Citation: R.N. v. Intact Insurance Company, 2022 ONLAT 20-010571/AABS

Licence Appeal Tribunal File Number: 20-010571/AABS

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:

[R.N.]

Applicant

and

Intact Insurance Company

Respondent

DECISION

VICE-CHAIR:

Tyler Moore

APPEARANCES:

For the Applicant:

Fawad Siddiqui, Counsel

For the Respondent:

Emily Wilson, Counsel

HEARD:

By Way of Written Submissions

BACKGROUND

1The applicant, who was 14 years old at the time, was involved in an automobile accident on October 13, 2017. She was a seat-belted rear passenger of a vehicle when her vehicle was struck from behind by another vehicle. The applicant was transported to hospital by ambulance. She was discharged from hospital the same day with a diagnosis of muscular pain in her upper back and advised to take Advil. There was no indication that she lost consciousness or sustained a head injury as a result of the accident.

2The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”).

3The applicant was denied certain benefits by Intact Insurance Company, (“the respondent”), and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”).

4A case conference was held on February 11, 2021, and a written hearing was scheduled.

ISSUES

5The issues to be decided in the hearing are:

1. Are the applicant’s injuries predominantly minor as defined in section 3 of the Schedule and therefore subject to the Minor Injury Guideline (“the MIG”) and the $3,500.00 funding limit on medical benefits?

2. Is the applicant entitled to chiropractic treatment in the amount of $2,212.40, recommended by [treatment provider] in a treatment plan (“OCF-18”) dated May 27, 2018?

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

4. Is the respondent liable to pay an award under Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

Result

6The applicant has failed to demonstrate that her injuries and impairments warrant treatment beyond the MIG. Her treatment is confined to the $3,500 limit of the MIG. That amount has been previously approved by the respondent. Accordingly, the disputed treatment plan is not reasonable and necessary, and no interest is payable. No award is payable.

PROCEDURAL ISSUES

7The respondent raised some additional issues in response to the applicant’s submissions. For example, the respondent made multiple unanswered requests from the applicant for all clinical notes and records from 3 years pre-accident to date. Physiotherapy notes and records from [treatment provider] and the applicant’s school records were also not produced until after the production deadline of July 30, 2021, as per the CCRO dated February 11, 2021. As a result, the respondent requested that an adverse inference be drawn, and that the late productions excluded from the record.

8The applicant submits that the documents were not produced because the respondent didn’t pay for them. While I agree that those documents were not produced and produced late, the onus is on the applicant to make her case and it is incumbent on her to present evidence to support her claim. Failure to do so is to her detriment.

9The respondent also submits that the applicant should be barred from proceeding with her claim because she failed to attend an insurer’s examination (“IE”). The applicant submits that the MIG is not a standalone issue that can be referred to an IE. As I note in this decision, however, the applicant has failed to meet her onus of establishing that she sustained anything other than a minor injury.

10The applicant argues that she did not attend the requested s.44 IE in response to Intact’s denial of the OCF-18 in question on June 7, 2018, because it was requested for the sole purpose of addressing the applicability of the MIG. According to the applicant, there is no provision in the Schedule that permits an IE under s.44 for that purpose only.

11The respondent argues that a s.44 IE was scheduled for the applicant because of a lack of medical evidence that would support a more serious impairment. The applicant has not attended any IE to date. As a result of that, the respondent argues that a negative inference should be made from the applicant’s failure to attend the s.44 IE.

12I find that the respondent’s request for a s.44 IE was not made for the sole purpose of addressing the applicability of the MIG. I do agree with the applicant that the MIG, in and of itself, is not a singular benefit. But the services recommended as part of the OCF-18 in question are part of medical/rehab benefits available to an insured individual through the Schedule.

ANALYSIS

Did the Applicant suffer predominantly minor injuries?

13The applicant submits that the impairments she sustained as a result of the accident warrant treatment beyond the MIG due to the ongoing impact on her daily life. For reasons that follow, I find that she has not established that her accident-related impairments warrant treatment beyond the MIG.

14Section 18(1) of the Schedule sets out that medical and rehabilitation benefits are limited to $3,500.00 if the insured person sustains an impairment that is predominantly minor 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.”

15An insured person may successfully be removed from the MIG if they can establish that their accident-related injuries fall outside of the MIG or, pursuant to s. 18(2), that they have a documented pre-existing injury or condition combined with compelling medical evidence stating that the condition prevents recovery if they are kept within the MIG. The Tribunal has also determined that chronic pain with functional impairment or a diagnosed psychological condition may justify removal from the MIG.

16The applicant bears the onus of establishing entitlement to coverage beyond the $3,500.00 limit for minor injuries on a balance of probabilities.

