Release date: 06/09/2021
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:
[AB]
Applicant
and
The Co-Operators Insurance Company
Respondent
DECISION
ADJUDICATOR:
Derek Grant
APPEARANCES:
For the Applicant:
[AB], Applicant
Aline Avanessy, Counsel
For the Respondent:
The Co-Operators Insurance Company, Representative
Emily Schatzker, Counsel
Court Reporter
Guido Riccioni
Interpreter
Greek
HEARD by Videoconference:
February 16, 2021
OVERVIEW
1The applicant, A.B., was involved in an automobile accident on November 21, 2016, and sought benefits from the respondent, Co-Operators, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 20101 (the ''Schedule''). The applicant was denied certain benefits by the respondent and submitted an application to the Tribunal for resolution of the dispute.
2Co-operators raised two preliminary issues: a) that A.B. was statute-barred from proceeding with his claim for non-earner benefits under s. 56 of the Schedule because he failed to appeal its denial within the two-year limitation period; and b) that he was not entitled to some medical benefits due to his non-compliance with s. 44 of the Schedule as he failed to attend an insurer examination (“IE”).
3If I find that A.B. has failed to dispute the respondent’s denial within two years pursuant to s. 56 of the Schedule, then an analysis of his entitlement to the non-earner benefit is not required. Further, if I find that A.B. did not comply with the requirements under s. 44, an analysis of whether the disputed treatment plans from 2017 are reasonable and necessary is also not required.
PRELIMINARY ISSUES
4The respondent raised the following preliminary issues:
a. Is A.B. barred from proceeding with his application disputing the following benefits because he failed to commence his application within two years after Co-operators’ denial of the benefits pursuant to s. 56 of the Schedule?
i. Is A.B. entitled to a non-earner benefit in the amount of $185.00 per week for the period of November 21, 2016 or May 21, 2016 to date and ongoing?
ii. $3,488.00 for chiropractic services provided by Myohealth Rehabilitation and Wellness Centre in a treatment plan submitted March 1, 2017;
iii. $2,452.71 for psychological services provided by Myohealth Rehabilitation and Wellness Centre in a treatment plan submitted February 14, 2017;
iv. $1,429.37 for chiropractic services provided by Myohealth Rehabilitation and Wellness Centre in a treatment plan submitted March 13, 2017; and
v. $1,339.57 for chiropractic services provided by Myohealth Rehabilitation and Wellness Centre in a treatment plan submitted March 27, 2017?
b. Is A.B. barred from proceeding with his claim for non-earner and attendant care benefits because he failed to attend an IE pursuant to s. 44 of the Schedule?
SUBSTANTIVE ISSUES
5The substantive issues to be decided are as follows:
a. Is A.B. entitled to a non-earner benefit in the amount of $185.00 per week for the period of November 21, 2016 or May 21, 2016 to date and ongoing?
b. Is A.B. entitled to an attendant care benefit in the amount of $1,840.99 per month for the period of November 21, 2016 to date and ongoing?
c. Is A.B. entitled to a medical benefit in the amount of $3,488.00 for chiropractic services provided by Myohealth Rehabilitation and Wellness Centre in a treatment plan submitted March 1, 2017 and denied on March 1, 2017?
d. Is A.B. entitled to a medical benefit in the amount of $2,452.71 for psychological services provided by Myohealth Rehabilitation and Wellness Centre in a treatment plan submitted February 14, 2017 and denied on February 28, 2017?
e. Is A.B. entitled to a medical benefit in the amount of $1,429.37 for assistive devices provided by Myohealth Rehabilitation and Wellness Centre in a treatment plan submitted March 13, 2017 and denied on March 15, 2017?
f. Is A.B. entitled to a medical benefit in the amount of $1,339.57 for chiropractic services provided by Myohealth Rehabilitation and Wellness Centre in a treatment plan submitted March 27, 2017 and denied on March 30, 2017?
g. Is A.B. entitled to a medical benefit in the amount of $646.26 for chiropractic services provided by Myohealth Rehabilitation and Wellness Centre in a treatment plan submitted May 19, 2017 and denied on May 24, 2017?
h. Is A.B. entitled to a medical benefit in the amount of $1,553.75 for occupational therapy services provided by Myohealth Rehabilitation and denied on November 24, 2017?
