological impairment, does not remove the applicant from the MIG.
14The respondent relies on the following medical evidence:
a. All documentation provided prior to the second accident shows whiplash associated disorder, grade II symptoms with associated sequelae which fall within the MIG;
b. The appellant’s medical document listed above, are almost entirely post the second accident. Some do not note the second accident in the patient’s history;
c. September 13, 2017 - Dr. Saplys, orthopaedic surgeon, conducted an insurer’s examination (“IE”) and found the applicant had returned to previous housekeeping duties with pain, had returned to work completing her regular hours, tingling down her right hand which was not neurological, and uncomplicated soft tissue injuries;
d. October 12, 2017 – Dr. Ilacqua, psychologist, conducted an IE and found independent self-care, pain in neck, shoulder, lower back and right arm, adjustment disorder together with anxiety and depression, temporary in nature, and that the applicant was a marginal candidate for psychological treatment;
e. August 18, 2020 – Examination under oath of the applicant where she did not endorse psychological issues prior to the second accident, and only mentioned depression once in relation to work; and
f. January 8, 2018 – Dr. Goel’s CNRs show the applicant does not wish to attend psychological therapy.
15The respondent relies on N.K. v Wawanesa Mutual Insurance Company, 2020 CanLII 27381 (ON LAT) (“NK”) at paragraphs 7 and 8 for the proposition that an applicant has the burden of proving that they should be removed from the MIG. The respondent also relies on NK at paragraph 13 for the proposition that a psychological diagnosis requires the development of ongoing, substantive and residual post-traumatic symptomology of clinically significant psychological distress.
ANALYSIS
16Section 3(1) of the Schedule defines minor injuries. The MIG establishes a framework for the treatment of those minor injuries limiting recovery for medical and rehabilitation benefits for predominantly minor injuries to $3,500 (s. 18(1) of the Schedule).
17I agree with the submissions of the respondent that the applicant bears the burden of proving that her injuries are outside the MIG. The applicant can show that her injuries should fall outside of the MIG framework if she can demonstrate on a balance of probabilities that she suffers from a pre-existing medical condition, chronic pain or a psychological impairment that prevents her recovery under the MIG. I find she has not done so.
18I find the medical evidence clearly indicates that the applicant sustained minor injuries. The medical reports both from the applicant and from the IEs conducted on behalf of the respondent, are consistent in her complaints of neck and back injury, headache, ear-ringing, arm tingling (non-neurological) and insomnia.
19Very few of the applicant’s medical documents pre-date the second accident – the only notable exception being the family doctor records. There is only one entry by the family doctor in October 2017 noting chronic pain and no further evidentiary or medical support to show that the applicant has suffered from chronic pain such that it has affected her work life or personal life. Nor do I find that the respondent has failed to consider chronic pain since the medical records are significantly lacking in showing that the first accident caused chronic pain. I therefore do not find that the evidence supports a finding of chronic pain.
20The applicant’s evidence after the second accident are of little assistance to the applicant. Dr. Hafidh’s report and the January 11, 2019, occupational therapy report both fail to note that the second accident even occurred. I therefore find that those reports cannot be relied on. Further, the occupational therapy report states that the applicant requires attendant care for daily living which is in stark contrast to all the other medical reports showing that she has returned to work and is independent in her self-care. The other evidentiary records continue to report the same minor injuries, primarily pain in the neck, shoulder and back and headaches, as previously noted, and do not show injuries that are outside the MIG.
21The respondent’s evidence consists of two IEs conducted by the insurer. These contain the most persuasive evidence regarding the applicant’s injuries and symptoms given their nearness in time to the first accident and because they pre-date the second accident. As a result, I prefer these reports as evidence over the applicant’s post-second accident evidence and rely on their findings.
22I agree that the psychological injuries must show some the development of ongoing and continuous struggle that affect her function. Dr. Ilacqua’s conducted an IE and in that report found that the applicant had anxiety and depression, temporary in nature, and was a marginal candidate for psychological treatment. I do not find that the applicant has purportedly rejected further psychological treatment. However, her self-reporting to other medical practitioners and her examination under oath do not support that she has psychological injuries from the first accident that require her to be removed from the MIG. The applicant has failed to show on a balance of probabilities that she suffers from a psychological impairment caused by the first accident that would benefit from treatment. As a result, I find that the applicant has not demonstrated that her accident-related injuries or psychological impairments warrant removal from the MIG.