17In support of her claim, the applicant relies on the following documents and supporting arguments: clinical notes and records from [Hospital] dated the day of the accident (noting that the applicant appeared to be in pain and complained of left shoulder pain), an MRI of the neck dated October 25, 2017 (ordered because of neck pain/intermittent dizziness, and showed a reversal of the normal cervical lordotic curve), a neurological report dated November 3, 2017 by [Doctor] (who recommended physiotherapy treatment), clinical notes and records from [treatment provider] (showing that the applicant was complaining of memory issues, dizziness, and blurry vision), and school records from [school] (showing that the applicant was off school due to a concussion, as per a medical note, for 23 days immediately following the accident).

18The respondent submits that the applicant’s injuries are soft tissue injuries in nature and fall within the definition of minor injuries under the Schedule. The hospital records from [Hospital] illustrate that the applicant sustained some muscular pain in the upper back and no head injury. The records also reveal that the applicant was ambulatory at the hospital and was discharged with recommendation to take Advil. The neurological assessment report from [Doctor], who has been the only specialist consulted by the applicant, also confirms that the applicant did not hit her head or suffer any loss of consciousness as a result of the accident. [Doctor] also commented that the applicant had not had any headaches for 7 to 10 days, she did not have any symptoms of a concussion, and she was asymptomatic apart from some mild neck pain.

19The respondent submits that the applicant has not provided any additional expert reports, assessments, or clinical notes from her family doctor that might have provided additional insight as to whether the applicant sustained a ‘minor injury’ as a result of the accident.

20[Doctor] assessed the applicant and diagnosed a predominantly minor injury. As the applicant’s treating neurologist, [doctor] commented the applicant’s neck pain as mild, there was no cervical ligamentous injury on MRI, the neurological examination findings were unremarkable, physiotherapy was her only treatment recommendation, and there was no indication that neurological follow-up was required. I have placed significant weight on this report, based on the fact that it was completed by the applicant’s treating neurologist whom she was referred to by her own pediatrician.

21The applicant bears the onus to establish that it is more likely than not that her injuries were not predominantly minor. Based on the evidence on file, I find that there is little to support that her injuries are not predominantly minor, and require the treatment beyond limits of the MIG. The applicant has not shown that she sustained an injury that is not included in the MIG. She has not been diagnosed with a concussion or head injury. She has not consulted with any physical or mental health specialists apart from [doctor]

22In consideration for the totality of evidence presented, I have concluded that the applicant suffered predominantly minor injuries as a result of her motor vehicle accident. Next, I will consider whether the applicant was entitled to the proposed treatment in question.

The Treatment Plan Dated May 27, 2018

23This treatment plan proposes chiropractic treatment beyond the $3,500.00 funding limit provided for minor injuries. The respondent submits that it has approved funding up to the limits provided by the MIG and the applicant did not contest this fact in reply submissions. Having found that the applicant sustained a minor injury and her treatment has been approved up to the MIG funding limit, it follows that she is not entitled to any further treatment and assessment plans.

24The applicant is not statutorily entitled to the disputed treatment plan. Pursuant to s.38 of the Schedule, the respondent must provide the medical and all other reasons why it will or will not fund the treatment sought by the applicant. Pursuant to s. 38(10), the respondent must also advise the applicant that the MIG applies.

25In Hedley v. Aviva Insurance, 2019 ONSC 5318, boilerplate medical reasons for denials of treatment plans submitted under the Schedule were found to be insufficient. Denial letters from insurer’s are required to contain a meaningful and principled rationale based fairly on the insured’s file.

26I find that the respondent’s reasons for denial were adequate and compliant with the Schedule. The denial letters dated Jun 7 and July 4, 2018 defined minor injuries according to the Schedule, explained how the substantiating medical evidence on file was lacking, and provided rationale for an insurer’s examination. I find this to have been an adequate explanation. It was clear that the purpose of the IE assessment was to determine the reasonableness and necessity of the proposed treatment, and to assess whether the applicant’s injuries were minor in nature. The proposed treatment was also beyond the previously approved $3,500 coverage limit for individuals who have sustained minor injuries.

INTEREST

27As there are no benefits owing, no interest is payable.

AWARD

28As no benefits are payable, the respondent cannot be found to have unreasonably withheld or delayed payment of benefits pursuant to s. 10 of Regulation 664. As such, no award is payable.

ORDER

29The application is dismissed, and I find the following:

i. The applicant sustained a minor injury as defined in s. 3 of the Schedule.

ii. The applicant is not entitled to the disputed treatment plan because it proposes treatment that exceeds the $3,500.00 funding limit provided for minor injuries.

iii. No interest or award is payable.