i. Is A.B. entitled to a medical benefit in the amount of $840.00 for physiotherapy services provided by Myohealth Rehabilitation and Wellness Centre in a treatment plan submitted January 29, 2018 and denied on February 8, 2018?
j. Is A.B. entitled to a medical benefit in the amount of $2,548.93 for chiropractic services provided by Myohealth Rehabilitation and Wellness Centre in a treatment plan submitted February 9, 2018 and denied on February 23, 2018?
k. Is A.B. entitled to a medical benefit in the amount of $2,454.24 for medical services provided by Myohealth Rehabilitation and Wellness Centre in a treatment plan submitted July 17, 2018 and denied on July 20, 2018?
l. Is A.B. entitled to a medical benefit in the amount of $2,472.80 for chiropractic services provided by Myohealth Rehabilitation and Wellness Centre in a treatment plan submitted October 15, 2018 and denied on October 16, 2018?
m. Is A.B. entitled to a medical benefit in the amount of $3,541.00 for physiotherapy services provided by Myohealth Rehabilitation and Wellness Centre in a treatment plan submitted April 2, 2019 and denied on April 9, 2019?
n. Is Co-operators liable to pay an award under s.10 of Ontario Regulation 664 because it unreasonably withheld or delayed payments to the applicant?
o. Is A.B. entitled to interest on any overdue payment of benefits?
6At the hearing, the applicant withdrew issues 5b., 5d., 5e., and 5h.
FINDING
7As it pertains to the 2017 treatment plans, I find that A.B. failed to dispute the respondent’s denial of the benefits within the two-year limitation period. Therefore, he is not entitled to any of the 2017 treatment plans. In addition, due to his non-compliance under s. 44, A.B. is not entitled to the non-earner benefit.
8Regarding the 2018/2019 treatment plans, A.B. has not demonstrated that the disputed plans are reasonable and necessary.
ANALYSIS
The 2017 Treatment Plans
Did Co-Operators issue a proper notice of denial?
9Section 56 of the Schedule sets out that an application under subsection 280(2) of the Insurance Act in respect of a benefit shall be commenced within two years after the insurer’s refusal to pay the amount claimed.
10In order for the provision under s. 56 to be triggered, I must determine whether Co-Operator’s notice of denial was proper in accordance with the principles set out in Smith v. Co-Operators General Insurance Company.2 It is well-established that a notice of refusal to pay benefits must contain clear and straightforward language, must be directed towards an unsophisticated person, must clearly set out the dispute resolution process and the time limit to dispute the denial. Further, the notice must provide a valid medical and any other reason for the denial. If an insurer’s notice of denial to an insured does not satisfy these requirements within the timelines prescribed by the Schedule, the denial may be determined to be invalid and fail to trigger the two-year limitation period.
11A.B. submits that the limitation period did not commence until he received the s. 44 report provided in December 2019. I disagree. Based on my review of the Explanation of Benefits dated March 1, 2017, I find that Co-operators’ denial notice was proper and in accordance with the requirements set out in the Schedule and the principles in Smith. Further, I find that the notice of denial contained clear and straightforward language and was directed to an unsophisticated person (it uses simple language indicating “Not Eligible”). The notice also outlined the dispute resolution process (with the standard form outlining the process being attached), and sets out the relevant time limits that govern the resolution process (the two-year limitation period is highlighted) and provided valid “other” reasons for the denial (including the explanation that a s. 44 assessment was required).
12In addition, I also find that A.B. failed to comply with Co-Operators’ s. 44 IE requests, which precludes him from receiving funding for medical treatment. A.B. testified that he was waiting to be picked up, but no one showed up, and that was the reason he failed to attend the s. 44 examinations. I place little weight on this explanation based on the surveillance evidence that showed A.B. driving his own personal vehicle on different occasions, which in my view is evidence that he was able to take himself to the s. 44 examinations.
13Several follow up requests were made by Co-Operators pursuant to s. 33 and s. 44. Co-operators acknowledged receipt of previously requested documents (evidenced in the correspondence between 2017 and 2018). However, between April 2017 and October 2018, A.B. failed to attend several s. 44 assessments, despite repeated requests to attend and/or reschedule appointments. There are two consequences for the non-compliance. The first results in prejudice to Co-operators’ ability to assess the extent of A.B.’s accident-related injuries and the proper level of treatment required to address same. Second, and more impactful, is the right of refusal on Co-operators part to provide funding for any treatment as a result of non-compliance.