23The applicant’s limits under the MIG have been exhausted. Since I have determined that the applicant’s injuries are properly within the MIG, it is not necessary to conduct an analysis of whether the various treatment plans in dispute in issues iii to x are reasonable and necessary pursuant to s.15 of the Schedule.
24The applicant also argues that the denials provided for the disputed benefits were not in accordance with the Schedule, I disagree. I find that the notices were valid in that they correctly stated that the applicant’s benefits were being denied on the basis that the applicant had exhausted her benefits under the MIG. The respondent’s denials complied with s. 38(8) of the Schedule by providing the “medical reasons and all of the other reasons” (emphasis added) why the insurer considers the benefits not to be reasonable and necessary.
25The only exception, with regard to the validity of the denials, is in relation to issue viii. The respondent agrees with the applicant that the denial was not clear and unequivocal because the respondent has not yet denied the benefit. The respondent argues that the applicant has not complied with a request that the treatment plan be resubmitted with information matching the applicant’s information on file. I agree with the position of the respondent and note that the applicant did not directly address this issue in her submissions. I therefore find that the claim has not yet been denied. In addition, if the application for this benefit is in relation to the first accident, the applicant has already exhausted her limits.
Is the Applicant Entitled to Receive IRB In the Amount Of $400.00 Per Week for The Period May 15, 2017 to Date and Ongoing?
Applicant’s Evidence and Submissions
26The applicant argues that the respondent was aware that, after the first accident, the applicant had missed work for one week, returned and then missed work for another 11 weeks before returning. The applicant relies on an OCF-3 which stated this, and the adjuster’s log notes. The applicant also reported this to Dr. Saplys during that IE, and it was noted in the report.
27The applicant also relies on an OCF-3 for IRB coverage dated May 17, 2017 (“the OCF-3”).
28The applicant submits that the respondent failed to pay IRBs for the 11 weeks that the applicant was off work, not including the first week off work which is not covered by IRB benefits.
Respondent’s Evidence & Submissions
29The respondent submits that the applicant never applied for IRBs and therefore there was no denial. The respondent states that the applicant is now out of time.
30The respondent provided information to the applicant as to how to apply for IRBs in the explanation of benefits received by the applicant dated May 4, 2017. The explanation notes that the first week off work is not covered by IRBs.
31The respondent argues that it never received the OCF-3 and that it was submitted only during the LAT process in June 2020. The respondent relies on its log notes for evidence it did not receive the document. Further, the respondent notes that if it were submitted in May 2017, there was no follow up by the applicant’s counsel.
32The respondent argues that it was under no obligation to pay IRBs without a proper application. Comments to assessors do not trigger an IRB claim given that the onus is on the applicant to apply for benefits, especially as some insured persons may not apply for IRBs if they have collateral benefits.
33The respondent relies on B.B. v Aviva, 2020 CanLII 12708 (ON LAT) (“BB”) for the proposition that an applicant is not entitled to IRBs if they fail to apply for any period before the complete disability certificate is submitted.
ANALYSIS
34I find that that the totality of the evidence shows that the applicant failed to submit an OCF-3 for IRBs until June 2020. The fact that the OCF-3 is dated in 2017 does not indicate it was submitted to the respondent at that time. The log records are silent on the issue of this application. Further, the applicant was represented by counsel and there was no follow up on this issue until the start of the LAT process. Finally, there was no reply by the applicant addressing the respondent’s submissions.
35Following the decision in BB, I find that the applicant is not entitled to IRBs until after the receipt of the OCF-3 which was on June 19, 2020. Although the issue was framed as whether the applicant is entitled to IRBs from May 2017 and ongoing, I note that no evidence was submitted to support an ongoing claim for IRBs. The only time period in question was the 11 weeks of work missed in 2017. As such no IRBs are payable as the applicant returned to her position at her regular hours in 2017.
Is the Respondent Liable to Pay an Award Under Regulation 664 Or Pay Interest on Any Overdue Payments of Benefits?
36Regulation 664 provides that if the Tribunal finds that an insurer has unreasonably withheld of delayed payment of benefits, the Tribunal may grant an award of up to 50 percent of the amount to which the applicant was entitled plus interest.
37As I have found that no benefits are owing, the applicant is not entitled to an award.
38Similarly, as I have found that there are no overdue payments of benefits, no interest is owing.
CONCLUSION
39I find that:
a. The applicant’s injuries from the first accident fall within the MIG;
b. The applicant is not entitled to IRBs;
c. The applicant is not entitled to interest or an award; and
d. The application is dismissed.
Date of Issue: May 27, 2021
Marisa Victor, Adjudicator