McCurdy v. Allstate Insurance Company of Canada, 2021 CanLII 76572

McCurdy v. Allstate Insurance Company of Canada

Citation: McCurdy v. Allstate Insurance Company of Canada, 2021 ONLAT 20-000935/AABS

Release date: 08/18/2021

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:

Dwayne McCurdy

Applicant

and

Allstate Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR:

Jesse A. Boyce, Vice-Chair

APPEARANCES:

For the Applicant:

Tanzeela Ansari, Counsel

For the Respondent:

Brittanny Tinslay, Counsel

HEARD:

By way of written submissions

OVERVIEW

1The applicant was injured in an accident on November 27, 2017 and sought benefits and an income replacement benefit (“IRB”) from the respondent, Allstate, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010¹ (''Schedule''). Allstate denied the benefits in dispute on the basis of its determination that the applicant’s accident-related impairments were predominantly minor injuries and therefore subject to treatment within the Minor Injury Guideline (“MIG”). It denied the IRB because the applicant had not provided sufficient information to support his claim. The applicant disagreed and submitted an application to the Tribunal for resolution of the dispute.

ISSUES IN DISPUTE

2The following issues are in dispute:

a. 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?

b. Is the applicant entitled to an IRB from April 15, 2018 to date and ongoing, and if so, in what amount?

c. Is the applicant entitled to $900 for massage and physiotherapy treatment payment, submitted by Wilson Massage and Physiotherapy Ltd., in a treatment plan (OCF-18) dated January 27, 2018 and denied on January 31, 2018?

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

RESULT

3The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The treatment plan in dispute is not reasonable and necessary and no interest is payable. The applicant is not entitled to payment of an IRB as he has not demonstrated a substantial inability to perform the essential tasks of his employment for the period April 15, 2018, to date and ongoing.

ANALYSIS

Applicability of the MIG

4Section 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.” An insured may be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, under s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition precludes recovery if they are kept within the confines of the MIG. The Tribunal has also determined that chronic pain with functional impairment or a psychological condition may warrant removal from the MIG. In all cases, the burden of proof lies with the applicant.

5I agree with Allstate and find that the applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The actual physical injuries listed in the OCF-3 dated December 5, 2017 all fall squarely within the definition of a minor injury, as they are identified as sprains and strains of the cervical and lumbar spine, sprain and strain to the finger(s), WAD-2 and neck pain with headaches. There is no indication in the file that he has any physical accident-related impairments that should be considered outside of the definition of a minor injury under s. 3(1) and he did not provide any diagnostic imaging reports to suggest that he sustained a tear or fracture that would remove him from the MIG. He was purportedly prescribed acetaminophen and physiotherapy.

6The applicant’s submissions gesture towards his medical documents but do not make specific references to support his assertions that he suffers “from physical and psychological injuries” that warrant removal from the MIG or how his life has “changed to a great degree” following the accident. Notably, no medical records were provided after March 15, 2018, wherein the clinical note states “MVA trauma – resolved” and I note that Allstate’s s. 33 requests have gone unfulfilled. While clinical notes from as far back as 2012 were provided, there are no submissions or a medical opinion on pre-existing impairments that would prevent recovery under s. 18(2). In a similar vein, while the applicant asserts he has pain, it does not appear that he has ever been diagnosed with chronic pain and he did not offer submissions on any functional impairments. Finally, while his submissions state that he suffered a psychological impairment, the Tribunal was not directed to evidence of an accident-related diagnosis in the over 200 pages of largely illegible clinical notes that were provided. It appears that the applicant returned to full-time work as a warehouse worker in April 2018 and there has been limited communication with him since.

7For these reasons, the applicant has fallen well-short of meeting his burden of proof. On the medical evidence before the Tribunal, I see no basis to interfere with Allstate’s determination that he is subject to treatment within the MIG.

Is the treatment plan reasonable and necessary?

8Having determined that the applicant has not demonstrated that removal from and treatment beyond the MIG is required, it remains unclear how much of the MIG limit the applicant has available to him. In dispute is purportedly a $900 treatment plan, however, the applicant failed to provide the OCF-18 or an invoice to support this claim. Allstate’s submissions further articulated the confusion surrounding the claim and whether or not it has already been paid, the proposing clinic’s apparent inability to contact him and the fact that its s. 33 requests have gone unfulfilled.

9The applicant failed to provide submissions to speak to his claim, the goals of the proposed treatment, whether it was incurred and, importantly, has also failed to submit the actual OCF-18 and invoice that would provide the Tribunal with evidence to make its determination. Where the burden of proof rests with the applicant, I find he has again fallen well-short of meeting his burden and he is not entitled to payment in the amount of $900 for the OCF-18. As no benefits are overdue, it follows that no interest is payable under s. 51.

Is the applicant entitled to an IRB?

10The Schedule provides that an IRB is payable where a person was employed at the time of the accident and suffers, as a result of, and within 104 weeks after the accident, a substantial inability to perform the essential tasks of their employment.

11The applicant submitted an OCF-3 and a completed OCF-2 from Ceva Logistics in support of his IRB claim. The OCF-2 states that he was employed as a warehouse worker with the company since May 2014 and that he had access to income continuation and collateral medical benefits through his employer. On this basis, Allstate made s. 33 requests on January 3, 2018 for, amongst other medical documents, pay stubs from November 27, 2017 to present, a copy of statements and correspondence from the applicant’s providers Sunlife and Greenshield and his employee file from Ceva Logistics. Allstate made a second request on February 26, 2018 for the documentation to support the IRB claim and, after its request went unfulfilled, it advised the applicant on July 5, 2018 that it was holding him in non-compliance with s. 33 and that IRBs were not payable until the requested documentation was received. Further, Allstate submits that it was able to confirm with the applicant’s employer that he returned to work on March 19, 2018 on modified hours and returned to full-time employment on April 16, 2018. Notably, the IRB period in dispute is April 15, 2018 to date and ongoing.

12Problematically, the applicant did not offer submissions on entitlement to the IRB he claims, did not speak to his failure to comply with Allstate’s s. 33 requests, did not engage with the IRB test under s. 5 and did not provide any medical evidence to support a disability with respect to his employment for the period in dispute, being April 15, 2018 to date. While a warehouse worker job description was provided, the applicant did not provide any submissions to demonstrate what aspects of his job he was substantially unable to perform as a result of the accident during the relevant period. While the OCF-3 dated December 5, 2017 states he is substantially unable to perform the essential tasks of his employment, again, this does not speak to the period in dispute where the applicant purportedly returned to full-time duties in April 2018. In a similar vein, he remains non-compliant with s. 33 requests and the Tribunal’s Order to produce certain documentation relevant to his claim and IRB calculation. I see no reason to interfere with Allstate’s determination.

13For these reasons, I find the applicant is not entitled to payment of an IRB as he has not demonstrated a substantial inability to perform the essential tasks of his employment for the period April 15, 2018 to date and ongoing.

CONCLUSION

14The applicant has not demonstrated that his accident-related impairments warrant removal from the MIG. The treatment plan in dispute is not reasonable and necessary and no interest is payable. The applicant is not entitled to payment of an IRB as he has not demonstrated a substantial inability to perform the essential tasks of his employment for the period April 15, 2018, to date and ongoing.

Footnotes

1. 1O. Reg. 34/10, as amended.