14I find Co-operators properly advised A.B. of the essential elements related to his non-compliance, being: a) no entitlement to the claimed benefits; b) the medical and other reasons for the denials; c) the dispute process and limitation period was clearly set out in each correspondence.
Section 7 of the Licence Appeal Tribunal (“LAT”) Act
15Section 7 of the LAT Act allows the Tribunal to exercise statutory discretion to extend the time for commencing an application under certain circumstances if it is persuaded that the justice of the case supports it. There are four factors of consideration: the existence of a bona fide intention to appeal within the time period; the length of the delay; prejudice to the other party; and the merits of the appeal.
16In his opening statement, A.B. raised the issue of s. 7, however, he did not make any further substantive submissions on the four factors or the reasonableness of an extension of time. Co-operators addressed the request pointing to several factors, such as A.B.’s non-compliance, its proper denial notices and the prejudice it would face as the overarching factors that support denying the request.
17I agree with Co-operators. Although A.B.’s position is that the limitation period did not start until the December 2019 s. 44 report was provided, that is not a requirement under s. 56. The clock starts when a proper notice of denial is provided. In this case: March 1, 2017. While I am aware that the application came two days after the two-year deadline, I find the non-compliance factors to be persuasive given the extensive correspondence that took place between 2017 and 2018. Since there is no evidence that A.B. complied with the s. 44 requests for the 2017 treatment plans, I find that he has not demonstrated that his request has merit. Therefore, I decline to grant the extension of the limitation period under s. 7.
The 2018/2019 Treatment Plans
18For the reasons that follow, I find that the disputed medical benefits are not reasonable and necessary.
19A.B. relies on the evidence of his family physician, Dr. Karantonis, chiropractor George Charalambous and occupational therapist Remik Zakrzewski in support of his claims for the treatment plans. A.B. claims that the records and reports of his treatment providers support that the treatment plans are reasonable and necessary.
20Dr. Karantonis testified that physiotherapy was recommended in a May 15, 2018 note, however, x-ray evidence showed no evidence of accident-related degenerative issues. Dr. Karantonis further testified that A.B.’s back pain was not severe enough to refer to a specialist.
21Chiropractor George Charalambous testified that A.B. reported neck, mid and low back pain with anxiety and low mood. Mr. Zakrzewski also testified that A.B. had posterior neck and low back pain. Mr. Charalambous opined that the accident caused a compression fracture in A.B.’s back.
22Co-operators’ position is that A.B. has not established that the treatment plans are reasonable and necessary and that the evidence supports that no further facility-based treatment is required. Further, it argues that the inconsistency of the pain complaints to the occupational therapist bring into question the extent of A.B.’s injuries.
23Co-operators relies on the reports of its assessor Dr. Zabieliauskas, who notes that A.B. suffered strain injuries, and that there was no medical reason to consider treatment based on the medical evidence.
24I prefer the evidence of Dr. Zabieliauskas over the evidence of A.B.’s treatment providers for the following reasons. First, the evidence A.B. relies on does not support that his compression fracture was caused by the accident. Second, the medical evidence from the family physician notes strain type injuries, also supported by the diagnostic imaging reports. Lastly, as a chronic pain specialist, Dr. Zabieliauskas would have a more specialized understanding of pain symptomatology compared to that of the chiropractor.
25In order to receive funding for a medical benefit under the Schedule, the onus is on the applicant to demonstrate on a balance of probabilities that the treatment is reasonable and necessary. The determination should be based on an analysis of the reasonableness of the treatment goals, how the goals are being met to a reasonable degree and that the overall cost of achieving the goals is reasonable. I find A.B. has not met his onus on a balance of probabilities.
INTEREST
26As a result of the above, there are no overdue payments of benefits, accordingly, no interest is payable.
ORDER
27A.B. failed to dispute the denial of the 2017 treatment plans within the two-year limitation period, therefore he is statutory barred from proceeding with his claim.
28Due to s. 44 non-compliance, A.B. is not entitled to a NEB.
29A.B. has not met his onus on a balance of probabilities that the 2018/2019 treatment plans are reasonable and necessary.
Released: June 9, 2021
Derek Grant, Adjudicator
Footnotes
- O. Reg. 34/10.
- 2002 SCC 30, at para 14.